Real Estate Attorneys
“Buy land. They ain’t making any more of the stuff.” – Will Rogers.
Real estate law is the heart of our firm in Fresno, CA. Harry Pascuzzi is a Past President of the Fresno Association of Realtors and has been involved in real estate, in a variety of capacities, for almost forty years each. Add to that, Susan Pascuzzi was in real estate lending for ten years before beginning her law practice and Catherine Amador served as a real estate agent for seven years before joining the firm. Real estate has a language all unto itself, and at our firm, we speak it fluently. There are literally hundreds of issues which arise in real estate, far too numerous to mention. We like to think that we have seen it all, but just as we speak, in walks a new spin on an old subject. Even though, as ‘ol Will said, “They ain’t making any more”, there are more than enough issues which arise with the land we already have.
Purchase, Sale and Transfer of Real Estate
Whether the type of property is residential, commercial, retail, industrial or agricultural, we have the expertise to prepare or review purchase and sale agreements, which all accompanying documents. Each type of transactions involved vastly different considerations. In residential transactions, disclosures, inspections and contingencies are critical. Additional issues arise if the home is located on acreage with a well and septic system rather than City provided facilities, whereas properties in the City are normally subject to CC&R’s and possibly Homeowner Associations. In contrast, considerations in agricultural transactions involve timing of harvest of the crop, source of water entitlements and encroachment issues. Regardless of the type of property, careful review of preliminary title reports and documents are just as important as the physical inspection of the property, so, in addition to document preparation, we can counsel our clients in Fresno on the best due diligence prior to removing contingencies and committing to the transaction.
Real Estate Disputes
As in many other areas of life, disputes can arise. Next to family law matters, real estate disputes tend to invoke the highest level of passion and fervor. While most of the arguments are based on a contract based matter, such as a breach of a purchase/sale agreement, construction contract, lease, loan agreement or easement, others can be based on a tort complaint such as nuisance, misrepresentation, interference with an easement or the proverbial trespass, and some matters include a hybrid of both.
Normally in real estate disputes, there are two forums wherein a decision maker will decide your fate. It could be in the hands of a judge or jury, if the dispute goes to court, or with an arbitrator, or possibly a panel of arbitrators if it goes to arbitration.
We strongly promote early dispute resolution through mediation, which is a process designed to bring the parties and their counsel together to reach a settlement agreeable to all. No one seems to be happy at a successful mediation, but in the end we find comfort knowing that our client saved a lot of time, money and emotion. Mediation can occur early, when a dispute arises, or late, after months of litigation, depositions, motions, but at a point in time where both parties understand the other parties case a lot better, increasing the settlement chances.
We understand real estate in Fresno, California and understand the dispute process. Our attorneys have over 100 years of experience in real estate legal representation and in the real estate world of brokerage, development, lending and construction. We think we have seen it all, but you never know.
Shakespeare wrote, “Neither a borrower nor a lender be, for loan oft loses both itself and friend, and borrowing dulls the edge of husbandry.” Real estate acquisition rarely relied on Shakespeare, although on occasion property is purchased on an all cash basis. More often than not, financing, based on necessity, or based on leverage, comes into play. Numerous issues arise in lending, such as the interest rate (which can be fixed or based on a complex formula), repayment terms (which can be equally amortized or based on a terms defined in the loan documents), prepayment penalties (which sometimes come as a shock to some borrowers), liquidity rules, covenants, security, guarantees, and the list goes on. Typically, loan documents are measured by the pound causing the perplexed borrower to glaze over by page three. We have reviewed a small boatload of loan documents and know what to look for, what is important and what is not. Many of our clients entrust loan document review to us, some do not because they trust that everything is in order. We are here to ensure that it is.
If you find yourself on the lending side due to the fact that real estate tends to be a safer investment with good returns or maybe Seller carry is the only way to sell a particular piece of property, we can help. Lenders want to make sure their investment is secure. We handle title review and make recommendations as to securitization through the use of a Deed of Trust, or maybe more. We can prepare loan documents and, if necessary, can handle foreclosure.
Numerous issues arise when improvements are constructed on property and they normally begin with the drafting of the construction agreement. You can never completely avoid construction disputes through careful drafting of the contract, but you sure can avoid the vast majority of them. The best contracts completely build the structure on paper, before going vertical on the ground, right down to the width, height and shape of the baseboard. Too many times, after the contract is signed, the contractor sees a basic tract style home on paper and the property owner envisions the Taj Mahal, which is a recipe for disaster.
Issues also arise when tenants want to make improvements and the Landlord wants to make sure contractor liens, called mechanics liens, do not attach to the property and to make sure improvements do not negatively impact the value of property.
When we represent contractors we want to ensure they get their money in a timely fashion and don’t have contractual expectations and obligations beyond the scope of the job. We represent both contractors and property owners when disputes arise and we understand the extreme expense involved in construction litigation, therefore we strive for early resolution.
Access and Easements
What good is property unless you can get to it? OK, maybe the helicopter works, but for most of us, this is a real problem. Most properties front on a public road or have an express easement, which is a signed, notarized and recorded grant from one or more property owners which block your property from getting to a public road. Sometimes express easements are very detailed, but more often than not, key issues are left out, such as whether the owner of the property, which has the right to access, called the Dominant Tenement, have the right to improve the access with asphalt or rock, whether guests can cross, whether the Dominant Tenement has an obligation to pay for maintenance, or the right to maintain, whether the easement is perpetual or for a number of years, does the easement run with the land.
Now, the above applies when you have an express easement, sometimes easements are created by prescription, implication or necessity. An easement by prescriptive is based on continuous, open use of someone else’s land for a period of five years without permission. This usually results in the right to continued use, in the same manner. Also, when someone transfers one of two or more parcels and forgets to reserve an easement for themselves, or grant an easement to the buyer, the Court will consider there to be an easement by implication. As a final attempt to secure an easement when none of the above apply is an easement by necessity, which requires a number of factors to prove in Court.