Encroachments, Tree Issues, Walls and Fence Disputes
Boundary issues can also relate to encroachments, tree disputes, and the location of walls and fences. Whether your business or real estate dispute is destined to settle or go to trial, your lawyer needs to be aggressive, creative, and have the requisite knowledge to advance your goals and protect your interests, all while keeping an eye on cost. They are often engaged to handle:
- Fences straying from boundary lines onto city property or adjoining property
- Overuse of shared resources
- Impacts on other property owners’ land
- Builders or homeowners building too close to property lines
- Overgrown trees and landscaping spread
- Encroaching driveways, patios, and overhangs
- Neighbors using adjoining property owners’ land or right of way
Drainage Disputes Between Adjoining Property Owners
Natural water flow is typically from small local creeks, brooks, springs or during rain events where the resultant stormwater drainage can cause problems that can range from minor aggravations due to wet soil to costly, major headaches such as home flooding, mudflows, foundation damage from hydraulic pressure and the partial or complete undermining of foundations.
Local government regulations regarding water flow/drainage from one property to another are quite rare, especially in non-incorporated, county, or rural areas. Therefore, water flow/drainage issues are normally governed by common law principles. In legal speak, the “dominant estate” (or dominant property) is the property at the higher elevation, from which water flows. The “servient estate” (or servient property) is the property with the lower elevation, onto which water flows.
f water flow exists in its natural state, the owner of the property at the higher elevation has the right for that water to flow from their property onto all properties having lower elevations pursuant to the natural flow. That is, so long as water is flowing off the higher property at the natural flow (i.e., the speed, frequency, intensity and path of the water has not been changed from its natural condition).
Moreover, the owners of the lower properties upon which water naturally flows cannot change that water flow to the detriment of the owner of the higher property. In other words, properties at a lower elevation must continue to “accept” water that flows naturally from properties located at higher elevations. If the owner of a lower property attempts to stop, alter, or impede such water flow and such alteration causes damage or injury to the higher property (for example, stormwater is backed up onto the higher property, which did not occur before), the owner of the lower property could be held liable for money damages or subject to a cease and desist order from a court.
Conversely, the reverse of this common law rule is the mandate that the owner of the higher property may not change the conditions on their land in such a fashion as to increase the burden of the water flows onto the lower properties. That is, the owner of the higher property cannot – by development or other alteration of the land – increase the amount, frequency, intensity, or speed of water flow onto the lower properties in such a fashion as to injure or damage the lower properties. If the owner of a higher property alters water flow onto a lower property in such a fashion as to cause injury or damage, the owner of the higher property can be liable for monetary damages or be subject to a cease and desist order or an injunction from a court.
Upshot – In summary, anyone who alters the natural water flow or stormwater drainage can potentially be liable for damages or be required by a court to put the land back the way it was before the alteration.
Exception is Drainage Easement by Prescription
One exception to this common law rule involves drainage easements by prescription. If someone has altered the natural water drainage and such alteration occurs or is tolerated for 15 years or longer, the property owner claiming damage could lose their claims. In that case, the property owner who altered the drainage for 15 years or longer may, in certain cases, obtain a drainage easement by prescription. If that occurs, the altered drainage which has occurred for more than 15 years essentially becomes the new natural water course.
Water Flow or Drainage Dispute?
What can a property owner do if it is believed that the neighboring property has been altered in such a fashion so as to adversely affect drainage onto their property? If you consult with Real Estate Lawyers she will likely suggest it is usually beneficial to all parties involved to attempt to resolve drainage problems out of court without resulting to litigation. They would likely suggest that you have us present your case to the neighbor by letter or in a meeting to attempt to have the drainage issue resolved amicably. If the neighbor is resistant or unwilling to remedy the situation, the affected property owner will normally have to file a civil lawsuit for damages or injunctive relief. Lawyers are sensitive to the cost of litigation and use litigation only as a last resort due to the expense, time and negative emotions involved.
Breach of Real Estate Contract
A real estate purchase agreement or contract of sale contains many terms and conditions of sale. If the buyer or seller fails to comply with the terms or conditions, such as the seller failing to provide clear title to the property, that party is said to have breached or defaulted on the sales agreement, and the other party may have a legal claim against the breaching party.
If one of the parties fails to meet a contingency of the contract, such as the buyer failing to obtain financing, the parties will be released from the contract. If there is a dispute between the parties, they must use the dispute resolution process that is detailed in the contract, which may require the parties to resolve the dispute without going to court.
