Common Real Estate Law Issues (and What to Do About Them)
Our Tacoma real estate attorneys can address the full spectrum of real estate issues that individuals typically face. Notwithstanding the breadth of our attorneys’ experience, the majority of real estate issues tend to involve four general property-related subcategories: easements, adverse possession (or trespass), transactions (including partition actions), and landlord-tenant issues. Resolving these issues not only requires a deep understanding of the law; we also need to investigate the situation to find the facts, because they drive how the law is applied.
The following paragraphs are intended to discuss the most common questions and concerns we receive from new clients. We hope this information will prove helpful as you deal with your specific real estate needs:
Commonly, a potential client will contact our office and describe how a neighbor is frequently traversing a section of the potential client’s property. Though not always, the neighbor’s intrusion onto the potential client’s property may be for the purpose of accessing his or her own property. What’s more, this trespass is often associated with a pre-existing drive or roadway which the potential client utilizes as well. The broader question is thus: What rights does the potential client have regarding this apparent trespass onto his property?
An easement is simply this: a non-possessory right to use another party’s property. The context of the aforementioned easement will shape what rights the property owners have. There are four, legally-recognized easements in Washington law: express easements, prescriptive easements, implied easements, and necessary easements. The strongest, and most common of the four, is the express easement. An express easement is written and recorded in the county where the property in question is located. It, therefore, essentially becomes part of the title of the property impacted by the express easement. The second-most common version is a prescriptive easement. This easement comes into being through the use of property over time. Similar to adverse possession, if an individual utilizes another person’s property for a period of at least ten years and does so without permission (either direct or implied), then that individual’s right to use the property becomes vested.
By far, the most common way a real estate attorney will assist a client in transferring title is through the typical purchase and sale process. However, did you know that title to real property can actually change hands simply by somebody’s trespassing upon it? Of course, there’s more to it than simple trespass; but, overall, the law recognizes that title to real estate can shift from the original owner (who holds title, via a deed) to a new owner who simply possesses the property for a long period of time. (In Washington state, that period of time is typically 10 years.)
This occurs by virtue of the legal doctrine known as adverse possession. Here’s how it works: If someone possesses somebody else’s property openly, continuously, actually (meaning using it in a manner that a typical owner would) , exclusively, and without permission from the actual title holder, and does so for a period of at least 10 years, then that person is legally the new owner. This is true even if a document manifesting the change in legal ownership is not created at that moment. Thus, while the boundary lines are important, a real estate lawyer knows that the use of the property may supersede them.
Partition of Real Estate
A common issue presented to real estate attorneys (especially in the Seattle/Tacoma area), is how to deal with real estate that is jointly owned. Specifically, attorneys are often asked how to deal with a jointly owned property where one of the property owners no longer wishes to continue in that joint ownership. In that situation, the legal mechanism to divide the ownership is called “partition.”
Similar to dissolving a marriage, co-owners of real estate are not forced to continue co-owning property if they do not wish to. In that situation, a real estate attorney should advise his or her client that the joint ownership can be disentangled according to the various methods described within both the statutory partition law as well as common law. (Note: Partitioning real property can be impacted by the nature of the joint ownership. The statute governing real estate partitions applies specifically to joint ownership as “tenants in common.” However, even though the statutes don’t explicitly touch upon co-ownership as “joint tenants with rights of survivorship,” the court will often treat them similarly.)
The type of partition also depends heavily on the property itself (in particular, its size). While a court may ultimately have to order that the property in question be sold, with the proceeds divided between the joint owners of the property, it is loathe to do so. Thus, what it will typically seek to do first is to provide a property owner (if one wishes to remain in ownership of the property subject to partition) with the opportunity to buy-out the other owner. This is typically accomplished through a cash-out refinance of the property, where the remaining property owner obtains funds from a loan to give to the departing owner. If the property is of sufficient size, however, it may be partitioned “in-kind.” What that means, is that if the property can be physically divided into roughly equal shares, the court will order that to happen rather than having the property sold, with a division of the proceeds. (If there is an imbalance in the “in-kind” partition, then the court can also require that the party ending up with a more valuable piece of property from the partition pay the other party the representative difference in the value. This is called a partition with owelty payments.)
