Seattle Real Estate Attorneys
Dickson Frohlich is Seattle and Tacoma’s preeminent real estate, business, and probate law firm. With over 100 years of combined experience, we have established a strong reputation for providing superior service in real estate law.
Our team of real estate attorneys is led by founding partner Thomas L. Dickson. Collectively, we have represented clients in their real estate matters for over 100 years. Our real estate attorneys represent a broad base of local clients in diverse and challenging real estate matters, including loan modification and short sale.
Seattle Real Estate Disputes
Dickson Frohlich assists buyers and sellers of commercial and residential property in real estate disputes throughout the Seattle area. From developers to mortgage lenders to homeowner associations, our team of litigators is ready to serve your legal needs. Our real estate dispute and mediation experience include the following:
- Commercial Tenancy Matters – There is no single standard commercial lease. Disputes may arise from any number of issues, ranging from the amount of security deposit charged, to common maintenance responsibilities, to the right of habitability.
- Easements and Boundary Disputes – Property owners often believe they know where their property lines really are or believe that their access rights are secure. Only if you or the owner of a neighboring property performs a land survey can you be 100% sure about your property boundaries. Land surveys may result in easements or boundary disputes.
- Quiet Title Actions – Filed to establish ownership of real estate property, quiet title actions can be messy affairs. These disputes arise from properties that have changed ownership several times.
- Real Estate Commission Disputes – Real estate commission disputes may arise from an agent or broker’s inability to collect fees, due to lack of proper documentation or ambiguous terms during the sale
- Title Insurance Disputes – Title insurance protects against title search errors, undiscovered title defects, and losses that arise from disputes over property ownership once the property has been purchased. Most title problems arise through the rejection of the title by the buyer’s lender. When this happens, quick action is needed to find a mutually agreeable solution.
Meet our Real Estate Law Team
Our real estate practice group is recognized as one of Seattle’s real estate law specialists. If you need high quality, cost-effective service, and innovative legal solutions, count on Dickson Frohlich. Something that differentiates Dickson Frohlich as a firm, is our approach to handling, what are often, complicated or unpredictable real estate law disputes. Rather than resort to litigation as a first course of action, our real estate attorneys will explore other options to resolve the real estate law issue. As is the case in life, there are often creative ways to resolve disagreements. The real estate lawyers at Dickson Frohlich have a depth of experience in settling real estate disputes quickly and fairly (and typically to the advantage of those we represent).
Additional Practice Areas
We also have the following practice areas in real estate law:
- Real Estate Litigation, Mediation, Arbitration
- Real Estate Contract Drafting and Review for Commercial Properties
- Eminent Domain
- Legal Disputes with Local Governments & Municipalities
- Disputes with Banking Institutions regarding a Property
- Purchase or Sale of Residential and Commercial Property (including contract review)
- Lien Claims
- Eviction Proceedings
- Foreclosure Defense and Proceedings
- Homeowner Association Disputes and Creation
- Neighbor Disputes
- Landlord/Tenant Problems
- Condo Conversions
- Lease Review and Drafting
- Real Estate Projects
- CC&R Disputes or CC&R Creation
- Easement Creation and Disputes
- Trustee Services for Property Owners
- Real Estate Brokerage Business Contract Issues
- Buying A Home Without A Real Estate Agent
- Selling A Home Without A Real Estate Agent
Understanding the Differences Between Real Property and Personal Property
Real Property Defined
When speaking of property, it is important to distinguish what type of property we are talking about. Generally speaking, property falls into one of two categories: real property, which may alternatively be referred to as real estate or realty, and personal property. Real property is what you might expect–land and improvements to the land. In its most broad sense, land encompasses any soil, ground, or earth. This may include fields, pastures, rivers, trees, bushes, marshes, or any other natural feature connected to or part of the ground.
