Real Estate Law

TRANSACTIONS

Commercial & Residential
LLCs · Partnerships
Contracts (Leases, etc.)
Purchases · Sales
Tax Issues
Promissory Notes
Grant Deads
Estates

LITIGATION

Real Property Disputes
Fraud
Landloard/Tenant
Defective Construction
Arbitration Representation
Mediation Services

Real Estate Litigation

Real estate is a major investment for most businesses, and individuals often contribute 50% or more of their net worth to obtaining property. However, companies and people often make these multi-million dollar investments with no independent legal advice. From the purchase and sale to everything in between, the Law Offices of Mark J. McGowan, P.C., can help you make certain your investment is secure.

Disputes may arise over purchase agreements, breach of contract, disclosures of defective conditions, co-ownership, quiet title, partition, contribution and constructive trusts; and between neighbors related to property lines, access over easements, noise and other nuisance activities, land-use, zoning and entitlements.

Real Estate Attorney McGowan represents clients in the following real estate law matters: Purchase agreements and sale agreements; Failure to disclose defects claims; Easements and boundary disputes (property line disputes, trespass); Zoning and land use; Construction law (construction contract disputes); Failure to close; Municipal land entitlements; When issues arise between homeowners and lenders or landlords and tenants, Attorney McGowan is ready to help resolve matters fairly. We handle eviction/unlawful detainer cases concerning rent payment and other tenancy issues, and we can also help stop foreclosure on your home to preserve your credit standing.

Resolving Your Dispute Through Mediation

To resolve your real estate conflict, you have two options. Attorney McGowan has used Alternative Dispute Resolution techniques to develop comprehensive and creative solutions to settle cases. He has also litigated cases in court through trial by judge or by jury. Mediation is only as effective as the other side’s willingness to come to the table and negotiate. If the courtroom is the best venue for the resolution of your dispute, then Attorney McGowan will prepare for trial and zealously represent your interests.

Construction Law

Experienced Construction Law Attorney

Every construction job, from a major building complex to a home remodel, is a minefield of potential disputes, unexpected costs, and litigation. With the number of parties working together on the same project, disputes and conflicts often occur with resultant delays and cost overruns. The Law Offices of Mark J. McGowan, P.C., is available to represent any construction professional involved in a dispute, including general contractors, subcontractors, architects, and owners. He knows you work hard. He will work hard for you.

Attorney McGowan is are available to represent you in all types of construction law cases, including those involving:

Contract disputes;
Cost overruns;
Contract modification;
Mistakes;
Delays;
Mechanic’s liens;
Collections;
Unlicensed contractors and subcontractors.

As a construction law attorney, Attorney McGowan is an aggressive advocate for your rights. Whether he can resolve your case through settlement negotiations or throug court, he will do what it takes to meet your needs. When he says he is dedicated to meeting your needs.

From new construction of large commercial buildings to renovation of your home.

Real Estate Law – An Overview

Real estate law includes both Federal and state issues, with the state-level rules varying widely from jurisdiction to jurisdiction. These state and Federal laws encompass everything from ownership of land and buildings to related issues such as financing, leasing, construction, taxes, and environmental laws. A competent and experienced real estate attorney can protect a party’s interests in both routine and complex transactions and disputes.

Real estate transactions are governed by common law and various Federal and state statutes that address a variety of legal issues related to acquiring, financing, developing, managing, constructing, leasing, and selling commercial and residential real estate. Buying and selling real estate, sometimes called real property, is generally more complicated than buying or selling other expensive goods, such as cars or boats. In real estate transactions, many different people can have an interest in the same property, the tax consequences are more complicated, and possession is not necessarily indicative of ownership. An experienced real estate attorney can help you sort through all of the difficult decisions and negotiations involved in real estate transactions.

Brokers

A seller may employ a real estate broker to solicit potential buyers for his or her property. The seller and the broker sign a listing agreement, obliging the broker to work to find a buyer and the seller to pay the broker’s commission if a sale results. A buyer may employ a real estate broker to locate suitable property. Real estate brokers are generally subject to rigorous licensing standards established by each state. As an agent, a real estate broker or salesperson has duties and obligations to the person who hired him or her. If an agreement to purchase the property is made, that agreement is strictly between the seller and buyer, and the broker is not a party to that agreement and generally makes no promises about the property.

