Orange County Real Estate Litigation Attorney

California Real Estate Law

The right to own property is so deeply embedded in the American legal system that the Bill of Rights puts the right to property on the same level as the right to life and liberty. It declares that no one may deprive someone of life, liberty or property without due process of law, and the government may not take private property for public use without paying fairly for it. The English political philosopher John Locke, whose ideas underlie the U.S. Constitution, proclaimed that "government has no other end than the preservation of property."

In general, what you do with the home you own is up to you. It's yours to maintain or neglect, preserve or remodel, keep, sell or give away, and enjoy as you see fit. If someone damages your property, you have a legal right to compensation. To obtain that compensation, though, you may have to sue.

You may rent or lease your home or part of your home, depending on zoning restrictions, to someone else. However, if there is a mortgage on your home you should review it to make certain it contains no restrictions on your ability to rent your home while the mortgage is in existence. The law protects your right to decide who you'll allow to live there, so long as you don't discriminate on the basis of race, sex, religion or other protected categories. If you rent it out, you have a legal right to inspect the property periodically, protect your property from damage and receive a reasonable rent, with an option to evict renters who fail to uphold their end of the bargain.

You may use, sell or restrict the use of your property's natural resources, from stands of timber on the surface to minerals lying beneath. Note, though, that because surface and underground water, oil and gas move about without regard to property lines, you don't necessarily have the right to pump out as much as you want from a well on your property. Removing these resources is subject to state and federal regulation.

Forms of Ownership

The most common form is fee simple. It is also the most complete, because, in theory, titles in fee simple are valid forever, unlike some of the older forms, such as an estate for years, where the title reverts to the former owner at some specified time. People who own property in a fee simple form may sell it, rent it out, transfer it to their heirs, and to some extent limit its use in the future.

When there is more than one owner of a property, which of these forms of ownership is listed on the deed really does make a difference. Long-term implications include who can transfer interests to someone else, how much of the property is available to one owner's creditors, whether the property goes through probate when one party dies, and whether the surviving owner faces a tax on capital gain when it is time to sell the property. It is important to think about what you want the deed to accomplish and take the necessary steps to get that in writing and properly filed.

Unmarried co-owners have to choose whether to be tenants in common or joint tenants with right of survivorship. Married co-owners could choose either of those forms, or might opt to hold their home as community property. Other forms of ownership include tenancy in common and joint tenancy with right of survivorship.

Condominium and homeowner associations are also forms of joint ownership. The owners of a condominium unit usually do not own the structure they live in, just airspace they occupy. Owners in a homeowner association usually own a proportionate part of the common area in addition to their own home.

Buying and Selling a Home

Buying a home will probably be the largest and most significant purchase you will make in your life. It also involves the law of real property, which is unique and raises special issues of practice, and problems not present in other transactions. A real estate lawyer is trained to deal with these problems and has the most experience to deal with them.

A lawyer can help you avoid some common problems with a home purchase or sale. For example, a seller may sign a brokerage agreement that does not deal with a number of legal problems. This happens quite often; realtors often use standard forms, expecting that they will cover all circumstances or will be easily customizable for unusual circumstances.

The seller should have the advice and guidance of an attorney with respect to a brokerage agreement. Even if the agreement is a standard form, its terms should be explained to the seller and revised, if necessary. An attorney should also determine if the agreement was properly signed. Even if a lawyer is not needed during the course of negotiations, the buyer and seller each may have to consult with a lawyer to complete the transaction.

The purchase agreement is the single most important document in the transaction. Although standard printed forms are useful, a lawyer is helpful in explaining the form and making changes and additions to reflect the buyer's and the seller's desires. There are many issues that may need to be addressed in the purchase agreement.

Perhaps the most important reason to be represented by an attorney is conflicting interests of the parties. Throughout the process, the buyer's and seller's interests can be at odds with each other, and even with those of professionals involved in the sale. The broker generally serves the seller, and the lender is obtained by the buyer. Both want to see the deal go through, since that is how they will get paid. Neither can provide legal counsel. The respective lawyers for the buyer and seller will serve only their own clients' best interests.