Our services appropriate range from reviewing or preparing real estate purchase/sale contracts, “for sale by owner” transactions, deed, and addressing and explaining legal issues affecting real estate in general.
Having an experienced attorney to guide you through any real estate process is crucial for protecting and achieving the most from all of your real estate endeavors. Furthermore, many estate plans include real estate. Properly deeding, or devising your real estate through an effective and personal estate plan is critical.
Real estate law encompasses many aspects of property and the law. Under the law, an individual’s property may consist of two forms only: personal property and real property. Real property consists of all real estate an individual may own or have an interest in. Our firm provides real estate legal services ranging from consultation relating to techniques in listing real estate, problems to anticipate in the listing process, assistance at real estate closings, assistance in review of the listing agreement with the broker, and review of the offer to purchase by a prospective buyer. Our firm also provides service in two other primary areas of real estate law: real estate contracts and deeds. For example, real estate contracts for the sale, conveyance, or gift are reviewed for legal, tax and estate purposes. In the case of deeds, our firm prepares real estate deeds associated with various estate plans and real estate transactions generally. Thus, our firm may assist you with various legal real estate issues and transactions – ranging from the listing, “for sale by owner”, general sale and listing, purchase, conveyance, gifting, and inheritance.
The need to retain an experienced attorney to address your real estate matters is of the utmost importance. Essentially, every transaction that affects your real property and your interests in said property is defined and dictated by the law. An experienced attorney can review all of your real estate documents and transactions to ensure that your real estate transaction conforms to the applicable law and that your real estate interests are protected under the law. Obviously a smooth transaction is valuable to all parties concerned and avoidance of problems is the key.
Our firm offers full service for listing and sale of an individual’s real estate. All services are completed as requested by the owner/seller in the “sale by owner” mode. Our services normally include and require the assistance of a title company in providing escrow service, title insurance, and pro-ration of taxes and utilities. However, preparation and completion of all necessary legal real estate documents such as deeds, deeds of trust, promissory notes, and related instruments to the closing are prepared by your experienced real estate attorney in a “sale by owner” transaction.
Real Estate Law & YOU
When would YOU look to us for services relating to the various areas of real estate law?
Whenever you are faced with any real estate issue, whether it be a sale of a home, a purchase of a home, a change of deed, or a gift of real property to another person; you should contact our firm to assist you. There are many laws pertaining the real property and real estate and if you are not aware of these laws, your real estate interests and ownership may be negatively affected.
As stated above, our firm may assist you in various legal real estate issues and transactions – ranging from the listing, “for sale by owner”, general sale and listing, purchase, conveyance, gifting, and inheritance.
As stated above, our firm offers services in various forms of real estate law. Listed below are definitions of real estate transactions and deeds that you may find helpful real estate or real property consists of land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.
Real Property can be either corporeal (soil and buildings) or incorporeal (easements).
“Real Estate Deeds”
In general, a real estate deed is a written instrument by which land is conveyed. There are many types of real estate deeds that convey different interests in the land. The type of deed received or conveyed may limit or restrict the land owner’s interest in the land itself.
Below please find a list of real estate deeds and their relevant definitions.
An absolute deed is a real estate deed that conveys title to the land without condition or encumbrance.
An administrator’s deed is a real estate deed that conveys property owned by a person who has died intestate (without a will).
Simplicity Note: In some probate proceedings when a person dies without a will, the court appointed Personal Representative (or Administrator) will have the responsibility of selling the real estate owned by the deceased person. The Personal Representative has the power to sell the real estate and to convey title to the buyer.
A bargain-and-sale deed is a real estate deed that conveys property to a buyer for valuable consideration, but that lacks any guarantee from the seller about the validity of the title.
Practice Point: When a seller of real estate conveys title to the property to the buyer, the seller may or may not choose to “guarantee” the deed. In other words, if the seller does not “guarantee” title to the land, the seller is simply stating that there may be another person in the world that has a better title to the land that the seller has. Thus, the buyer may assume title to the land but may face a future claim from another person who claims better title to the land. See Special Warranty Deed and Warranty Deed for contra examples.