Real property is not mere earth alone, however. Commonly, real properties contain structures on them, called improvements. Improvements are roughly defined as any permanent structure, building, or work on a property that increases the property’s value. These are not natural features of the land; they are created on or brought to the land by labor. Examples of structures or buildings under the legal definition of improvements include homes, detached garages, barns, factories, sheds, chicken coops, grain elevators, churches, strip malls, and radio towers. Work on the property under the definition of improvements may include things such as planted trees or crops, fences, canals, or man-made ponds. Fixtures are also a form of improvement–more on that later.
Personal Property Distinguished
Personal property, as distinguished from real property, is broadly defined as all property other than real property. Some obvious examples of personal property include books, cars, jewelry, computers, furniture, stamp collections, cell phones, and heirloom doilies. (Even currency–dollars–is considered personal property.) These types of personal property fall within the category of tangible personal property, as distinguished from intangible property. Intangible property includes intellectual property, such as patents and copyrights, corporate stock, and even things as nebulous as reputation or brand identity.
Most of the time, distinguishing between real and personal property is straightforward. However, there is ambiguity between the two where personal property gets attached to, essentially becoming a permanent part of real property. This type of property is referred to as a fixture. Fixtures include things like lights, stoves, certain appliances, water faucets, or fireplaces. These items do not become part of the real estate until they have been irremovably attached to the property by labor, satisfying a three-part legal test.
By way of example, a brick you bought at Home Depot sitting in the bed of the truck parked in your driveway is personal property. But as soon as the brick is laid in the construction of the fireplace in that same living room, the brick becomes a fixture of the real property and loses its identity as a separate item of personal property. The practical implication of this is that once the personal property becomes part of the real property as a fixture, it may no longer be removed from the real property without causing damage, in a legal sense, to that property.
While all of this may seem a little complicated, the ability to properly categorize property is essential element in most areas of law, particularly within our law firm’s specialties, real estate, construction, business, probate, and family law. Seattle real estate attorneys, such as those at Dickson Frohlich, PS, are trained to understand the idiosyncrasies of real estate law. Thus, even though a real estate lawyer, technically, has experience in real estate law matters, he or she should have a strong understanding of the various differences in the character and nature of the property as a whole.
Seller Liability to Buyer in Real Estate Transactions
Seller liability in the sale of real estate (Merger Doctrine)
In the majority of contractual relationships, there is one written document that comprises the entire agreement. Real estate transactions are different, as they typically involve an initial “purchase and sale agreement” which is followed by the eventual transfer to title (i.e. the deed). The purchase and sale agreement outlines how the parties intend to transfer title to the property. This agreement has a short lifespan, lasting only until the closing of the transaction and associated title transfer.
The merger doctrine developed over time developed to help parties understand how to treat the initial purchase and sale agreement obligations compared the eventual terms and obligations contained in the deed (typically a statutory warranty deed). The merger doctrine essentially provides that when the deed is executed, delivered, and accepted, it becomes the final expression of the parties’ contractual relationship and “subsumes all prior agreements.” Barber v. Peringer, 75 Wn. App. 248, 877 P.2d 223 (1994) (attorney’s fee provision was merged into deed); Failes v. Lichten, 109 Wn. App. 550, 37 P.3d 301 (2001) (discussing anti-merger clause).
There are exceptions to the merger doctrine, but they are rare. Specifically, an exception only exists, when there are “collateral contract requirements” not contained in, or performed by, the execution and delivery of the deed. Id. These requirements cannot be inconsistent with the deed, and essentially are “independent” of the obligation that the selling party has of conveying title. Id. In addition, the merger doctrine does not preempt potential collateral legal claims that would stand independently from the contractual relationship (such as fraud).
Conceptually, the merger doctrine paints the purchase and sale agreement as a temporary arrangement between the parties, designed to eventually lead to the creation and transfer of a deed from the seller to the buyer. (Like scaffolding erected around a structure, once the construction is complete, the scaffolding is removed, and the underlying structure is left standing on its own.)