Real Estate Contracts and Transfers

The agreement to sell between a real estate buyer and seller is governed by the general principles of contract law. The statute of frauds requires that real property contracts be in writing. Title to real estate must be marketable to be free from liability, which means that it must be free and clear of all encumbrances, liens, clouds, litigation risks, or other title defects. To ensure marketable title, the buyer typically employs an attorney or a title insurance company to perform a title search. In a title search, the searcher examines the public records in the county in which a property is located to map a chain of title by examining all the recorded deeds concerning the property. The title searcher will also determine if there are any encumbrances on the property, such as mortgages, unpaid real estate taxes, liens for municipal improvements, unpaid Federal taxes, government claims, legal judgments, foreclosures, condemnations, covenants, and easements. A title insurance company will insure the buyer against losses caused by the title’s invalidity.

To pass title, the seller must execute and deliver a deed with a proper description of the land. Many states require that the deed be officially recorded to establish ownership of the property and to provide notice of its transfer to subsequent purchasers.

Mortgages

The most common method of financing a real estate transaction is through a loan secured by a mortgage on the property. A mortgage involves the transfer of an interest in land as security for an obligation. A borrower typically repays a mortgage in installments that include both interest and principal payments. If the borrower doesn’t make payments, foreclosure can result, with the lender declaring that the entire mortgage debt is due immediately. Failure to pay the mortgage debt once foreclosure occurs results in the sale of the property to satisfy any remaining mortgage debt.

The actual foreclosure process depends on state law, the terms of the mortgage, and whether other liens exist on the property. Many states allow late payments to avoid foreclosure, and many lenders attempt to work out a payment plan to avoid a foreclosure. If a lender is threatening foreclosure, a borrower should immediately contact a competent and experienced real estate attorney to protect the borrower’s interests and pursue all available resolutions.

Real estate transactions and disputes involve many laws, which vary greatly from state to state. If you are buying or selling real estate or are involved in a dispute regarding real estate, it is in your best interest to get in touch with an experienced real estate attorney to ensure that your rights are protected.

Glossary of Real Estate Topics

Real estate law includes lots of jargon and legalese that can be intimidating or at least confusing. An attorney with experience in real estate law can help a buyer or seller understand the terms and concepts pervasive in real estate transactions. Read on to learn more about the terminology of this specialized area.

Appraisal: An appraisal is the estimate of value of real property made by a third party not involved in the transaction. Appraisals usually involve comparing the sales price to the value of similar properties in the area. Mortgage lenders typically require an appraisal before they will make a loan.

Assessment: An assessment is a charge for improvements made by the local government that are beneficial to adjoining property. Sidewalks and road work are common examples of improvements which give rise to an assessment charge. Property owners who receive a benefit from the improvement are assessed a proportional share of the cost of the improvement.

Closing: A closing (sometimes called a settlement), is the last stage of a real estate transaction. At the closing, the buyer finalizes his or her mortgage and pays any closing costs for which he or she is responsible, while the seller finalizes and hands over the deed and the keys to the property.

Condominium: Condominium (condo) owners own their individual residential unit and also have a right to use the common areas in the development, which are owned by the condominium association. The association maintains the property, pays taxes and insurance, and deals with improvements. A condo owner will probably have to pay association fees in addition to mortgage payments.

Contract for Deed: A contract for deed allows a seller to keep legal ownership of property while the buyer uses the property and makes monthly payments until the purchase amount is paid.

Deed: A deed is a document that transfers an interest in real property. A warranty deed is a deed in which the seller promises that the title to the land is good and complete. A quit claim deed transfers only the rights that the transferor has, with no promise that the transferor has full title or that there are no liens against the land.

Foreclosure: When a homeowner defaults by failing to make payments on his or her mortgage, the bank or financial institution that holds the mortgage note may foreclose on the property. Foreclosure gives the legal ownership of a property to the bank to allow the bank to recoup its investment. Foreclosure proceedings vary by state but usually involve court appearances to ensure the foreclosure is warranted.

Mortgage Loan: A mortgage loan is a loan secured by the real estate the loan is allowing the buyer to purchase. Mortgage terms may allow for fixed or adjustable interest rates or may include balloon payments. The functioning, legal effect, and foreclosure of mortgages vary greatly from state to state.

