Real Estate Law

Real Property

Real property makes up some of our most valuable assets, including land and homes. Real property is legally handled differently than other types of property because it is generally fixed to a specific location. It is important to understand real property transactions, property law, and how a property lawyer can help you in buying or selling property or resolving property disputes.

The real estate laws are different in every state and sometimes vary by city or county. It is important to talk to a local real estate attorney in your area who can answer your specific legal questions about property.

What Is Real Property?

Real property refers to land and improvements to the land, including buildings and other structures. Real property can be residential or commercial. Residential real estate includes apartment buildings, townhomes, and single-family houses. Commercial real estate includes investment properties, new construction projects, office buildings, farmland, hotels, malls, restaurants, and healthcare facilities.

Real property also encompasses materials that are affixed to or growing on the land, including improvements, crops, and even natural resources like minerals. When negotiating real estate deals, reserving rights to underlying gas or oil rights can be an important factor in getting the right market value out of the property.

What Do Property Lawyers Do?

Real property lawyers can subspecialize in a variety of real estate areas. Property lawyers go beyond just the home purchase, like a real estate agent. For example, some attorneys focus on land use for property owners. A land use attorney can draft easements (right-of-way agreements), determine appropriate uses for a piece of land, and resolve property disputes involving land boundaries.

A commercial real estate attorney might specialize in resolving landlord-tenant disputes in office buildings, negotiating with real property management companies, or drafting commercial leases for industrial use. Similarly, a residential real estate attorney might handle tenant evictions (unlawful detainer), residential leases, or dispute property assessments.

Real estate attorneys might combine their knowledge of different areas of the law to work on real estate transactions. For example, a real estate attorney involved in the sale of a single family home might use their contract law knowledge to review the assessed value in a home purchase agreement and RESPA disclosures. At the same time, that lawyer can use their experience in landlord-tenant issues to evict a tenant who is standing in the way of closing by refusing to move out of the seller’s rental property.

An attorney might also research local law and public records to ensure a seller has marketable title for a change in ownership and there are no property liens. Because real estate law covers a wide variety of matters, property attorneys must be prepared for all kinds of cases involving land, homes, and buildings.

What Happens to Property During a Divorce?

Personal property and real property that are part of a marriage are divided between spouses at the time of divorce. The way the property is divided depends on whether the state where they live is a community property state or an equitable distribution state.

Community property states treat all property acquired during a marriage is the property of the marriage. Community property is divided equally between the spouses. Equitable distribution states take a different approach and the judge tries to determine what would be equitable or fair. A judge can consider several factors and use their discretion to fairly distribute property in a divorce.

For example, California is a community property state. If a couple in California purchased their home together while married, in a divorce, the property value of the home would generally be divided equally. On the other hand, in an equitable distribution state like New York, the judge might not divide the property equally, depending on other factors.

In most situations, if a spouse separately owned the property before the marriage, the law will generally recognize the property to be separate, and remain with the original owner after divorce. There are many factors can affect how property is divided during a divorce. A divorce lawyer with an understanding of property law may be best able to answer your questions and give you legal advice.

What Are Other Forms of Property?

Real property is distinguished from personal property, which is moveable and can be tangible or intangible, e.g. clothes, jewelry, computers, bank accounts, and stocks. Some forms of personal property, such as clothing, may be transferred physically just by carrying them away. Personal property may not even be tangible. For example, intellectual property can refer to copyrights, patents, or trademarks, all of which are intangible.

A copyright is a form of rights ownership that protects ownership in musical works, photographs, writings, films, and more. Patents are granted to inventors who have unique ideas that can be used to create innovations such as complex machinery, medicine, or computer technology. Trademarks protect brand names, including familiar companies like McDonald’s, Nike, and Apple.

How property is characterized can affect how the government imposes taxes. For example, real estate may be subject to yearly property taxes set by an assessor. However, personal property like clothing might only be taxed at the time it is purchased through a sales tax. Alternatively, personal property like machinery used by a commercial business might be subject to quarterly local taxes that are set by the city department or county where the business is located.

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