In commercial buy-sell transactions, an attorney will almost always be critical to a successful closing.  In residential transactions, the answer can vary by state. In California, absent any nuanced issues, attorney involvement may not be necessary, as the residential transaction is typically coordinated through the handling brokers and the escrow/title company. Even when not required, an attorney can help identify risks, review important documents and provide input on tax, vesting and title matters.  Estate planning objectives should also be considered in most every real estate transaction. 

A deed is the legal document that, upon recording in the county in which the property is located, transfers ownership of real property from one party to another. Title, on the other hand, is a general term that refers to the legal ownership rights associated with the property.  

A title defect may include liens or encumbrances, ownership or boundary disputes, recording errors, or undisclosed easements. These issues can delay or prevent a sale until resolved. Title insurance can provide important protections for the buyer and lenders against title-related defects and losses and should be obtained in most every real estate purchase. 

Sellers are generally required to disclose known material defects that could affect the property’s value or desirability. Disclosure requirements vary by state and may include structural issues, environmental hazards, water damage, neighborhood issues and other known conditions. 

An easement gives another person, utility company, or government entity the legal right to use a portion of a property for a specific purpose, such as access, utilities, or drainage.  Easements are created by a recorded instrument and typically provide that they run with the land. In rare circumstances, easements can be created without a recording by a party’s impermissible use over an extended period (prescriptive easements). Easements can limit how a property owner uses certain areas of the property. 

 
Adverse possession is a legal doctrine that may allow someone to acquire ownership rights to property by openly occupying it for a prescribed period under state law. The requirements vary significantly by jurisdiction.  In California, a party seeking ownership by adverse possession must demonstrate it was (a) under claim of right (i.e., believed he/she had the right), (b) actual, open and notorious (i.e., not hidden), (c) hostile (not permissive), (d) continuous for 5 or more years, and (e) claimant has paid the property taxes throughout. 

 Yes, but tenants without a lease or with a written lease that has expired have legal rights under state landlord-tenant statutory laws that typically includes a required 30– or 60–days’ prior written notice, and depending on the circumstances in some states may also require a showing of “just cause” before evicting long-standing tenants.  

 A 1031 exchange, also known as a “like-kind” exchange, allows certain investors in real estate to defer capital gains taxes upon a sale of commercial property by reinvesting some or all of the proceeds from the sale into another qualifying property within specified timelines and IRS requirements. 

The consequences depend on the contract terms and contingencies. A buyer may lose the earnest money deposit if the buyer withdraws without a valid contractual basis. In the typical transaction, the deposit is fully refundable during an agreed upon inspection period and will thereafter be non-refundable unless the buyer timely terminates the transaction or otherwise objects in the manner provided for in the agreement. 

A quiet title action is a lawsuit filed to resolve disputes over property ownership, clouds on title such as old liens that were never cleared, boundary disputes, adverse possession claims and gaps in the title records.  The court’s judgment has the legal effect of removing any such cloud on title.