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Real Estate Law

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Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this item of real property, buildings or housing in general. Real estate law governs who may own and use the land.

Real property consists of:

  • Land;
  • Anything affixed and regarded as a permanent part of the land;
  • That which is incidental or appurtenant to the land; and
  • That which is immovable by law.

Land

Land includes the soil, rock, and other substances that compose the material of the earth. It also includes space. Not just the space on the surface of the earth, but also the space beneath it to the center of the earth and the space above it to the top of the sky.

The courts have recognized a public right to the use of airspace above private land as a “highway” available to all so long as such use does not unreasonably interfere with the landowner’s enjoyment of the property. The courts also recognize the fluid and “fugitive” or moving nature of subsurface oil and gas. The right of the landowner to drill vertically into his or her land for the purpose of capturing these substances is a valuable part of what is included in the ownership of land, but this does not include any right to drill slantwise under a neighbor’s land for this purpose.


Things Affixed to Land

These include buildings, bridges and trees, as well as anything that is affixed to them (e.g., the doors of a building, permanently installed cabinets, or built-in appliances).


Incidental or Appurtenant to the Land

This form of real property includes anything which is by right used with the land for its benefit.

Examples are watercourses or easements/rights of way over adjoining lands and even passages for light, air, or heat from or across the land of another. Another example is stock in a mutual water company. When such stock is “appurtenant to the land,” ownership of the stock may not be transferred unless the land is transferred with it.


Crops

A tenant’s crops, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under a contract of sale, are treated as goods.

What Do Real Estate Lawyers Do?

A real estate lawyer is primarily involved in transactional work, most often drafting, negotiating and closing transactions facilitating the business of real estate, including: (i) selling, buying, and leasing land, buildings, housing, natural resources of the land (crops, minerals, water) or any other interests in real estate; (ii) development and use of property and managing the state and local approval processes; and (iii) financing large development projects and working with REITS (Real Estate Investment Trusts), companies that own or finance income-producing real estate. Real estate lawyers also spend much of their time counseling clients about these matters.

Due diligence investigations are also a large part of the work done by a real estate lawyer. These due diligence investigations can include: review of the physical details of the property and can include an environmental investigation (to ensure there is no contamination), review the leases of any tenants at the property, and review of the title to make sure the seller actually owns the property and there are no easements, mortgages or other liens on the property, including tax liens.

When real estate disputes arise, real estate lawyers will represent their clients in court. Such litigation might concern breach of contract, zoning compliance, construction defect, foreclosure, homeowners associations, or boundary disputes, among other issues.


Real Estate Contracts require:

Mutual assent, both parties agree

In writing, a contract for purchase and sale of real estate must be in writing to be enforceable.

Identify the parties, include full names and middle initials.

Identify the property, the legal description should be defined.

Purchase price, the contract must state the purchase price of the property.

Consideration, the benefit, interest or value that is the promise.

Signatures, contract must signed to be enforceable.

Landlord–tenant law

Landlord–tenant law is a part of the common law that details the rights and duties of landlords and tenants. It includes elements of both real property law (specifically conveyances) and contract law.

Whether you are a landlord, or a tenant, there are several things to consider. The basics of renting out a place, how to collect or pay security deposits, the basics of fair housing laws, and more is information you need whether you are buying or selling. A landlord may need to know how to evict a non-paying tenant. Tenant safety, the return of security deposits, and whether they can sublet might be issues for tenants.


Landlord duties
Duty to deliver possession, the landlord has a duty to deliver possession to the tenant at the beginning of a lease.
Covenant of quiet enjoyment, the landlord will not interfere with the tenant's possessory rights to the lease.
Implied warranty of habitability, a landlord must provide shelter free of serious defects which might harm health or safety.


Tenant remedies
Landlord–tenant law also includes protections for tenants:
Constructive eviction, a constructive eviction means that the tenant is no longer able to occupy the lease, but that the tenant was not physically evicted by the landlord.
Breach of covenant, leases include dependent covenants - if the landlord fails to perform their duties, the tenant will be relieved of paying rent.
Retaliatory eviction, a landlord cannot evict a tenant in retaliation for reporting health and safety code violations.
Money damages, some states allow for the tenant to recover money damages if the landlord breaks the state statutes or administrative codes.


Tenant duties
Duty to preserve the premises, most statutes require the premises to be returned to the landlord in the same condition that it was in when they moved in.
Duty to operate, this means that a commercial tenant cannot leave a rented property vacant without operating the business for which the lease was made.
Duty to pay rent, a tenant's duty to pay rent.


Landlord remedies
Monetary damages, landlords can also recover monetary damages for unpaid rent, and the methods of obtaining the rent and the amount that can be obtained are dictated by state statutes.
Eviction, a landlord may commence an action through the courts to evict a tenant.

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Some of the content is from Georgetown Law and wikipedia.org.