A deed of distribution is fiduciary’s deed conveying a decedent’s real estate.
Practice Point: Again, a deed of distribution is most often used in probate proceedings where real estate is to be conveyed to the devisees or surviving heirs as defined by the law. In this case, the fiduciary (or, more commonly referred to as the Personal Representative or Administrator) will convey the property to the decedent’s devisees or surviving heirs by a deed of distribution.
A deed of partition is a real estate deed that divides land held by joint tenants, tenants in common, or other coparceners.
Simplicity Note: In general, real estate may be held by more than one person as joint tenants with right of survivorship or tenants in common.
A deed of trust is a deed conveying title to real property to a trustee as security until the grantor repays a loan. A deed of trust closely resembles a mortgage.
A mortgage deed is an instrument creating a mortgage for the purchase of real property.
Practice Point: A mortgage deed must contain particular elements according to the law. The mortgage deed must contain (i) the name of the mortgagor (debtor); (ii) words of grant or conveyance; (iii) the name of the mortgagee (lender); (iv) a property description sufficient to identify the mortgaged premises; (v) the mortgagor’s signature; and (vi) an acknowledgment. Finally, for the mortgage deed to be legally effective and enforceable, the deed must also be delivered to the parties to be bound.
A quitclaim deed is a real estate deed that conveys a grantor’s (owner’s) complete interest or claim in certain real property but that neither warrants nor professes that the title is valid.
A release deed is a real estate deed that is issued once a mortgage has been discharged, explicitly releasing and re-conveying to the mortgagor (the debtor) the entire interest conveyed by an earlier deed of trust. See Deed of Trust above.
A special warranty deed is a real estate deed in which the grantor covenants (promises) to defend the title against only those claims and demands of the grantor and those claiming by and under the grantor. In some jurisdictions, a quitclaim deed is considered a special warranty deed, in that by executing a quitclaim deed, the grantor warrants the deed against those claims by the grantor him or her self, and those other persons who may make claims by and under the grantor.
A statutory deed is a real estate deed in the form of a warranty-deed form prescribed by state law and containing certain warranties and covenants even though they are not included on the printed form.
A warranty deed is a real estate deed containing one or more covenants (promises) of title. For example, most warranty deeds expressly guarantee the grantor’s good, clear title and contain covenants concerning the quality of title, including warranties of seisin, quiet enjoyment, right to convey, freedom from encumbrances, and defense of title against all claims. A warranty deed is also known as a general warranty deed or a full-covenant-and-warranty deed.
A warranty deed is a direct opposite example of a quitclaim deed or special warranty deed.
Below please find a list of easements and their applicable definitions. Remember that your real estate may be effected by any one of the following easements or any combination of the following easements concurrently.
An easement in gross is an easement benefiting a particular person and not a particular piece of land.
Practice Point: As stated above, an easement in gross benefits a particular person or persons and not an individual landowner. The beneficiary need not be, and usually does not, own any land adjoining the servient estate.
An easement of convenience is an easement that increases facility, comfort, or convenience of enjoying the dominant estate or some right connected with it.
Practice Point: In most cases, most easements that appear in the deed to the dominant estate which grant access or passage over an adjoining servient estate, of which the servient estate landowners’ took the servient estate subject to, are examples of an easement of convenience.
An equitable easement is an implied easement (see below) created by equity, as opposed to created by law, when adjacent lands have been created out of an original larger tract of land.
An exclusive easement is an easement that the holder has the sole right to use the land.
Practice Point: Exclusive easements allow the holder of the easement the sole right to use the land. It should be noted that the exclusive easement holder may not be the owner of the land, but rather any individual with a relationship to the land.
A prescriptive easement is an easement created from an open, adverse, continuous, exclusive and non-permissive use over a statutory period.