Seller disclosure statements (RCW 64.06.020)
In Washington state, sellers issue specific disclosures about the condition of the property being sold. (These are often referred to as “Form 17” disclosures, which refers to the Northwest MLS forms which have become used universally throughout the state.) Often, even though the buyer satisfies all the necessary and relevant disclosures regarding the condition of the property (in his “seller’s disclosure” statement), the buyer later uncovers an issue. Especially when the issue is significantly costly to repair, the buyer will often assume that the purchase and sale agreement was breached, and demand that the seller contributes monetarily to the remediation or repair of what is damaged or broken. However, the seller in those instances is likely not legally responsible.
There are several reasons for this liability limitation, chief among them being the terms, conditions, and especially contingencies, of the purchase and sale agreement. As long as the seller did not knowingly mislead or conceal a material issue with the property, it is unlikely that he is going to be liable. The seller will likely be able to point to these terms of the purchase and sale agreement as a defense (not to mention the merger doctrine). Unless stated otherwise, a seller of real property does not implicitly establish warranties regarding the condition of the property. Any such warranties must be unambiguously spelled out to the buyer. Specifically, for a seller to be held responsible for issues with real estate after its having been sold, there must be some other instrument outside, of the purchase and sale agreement to create that liability.
Furthermore, the statutes at present, provide a significant level of protection to the seller of real estate as it relates to “errors or omissions” in the disclosure statement. According to RCW 64.06.050, the seller is only found liable if there was actual knowledge of the problem, and the seller wasn’t entitled to rely on the “statements of professionals.” Also, the recourses are limited from a buyer’s perspective: first, the buyer only has “three business days” from the receipt of the statement to accept the property and complete the sale or rescind the contract, second, the seller’s disclosure explicitly provides that it is NOT part of the underlying agreement between the parties (and by extension cannot be a basis for a breach of contract claim), and third, the seller disclosure essentially only provides a buyer the “right of rescission.” See RCW 64.06.070.
Easements: Express vs. Prescriptive
While in theory, holding title to real estate would preempt all other parties from using it without express permission. However, that is not entirely correct. An easement exists when a third-party has a non-possessory right to use your property. Easements are most frequently created through written agreements. However, often an easement is established for third parties such as utility companies, cable companies, and local municipalities. In short, while it is true that a property owner has title to his or her land, it is not without encumbrances.
There are four types of easements, two of which are extremely common (express and prescriptive easements), while the other two are rare (implied easements and easements by necessity). The most common easement, as stated above, is an express easement. Again, these are established through written agreements between parties. A common form of an express easement is that of a shared driveway. The scenario is simple to conceptualize: imagine one home built behind another, with the only way to reach the property is through a shared driveway located entirely on the property in front. An express easement for ingress and egress would provide a nonpossessory right for that property owner to traverse the portion of the driveway on his neighbor’s property in order to reach his home. Certainly, there are numerous other types of express easements, such as utility easements. However, even if the document is not generated to establish an easement, one can develop over time.
A prescriptive easement can form based entirely on the conduct of a trespassing party. Similar to adverse possession, if a party uses someone else’s property for over 10 years, and does so openly, without permission, and in a manner akin to the actual title holder, he may establish a permanent easement to continue that use. The initial entry of that individual onto another’s property would be classified as trespass. However, that same use, over time, may establish a permanent legal right. For example, suppose that for decades, your neighbor utilized a section of walking path that traversed a back portion of your property. Suppose that her use of the pathway was obvious and apparent, and you never issued approval or permission for her to do so. In fact, perhaps there is even a moment in time where you asked her not to, but she continued to do so anyway. Your neighbor may have established a permanent prescriptive easement to continue utilizing that pathway. Bear in mind that the creating of a prescriptive easement is wholly irrespective of the mindset of the recipient. It is irrelevant whether the trespassing party intended on establishing a permanent usage right, or whether she did so by accident. What matters to the law, is what the conduct actually was over the 10-year time frame.
