Category: Residential Transactions

Understanding Attorney Review and Its Place in Your Real Estate Transaction

Understanding Attorney Review and Its Place in Your Real Estate Transaction

Many who purchase real estate often ask why they would need to involve an attorney. They say things like “well were not going to court over this” or “I’m not suing anyone” or most commonly “Is the attorney really something I need to spend money on, I already have a realtor”.

The answer to those questions, is yes, an attorney is vital to your real estate purchase and to bring immense value to the transaction. The lions share of that value comes in the form of Attorney Review. Attorney Review is a period of 5 business days following the date you and the other party sign your real estate purchase or sale contract. This period is one where attorneys from both the seller and buyer side review the contract between the parties and identify any issues. A realtor cannot perform this service for you, it must be an attorney.

Common issues that can occur during attorney review are when a defect in title is discovered, an encumbrance is brought to light, or the financing for the property has fallen through. The benefit of attorney review is that it allows for the attorney for either transacting party to cancel the contract. While listing price and closing date are not usually valid reasons for cancelling the contract, there is a very broad range of reasons that an attorney may state as justification to cancel the contract on behalf of their clients. Examples include clients being unable to obtain proper financing, the property having an easement on it, or if there is another area of the contract such as removal of certain property or a requested repair that the parties cannot come to agreement on,

It is very important to get your real estate contract over to your attorney as soon as absolutely possible. While there is always the ability to request extensions to the 5-day period, they have to be agreed to. Requesting an extension is often very easy for a seller’s attorney to do, especially if they have a motivated buyer, however it can be a different case for a buyer’s attorney. When a buyer does not meet the attorney review deadline they are forfeiting almost all of their bargaining power on the purchase of their new home and can often be locked into the purchase of the home even if issues are discovered in the contract. While we expect most attorneys and sellers of real estate to act in good faith and be reasonable in their negotiation tactics, that isn’t always the case, which is why having an attorney that is familiar with contract provisions and local laws is invaluable.

Giving yourself that extra added security is something that people may wonder if it is truly necessary. However, a real estate purchase is often one of the biggest purchases a person will make in their life. When you are about to sign a contract to spend often over $100,000.00 on a property, you want to be sure that what you are signing is legitimate, fair, and that you are in agreement with it. Attorney Review is your tool to ensuring that you are receiving a fair deal on your very important purchase and Attorney Review is your method of exit if you discover that you are not receiving a fair deal. It is ALWAYS worth the price.

The Law Office of Andrew Szocka P.C. is experienced with all manner of Real Estate Contracts and would be happy to assist you during your Attorney Review period. If you have a real estate contract you would like reviewed by our office, or assistance with any part of your transaction please contact us by email at szocka@sockza.com or by calling 815-455-8430.

Knowing Your Deeds

Knowing Your Deeds

So, it’s finally time, you are about to buy your first piece of property, you’ve scoped out the house you want, made an offer that was accepted, and now you’re getting into the legal documents for the property transaction. One of the most important things you need to consider and be aware of during this real estate transaction is how you will be taking ownership of your property and how it will be deeded to you. The assurances, or lack of assurances, that you receive from your Deed massively affect your legal standing and your ability to seek reimbursement from the previous owners for defects that were or were not disclosed to you at the purchase or sale of the property. The three main types of Deeds are General Warranty Deeds, Special Warranty Deeds, and Quit Claim Deeds.

General Warranty Deeds are what most lawyers would suggest that buyers obtain if possible. These deeds provide covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances. The main point of a General Warranty Deed is that it encompasses the entire history of the Property. This Deed promises that there are no encumbrances on this property whatsoever and that the owner has the absolute right to sell the property. In a General Warranty Deed there is also a promise to defend new owners if their ownership of the Property is challenged by a third party or a previously undiscovered encumbrance comes to light.

A Special Warranty Deed is similar to a General Warranty Deed but the key difference is that the Owner is only ensuring that no defects or issues have arisen during THEIR ownership of the property, not anyone else before them. If there were previous encumbrances that the previous owners were unaware of and did not occur during their ownership, they are not liable to the buyers for the discovery of this issue and have no obligation to help defend against it.

