Burkhardt & Larson on What a Real Estate Agent Can or Cannot Do for You
To understand a real estate agent’s scope of duties and what an agent and can and cannot do for you, look first to federal and state regulations. Here are a few of the entities that govern or affect a real estate agent’s actions:
- Federal Fair Housing Act
- State Real Estate Laws
- National Association of Realtor’s Code of Ethics
- Employing Broker’s Guidelines
Burkhardt & Larson knows that the most important is the Fair Housing Act. Basically, it was designed to prevent discrimination. Burkhardt & Larson explains that Fair Housing Act legislation was contained in the Civil Rights Act of 1968 and modified by the Fair Housing Amendments Act of 1988. There are seven classes protected by the Fair Housing Act. They are:
- National Origin
- Familial Status
Expectations for Neighborhoods Populated by Protected Classes – Burkhardt & Larson
Burkhardt & Larson notices that it comes as a shock to many people when they learn that a real estate agent absolutely cannot address some requests because it is against the law. For example, if a newly married Jewish couple asks a real estate agent to find them a home close to a synagogue in an “adults only” community, the agent can’t accommodate that request. Nor can the agent take into consideration the request to be located near any specific church. Burkhardt & Larson sheds light that the agent can’t so much as advertise that her listing is around the corner from a parish.
Burkhardt & Larson recognizes that an agent cannot answer questions about the ethnic make-up of a neighborhood. For example, buyers should not expect an agent to show homes in neighborhoods comprised of primarily Latinos, African-Americans, American Indians or any other ethnicity or race. If a buyer was adamant and said, “Tony said I need to buy in an Italian neighborhood or else,” the agent must refuse, regardless.
Discrimination in Listing Advertising – Burkhardt & Larson
In advertising, agents must refrain from using words deemed to represent any protected classes. For example, none of these words is appropriate and many of them could violate Fair Housing laws. Do not ask your agent to use these words:
- Bachelor apartment
- Mother-in-Law quarters
- Singles Only
- Gentleman’s Farm
- Golden Agers
- Section 8
- Children Welcome
Burkhardt & Larson – What Is a Mechanic’s Lien?
Burkhardt & Larson explains that a mechanic’s lien (a materialmen’s lien) is a method used by those employed for the purpose of improving real property to ensure that property owners will pay them for services and materials. Burkhardt & Larson goes on to explain that if the property owner does not pay for the services or materials, the individual can initiate a court proceeding to force a sale of the property to pay for the services and materials.
Basic Requirements for Mechanic’s Lien Rights
These are the basic elements required in order to determine if a person has mechanic’s lien rights:
- Real property : A mechanic’s liens only attaches to real property, such as land, a house, a condo, etc. Burkhardt & Larson states that a person cannot get a mechanic’s lien for a car or something considered personal property.
- Improvements : Burkhardt & Larson goes on to say that the improvements that the contractor makes, or the materials the contractor uses, must be for the real property that the lien will attach to. For example, a contractor cannot build on one piece of land and file for a mechanic’s lien on another piece of land, even if the same owner owns both pieces of land.
- Consent : The property owner must consent to the work that the contractor or subcontractor is doing on his/her property. Burkhardt & Larson goes on to say that a contractor or subcontractor cannot improve property without the property owner’s consent.
How Does a Mechanic’s Lien Work?
Typically, the person employed to improve the property attaches a financial claim to the property he/she was hired to improve. The lien is like a “hold” on real property. Generally, the property owner will be served with a notice of a lien. Burkhardt & Larson has found that the lien will be recorded at the county or city recorder’s office so that it becomes attached to the title of the land. If the property owner does not pay then court proceedings to sell the land for payment of the services rendered can begin.
Who Is Considered a “Mechanic”?
Burkhardt & Larson recalls that a “mechanic” is commonly defined as someone who provides certain services, such as plumbing, painting, construction, carpentry, or someone who provides building supplies and materials. Thus, a general contractor or a subcontractor is considered “mechanics,” and are given mechanic’s lien rights.
Note: Some states give other professionals mechanic’s lien rights. Be certain to check with your state’s law.
