Legal Description is More Than a Street Address or Tax Reference

The Legal Description of your home is more than where you live, it sets apart the location of that geographical spot—be it ever so humble, there’s no place like home.  A home address can change—even if the house does not move—reassigned by the Postal Service.  A property appraisal is for appraisal purposes and does not typically describe the property as unlike any other place.  A Legal Description describes the location of your home as unique from all other places on Earth. I am OCD about certain things, ZIP codes is one of them (I have to add the four digits) and Legal Descriptions of land is another.  I have to run out the metes and bounds. The Legal Description of a property is one of the bones of a real estate contract (along with the names of the buyers and sellers, terms, and signature of the party to be charged by the contract).  That is why I do not accept the Legal Description as written; I have to go look it up as part of the due diligence of a real estate deal.  I have seen errors, and errors make a difference. When it comes to a Legal Description, if […] Read More

Conveyance Sans Legal Description

If a real estate conveyance happens in the forest without a Legal Description, did the land convey?  It had witnesses and was notarized, but did the property actually transfer to a new owner without a Legal Description? It depends.  If the description given is such that it describes the property as unique to all others on the Earth…but what if the seller dies, how do you prove it?  A Judge may have to decide, and that gets expensive. If you are defending a title challenge on your home, you could be right, but it can be costly.  Or you can be wrong and it can be costly.  But if you have title insurance, the title insurance policy pays for the legal cost, right or wrong. Do you really want to get a book and do your own brain surgery? DIY Legal Description is not necessarily a cost saving option.  You cannot use the postal address because addresses assigned by the Postal Service are not always unique, and they can change (even if the house does not move).  And you cannot use the Tax Reference because that is for the assessment of taxes and not the conveyance of the property.  Furthermore […] Read More

An Enforceable Lease

Not all contracts have to be written in order to be enforceable, but some do.  Real estate contracts and any contract that cannot be performed within one year (like a lease of more than a year) must have written contracts. Real estate agents are allowed to do a lease up to a year using pre-made legal forms.  These forms have been prepared by attorneys, and the real estate agent uses the check boxes to tailor the agreement.  Also, a lease of a year or less does not need witnesses to be enforceable. When in doubt, seek competent legal counsel.   Attorneys do not have to be expensive and they do not have to be obnoxious.  Furthermore, an attorney can be the difference between an enforceable lease, and a useless piece of paper.   Read More

Once Upon a Contract

Once upon a real estate deal the Big Bad Wolf was going to put a $10,000 deposit on the Three Bears’ house…or so they thought.  The Wolf, however, only made out the check for $1,000.  When the Wolf decided he would rather have the Three Pigs’ brick estate, the Bears wanted the $9,000 balance of the deposit—question is, was there a contract for the deposit? In most cases you want a contract with its four elements:  offer, acceptance, consideration, and legality.  The contract states what the deal is supposed to be and what happens if the deal does not turn out that way (or at all). Upon closer inspection, the Three Bears realized that though they had asked for $10,000 in earnest money, the Wolf had never initialed, and thus had not accepted their offer.  In reality, his counter is a rejection of the first offer.  What he is really saying is, “No, but I make this offer instead.”  Another reality is the professional risk.  Where professionals are involved, professional liability is at stake, and in this case, a real estate agent may have a problem. Beware of Wolves writing small checks and of real estate agents negligent in their […] Read More

Legal Ground & the Statute of Frauds

The Statute of Frauds says that for certain types of contracts to be enforced, they have to be in writing.  Real Estate is one of them. With Real Estate transactions, you have to prove that a contract exists and have it in writing.  A handbag of cancelled checks for payments on the property might not do it.  (And big checks could just be prepaid rent payments.)  What does that check say?  Is there a memo that shows a written agreement?  Or is there writing of any kind, including emails?  Or were you making highly philanthropic donations without realizing your own inflated altruism?  Even if you do have a sketchy paper trail to piece a contract together, it is still going to mean litigation, and that is going to be more expensive than paying an attorney to write up a proper contract to start with. If you are paying for a piece of real estate and expect to actually own it, make sure there is a real estate contract in writing, unless you are being hyper-charitable without the tax write-off.  Do not get caught on the wrong side of the Statute of Frauds without legal ground to stand on.  Have a […] Read More