Real Estate

Arizona law—via common law tort and nuisance statute—recognizes the concept that one party’s use of their property may have an effect on the ability of another party to use theirs. Sometimes that effect is, from the perspective of the latter party, a negative one. This negative effect may come in the form of de-valuing nearby properties, by ruining the air quality (as air has a tendency to diffuse from one property to another before its molecules dissipate), and so on. Not everything that bothers a property owner will qualify as a nuisance, however.

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It is not uncommon for more than one party to purchase a parcel of real property for any number of reasons. Sometimes, in the course of the co-ownership, one of the parties will decide that they want to get out of the ownership situation—to remove their names from the title and the mortgage, preferably by selling the property. But what can that party do when the other co-owners do not want to sell the property? Does the law effectively lock the first party into owning property when they do not want to?

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In real estate law, there are a startling number of different types of rights that a person may have concerning a parcel of land. It is not just as simple as, well, “fee simple,” which is full and complete ownership over a parcel, with which one may do as one pleases (subject, of course, to laws of conduct, code,and zoning). One of the types of right over land that confounds many at first is that of easements—and particularly a subcategory of these that is referred to as “implied easement.”

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Law is a profession rife with terms of art—you might even say that terms of art are the meat of the profession, because the law is essentially a linguistic system codifying concepts of legal relationships, prohibitions, existences, behaviors, rights, and duties. One term of art that confuses many laypeople is the concept of a “statute of frauds.” What this is, in essence, is a statute requiring particular sorts of contracts be put writing in order for them to be enforceable. In Arizona, this includes real estate transactions.

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When someone has the title to a parcel of real property, it means that they possess formal proof that they are the owners of that property. That’s what title is: it’s how you prove that this is your house, your land, and that you have the right to use it or sell it if you should choose to do so. And when someone is looking to buy real estate, they need this proof to pass on to them, and to be solid. After all, once the land is theirs, they need to be able to supply that source of proof as well. That’s why an attorney for a buyer in a real estate transaction conducts a title search.

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In the United States, there are two basic category-types of “property title systems.” These are known, respectively, as “land recording” and “land registration” systems, and are established at the state level. While both categories are relatively common in the industrialized world, at present there are more states in America using the land recording system than the land registration system. And this is the case in Arizona.

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When a buyer and seller of a home come together over a purchase agreement, they may at times find that contingencies need to be made. In this context, contingencies are certain conditions that have to be met before a buyer will be able to close on the home. Should these conditions fail to be met, the contract can be canceled without causing penalty—either to the buyer or seller of the property—other than lost time and the potential of missing other offers that might have been made if the home had not gone under the purchase agreement. And while contingencies come in many different forms, there are some contingencies we tend to see more often than others.

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A real estate lawyer performs numerous functions within the rubric of real estate law. In fact, though we at Provident Law provide a full slate of real estate law services, there are many in this area of law who sub-specialize. And it’s important to get a real estate lawyer involved in a transaction well before it occurs—because the concept of land ownership is defined almost entirely by specific terms of art with which a layperson may be unfamiliar.

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It may seem obvious to most what real estate law is, or what it should be, but when people stop to think about it often they realize that they don’t know the whole story. First things first: “real estate,” or “real property,” refers to land and buildings (or edifices) that sit on it. Real estate law, therefore, is the set of laws and customs governing who may live on, work on, use, or pass across a particular plot of land or building, and, further, who may sell or buy it, and under what conditions.

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In today’s litigious culture, you would think it’s enough for property owners to worry just about risks arising from their own conduct – for example, slip and fall cases, environmental hazards, trespass issues, etc. Do owners really need to worry also about lawsuits because of their tenant’s conduct?  Recent trends in case law suggest the answer is yes.

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