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Real Estate Attorney Miami: Home
Real estate is a legal term (in some jurisdictions, such as the United Kingdom, Canada, Australia, USA and The Bahamas) that encompasses land along with improvements to the land, such as buildings, fences, wells and other site improvements that are fixed in location—immovable. Real estate law is the body of regulations and legal codes which pertain to such matters under a particular jurisdiction and include things such as commercial and residential real property transactions. Real estate is often considered synonymous with real property (sometimes called realty), in contrast with personal property (sometimes called chattel or personality under chattel law or personal property law).
However, in some situations the term "real estate" refers to the land and fixtures together, as distinguished from "real property", referring to ownership of land and appurtenances, including anything of a permanent nature such as structures, trees, minerals, and the interest, benefits, and inherent rights thereof. Real property is typically considered to be Immovable property The terms real estate and real property are used primarily in common law, while civil law jurisdictions refer instead to immovable property. Miami, FL
Real Estate Attorney Miami: Home
With the development of private property ownership, real estate has become a major area of business, commonly referred to as commercial real estate. Purchasing real estate requires a significant investment, and each parcel of land has unique characteristics, so the real estate industry has evolved into several distinct fields. Specialists are often called on to valuate real estate and facilitate transactions. Some kinds of real estate businesses include:
Within each field, a business may specialize in a particular type of real estate, such as residential, commercial, or industrial property. In addition, almost all construction business effectively has a connection to real estate. Miami, FL
Real Estate Attorney Miami: Home
Professional university-level education in real estate is primarily focused at the graduate level. Focus in towards the commercial real estate sector, primarily real estate development or investment rather than residential real estate sales conducted by a REALTOR.
"Internet real estate" is a term coined by the internet investment community relating to ownership of domain names and the similarities between high quality internet domain names and real-world, prime real estate
The legal arrangement for the right to occupy a dwelling is known as the housing tenure. Types of housing tenure include owner occupancy, Tenancy, housing cooperative, condominiums (individually parceled properties in a single building), public housing, squatting, and cohousing. The occupants of a residence constitute a household. Miami, FL
Real Estate Attorney Miami: Home
Residences can be classified by, if, and how they are connected to neighboring residences and land. Different types of housing tenure can be used for the same physical type. For example, connected residents might be owned by a single entity and leased out, or owned separately with an agreement covering the relationship between units and common areas and concerns.
Major physical categories in North America and Europe include:
The size of an apartment or house can be described in square feet or meters. In the United States, this includes the area of "living space", excluding the garage and other non-living spaces. The "square meters" figure of a house in Europe may report the total area of the walls enclosing the home, thus including any attached garage and non-living spaces, which makes it important to inquire what kind of surface definition has been used. Miami, FL
Real Estate Attorney Miami: Home
It can be described more roughly by the number of rooms. A studio apartment has a single bedroom with no living room (possibly a separate kitchen). A one-bedroom apartment has a living or dining room separate from the bedroom. Two bedroom, three bedroom, and larger units are common. (A bedroom is defined as a room with a closet for clothes storage.)
See List of house types for a complete listing of housing types and layouts, real estate trends for shifts in the market and house or home for more general information.
Eviction is the removal of a tenant from rental property by the landlord. Depending on the laws of the jurisdiction, eviction may also be known as unlawful detainer, summary possession, summary dispossess, forcible detainer, ejectment, and repossession, among other terms. Nevertheless, the term eviction is the most commonly used in communications between the landlord and tenant. Miami, FL
Real Estate Attorney Miami: Eviction
Depending on the jurisdiction involved, before a tenant can be evicted, a landlord must win an eviction lawsuit or prevail in another step in the legal process. It should be borne in mind that eviction, as with ejectment and certain other related terms, has precise meanings only in certain historical contexts (e.g., under the English common law of past centuries), or with respect to specific jurisdictions. In present-day practice and procedure, there has come to be a wide variation in the content of these terms from jurisdiction to jurisdiction. One should not assume that all aspects of the discussions below will necessarily apply even in all states or other common law jurisdictions.
