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Posted by: In: Newsletter Archive 20 Apr 2017 Comments: 0


(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Probably the biggest issue in real estate transactions is expectations. The parties have differing expectations when they go into it, and that can be a wide range of things. For instance, you represent that you are selling nine acres. Well the survey comes back, and the actual property is eight and a half acres. There are different things that you can do to combat that. You can file a quiet title, and see if you can get that extra half acre, or maybe the price needs to be renegotiated based on that missing half acre. Terms and timing is a big thing. The other party tries to sneak terms in there that nobody agreed to.

As I stated above, timing is huge, sometimes one party needs cash tomorrow, and the other party needs financing. If they expect the seller to finance them, then for somebody that is looking for a cash buyer, it just does not work, or they push the terms. In the past recession, we saw this many times. You put something under contract, and then you give yourself two years to do due diligence, and get the deal done. When the economy is bad, that is great because you are contracted for nothing, and then put yourself two years out, and hope that property comes up in value. If you bought property in 2014, and had somebody give you two years, well now, your property, in some cases has doubled, but it is not uncommon to see a twenty to thirty percent difference in value.

In a couple of cases that we had recently, the seller wanted out of the contract, because now two years later, their property is worth a lot more. They wanted that increased value, because they had been waiting for two years. They start looking for parts of the contract that the buyer has not followed, and get out of the contract so they can sell it for the increased price. I have seen that several times. Recently we had a temporary restraining order, which was essential to stop the sale from going through, so we could have time to litigate it. We did not end up needing to litigate, but it was just a tool for us to negotiate. It is just the difference in expectations.


A clear marketable title is a title that essentially states that the property is what you say it is. It does not have liens, etc. A lien is probably the most simple and straightforward way to not have clear title but you will also have lis pendens, and notices of interest that will make it so you do not have clear title. When you look at the property there might be a fence that goes down the middle of the property, and you need to know if somebody else has a claim to that.

Adverse possession is a very real doctrine, after seven years of you paying the taxes, that property is yours. Therefore, if somebody possessed the property, and is paying the taxes, you have a serious problem on your hands. If you do not have clear title, you may be just a quiet title action away from losing the majority of your property.


In a boundary by acquiescence case, there has to be a boundary such as monuments, typically a fence but it does not have to be a fence. It could be a row of trees, a river, or it could be something that people would recognize as a boundary for a long period. That is what the original case law said, and since then, case law has made a long period of time, twenty years, which you have to have a fence where people have agreed, or acquiesced for those twenty years. That is what you need for boundary by acquiescence.

For easements, there are several different doctrines for easement, but the most common one that I see is probably a prescriptive easement. In a prescriptive easement, you need a “use” of an easement for a long period of time, which has been deemed twenty years, and your use has to be continuous. Therefore, you can’t use the road for a month, and then come back ten years later, and use the road for a month, and then come back ten years later and use it for a month again. For instance, in a case I had, they went up to their cabin every summer, and used it on the weekends continuously. Part of the problem with the case was they used it only on weekends, and used it only in the summer, so the easement potentially could have been limited to summer and no winter use because they historically had not used it in the winter.

For more information on Issues In Real Estate Transactions, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 396-2967 today.

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