Practice Point: As stated above under continuous easements, the statutory period for prescriptive easements in Arizona is 10 years. Thus, if a person were to use another’s property in such a way that is open, continuous, exclusive, adverse and non-permissive, a prescriptive easement may be created. Once the statutory period is achieved, the easement may become permanent. Many prescriptive easements are verified and made legally binding through judicial determination after the easement has been used or has existed for the 10 year statutory period.
A reciprocal negative easement is an easement created when a landowner sells part of the land and restricts the buyer’s use of that part, and, in turn, that same restriction is placed in the part kept by the landowner.
Practice Point: As references above under quasi-easements, a reciprocal negative easement may affect that landowner who decides to sell a part of or a parcel of their land to another owner. However, with reciprocal negative easements, the original landowner usually divides their original tract of land into many separate parcels (more like a sub-division scheme of housing developments). The reciprocal negative easement would apply to all parcels in the sub-division and limit the new landowners’ ability to use their land. Examples of reciprocal negative easements are height restrictions for structures erected on the land, particular zoning classifications for the entire sub-division, particular restrictions on the use of the land, and other restrictions affecting the nature, use, or look of the individual parcels.
A solar easement is an easement created to protect the dominant estate’s exposure to the direct rays of the sun.
Practice Point: Solar easements are becoming more prevalent in Arizona because of our constant exposure to the sun and the increased trend of using solar power instead of conventional power methods. A solar easement is often created to prevent the servient estate owner from constructing any building that would cause shadows on the dominant estate, thus interfering with the use of a solar-energy system. Solar easements are one of the most difficult types of easements to define and litigate in court because of the difficulty in defining the relationship of the sun to the earth. In a judicial determination of a solar easement the court considers the amount of solar exposure to the land, shadows, land slopes, land changes and the inconvenience imposed on the servient estate.
Generally speaking, an easement is an interest in land owned by another person, consisting of either the right to use or control the land of another, for a specific, general, or limited purpose. Many easements are documented and recorded in the real estate deeds to the properties. Thus, any property you are interested in purchasing may be subject to or contain an easement; therefore, you take the property subject to the easement.
Practice Point: In many easement real property scenarios, there are two parties to the easement; the servient landowner and the dominant landowner. The servient landowner is the person with the burden of the easement. In other words, the servient landowner’s land is burdened by the existence of the easement. On the contrary, the dominant landowner reaps the benefits of the easement and is able to use the servient landowner’s land to better or benefit the dominant landowner’s land.
An access easement is an easement allowing one or more persons to travel across another’s land to get to a nearby location, such as a road, driveway or access or entry-way.
An affirmative easement is an easement that forces the servient-estate owner to permit certain actions by the easement holder or the dominant-estate owner; such as discharging water onto the servient-estate or rights of entry, egress or regress.
An apparent easement is simply an easement that is visually evident, such as a paved driveway, path, trail, or right-of-way.
Practice Point: According to Arizona law, the potential purchaser of a parcel of land is charged with the duty to inspect the land. Hence, if you were to visually inspect a parcel of land that you were contemplating purchasing, and you were to see an apparent easement; whether or not the apparent easement is legally recorded in the servient-estate land deed, you are charged with the easement remaining as is because you had notice of the easement prior to purchasing the servient-estate.
A common easement is an easement allowing the servient landowner to share in the benefit of the easement. For example, if there is a right-of-way easement in the form of a paved path on the servient-estate that is a common easement, the servient landowner may use the path, as well as the dominant landowner.
A continuous easement is an easement that may be enjoyed without an interfering act by the party claiming it, such as an easement for drains, sewer pipes, and lateral support of a wall, light and air.
Practice Point: Many easements are created through continuous use for a specified amount of time according to Arizona law. The statutory period in Arizona is 10 years. SEE prescriptive easements below.
A determinable easement is an easement that terminates upon the happening of a specific event.
Practice Point: In some very rare cases, the grant of an easement in a deed specifically states the creation of the easement and the specific event which will terminate the easement. Determinable easements, although rare, typically state with some degree of certainty the specific event, which upon the occurrence of, the easement will terminate.