Residential landlord-tenant law is governed by the RCW 59.18 in Washington State. This law is commonly referred to as the Residential Landlord-Tenant Act. Here at Dickson Frohlich, we represent both landlords and tenants throughout the Puget Sound area (Seattle and Tacoma, in particular). Given the difference in the respective positions of these individuals, there are specific legal duties you should know:
Duties of a landlord. Outlined in RCW 59.18.060, these duties generally include the following:
- Code compliance. Check for any applicable municipal or county codes, ordinances, or regulations associated with the rental premises, and generally maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation;
- Basic structural maintenance. Maintain roofs, floors, walls, chimneys, fireplaces, foundations, and all other structural components, in reasonably good repair;
- Common area maintenance. Keep any shared or common areas clean, sanitary, and free from defects;
- Pest control. Ensure that the property is free from pest infestation at the outset of the tenancy and control any infestation that occurs during the tenancy unless said infestation was caused by the tenants (unless the property is a single-family residence);
- Repairs to normal wear and tear. Arrange for repairs as necessary except where damage is attributable to normal wear and tear;
- Unit maintenance. Maintain all electrical, plumbing, heating, and other facilities and appliances supplied to tenants in reasonable working condition;
- Ensure the property is reasonably weathertight and provide adequate heat and water access (including hot water);
- Provide receptacles for garbage and removal of the same in multi-family units; and
- Follow notice procedures. Provide written notice regarding fire safety and protection, as directed in 59.18.060(12);
In the event that a landlord violates one or more of their duties, tenants have options. If a problem is encountered with the rental unit, tenants must first alert the landlord of the problem(s) via a written notice which describes the nature of the defect(s). In response, the landlord is obliged to begin remedial action as soon as possible and in compliance with the applicable time frames outlined in RCW 59.18.070(1)-(3). If a landlord fails to remedy the defect(s) within a reasonable time, tenants may be entitled to a portion of the rent owed/paid. Under certain circumstances, a tenant may be able to contract with a 3rd party to make necessary repairs and deduct the costs from rent owed to the landlord.
Duties of a tenant. Tenant obligations towards their rental unit are outlined in RCW 59.18.130. In general, these duties include the following:
- Code compliance. Check for any applicable municipal or county codes, ordinances, or regulations;
- Timely rental payments. Pay the correct amount of rent on or by the correct date, as indicated in the rental agreement;
- Unit upkeep. Keep the premises clean and sanitary, including proper disposal of garbage;
- Properly use and operate the fixtures and appliances supplied by the landlord;
- No unusual damage to the unit. Avoid intentional or negligent destruction, defacement, damage, impairment, or removal of the property (including fixtures, appliances, furniture, etc. supplied by the landlord) by any tenant or visitor of the same. (Note that this does not prohibit damage to the premises through normal wear and tear);
- No drug or gang activity. This is probably obvious, but a renter must avoid any illicit drug or gang-related activity on the premises;
- Smoke detectors. Renters are obligated to maintain smoke detectors in the unit (note that some local fire departments have Federally-funded programs to visit your property and help install smoke detectors. Check with your local municipality to see if you are eligible);
- Be safe. Avoid any hazardous activity that could harm others;
- Leave it how you found it. Upon vacation of the premises, restore them to the condition equivalent to when the tenant took possession of the same.
In the event that a tenant violates one or more of their duties, landlords may give written notice to the tenant outlining the nature of the violation(s) pursuant to RCW 59.18.180. A landlord is authorized to enter premises to perform necessary work to be done or can begin the eviction (unlawful detainer) process (note that some circumstances require serving written notice to vacate prior to commencing an unlawful detainer action while others do not).
It is important to note, that landlords often encounter pitfalls involving service of the unlawful detainer documentation (pleadings). Often as a result of the difficulties in performing service of the unlawful detainer documentation, the timing gets disrupted from a civil procedure standpoint. This has a lot to do with the differing notice requirements since they vary depending on the basis for issuing the notice to vacate. For instance, if a tenant is not paying rent, a landlord can issue a three-day notice to pay or vacate. It is important to note that it must be a notice to pay rent OR vacate within three days. This means that it is an either/or scenario and that the tenant can remedy the situation by either paying all past-due rent, together with any applicable fees OR by vacating the premises. If the tenant fails to do either of these things within three days, you may initiate unlawful detainer proceedings.