Depending on the jurisdiction, if a landlord terminates a tenancy, the landlord may be required to give the tenant a notice, commonly called a notice to quit or notice to vacate prior to instituting formal legal proceedings. This is true whether the termination is "for cause" (i.e., because the tenant has violated part of the rental agreement) or without cause (i.e., because the landlord has simply decided to terminate the tenancy. Note that in some jurisdictions, a landlord cannot terminate a tenancy except for certain legally permitted reasons. which to correct the violation. Common causes for eviction include nonpayment of rent or a breach of the lease (such as keeping a pet when pets are not allowed). In some cases, depending on the laws of the particular jurisdiction, a landlord may post an unconditional quit notice, meaning the tenant can do nothing to correct the violation. Miami, FL
Real Estate Attorney Miami: Eviction
In some jurisdictions a landlord may terminate a tenancy without cause if the tenancy is not for a specific length of time (such as a month-to-month tenancy), or if the lease has expired, and the tenant has not moved. In many jurisdictions, written notice of termination must be given (generally 1 to 3 months) before the landlord commences an eviction lawsuit. In some areas, just cause eviction controls exist, making this type of eviction more difficult or illegal. Rent control ordinances or statutes may also affect a landlord's ability to terminate tenancy without cause.
In most places, the guidelines for evictions due to non-payment of rent are different from those resulting from other causes, such as breach of lease. When the reason for eviction is due to causes other than rent, many places have laws requiring the tenant to be given a specified amount of time before moving, which may be, for example, 30 days following all court proceedings. But in the case of unpaid rent, eviction may occur within a few weeks (or less) following the due date for the rent. The exact amount of time is contingent upon the jurisdiction's guidelines and the load of cases in the jurisdiction's court system. Miami, FL
Real Estate Attorney Miami: Eviction
If the tenant remains in possession of the property after the notice to quit has expired, the landlord then serves the tenant with a complaint. This requires the tenant to appear in court. If the tenant does not file an answer or appear in court, the landlord can then file for a default judgment and win automatically without the tenant being there. By filing an answer, the tenant may state his or her side of the story, and provide affirmative defenses, such as the landlord not making required repairs or charging more than the legally permitted rent, or the tenant not being given proper notice.
When the tenant's answer is filed, a trial date is set. Eviction cases are often expedited since the issue is time-sensitive (the landlord loses rental income while the tenant remains in possession). If the judge sides with the tenant, the tenant remains in possession of the property. The judge may still order any past due rent to be paid. If the landlord wins, the tenant has a small window of time to move before the eviction takes place, generally less than a week, although the tenant can ask for a stay of execution if he/she needs more time. Miami, FL
Real Estate Attorney Miami: Eviction
In some jurisdictions, a tenant who has failed to pay rent is granted a right to redemption, unless otherwise specified in court documents. Right to Redemption would mean that the tenant may cancel the eviction and remain in the rented property by paying the full amount of rent due plus all other fees owed to the landlord allowable under the law.
In some of these jurisdictions, if the tenant continually fails to pay rent, resulting in the repeated filing of complaints by the landlord, the landlord may file for no right to redemption. This would mean that following an eviction trial, the case against the tenant would stand, and that the tenant could not remain in the property by payment of rent. The number of trials required before a landlord could make such a filing, even in jurisdictions so providing, varies by jurisdiction. Miami, FL
Real Estate Attorney Miami: Eviction
After losing the eviction suit, depending on jurisdiction, the tenant may have a certain number of days to leave the premises prior to further action being taken, or may be required to leave the premises immediately.
Should the tenant remain in the premises after losing the eviction suit, the landlord would then obtain a writ of possession from the court and present it to the appropriate law enforcement officer, sometimes the local Sheriff or Marshal. The officer then posts a notice for the tenant on the property that the officer will return on a specified day to remove the tenant from the property if the tenant has not moved. On that day, if necessary, the officer may physically remove the tenant and any other people on the property. Any possessions of the tenant still on the property may be turned over to the tenant (furniture, personal effects), put in storage for the tenant, and/or considered abandoned, depending on local laws. The rental property is then turned over to the landlord. Miami, FL
Real Estate Attorney Miami: Eviction
In most jurisdictions, an eviction may only take place under the auspices of a law enforcement officer or a representative of the law as defined by the jurisdiction's laws. It is illegal in most places for the landlord to attempt to force the tenant off the property himself/herself or to force them to move in other ways, such as shutting off heat or utilities, or changing locks. A tenant facing such measures may sue the landlord (sometimes called a "constructive eviction" claim) or file a counterclaim against an existing eviction proceeding, depending on the procedural aspects of local law. Miami, FL
Real Estate Attorney Miami: Title Insurance
Title insurance in the United States is indemnity insurance against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage liens. Title insurance is principally a product developed and sold in the United States as a result of the comparative deficiency of the U.S. land records laws. It is meant to protect an owner's or a lender's financial interest in real property against loss due to title defects, liens or other matters. It will defend against a lawsuit attacking the title as it is insured, or reimburse the insured for the actual monetary loss incurred, up to the dollar amount of insurance provided by the policy. The first title insurance company, the Law Property Assurance and Trust Society, was formed in Pennsylvania in 1853. The vast majority of title insurance policies are written on land within the U.S.
