Residential Real Estate
Attorney Sylvia E. Heldreth brings over 35 years experience to the effective planning and completion of complex or simple residential real estate transactions. This firm’s real estate practice extends to all aspects of residential real estate transactions in virtually every property type and to all levels of complexity. These services include all aspects of owning, developing, purchasing, selling and financing. The firm believes strongly that attention to detail on the front end of transactions is the best defense against disputes.
Buyer Representation
We live in economically challenging times and it is not surprising that most people are trying to save money wherever they can. Buyers involved in real estate transactions are sometimes tempted to forego legal representation to save money. Although most people have the ability to negotiate with a seller, the terms of the deal must be properly memorialized in a contract in order for them to be legally binding. Attorneys can assure that this contract is without flaw beginning by negotiating on their client’s behalf and following the process through past closings. After all, what can go wrong?
The attorney will address several areas where accuracy is important. These include the requirements and exceptions in the title commitment; the proper execution and acknowledgement of the deed; proper powers of attorney and corporate resolutions for the bank sales; code enforcement liens on bank owned property; documents to be signed at closing which are not required by the contract and are not in the best interests of the buyer; contract deadlines and risks to buyer’s deposit; judgements against the seller; unpaid taxes and association dues; and settlement statement (HUD) not in accordance with the contract.
Having legal counsel for the buyer makes good sense because of the complexities that are inherent in real estate law. The peace of mind that a buyer enjoys when properly represented by a real estate attorney is worth the price.
For Sale by Owner (FSBO) and Seller Representation
Sometimes, private individuals finance their sales or conduct real estate sales without the help of a licensed broker, referred to as FSBO sales (For Sale By Owner). In FSBO or seller financed deals it is especially important to have quality legal guidance. The firm ensures that your documents follow all legal principles guiding the sale and that the transaction is closed with your best interest in mind.
The firm assists sellers in negotiations and sales involving residential properties of all kinds, including apartment complexes, nursing homes, condominiums, time-shares and raw land. The firm’s representation includes the preparation of the purchase agreement, conveyance documents, financing documents, escrow agreements, and other related documents.
Deed Transfers
A deed is the written document that shows ownership of the property. It contains a legal description of the property and describes its boundaries. The deed defines who has been granted title to the property. Without a valid deed, someone could claim, perhaps years after the sale, that they are the property’s prior owner. If the deed is not valid, the property might not have been properly conveyed to the new owner, even if the new owner paid in full for it. There are strict requirements for the proper preparation and execution of a deed in Florida.
Also, there is more than one type of deed. A warranty deed warrants that the seller is the true owner of the property and that the seller has the right to sell the property and that the property is free of liens except as may be listed on the deed. The deed must be properly recorded; and grants property that is not subject to undisclosed covenants, easements, encroachments, adverse claims or other encumbrances. The warranty only relates to the legal soundness of the title, not to the property’s condition. It does not guarantee that the roof does not leak or that the appliances are in good working condition. A warranty deed is a safer form of deed because it both ensures that the title is clear and offers specific remedies for the buyer. Remedies include money damages against the seller.
A quitclaim deed is less secure. This deed may provide clear title or it may not. A quitclaim deed transfers whatever interest the seller may have without any warranties. There is no promise or guarantee that there are no other owners, or that there are no claims against the property. This deed relinquishes any interest the seller has in the property, whatever that might be, however small. It must also be properly recorded and is sometimes used by relatives to transfer property to other relatives.
Lease with Option to Purchase
The term “lease option” is an abbreviated reference to a “lease with an option to purchase”. This can be an excellent way for a tenant to use property and be sure it is suitable before committing to buy. This can also be very advantageous to an owner who is not in a hurry to close on a sale and is willing to be a landlord.
An option to purchase gives the tenant a right to purchase the property at a certain price, on specified terms, and within a stated period of time.
In order to bind the owner and to make the option to purchase irrevocable, the option must be supported by “valuable consideration”. In other words, the tenant must pay a fee for the owner to hold the property off the market exclusively for the tenant for the agreed period of time.
The right to buy may be exercised solely by the tenant; and the tenant is not obligated to buy. If the tenant decides to purchase the property, he must do so before the stated time period. If the tenant decides not to buy and the stated time expires, then the owner is free to sell the property to anyone else; and the tenant loses the option fee paid to the landlord.
Since the option right is exercisable only by the tenant, there is no advantage to the owner unless the owner is paid for the privilege given to the tenant. In a seller’s market, this payment may be in the form of a significantly high fee or a rent premium or perhaps a higher purchase price than the owner might normally expect to receive.
While lease options can be advantageous to both parties, an owner must be careful that the agreement does not become more of a financing arrangement rather that a lease. Such arrangements are more appropriately called “agreement for deed”. In such cases, if the tenant defaults, the owner may be required to commence foreclosure proceedings rather than being able to use eviction proceedings, which would be simpler and less costly.