Another example of a written notice to vacate from a landlord to a tenant is the catch-all notice: the 20-day notice of termination of tenancy. This is an option that is available on any month-to-month residential lease agreement. This option does not require a for-cause reason to terminate tenancy; in other words, you may utilize this option for any reason (note that the city of Seattle has adopted more rigid rules that you must comply with). It is important to note that this 20-day notice does not operate the same way that the 3-day notice to pay rent or vacate does. Unlike the 3-day notice which allows a landlord to initiate an unlawful detainer action on the 4th day, a 20-day notice must be served at least 20 days prior to the end of the lease period (or 20 days prior to the end of the month), and unlawful detainer actions may be commenced after the end of said lease period. For example, if the landlord serves the 20-day termination of tenancy on the 3rd day of the month, a landlord cannot begin an unlawful detainer action on the 24th of the month – they must wait until the first day of the following month.
SERVICE. Tenant notification of the initiation of an eviction (unlawful detainer) process can be accomplished in one of three ways. (Note that following these notice procedures is tremendously important. If a landlord fails to follow the procedures exactly Washington courts will not execute the necessary orders to remove the tenant from the rental unit.)
These three methods of service are (1) personal service, (2) substitute service, and (3) posting and mailing.
- Personal Service. Hand a hard copy of the notice to each tenant.
- Substitute Service. Hand a hard copy of the notice for each tenant to either a tenant or someone else of suitable age, AND mail a copy of the notice to each tenant.
- Posting and Mailing. When no one is available to hand the documents to (assuming the person serving knocked and verified that no one was home), you may post the notices in a conspicuous place on the premises (one copy for each known tenant), AND mail a copy of the notice to each tenant.
In calculating the timing of the service, it is crucial to remember that the day of service does not count in the calculation and if you’re mailing notices, you must add an additional day to the calculation.
Here at Dickson Frohlich, we’ve litigated eviction (unlawful detainer) disputes involving virtually all forms of rental agreement breaches. Whether it is a simple failure to pay rent, to a more complicated breach involving the use of the property, we have literally seen it all. This is because of our firm’s unique focus on real estate litigation (especially in the Seattle and Tacoma area). Not only do we understand the intricacies of the law impacting landlords and tenants in Washington State, but by virtue of our collective experience, we can counsel with you regarding the strategic approach to dealing with a difficult rental issue.
Understanding water law
For most real estate attorneys in Seattle, water law is little understood, though it is a key component of residential planning, industry, and agriculture. It shapes communities, infrastructure, businesses, recreation, nature, and countless other parts of our lives and culture. For most people, water law is not at all intuitive. However, understanding the fundamentals of Washington State and the rest of the country’s water law schemes can be accomplished by learning the two primary water doctrines that underlie them. Seattle real estate attorneys must understand this body of law, given the proximity and impact water has on the area. The first and more traditional water law doctrine is the riparian doctrine, typically followed in water-rich states. The second water law doctrine is the prior appropriation doctrine, typically followed in dryer states.
Under the riparian doctrine, water is included as part of the land over which is lies or travels, rather than being owned by the government or any private individual. In a riparian state, landowners whose land adjoins a water source are permitted to take water from that source to use for any reasonable purpose. Reasonable purposes may include the right to erect docks, boat lifts, piers, or other structures; for domestic purposes, which is very broadly construed; and for access for recreational activities like swimming, boating or fishing. If there is water scarcity in a riparian jurisdiction, supply is allotted proportionally to each property’s frontage on the water source.