Typically the real property interests insured are fee simple ownership or a mortgage. However, title insurance can be purchased to insure any interest in real property, including an easement, lease or life estate. Just as lenders require fire insurance and other types of insurance coverage to protect their investment, nearly all institutional lenders also require title insurance to protect their interest in the collateral of loans secured by real estate. Some mortgage lenders, especially non-institutional lenders, may not require title insurance. Buyers purchasing properties for cash (without a lender) often want title insurance as well. Miami, FL
Real Estate Attorney Miami: Title Insurance
Title insurance is available in many other countries, such as Canada, Australia, the United Kingdom, Mexico, New Zealand, Japan, China, Korea and throughout Europe. However, while a substantial number of properties located in these countries are insured by U.S. title insurers, they do not constitute a significant share of the real estate transactions in those countries. They also do not constitute a large share of U.S. title insurers' revenues. In many cases these are properties to be used for commercial purposes by U.S. companies doing business abroad, or properties financed by U.S lenders. The U.S. companies involved buy title insurance to obtain the security of a U.S. insurer backing up the evidence of title that they receive from the other country's land registration system, and payment of legal defense costs if the title is challenged.
Title insurance exists in the U.S. in great part because of a comparative deficiency in the U.S. land records laws. Most of the industrialized world uses land registration systems for the transfer of land titles or interests in them. Under these systems, the government makes the determination of title ownership and encumbrances on the title based on the registration of the instruments transferring or otherwise affecting the title in the applicable government office. With only a few exceptions, the government's determination is conclusive. Governmental errors lead to monetary compensation to the person damaged by the error but that aggrieved party usually cannot recover the property. The Torrens Title system is the basis for land registration systems in many countries. Miami, FL
Real Estate Attorney Miami: Title Insurance
A few jurisdictions in the United States have adopted a form of this system, e.g., Minneapolis, Minnesota and Boston, Massachusetts. However, for the most part, the states have opted for a system of document recording in which no governmental official makes any determination of who owns the title or whether the instruments transferring it are valid.
Greatly simplified, in the recording system, each time a land title transaction takes place, the transfer instrument is recorded with a local government recorder located in the jurisdiction (usually the county) where the land lies. The instrument is then indexed by the names of the grantor (transferor) and the grantee (transferee) and photographed so it can be found and examined by anyone who wants to see it. Usually, the failure by the grantee to record the transfer instrument voids it as to subsequent purchasers of the property who don't actually know of its existence. Miami, FL
Real Estate Attorney Miami: Title Insurance
Under this system, determining who owns the title requires the examination of the indexes in the recorders' offices pursuant to various rules established by state legislatures and courts, scrutinizing the instruments to which they refer and making the determination of how they affect the title under applicable law. (The final arbiters of title matters are the courts, which make decisions in suits brought by parties having disagreements.) Initially, this was done by hiring an abstractor to search for the documents affecting the title to the land in question and an attorney to opine on their meaning under the law, and this is still done in some places. However, this procedure has been found to be cumbersome and inefficient in most of the U.S. Substantial errors made by the abstractor or the attorney will be compensated only to the limit of the financial responsibility of these parties (including their liability insurance). Some errors may not be compensated at all, depending on whether the error was the result of negligence. The opinions given by attorneys as to each title are not uniform and often require time consuming analysis to determine their meanings.
Title insurers use this recording system to produce an insurance policy for any purchaser of land, or interest in it, or mortgage lender if the premium is paid. Title insurers use their employees or agents to perform the necessary searches of the recorders' offices records and to make the determinations of who owns the title and to what interests it is subject. The policies are fairly uniform (a fact that greatly pleases lenders and others in the real estate business) and the insurers carry, at a minimum, the financial reserves required by insurance regulation to compensate their insured for valid claims they make under the policies. This is especially important in large commercial real estate transactions where many millions of dollars are invested or lent in reliance on the validity of real estate titles. As stated above, the policies also require the insurers to pay for the costs of defense of their insured in legal contests over what they have insured. Abstractors and attorneys have no such obligation. Miami, FL
Real Estate Attorney Miami: Title Insurance
Standardized forms of title insurance exist for owners and lenders. The lender's policies include a form specifically for construction loans, though this is rarely used today.