RESPA: The Real Estate Settlement Procedures Act, or RESPA, imposes obligations on mortgage lenders and other vendors involved in real estate transactions. Under RESPA, borrowers must receive disclosures detailing the costs associated with the transaction, copies of the lender’s servicing and escrow account practices, and a description of the relationships among the service providers to the transaction. Mortgage lenders must also give borrowers a fair estimate of the service charges for which he or she may be responsible.

Survey: A survey is a mapping of land boundaries, improvements, and easements on real property. A lender will frequently require a survey of property, especially commercial or un-platted property, and will require the parties to address any irregularities that show up on the survey.

Title Insurance and Title Opinions: Title insurance protects against title defects not excluded by the policy. A title opinion is a lawyer’s written statement of the current condition of the title. Title insurance, a title opinion, or both can help a buyer to feel comfortable with the validity of the title.

A real estate buyer or seller will encounter most, if not all, of the above topics when involved in a real estate transaction. Each of the above topics is complex, with details that vary greatly from state to state and transaction to transaction. An attorney who has experience in real estate law can help a buyer or seller interpret and analyze the application of all of the laws related to the above topics to his or her transaction.

Deeds

A deed is an unassuming and usually short piece of paper that has a big legal impact. A deed transfers an ownership interest in real property, and no real estate transaction where ownership transfers is finished until the deed is delivered to the buyer. A deed must include the names of the buyer and seller and the property’s legal description. The deed is signed by the person transferring the property and may make that person responsible to the buyer for other claims against or conditions on the property. A knowledgeable real estate attorney can review the deed to ensure that it is accurate and properly executed.

Deed Requirements

A deed for property must always be in writing, and it must follow state laws for property transactions. Different states may require different deed language, forms, or even paper sizes, so it’s important to make sure the rules of the jurisdiction in which the property is located are followed.

Types of Deeds

There are many varieties of deeds. Two of the most common are quit claim and warranty deeds. A quit claim deed lets the transferor give away whatever rights he or she has to the property, but does not guarantee the extent of the interest transferred. Quit claim deeds are common in divorces when one spouse grants his or her rights in real estate from the marriage over to the other spouse.

A warranty deed contains one or more of the covenants of title. A warranty transfers ownership and explicitly promises the buyer that the seller has good title to the property. A warranty deed offers the greatest protection for buyers since a seller must warrant good title to the property, with no liens and encumbrances not disclosed in the deed. The seller also agrees to defend against any defects found in the deed. A special warranty deed is similar to a general warranty deed, but contains only the covenant and guarantee against claims that may arise only during the time the seller was the legal owner of the property.

When buying or selling real estate, the choice of deed defines exactly what the buyer is getting for his or her money or the seller is agreeing to give. Each type of deed includes different rights, guarantees, and legal protections. Contact a real estate attorney to determine which type of deed is most appropriate for your situation.

Recording the Deed

The new deed should be recorded in the appropriate office, usually the land records office in the county where the property is located. This office may be called, among other names, the recorder’s office, the land registry office, or the register of deeds.

The broker or closer may handle recording, but parties to the transaction should make sure that this important step takes place, regardless of who handles it. The purpose of recording the deed is to give notice to the world that the buyer now has an ownership interest in the property. Recording also creates a chronological chain of title so the history of ownership can be researched.

The form and type of deed are critical. An experienced real estate lawyer can analyze the circumstances surrounding your transaction, determine your needs, and review the content of the deed to ensure that the transfer is valid and appropriate.

Home Inspections

Buying a home can be stressful and time consuming. Obtaining a home inspection can take some of the worry out of the process. An independent home inspector will give a buyer a complete picture of the condition of the property he or she is considering buying. Most houses are not perfect, and the inspector’s detailed report gives the buyer an unbiased evaluation letting him or her know what needs work now and what will probably need work in the near future. Obtaining a home inspection and reviewing the results with an experienced real estate attorney can put a home buyer in the best position to negotiate his or her purchase.

The Inspection

The type of inspection that a buyer needs depends on many factors. Of course, every buyer should make his or her own basic inspection. A buyer should also obtain a professional whole-house inspection by a reputable person to uncover defects that may not be readily apparent. If the buyer is using an FHA or VA loan, a third, somewhat less thorough, inspection occurs at the time of the appraisal. The appraisal required by the lender is not as thorough and focuses on the value, not the condition, of the property. It does not substitute for an inspection.