Mechanic’s Lien Waivers
Burkhardt & Larson states that often a property owner will pay the general contractor and trust that the general contractor will pay all the subcontractors. When a general contractor, however, fails to pay the subcontractors, the subcontractors may still have the right to a mechanic’s lien against the property owner. Burkhardt & Larson notes that even if the property owner can prove that she paid the general contractor, courts often do not accept this as a defense to a mechanic’s lien proceeding.
- Waivers : More and more often, property owners will require that the subcontractors waive their rights to a mechanics lien, so that the property owner does not risk possibly paying for the same work twice.
Can a Mechanic’s Lien Come with My New House?
Mechanic’s liens follow the house, not the owner. Burkhardt & Larson recognizes that some sellers improve their property just prior to a sale. If you are buying a piece of property, be certain that you check the records to see if the property has a mechanic’s lien attached.
Do I Need an Attorney for My Mechanic’s Lien Issue?
Burkhardt & Larson knows that a lawyer can help a contractor or subcontractor sift through the stiff procedural requirements and the strict deadlines for filing a mechanic’s lien. If you wish to improve your property, Burkhardt & Larson can help you draft a waiver for the mechanic’s lien. If someone has already attached a mechanic’s lien to your property, Burkhardt & Larson can assist you through the procedures to ensure your property will not be sold, and to develop defenses if you are taken to court.
Burkhardt & Larson on Property Disputes & Litigation
Burkhardt & Larson handle a wide variety of residential and commercial real estate concerns, including purchase and sale agreements, easements, quiet title actions, commercial escrow agreements, hunting partnership agreements, real estate conveyances, land use restrictions, boundary disputes, slander of title, adverse possessions and more. Burkhardt & Larson finds that boundary disputes are an unfortunate occurrence that happen quite often in residential neighborhoods. In short, neighboring property owners disagree over where the property line that separates them should be drawn.
Burkhardt & Larson offers counseling and assistance in the negotiation process of resolving boundary disputes. Through the assistance of registered surveyors, you will be able to clearly designate the boundaries between you and your neighbors. It is not recommended that litigation be considered in most boundary dispute situations, but instead a low cost negotiation of where the line can be drawn to best serve all parties involved. Often, the use of easements can eliminate any additional concerns that you may have. For additional information on how Burkhardt & Larson can assist you with a boundary line dispute, please contact us to schedule a consultation where we can discuss your options.
Property damage and nuisance litigation are common areas that may require assistance of counsel. If you’re dealing with sink holes, hurricane damage, or other damage, speak with Burkhardt & Larson prior to filing your claim.
While Burkhardt & Larson does not perform closing or provide title insurance, we do represent those individuals who may require representation on issues surrounding their title or clouds on title. The following information provides some basics surrounding this area of law. You may consider retaining an attorney to review your documents, and get a second opinion regarding the terms of a purchase agreement.
Burkhardt & Larson – Real Estate Title
A real estate title confirms the legal ownership of a property or land. Burkhardt & Larson sheds light that this written paper serves as evidence of your ownership. When you purchase real estate, it is important that you obtain a real estate title. Burkhardt & Larson explains that a real estate title will ensure your right to occupy the property, as well as your right to sell the property, should you decide to do so.
Burkhardt & Larson – Title Insurance
Title insurance is protection against financial loss related to your title. By acquiring title insurance, you protect your title against any hidden mistakes made by your property’s previous owners. Burkhardt & Larson states that title insurance allows you to enjoy your new property without having to worry about another person’s mistakes. Title insurance can protect you from: Forged Documents, Unpaid Taxes, Liens, Judgments, and other claims.
By acquiring title insurance, you protect yourself and your lender from future financial damages. Title insurance usually involves a one time fee and is included in your closing costs. While prices vary from company to company, the general title insurance cost is 0.5% to 1% of the mortgage amount. Before a title insurance company will issue insurance, they will usually research your property’s ownership history. If you are considering title insurance, you should consult with Burkhardt & Larson. Burkhardt & Larson can help you understand title insurance policies and conditions. Burkhardt & Larson may also be able to let you know if additional coverage or protection is needed for your property.
