BY: PHILLIP E. MILLER
(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
I deal with real estate cases. Often times it is neighbors that have a dispute. For example, it could be a boundary line dispute or an easement that they have used the driveway together for a long time since they were neighbors, and now all of a sudden you get a new owner, or the neighbors get mad at each other, and they put a gate across a driveway, or a boundary line. Oftentimes we do not have to litigate those cases; we put it into litigation posture, and then go to mediation. We can often resolve these issues outside of litigation, because they are incredibly expensive to litigate, and the value of the property is not that much.
For example, an easement to land might be worth $5,000 to $10,000 and it would cost $5,000 to $10,000 to litigate, but if we mediate this issue, we can get them done for a few thousand. Sometimes those boundary disputes are bigger. I was working on a case a couple of years ago, where the parties were fighting over a quarter acre of land. It got resolved in a conference room without a mediator. Knowing the law really helped to settle things. If we had taken the case to litigation we do not know what the judge would decide and so it is better to settle these issues, if you know where the law is on these issues, the outcome becomes much easier.
IN RESIDENTIAL CASES DO YOU HANDLE CASES INVOLVING PURCHASE OF HOMES?
I am not necessarily involved in purchases unless there is an issue, and we are clearing up a title or something. I am more involved in leases; I do many residential leases and commercial leases. When I am selling a business for a client, I have to look at the contracts and the schedules and get that completed. As far as purchasing, a few times I have had parties that more or less had the deal done, and just wanted their documents drafted. I can do that cheaper than a real estate agent, because the real estate agent charges a percentage, and I am hourly, so I might be able to do all the paperwork for several hundred dollars, far less than a realtor would charge.
WHAT ARE THE MOST IMPORTANT REASONS TO HIRE AN ATTORNEY TO HANDLE REAL ESTATE MATTERS?
The best reason to retain a real estate lawyer is to make sure that the matter is handled and is done properly. It is easier to do things right the first time than to try to fix a problem. I also do divorce work, and I see this most often with divorces. People will do their own divorce and then they do not understand what they drafted in the court provided document. It may not say what they thought it said at all, and when they come to me, I have to try to enforce what the document said. What they put in the document was not what they meant, so I do my best, and I can try to get the judge to interpret it the way that the parties meant it. I cannot guarantee that. I can do an uncontested divorce for $1500 and get it right the first time. To do an Order to Show Cause after the fact, it might be $1500 to $2500 to fix the mistakes. Therefore, it will be more than the initial decree would have been, had it been done the correct way.
Leases particularly, most people do not draft their leases correctly. They do not have fees in place, or the proper fee structure. They do not think of general legal clauses that are needed, and they do not think how people will be served if the lease is broken, or who will serve it, or that a military affidavit needs to be executed. I just know what needs to be in a lease, so I can look at their lease, or give them one of my own leases that have all of the language needed. Oftentimes people come to me with a lease that they want to take to court. I will look at it, and say you will be able to win on paragraph one through three, but what you really want is X, and X is not in any of your lease terms. Therefore, you will not be able to get X. It is the same with deeds.
Deeds work the same way, and you need to get your deeds done correctly. Make sure that if you want an ownership in common, or a joint tenancy, you put the right information in the document. One has the right of survival, and one does not, which is critical if you are signing with a partner. You obviously do not want the surviving partner to get the whole piece of property. However, if you are joining with your spouse, you probably do want your spouse to get the entire property. There are things like that where you need to get the wording correct. If there are easements involved, you make sure you get the easement listed correctly. You are not granting a license when you meant to grant an easement, or when you have bought an easement, you are not getting a license.
Many times people think, “I am supposed to be able to travel across this ground forever”, but the language they used is “you can travel across this forever, as long as I say so”. That is not an easement.
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