Buying and selling a home or commercial piece of land is an important financial commitment, which is why it is crucial to know exactly what you are buying in terms of:

  • Boundaries;
  • Title; and
  • The condition of the premises.

As such, real estate law provides protections for:

  • Buyers;
  • Sellers;
  • Land owners;
  • Contractors;
  • Real estate agents; and
  • Builders.

During the transaction, it is important that the sales and purchase documents are clearly written in order to avoid problems and delays later on in the process. Additionally, litigation could become necessary when the parties to a transaction have a dispute. Common examples of real estate litigation include:

  • Zoning;
  • Construction defect;
  • Homeowners associations; and
  • Boundary disputes.

Other common examples of real estate and property law disputes include:

Real estate and property law also governs the financial aspects of real property, which include:

Specific wills and trust issues may also fall under the umbrella of real estate and property law. State real estate law regulates commercial and residential real property transactions, as well as landlord-tenant relationships. Alternatively, federal law protections exist for discrimination under the Fair Housing Act, as well as for environmental violations.

The purchase and sale of a residence may be done by an individual who is working on their own. However, it is more commonly conducted with the help of an experienced broker or agent. This requires entering into contracts and paying commissions. As such, if a person decides to sell their property using an agent, a real estate lawyer can review their contract with the agent prior to signing.

An attorney can also provide important information regarding issues related to the sale and purchase of property, including:

Some residences may be located in common interest communities, which generally:

  • Are constructed by one developer;
  • Have a governing body or association; and
  • Have specific rules regarding the use of property.

There are several key terms which may be useful to know when involved in purchasing or selling property, including:

  • Brokers: Buying and selling property is generally done through an agent, commonly known as a real estate broker. Brokers can either help individuals find property to purchase, or assist owners in selling their property. Additionally, brokers manage all of the paperwork that is involved with property transactions;
  • Disclosures: When a person is selling their home, they must be sure to reveal any property defects that they are aware of. This refers to things such as structural or electrical problems. This duty to disclose is known as the disclosure of material defects; or simply, disclosure; and
  • Buyer’s Duties: Generally, the potential purchaser of property has the right to inspect the property prior to closing for any potential defects or zoning issues. The buyer should also check to see if there are any mortgages or liens on the property, which can be found at their local county recorder’s office.

What Is Landlord And Tenant Law?

If a person is renting a property, it is important to be aware of the duties that a landlord owes their tenant. These duties are pursuant to landlord tenant law, including:

  • Habitability: The landlord guarantees that the property is habitable, or livable. This is referred to as the implied warranty of habitability, and they must regularly maintain the property. Part of this duty requires the landlord to repair any problems which may arise, such as heating or plumbing issues;
  • Ordinances: The landlord must guarantee that the property conforms to both city and state laws;
  • Duty to Deliver Possession: While this depends on the jurisdiction, landlords generally have a duty to deliver possession of the premises to a tenant. Examples include giving keys to the tenant, and ensuring that no one else lives within the housing unit; and
  • Implied Covenant of Quiet Enjoyment: This refers to the tenant’s right to have a landlord not interfere with their use of the premises. Examples include making the property uninhabitable, or by wrongfully evicting a tenant in some way.

It is important to note that tenants also have their own duties to uphold when they rent property. Such duties include:

  • Paying rent on time and according to the terms of their lease;
  • Following any rules or restrictions that are listed within the lease, such as no pets, no loud music, etc.;
  • Not using the premises for an illegal purpose, such as dealing drugs or gambling in states in which it is illegal to do so; and
  • Making ordinary repairs and performing upkeep to the property, including alerting the landlord if there is an issue with the plumbing or other aspects of the property that the landlord is responsible for maintaining.

If a tenant fails to adhere to the terms of the lease, the lease will be breached which may cause the individual to lose their security deposit, as well as subject them to further money damages. It may even cause them to face eviction.

What Should I Know About Security Deposits?

The general purpose of a security deposit is to ensure that a tenant pays their rent, and properly cares for the unit. Many states limit the amount that can be collected for a security deposit. Some permit an amount equal to one or two months of rent, while others require the deposit to be placed in an account, and the tenant is paid interest.

It is important to note that not all states have timeframes for the return of a security deposit. Of the states that do have a timeframe, it could be as short as two weeks.

When tenants and landlords wish to prevent a security deposit dispute, they should walk through the unit together before a move-in and move-out. They should also take pictures of the unit. During the move-in and move-out, they should reach an agreement about the unit’s condition. In order for tenants to prevent a security deposit dispute, they should clean the unit before move-out, as well as return keys and leave a forwarding address.

The amount that is withheld from the security deposit must be considered reasonable for the damage claimed. There are many considerations when calculating the cost of replacement. An example of this would be how a tenant should only pay for the remaining life of a product. If a carpet has a life of 5 years and the carpet is damaged beyond repair in the 4th year, the tenant may legally be charged for 1/5th the cost of replacement.

In terms of what cannot be withheld by a landlord, this includes damage that was noted when the tenant moved into the unit, as well as normal wear and tear. Damage refers to anything broken by a tenant or their guests. A landlord may charge for damage, and in some states may be required to provide the tenant with an itemized list. Examples include:

  • Broken windows;
  • Holes in the wall;
  • Animal stains; and
  • Excessive filth.

Wear and tear refers to the depreciation that occurs from ordinary use of the property. A landlord may not charge a tenant with the cost of wear and tear. Examples of wear and tear include:

  • Worn carpet;
  • Faded paint;
  • Warped doors; and
  • A few pin holes in the walls.

A landlord who fails to return a security deposit, or fails to follow state security deposit laws, may be sued by the tenant in small claims court. However, if the landlord acted in bad faith, the tenant may recover their full deposit, damages, and attorneys’ fees.

Do I Need A Lawyer For Help With Issues With Security Deposits?

Landlord and tenant laws vary locally, as well as by state. You should consult with a landlord tenant lawyer, or your local tenants union.

Your attorney can help you understand your legal rights and options according to your state’s specific laws. Additionally, an attorney will also be able to represent you in court, as needed, should legal action become necessary.