The owner's policy assures a purchaser that the title to the property is vested in that purchaser and that it is free from all defects, liens and encumbrances except those which are listed as exceptions in the policy or are excluded from the scope of the policy's coverage. It also covers losses and damages suffered if the title is unmarketable This policy also provides coverage for loss if there is no right of access to the land. Although these are the basic coverage, expanded forms of residential owner's policies exist that cover additional items of loss.
The liability limit of the owner's policy is typically the purchase price paid for the property. As with other types of insurance, coverage can also be added or deleted with an endorsement. There are many forms of standard endorsements to cover a variety of common issues. The premium for the policy may be paid by the seller or buyer as the parties agree; usually there is a custom in a particular state or county on this matter which is reflected in most local real estate contracts. Consumers should inquire about the cost of title insurance before signing a real estate contract which provide that they pay for title charges. A real estate attorney, broker, escrow officer (in the western states), or loan officer can provide detailed information to the consumer as to the price of title search and insurance before the real estate contract is signed. Title insurance coverage lasts as long as the insured retains an interest in the land insured and typically no additional premium is paid after the policy is issued. Miami, FL
Real Estate Attorney Miami: Title Insurance
This is sometimes called a loan policy and it is issued only to mortgage lenders. Generally speaking, it follows the assignment of the mortgage loan, meaning that the policy benefits the purchaser of the loan if the loan is sold. For this reason, these policies greatly facilitate the sale of mortgages into the secondary market. That market is made up of high volume purchasers such as Fannie Mae and the Federal Home Loan Mortgage Corporation as well as private institutions.
The American Land Title Association ("ALTA") forms are almost universally used in the country though they have been modified in some states. In general, the basic elements of insurance they provide to the lender cover losses from the following matters:
As with all of the ALTA forms, the policy also covers the cost of defending insured matters against attack.
Elements 1 and 2 are important to the lender because they cover its expectations of the title it will receive if it must foreclose its mortgage. Element 3 covers matters that will interfere with its foreclosure. Miami, FL
Real Estate Attorney Miami: Title Insurance
Of course, all of the policies except or exclude certain matters and are subject to various conditions.
There are also ALTA mortgage policies covering single or one-to-four family housing mortgages. These cover the elements of loss listed above plus others. Examples of the other coverage are loss from forged releases of the mortgage and loss resulting from encroachments of improvements on adjoining land onto the mortgaged property when the improvements are constructed after the loan is made.
Title insurance differs in several respects from other types of insurance. Where most insurance is a contract where the insurer indemnifies or guarantees another party against a possible specific type of loss (such as an accident or death) at a future date, title insurance generally insures against losses caused by title problems that have their source in past events. This often results in the curing of title defects or the elimination of adverse interests from the title before a transaction takes place. Title insurance companies attempt to achieve this by searching public records to develop and document the chain of title and to detect known claims against or defects in the title to the subject property. If liens or encumbrances are found, the insurer may require that steps be taken to eliminate them (for example, obtaining a release of an old mortgage or deed of trust that has been paid off, or requiring the payoff) before issuing the title policy. In the alternative, it may except from the policy's coverage those items not eliminated. Title plants are sometimes maintained to index the public records geographically, with the goal of increasing searching efficiency and reducing claims. Miami, FL
Real Estate Attorney Miami: Title Insurance
The explanation above discloses another difference between title insurance and other types: title insurance premiums are not principally calculated on the basis of actuarial science, as is true in most other types of insurance. Instead of correlating the probability of losses with their projected costs, title insurance seeks to eliminate the source of the losses through the use of the recording system and other underwriting practices. As a result, a relatively small fraction of title insurance premiums are used to pay insured losses. The great majority of the premiums is used to finance the title research on each piece of property and to maintain the title plants used to efficiently do that research. There is significant social utility in this approach as the result conforms to the expectations of most property purchasers and mortgage lenders. Generally, they want the real estate they purchased or lent money on to have the title condition they expected when they entered the transaction, rather than money compensation and litigation over unexpected defects. This is not to say that title insurers take no actuarial risks. There are several matters that can affect the title to land that are not disclosed by the recording system but that are covered by the policies. Some examples are deeds executed by minors or mentally incompetent persons, forged instruments (in some cases), corporate instruments executed without the proper corporate authority and errors in the public records. However, historically, these problems have not amounted to a high percentage of the losses paid by the insurers. A more significant percentage of losses paid by the insurers are the result of errors and omissions in the title examining process itself.
