Real Estate Law: How to Protect Your Property Rights at Every Stage

The most significant legal risk in a real property purchase transaction is the seller's ability to transfer the property to a third party after accepting the buyer's earnest money deposit but before the buyer has completed the ownership transfer registration, and the buyer who wishes to protect against this risk must record a provisional registration preserving the right to ownership transfer, or obtain a court order prohibiting the seller from disposing of the property, immediately after executing the purchase agreement. Property-title-transfer and real-estate-laws counsel can evaluate the specific legal risks associated with a residential or commercial real estate purchase transaction, assess whether the proposed purchase agreement adequately protects the buyer against the seller's risk of double transfer, and advise on the registration and interim protective measures required to secure the buyer's position between contract execution and the completion of the ownership transfer registration.

Unlike many civil law jurisdictions where the land registration system affords conclusive evidence of ownership, a title certificate listing a person as the registered owner does not guarantee that the registered owner holds valid legal title, and a buyer who relies solely on the title certificate without conducting an independent investigation of the chain of title may discover after closing that the seller had no valid title to transfer, exposing the buyer to an ownership cancellation lawsuit filed by the true owner. Real-estate-fraud and real-estate-civil-lawsuit counsel can advise on the legal risks arising from the absence of a conclusive land registration system, assess whether the recorded ownership reflected in the title certificate accurately represents the true legal ownership of the property, and develop the title investigation strategy required to identify any defects in the chain of title that could expose the buyer to a post-closing ownership cancellation lawsuit.

The table below compares the principal legal protections available to residential and commercial tenants, identifying the scope of each protection, the key legal requirement for activation, and the core legal issue that arises most frequently in disputes about each category of protection.

Landlord-tenant-law and commercial-lease-dispute counsel can advise on the specific repair and maintenance obligations of the landlord and tenant under the applicable residential and commercial tenancy statutes, assess whether the landlord's failure to perform required repairs gives the tenant a right to withhold rent or terminate the lease, and develop the legal strategy for resolving repair and restoration disputes at the end of the tenancy.

Before a landlord can lawfully terminate a lease and file an eviction action based on the tenant's nonpayment of rent, most states require the landlord to serve the tenant with a written notice demanding payment of the past-due rent within a specified period, typically three to five days, and the tenant's failure to pay within this cure period is a precondition to the landlord's right to terminate, and the landlord who proceeds with an eviction filing before completing this notice process risks having the eviction complaint dismissed. Landlord-tenant and commercial-lease-review counsel can advise on the specific notice requirements and cure periods that must be satisfied before a landlord can terminate a residential or commercial lease for nonpayment of rent, assess whether the landlord has complied with the applicable statutory prerequisites for termination, and develop the pre-litigation strategy for securing the tenant's vacation of the premises with minimum delay.

When a local government denies a property owner's application for a development permit or rezoning based on an exercise of regulatory discretion that was not applied consistently to similarly situated properties, the property owner can challenge the denial through administrative appeal and, if unsuccessful, through an action for administrative review in the courts, and the owner who can demonstrate that the agency violated the principle of administrative self-binding or the principle of legitimate expectation stands a good chance of obtaining a court order compelling the issuance of the permit. Land-use-and-zoning and environmental-law counsel can advise on the administrative law remedies available to a property owner whose development permit application has been denied, assess whether the agency's decision reflects an abuse of discretion or a violation of legitimate expectation, and develop the administrative appeal and judicial review strategy for challenging the adverse decision.

When a government agency initiates an eminent domain proceeding, the property owner has the right to challenge the compensation offered by filing a written objection with the administrative agency, requesting a revised appraisal, and, if the revised appraisal remains inadequate, filing a judicial action seeking a court-ordered determination of the fair market value, and the property owner who retains an independent appraiser to conduct a thorough valuation of the property and its severance damages is in the strongest position to demonstrate that the government's compensation offer is insufficient. Real-estate-dispute-resolution and land-use-and-real-estate counsel can advise on the legal procedures for challenging a government's eminent domain compensation offer, assess whether the appraisal accurately reflects the fair market value and the full range of consequential damages, and develop the appraisal challenge and administrative objection strategy for maximizing the compensation awarded.

A boundary dispute between adjacent property owners is resolved through a court action for boundary determination, which requires the plaintiff to present surveying evidence establishing the legally correct boundary line, and if the adjacent property owner has encroached on the plaintiff's land through a structure, fence, or other improvement, the plaintiff can also seek an order requiring removal of the encroachment and an award of damages for the period during which the encroachment prevented the plaintiff from using the affected portion of the property. Adverse-possession and property-partition-action counsel can advise on the legal standards applicable to a boundary dispute or co-ownership partition action, assess whether the available survey evidence supports the client's claimed boundary or partition position, and develop the litigation strategy for obtaining a judicial determination that most effectively protects the client's property interest.

The transfer of real property by gift or inheritance triggers the obligation to pay acquisition tax at a rate that varies depending on whether the property is the recipient's primary residence, the number of properties the recipient already owns, and the nature of the transfer, and the property owner who structures the transfer with legal guidance can often minimize the applicable tax rate by selecting the most favorable valuation date, structuring the transaction as a partial gift or installment transfer, or qualifying for one of the statutory exemptions available for family transfers of primary residences. Property-transfer-tax and real-estate-litigation counsel can advise on the tax obligations arising from the transfer of real property by gift or inheritance, assess whether the tax authority's acquisition tax rate and property valuation accurately reflect applicable legal standards, and develop the tax planning and challenge strategy for minimizing the acquisition tax burden while defending the transaction against a tax authority audit.