A discontinuous easement is an easement that can be enjoyed only if a party claiming it interferes in some way with the servient estate.
Practice Point: An example of a discontinuous easement would be a right-of-way over the servient estate, claimed by any other party. A discontinuous easement may be established and created by any person and is not limited to the dominant landowner or an adjacent landowner. Thus, any person that interferes with the servient estate may create a discontinuous easement.
An easement appurtenant is an easement created to benefit another tract of land, the use of the easement being incident to the ownership of the other tract.
Practice Point: An easement appurtenant is the most common type of easements. Any right-of-way, affirmative easement, or apparent easement may also be termed an easement appurtenant.
An easement by estoppel is a court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief.
Practice Point: As stated above, all easements by estoppel are created through a court order. Thus, in order to properly and legally create an easement by estoppel, you must initiate a court action. Most clients only encounter this situation when they mistakenly believe that an easement exists over another’s servient estate and the client wishes to continue using the easement even after the servient estate landowner protests the client’s use of the “mistaken” easement.
An easement by necessity is an easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a public road.
Practice Point: As stated above, an easement by necessity is an easement created by operation of law (i.e., without judicial determination) usually pertaining to those parcels of land that are landlocked with no access to public roads. Any owner of a parcel of land purchased that is landlocked from public roads and access ways is granted an easement by necessity by operation of law and must gain access to such roadways; even if such access is only possible by using or crossing another’s parcel of land.
A floating easement is an easement that, when created, is not limited to any specific part of the servient estate.
An implied easement is an easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale.
Practice Point: To simplify the above definition, imagine that the owner of one large tract of land divides his land in half and sells the servient estate parcel to another buyer. The servient estate parcel continues to benefit the original landowner’s dominant estate parcel in some way even after the sale. The benefits may range from an access way, right-of-way, extraction of minerals or timber, etc. Once the original landowner decides to sell his dominant estate parcel to another buyer, the new buyer assumes that the benefits the original owner enjoyed will continue. By operation of law, whoever owns the dominant estate parcel will continue to reap the benefits from the servient estate parcel, just as the original landowner did.
An intermittent easement is an easement that is usable or used only from time to time, and not regularly or continuously.
A light-and-air easement is a negative easement preventing an adjoining landowner from constructing a building that would prevent light or air from reaching the dominant estate.
A mineral easement is an easement that permits the holder of the easement to enter the property of the servient estate to remove minerals from it.
A negative easement is an easement that prohibits the servient estate owner from doing something on the land, such as building an obstruction.
Practice Point: An important aspect of negative easements is that the easement does not confer a right of entry upon the servient estate. Rather, a negative easement only confers the right to prevent the servient estate owner from doing something on his or her own land. Examples of negative easements are preventing the servient estate owners from constructing a building, prevent the blockage of light or air from the dominant estate, or, even possibly, requiring the servient owner to repair adjoining fences between the dominant and servient estates.
A private easement is an easement whose enjoyment is restricted to one specific person or a few specific groups of people.
A public easement is an easement for the benefit of an entire community, such as the right to travel down a street or sidewalk.
Practice Point: In many sub-divisions and planned communities, public easements are created for the benefit and use of all those persons living in the community. Many times, the public easement is recorded in the property deeds and any particular parcel may have to bear the burden of hosting the public easement for the benefit of the entire sub-division or planned community.
A quasi-easement is an easement-like right occurring when both tracts of land are owned by the same person. In other words, a quasi-easement may become a permanent easement if the landowner sells one of the tracts of land and the landowner maintains the easement or includes the existence of the easement in the deeds to the two separate tracts of land.
A reserved easement is an easement created by the grantor of real property to benefit the grantor’s retained property and to burden the granted property.
Practice Point: In most cases, a reserved easement will be created when one person owns two adjoining lots, and that person decides to sell one lot and retain an easement or right-of-way over the parcel to be sold. In these cases, the prospective buyer must take the parcel subject to the reserved easement created by the grantor.