Terms and Conditions
Purchase agreements and contracts of sale contain many terms and conditions that the parties have agreed to meet, such as:
- The purchase price
- The date the sale will be finalized – or “closed“
- The date the buyer will move in
- Items to be included in the sale, such as lighting fixtures, appliances, etc.
- Items not included in the sale
- A legal description of the property
- A guarantee to the buyer that the seller will provide clear title to the home, through an abstract of title, certificate of title or a title insurance policy
- A provision that the seller is responsible for paying house-related expenses up to the closing date
If either party who is responsible for complying with the specific term or condition fails to comply, that party has breached or defaulted on the contract. For example, if the seller fails to provide an abstract of title showing clear title to the property, the seller has breached the agreement. Similarly, if the seller takes lighting fixtures which he had agreed to leave attached to the property, the seller has also breached the agreement. The buyer can agree to a modification of the contract as to the title or the lighting fixtures and the price, or the buyer can offer to perform under the contract and then file a claim against the seller for breach of contract.
If the parties cannot agree on how to resolve the matter, the parties must use the dispute resolution process if one has been included in the contract.
Typically in Real Estate Sales Contracts, this is arbitration, mediation or small claims court. These specified methods for resolving disputes are usually less costly and more efficient than filing a traditional lawsuit. The parties submit the matter to the arbitrator, mediator, or judge, and that person decides which party breached the contract. Sales contracts often provide for liquidated damages if one party or the other breaches the contract. That means that the sales contract provides that should there be a breach of contract, the damages to the party not in breach of contract will be for a set amount of money, which is often the amount of the buyer’s deposit or earnest money.
Failure to Disclose
Failure to disclose important facts in real estate transactions, including both purchases and leases, can cause major financial losses for trusting buyers and tenants. An important fact is any information that could potentially affect the sales price or the long-term value of a property. Real Estate Attorneys are aggressive in protecting the rights of people who have suffered financial losses (actual or paper) as a result of failure to disclose facts, fraud, false statements, negligence, misrepresentations, factual or or physical concealments.
You may have been told that you have “no case,” as you should know the axiom” “Buyer Beware.” You have been misled. Frankly, even if the property is sold to you “as is,” you have legitimate rights and legal options to recover your losses if you have been the victim of the seller, real estate agent, realtor, landlord or lender. It is imperative that you act quickly and consult a skilled and experienced Real Estate Attorney who will represent your interests to recover what is owed you.
Real Estate Lawyers have years of experience standing up for the interests of individuals and businesses who might be defrauded in these complex cases. Mr. Williams can help misled and defrauded buyers and lessors recover any costs of repairs, or the financial losses that amount to the difference in what was paid for the property to what it would have actually been worth had the true and actual conditions of the property been disclosed as is expected in honest real estate transactions. Additionally, they are often able to collect attorneys’ fees, punitive damages, and damages for emotional distress.
Misrepresentation, Concealment & Fraud
a property is a significant event for most individuals and businesses. What is supposed to be a new opportunity, free of disappointments, can go off the rails if facts surface during escrow or following the recent close of escrow and transfer of title that point to misrepresentation, concealment of material facts, or fraud.
Concealment & Fraud in a residential or commercial Real Estate Transaction – usually occurs when there is a material misrepresentation of facts that would impact the value or saleability of the property and is evidence of a breach of fiduciary responsibility by the real estate agent or the agent’s real estate broker employer. Most claims of misrepresentation and fraud focus on the seller’s non-disclosure of pertinent facts or a real estate agent that breaches his or her fiduciary duty.
Seller’s Duty to Disclose in Real Estate Sales Transactions
Real estate brokers and agents know that state law imposes stringent duties of disclosure on sellers of real property: especially in regard to the sale of residential property.
Sellers of residential real estate have a duty – to disclose all known material defects in the physical property, any defects in the title to the property, or any other material fact that could affect the value –OR– affect a buyer’s decision-making process. Whether a fact is material and should be disclosed is based SOLELY on the buyer’s point of view. That puts the burden on the seller and seller’s agency to be exceedingly transparent or be in violation of the law. If an undisclosed fact would affect the value or desirability of the property, or in any way would affect the buyer’s decision to buy or not, or affect at what price the buyer would buy or not buy the property, then the fact is material and must be disclosed to the buyer.
