Real Estate

Like any other contract, an agreement for a sale and purchase of real estate is an enforceable document, and a breach of its terms entitles the party who was harmed to damages that must be supplied by the party who breached the contract. That said, the complex nature of real estate contracts has resulted in an amount of law arising around these agreements. These include, for example, the stipulation in Arizona’s statute of frauds that a real estate agreement is only enforceable if the party claiming breach can produce a written and signed document (an oral contract for the sale of the property is not enough). And most real estate purchase agreements contain contingencies—which are elements that, should they occur, permit the parties to exit the contract without it being considered breach. (For example, if the contract is made contingent upon the potential buyer having sold their previous home by a certain date, and that date comes without the sale of that previous home, then the contract may be canceled—the seller of the home in question may go on to entertain other purchase offers and the potential buyer may move on to search for other properties.) And then there is the fact that a given parcel of real estate is such a unique form of property that, in the case that a breach (not supplied for in the contract’s contingencies) should occur, a court may determine that specific performance is called for.

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As any property lawyer can tell you, property law is a complex area of law, whose rights and duties are often defined by interweaving and conflicting interests. A potential interest in a piece of property can be affected in the present by defects in the property’s title that are the result of a misstep made sometime in the distant past;and interest can be equally affected in the present by a conflict occurring in the present whose outcome still remains to be determined at some future date. An example of the latter is the legal concept of “lis pendens.”

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Failure to pay property taxes in the state of Arizona results in tax liens. Sometimes other lienholders are the ones to foreclose on the property. Among the liens applied to a property, tax liens are considered most “senior.” This means that when a property gets foreclosed upon either under the tax lien or by a more “junior” lienholder, though other liens that are “junior” to the tax liens are wiped out, the tax liens remain.

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One of the cutting-edge issues in property law, one that promises to have an increasing amount of currency in the coming years, is that of drone traffic. More and more people find themselves wondering what it means when a drone passes over their property, and whether they have a claim of trespass against those whose drones pass over their property without their permission.

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Nuisance law in Arizona—as elsewhere—can be a complicated topic. And perhaps the most complicated of these topics—one that some property owners claim goes to a certain extent against what they consider common sense—is that of “attractive nuisance.”

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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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