An inspector does not evaluate whether or not a buyer is getting good value for his or her money. Rather, the inspector checks the safety of the home, focusing on the structure, construction, and mechanical systems to determine whether any repairs are necessary. Generally, an inspector checks the electrical system, plumbing and waste disposal systems, water heater, insulation, ventilation, heating and air conditioning systems, water source, water quality, potential for pests, and foundation, doors, windows, ceilings, walls, floors, and roof. If the home inspector discovers a serious problem, the inspector may suggest a more specific inspection. A buyer should also consider having the home inspected for the presence of a variety of health-related risks, such as radon gas, asbestos, or lead, if not included in the basic inspection.

Although a buyer need not attend the inspection, many buyers prefer to be present. Following the inspection, many home inspectors will answer questions about the report and any problem areas. The inspection also provides an opportunity to hear an objective opinion on the home’s quality.

The Inspector

A buyer should hire a home inspector who is qualified and experienced. In many states, home inspectors must be licensed. A buyer should obtain an inspection before signing a written offer. If that is not possible, a buyer may include an inspection clause in the offer when negotiating for a home, giving the buyer an opportunity to back out of the contract if the inspection discloses serious problems. An inspection clause can also specify that the seller must fix certain problems or make monetary concessions for any problems before the buyer will purchase the property. A real estate attorney will understand the interaction between the inspection and the purchase agreement, and can assist the home buyer in negotiating the most appropriate terms regarding the inspection.

A wise buyer realizes that an extensive home inspection is a necessity, not a luxury, and that the cost of the inspection (typically $200 to $500) is money well spent. Inspections are designed to disclose defects that could materially affect the property’s safety, livability, or resale value. Contact an experienced real estate attorney to guide you through the inspection process and assist you in interpreting the inspection results and its implications.

What to Expect at Closing

A closing, or settlement, is the meeting during which ownership of the property is officially transferred from the seller to the buyer. The buyer and the seller, their attorneys, both real estate sales professionals, a representative of the lender, and the closing agent typically attend the closing. The closing involves settling any open issues, balancing and verifying an often complex closing statement, and signing all documents necessary to complete the transaction. An attorney with experience in closing real estate transactions will advise you at closing to ensure that your rights are protected.

A closing, or settlement, is the meeting during which ownership of the property is officially transferred from the seller to the buyer. The buyer and the seller, their attorneys, both real estate sales professionals, a representative of the lender, and the closing agent typically attend the closing. The closing involves settling any open issues, balancing and verifying an often-complex closing statement, and signing all documents necessary to complete the transaction. An attorney with experience in closing real estate transactions will advise you at closing to ensure that your rights are protected.

Closing Costs

Closing costs are one of the least-understood aspects of the home purchase procedure. Although a good closer will take time to walk a buyer through the numbers, an experienced attorney will provide additional insight and verify that the costs are being appropriately allocated between the buyer and the seller.

Closing costs vary somewhat by community, but they generally are between two and five percent of the home’s purchase price and include:

Attorney fees
Escrow fees
Property taxes to cover the period to the closing date
Interest from the closing date to one month before the first monthly payment
Loan origination fees
Recording fees
Survey fees
Mortgage insurance, if applicable
Title insurance, both for the buyer and the lender
Loan discount points
The first escrow payment for future real estate taxes and insurance
Homeowner’s insurance policy payment or receipt
Appraisal fees
Pest or other specific inspection fees
Document preparation fees

What Happens at Closing?

At closing, the buyer typically presents his or her paid homeowner’s insurance policy or a binder and receipt showing a paid premium. The closing agent will then list the amounts the buyer owes the seller and the amounts the seller owes the buyer. The seller will provide any items the contract requires him or her to provide. Once the parties have verified that the numbers are correct, the parties sign the closing statement, the buyer signs the mortgage note and the mortgage, and the seller gives the buyer title to the property in the form of a signed deed. The buyer often pays the lender’s agent all closing costs, and the closer provides the buyer with a settlement statement listing all the monetary items. Immediately after closing, the closing agent should record the deed and mortgage.

Documents the Buyer Receives

The buyer typically receives:

Settlement statement, itemizing the services provided and the fees charged
Truth-in-lending statement
Mortgage note
Mortgage or deed of trust
Sales contract
Any required affidavits, if any
Copy of the deed
Keys to the home

A closing can move very quickly, with both parties discussing and sometimes disagreeing about the numbers, all of which ultimately represent your hard-earned money. An attorney who is knowledgeable in real estate law can help you protect your rights.