Transfer Disclosure Statement
Every residential Real Estate sale transaction includes a statutory Transfer Disclosure Statement form that the seller must provide certain information regarding the physical condition of the property including:
- identify the specific fixtures, appliances, improvements, and features of the property, and whether they are operable;
- disclose any defects or malfunctions of the physical improvements; and
- additions, structural modifications, or other alterations or repairs made without necessary permits or which are not in compliance with building codes,
- any fill (compacted or otherwise) on the property;
- any settling from any cause, or slippage, sliding, or other soil problems;
- any flooding, drainage or grading problems; or
- any major damage to the property or any of the structures from fire, earthquake, floods, or landslides.
Quiet Title Actions & Clouded Title
Quiet Title – is a lawsuit filed to establish ownership of real property (land and buildings affixed to land). The plaintiff in a quiet title action is seeking a court order that prevents the respondent from making any subsequent claim to the property. Quiet title actions are necessary because real estate may change hands often, and it is not always easy to determine who has title to the property.
Clouded Title – A quiet title lawsuit is also called a suit to remove a cloud. A cloud is any claim or potential claim to ownership of the property. The cloud can be a claim of full ownership of the property or a claim of partial ownership, such as a lien in an amount that does not exceed the value of the property. A title to real property is clouded if the plaintiff, as the buyer or recipient of real estate, might have to defend his or her full ownership of the property in court against some party in the future. A landowner may bring a quiet title action regardless of whether the respondent is asserting a present right to gain possession of the premises.
Example of a Clouded Title
For example, assume that JOE, the seller of a property agreed to sell a property to MARY but JOE then passed away before the sale was finalized. Assume further that JOE, the seller, also gave the property to a life-long friend in his will. This is not uncommon! JOE may have reconsidered giving away the property as money was needed for an unexpected problem, and since the lifelong friend really was never informed by JOE that JOE was going to will the friend the property, JOE figures that he will not be hurting his friend’s feelings. JOE fully intends to have his will altered when he gets around to it. Unfortunately for everyone, (mostly JOE), JOE passes away and never had the opportunity to modify his will as planned. In such a situation, both the lifelong friend and the buyer have valid grounds for filing a suit to quiet title because each has a valid claim to the property.
Quiet Title Proof Requirements
A plaintiff seeking to quiet title against a person with legal title to property has the burden of proving title by clear and convincing proof, rather than by the preponderance of evidence usually used in civil cases.
The general rule in a quiet title action is that the plaintiff may succeed only on the strength of his own claim to the real estate, and not on the weakness of the respondent’s claim. The plaintiff bears the burden of proving that he owns the title to the property. A plaintiff may have less than a fee simple, or less than full ownership, and maintain an action to quiet title. So long as the plaintiff’s interest is valid and the respondent’s interest is not, the plaintiff will succeed in removing the cloud (the respondent’s claim) from the title to the property.
Advocating for Plaintiffs and Defendants in Quiet Title Claims
To schedule a consultation regarding a quiet title action with a Real Estate Attorney, contact us for an appointment. They welcome inquiries from either plaintiffs or defendants in quiet title claims.
Assisting Owners, Lien Holders, Private Lenders in Title Disputes
They advocate on behalf of owners, lien holders, and private lenders in the clouded title and title disputes who seek court judgments validating that they are rightful property owners of a particular piece of real estate. Conversely, they also represent opponents in quiet title actions.
Detailed Investigations Prove Validity of Quiet Title Claims
For a quiet title action, they are prepared to undertake a detailed investigation to prove the validity of the quiet title claims. They are dedicated attorneys working steadfastly for our clients.
Construction Disputes and Litigation
Construction disputes can be very costly to everyone involved, including contractors, subcontractors, and building owners. Construction clients need practical, cost-effective solutions to their legal problems. Contractors and other building professionals do not want their projects to be bogged down by delays caused by lengthy litigation.
Lawyers have extensive experience representing plaintiffs and defendants in a wide variety of construction claims, including:
- Disputes between general contractors and clients
- Disputes between contractors and subcontractors
- Recording mechanics liens
- Expunging mechanics liens
- Homeowner association disputes
- Issues such as cracked foundations, water damage, and mold
Save Time, Money & Stress: Work Toward a Resolution
It is in your best interest to resolve your case at an early stage – and this is our first approach. Having legal representation is often sufficient to have the other side sit up, pay attention and decide to work out areas of conflict. Most often, they are able to convey your case in such a manner as to work out an amicable situation out of court.