Real Estate Closings: The final, and often time most exciting part of the real estate process, is the closing. Closings are also referred to as the settlement. At the closing, the buyer and the seller submit all documents pertaining to the property such as the title and the deed. Burkhardt & Larson expalins that the closing is also when the buyer pays the seller the agreed upon amount for the property. Due to the financial and legal nature of real estate closings, many people find it helpful to have an attorney present. An attorney can ensure that all necessary documents are submitted, and that the content and terms of the documents are explained to you. A lawyer can also review the deed, which may impact the buyer’s ownership and tax liability. *Call Burkhardt & Larson for a quote on our closing fees and other real estate services at 858-756-3743.
Burkhardt & Larson on What is “Commercial Litigation?”
Commercial litigation is a general term that applies to any type of litigation or controversy related to business issues. Examples of areas included under the general heading of commercial litigation include:
Burkhardt & Larson on Agreements Limiting Competition: Burkhardt & Larson explains that one of the circumstances is a person who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer within specified parishes or municipalities. Disputes surrounding Non-competition, non-solicitation, and non-disclosure agreements by former business owners and employees may result in lengthy litigation. Burkhardt & Larson finds that these suits often include requests for emergency relief such as a restraining order or pre-trial injunction.
Burkhardt & Larson on Misuse of Intellectual Property: Burkhardt & Larson explains that the consideration of whether information fits within this definition involves things like the extent to which the information may be known outside of the business, the value of information to the business or its competitors, ease of which the information can be acquired, etc. However, there is a second component of the definition which is often overlooked. To constitute a trade secret, the information must be subject to efforts that are reasonable under the circumstances to maintain its secrecy. Thus, information that may have the intrinsic characteristics of a trade secret can lose this cloaking because of the action of the owner in not securing it. Other forms of protected intellectual property are patents, copyrights, trademarks, trade dress, and service marks.
Burkhardt & Larson on Fraud and Deceptive Trade Practices: Burkhardt & Larson is aware that some companies may misrepresent their products and services in a business transaction. Burkhardt & Larson sheds light that there are consumer protection laws that also protect companies, investors, and possibly your company’s clients. There are numerous federal and state laws addressing deceptive practices where the prevailing party can recoup damages and attorney’s fees.
Burkhardt & Larson on Securities Law Violations: Burkhardt & Larson finds that deceptive or manipulative conduct in connection with buying and selling stocks, bonds, mutual funds, and other securities, whether privately or on an open market like the New York Stock Exchange or NASDAQ can result in serious consequences in both civil and criminal courts.
Burkhardt & Larson on Abuses of Trust: Burkhardt & Larson states that when dealing with other professionals who received sensitive information of a company’s condition or members, a fiduciary relationship may ensue that requires are higher degree of responsibility and trust. These individuals may include internal managers, or third-party contractors, as well as investors, agents, trustees, partners, or majority shareholders.
Burkhardt & Larson on Employer/Employee Disputes: Issues surrounding overtime, disabilities, health and pension benefits, and discrimination (age, race, and gender) can bring a thriving business to a complete hault if not addressed and mitigated appropriately, explains Burkhardt & Larson.
Burkhardt & Larson on Breach of Contract: Burkhardt & Larson points out that vendor disputes or contests of coverage by insurances carriers can result in heated litigation. Purchases and sales of securities, transactions in real estate and other business assets, and agreements to provide goods or services. In many cases a promissory note, guaranty agreements, and mortgages/deeds of trust may need to collection.
Burkhardt & Larson on Tortuous Interference with Contract: A third party’s hindering or preventing performance of an agreement.
Burkhardt & Larson states that the list gives you an idea of the broad scope of commercial litigation. It also provides an idea of how commercial litigation matters can range from relatively simple, uncomplicated matters, to highly complex matters that could take several years to resolve. Improperly handled litigation can lead to additional, unnecessary expenses for you and your business. If you lose, you may be subject to a large damages award. In addition, even if you are successful, the amount of money and time you spent fighting may exceed the amount of damages you are ultimately able to collect. Further, protracted litigation can have a negative impact on the operations of your business. Burkhardt & Larson recognizes that commercial transactions and business relationships often go bad and turn into disputes, resulting in costly litigation. Unable to resolve the dispute through negotiations or discussions between the parties, one party may find that litigation is the only way to end the matter. Unfortunately, litigation is often a fact of modern business life. Burkhardt & Larson sheds light that when you are faced with commercial litigation issues, you need the assistance of an experienced commercial litigation attorney