Finally, the least encompassing deed, the Quit Claim Deed. This is a deed that should rarely be used and only in situations where both parties require no assurances from each other. The Quit Claim Deed simply conveys the property, it does not warrant against any encumbrances and makes no promises as to the Seller’s actual ownership of the Property. A Quit Claim Deed is often used between families and close friends where there is immense trust or no need to establish liability if encumbrances are discovered at a later date.

Knowing the kind of deed that you have is very important when determining your legal rights in regards to a property you take ownership of or give ownership away. Whether you are buying or selling you want to be positive you are aware of what promises you are making or are being made to you about such an important transaction.

For assistance with drafting or reviewing the deed to your next property sale or purchase, please consider contacting the Law Office of Andrew Szocka P.C. online or by phone at (815) 455-8430.

Dam Removal, Property Values, and Taxes on the Fox River

Dam Removal, Property Values, and Taxes on the Fox River

With the recent conservation efforts of Kane County and the United States Army Corps of Engineers we are about to see a major change to the Fox River and adjoining areas. In an effort to improve and restore the Fox River, Kane County, under the guidance of the Illinois River Basin Restoration Program that Congress approved in 2000 is working on the removal of every Fox River dam in Kane County from the Carpentersville Dam to the Montgomery Dam.

With the loss of the dams, it is anticipated that the Fox River will flow much more easily without as many blockades long its path. This likely will result in the reduction of the river as the water flows more fluidly. With the shore line falling back, many Kane County residents are wondering what this will mean for them and their property.

Property owners are usually concerned with their property’s value and the taxes they will be expected to pay to the County. To determine both it is important to look at the process for determining value and property taxes. Township assessors take a property’s reported characteristics (which may or may not be verified) and then look at recent sales for comparable properties in the local area to determine how much a property is likely to sell for if it was on the market at that point in time. This number is then used, with other adjustment factors, to determine what share of the overall tax levy a specific property owner is burdened with. Because of this, property value (the main determinant of a landowner’s property taxes) is based on a potential buyer’s perception, not on the owner’s perception. For a discussion about the potential impact to the property taxes for riverfront property owners please see our blog on Riparian Rights and Property Taxes.

In regards to property values, the expectation of the County is that there will be little to no impact on the values of the properties. A riverfront property is a riverfront property and the minor reduction of the shore line shouldn’t have a significant impact on the expected market value of the property. None of the changes brought by the dam will affect the size, location, or other characteristics of the riverfront properties and thus people will continue to buy them for the same reasons they always have and pay the same rate they always have.

There could be a big benefit for homeowners who have property situated in known flood zones. The property value has a chance of increasing due to the benefit this dam removal program will bring. As the river returns to its natural elevation, we could expect to see a reduction in flooding. If a property is able to remove the designation of being in a flood zone this will naturally increase the worth of the property to prospective buyers.

If you have questions regarding your property rights, the Law Office of Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.

Dam Removal, Waterfront Property, and Riparian Rights

Dam Removal, Waterfront Property, and Riparian Rights

It has finally happened, you’ve worked, saved, and finally earned enough money to purchase your dream home on the river. You’ve done your calculations and made the numbers work so that you can maintain your monthly mortgage and property taxes with your current income. But what if that changes? What happens if the area around the water recedes or expands? Will that affect you? Will it affect how much you are paying and if so, will you be able to afford to continue living at the home you have saved so much for?

These are the questions being asked by land owners as the State of Illinois works to comply with the Illinois River Basin Restoration Program that Congress approved in 2000. The program plans for the removal of every Fox River dam in Kane County from the Carpentersville Dam to the Montgomery Dam. While it is wonderful to hear that Illinois cares deeply about our ecological environment, it is concerning to property owners as they are unsure whether these efforts to restore the environment will have affects on their homes and potentially their property rights.

With the goal of removing every dam between the Carpentersville Dam and the Montgomery Dam, the Fox River is set to undergo change. With all the dams being removed, the water flowing along the Fox River should begin to recede and the river itself may become thinner as the water flows more concurrently. For those with properties on the edge of the Fox River it is a concern that if the water recedes and they gain access to new land that they will then see an increase to their property taxes.