Under the prior appropriation doctrine, water rights are not connected to land ownership, but rather follow the principle of first-in-time. Under this principle, the first individual to make beneficial use of a water supply, whether for agricultural, industrial, or household use, gains a vested right to continue use of the same quantity. Subsequent users who make beneficial use of a water source similarly gain a vested right to continue use in that quantity so long as they do not impinge on the water rights and supply of the previous users. The first-in-time continues down the line, with each subsequent user acquiring rights subservient to previous users. The government oversees this scheme and users who wish to make a claim must petition the relevant administrative agency to do so. Real estate law firms in Seattle must be up to date on these schemes to assist their clients in navigating these difficult issues.
The prior appropriation doctrine has been criticized for failing to adapt to the changing needs of communities. For example, first-in-time may mean a farmer may have superior rights to water as first-in-time beneficial user and uses that right to divert large quantities of water to water crops, while subsequent-in-time urban or suburban developments may suffer from water shortages that affect a greater number of people or more productive industries (which, of course, is relative).
Generally speaking, eastern states enjoy more abundant water resources than do western states. If you look at the map below, obtained from the United States Department of Agriculture’s website you will notice the pervasion of green and yellow in the eastern states, representing moderate to high-moderate water supply. Whereas, the western states are predominantly orange and red, representing low to very-low water supply.
The Pacific coast of the Northwest is an exception to the rest of the western states, with green and plenty of blue, representing high-moderate to high water supply. Notwithstanding Western Washington’s abundance of water, its eastern area suffers from a low water supply, and the state as a whole follows the prior appropriation doctrine. Interestingly, Washington did not always exclusively follow the prior appropriation doctrine. Prior to 1917, the state used a mixed system of riparian and prior appropriation, which proved unwieldy, confusing, and at times convoluted.
However, in 1917, Washington passed the Water Code of 1917 which officially declared (1) all water belongs to the public, (2) prior appropriation will the exclusive method of claiming water rights, (3) administration and oversight of water rights will be centralized in a state administrative agency, and (4) a court system for adjudicating water use disputes will be established.
The Water Code of 1917 also codified the requirements to make a claim on water under the principles of prior appropriation: the use must not be beneficial (not wasteful), water must be available, the use may not impair any existing water rights, and the use may not be detrimental to the public interest. The Water Code of 1917 made the law uniform, streamlined, centralized, and gave people better mechanisms for establishing and contesting water rights. The Water Code of 1917 became the basis of Washington water law and still stands as the basis of our water laws and regulations today, 100 years later.
If you’re facing challenging legal issues involving water and your property, contact Dickson Frohlich, PS (a Seattle real estate law firm with) today.
Loan modification is the systematic alteration of mortgage loan agreements between the lender and the borrower. Loan modifications can be extremely beneficial to a borrower because a loan modification may decrease the interest rate, reduce some of the principal, cut back late fees or other penalties, or even lengthen the term of the mortgage loan.
While the loan modification process is often confusing and time-intensive, it doesn’t have to be that way.
Dickson Frohlich provides professional legal assistance to clients in the Seattle and Tacoma area in their individual loan modification matters and has worked extensively with lenders across the nation.
If you are a distressed homeowner, struggling to make your monthly mortgage payments and afraid to lose your property, learn more about our loan modification services.
One of the most painful economic hits an American family can experience is watching the value of their home fall so low that it is worth less than their original purchase price. In this difficult scenario, a family may have to enter the financially damaging process of foreclosure.
Fortunately, there is another option. From a lender’s perspective, it is better to recover a portion of a mortgage loan than to absorb a total loss. This is good news for the homeowners, who may avoid a foreclosure and its negative effects on their credit score. In lieu of a foreclosure, banks will often settle for a short sale. This allows both the lender and the homeowner to end up in a better position.
At Dickson Frohlich, our attorneys have experience in negotiating short sale agreements that benefit both parties. Learn more about our short sale assistance services.
Call now for a free 15-minute phone consultation at:
(253) 572-1000 in Tacoma
(206) 621-1110 in Seattle
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