While the various options for a real estate partition are interesting, in the vast majority of circumstances, they are not an option. Attorneys practicing real estate law know firsthand that, in most circumstances, the property must be sold in order to truly partition the representative ownership interests. Ultimately, what a prospective real estate client must know is that one cannot avoid a real estate partition with a co-owner of the property. Again, similar to a marriage, if one of the parties wants out, the law allows them to get out.
Landlord Tenant Issues (Eviction, aka Unlawful Detainer)
Real estate lawyers are frequently confronted with disputes between landlords and tenants. In fact, there are real estate law firms whose practice is limited to evictions. (Note: In Washington State, the legal term for “eviction” is “unlawful detainer.”) Without going into all the various details here, the basic principle is this: The landlord is essentially selling the use of his real estate to a tenant. In exchange, the tenant is compensating the landlord for that time. As discussed above, real estate ownership goes beyond the physicality of the property in question and extends to the various, ancillary characteristics of real estate – like time.
A Tacoma real estate attorney who focuses on evictions as a practice area, must be knowledgeable in the various components of the unlawful detainer process. This is due to the inherent nature of an unlawful detainer. While a typical legal dispute before a court may take several months, an unlawful detainer is considered a “special proceeding.” That means that the real estate lawyer can ultimately move much faster in removing a tenant wrongfully in possession of a landlord’s property.
While there are numerous ways that a lease may be breached (thus justifying the initiation of an unlawful detainer action), by far the most common is failure to pay rent. In that event, the first step is for a real estate attorney to issue a three-day notice to pay rent or vacate the property. If after three days rent has not been paid, the eviction escalates. The attorney will then prepare various pleadings (such as a complaint for unlawful detainer), filing the necessary ones with the proper court, which initiates the action in earnest. After that step is complete, those initial pleadings will be served upon the tenant in possession of the property in question, with a notice that a hearing will be held shortly thereafter. This hearing is essentially designed to determine, early in the process, whether or not there is sufficient cause to allow the possession of the property. If the court decides that there isn’t sufficient cause to allow the tenant to remain in possession of the property, it will order that the County Sheriff remove the tenant from the property (this is done by a “writ of restitution”).
How a Tacoma Real Estate Attorney Can Help with Your Real Estate Case
An experienced real estate lawyer can be extremely beneficial in many ways, including:
- Reading through all contracts and lease agreements before you sign them to identify any potentially unfair terms
- Negotiating more favorable terms in your real estate contract
- Helping to preserve your relationship with your neighbors while standing up for your rights as a property owner regarding easements or boundaries
- Finding solutions for you to keep your home in the face of a possible foreclosure
- Guiding you through the legal process of litigation, eviction, or foreclosure
- Negotiating with financial institutions regarding financing disputes or alternatives to foreclosure
- Providing peace of mind that your best interests are protected through every step of your real estate transaction
Though retaining an attorney for a real estate transaction may seem to be an added expense, it’s actually an investment that could produce an excellent return. We help our clients prevent serious problems that could consume time, energy and money in the future. When your rights are fully protected, it’s much harder for another party to take advantage of you. You’re also in a better position to exercise your legal rights when the time comes.
We also help clients who find themselves in unexpected trouble. Through negotiation, mediation and, when necessary, litigation, we help our clients make the best of bad situations by zealously defending their rights, allowing clients to live their lives and run their businesses while we do the work necessary to protect them.
If you have any type of real estate questions, please do not hesitate to call the Tacoma real estate attorneys at the Dickson Frohlich Phillips Burgess law firm for help today. We provide the highest quality of real estate representation, so please contact us online or at 253-572-1000.
Dickson Frohlich Phillips Burgess – Tacoma Office
1200 E D St, Tacoma, WA 98421
P: (206) 621-1110