While this is a reasonable concern, it does not comport with the law and homeowners should feel a bit more security in their position. Riverfront homeowners have what are known as Riparian Rights. Generally, riparian rights are “the rights of an owner of land that borders on a body of water or watercourse to the use of the water.” Alderson v. Fatlan, 231 Ill. 2d 311, 318, 325 Ill.Dec. 548, 898 N.E.2d 595 (2008). These rights originate by operation of law, “solely because the land abuts the body of water.” Id. The riparian rights of property owners, abutting the same body of water, are equal, such that no “ Property owner may exercise its riparian rights in such a manner so as to prevent the exercise of the same rights by other similarly situated property owners.” Id. at 318-19, 325 Ill.Dec. 548, 898 N.E.2d 595.

Cases in Illinois have discussed the property lines of riparian rights holders and have found that if a riparian owner’s land extends to and bounds on a river, then the center of the river is the property line. Schulte v. Warren, 218 Ill. 108, 117, 75 N.E. 783 (1905); accord Fuller v. Shedd, 161 Ill. 462, 474-75, 44 N.E. 286 (1896)Braxon v. Bressler, 64 Ill. 488, 489 (1872). If a riparian owner owns land on both sides of a river, then he owns “the whole of the bed of the stream to the extent of the length of his lands upon it.” People ex rel. Deneen v. Economy Light & Power Co., 241 Ill. 290, 318, 89 N.E. 760 (1909); accord Albany R.R. Bridge Co. v. People ex rel. Matthews, 197 Ill. 199, 205-06, 64 N.E. 350 (1902). (per curiam)

It has been speculated that property values will increase due to the restoration of the river.   With the property lines being drawn to the center of the river, it is unlikely that property owners will see increases to their property taxes due to any uncovered land if the water recedes.

If you have questions regarding your property or riparian rights the Law Office of Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.

 

QUIET TITLE: A USEFUL TOOL IN RESOLVING PROPERTY TITLE ISSUES

QUIET TITLE: A USEFUL TOOL IN RESOLVING PROPERTY TITLE ISSUES

The act of Quieting Title on property is intended to produce clear and marketable title.  If a property’s title is not clear and marketable it likely has a title defect, also known as a “cloud.”  Title defects are called clouds because the defect may obscure the property’s true owner or reflect that a party has an interest in property when it actually does not.

Clouds on title include deeds that break an otherwise clear chain of conveyances or an unreleased mortgage that secures a loan that was actually paid off.

Clouds on title are often discovered when property is being sold.  Sellers almost always have a contractual obligation to transfer clear title to the buyer.  As a result, the seller obtains a title insurance company to search the property’s title history.  If a cloud on title appears, it may need to be resolved with an action to Quiet Title.

The seller, often through an attorney, files a Complaint to Quiet Title in the Illinois Judicial Circuit where the property is located.  The Complaint explains the cloud on title and why it should be removed.  The court then determines whether or not the cloud is a legitimate claim on the property.  If the cloud is not legitimate, the court issues an order removing the cloud from the property’s title history.

For example, you attempt to refinance the current loan that you used to buy your property.  The new loan will be secured by a new mortgage.  But before your lender provides the new loan, it uses a title insurance company to check your property’s title.  Although unlikely, it is possible that the lender’s title insurance company finds an old mortgage recorded against your property that was given by a previous owner.

A Complaint to Quiet Title would allege that the loan secured by the old mortgage was actually paid off.  As a result, the holder of the old mortgage should have released it from your property’s record.  The old mortgage is still of record by mistake.

In this case, the court hearing your Quiet Title action is highly likely to order the old mortgage released from your property’s title history.

Having a good attorney can help further understand how to Quiet Title and whether it is necessary to resolve any clouds on your property’s title.

Planning on buying or selling property?  Local attorney Andrew Szocka provides thorough and speedy real estate and estate planning help in the Chicagoland area.  To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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