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Real Estate Transfers

Although it may seem straight forward, real estate is one of the most complicated areas of the law.  It is a high risk area for lawyers and laymen alike.  That is why banks in North Carolina almost always require an attorney to obtain title insurance for the bank and handle the real estate closings. 

Whenever you buy or transfer property, you should consult with an attorney to verify that the deed transferring title is valid, signed by all the necessary parties and contains the necessary legal description of the property conveyed. It is also advisable to have the attorney perform a title search and verify that: (1) the seller has good title to the property; (2) there are no liens against the property; (3) there are no outstanding judgments against the seller that could attach to the real property; and (4) the property has deeded access to a public road.  

I get calls almost every week from people who have a real estate problem because they or their family decided to transfer property without consulting an attorney.  Here are a few common pitfalls that people run into when they do not consult an attorney:

1) The seller does not own all of the property to be transferred:  

Example 1:  The seller inherited property from their parents or grandparents.  They think they are the sole owner because years ago they agreed with their siblings to divide up the inheritance so that they got the property, but the siblings never recorded any kind of deed.  In that case, the seller does not actually own 100% of the property and any deed would have to be signed by their siblings. 

Example 2:  The seller received the property as a gift from a parent or other relative.  They received a "gift deed" that they did not record until many years after it was given to them.  If it was not recorded within two years of execution, the deed is void.  Therefore, the seller is not the owner (or sole owner) of the property.

Example 3:  The seller owned property before he or she married.  The seller thinks he or she is the sole owner. However, the seller's current spouse must join in the deed to the buyer, or the spouse will retain certain inheritance rights to the property upon the sellers death.

2) There is a lien against the property:

Example 1:  The seller had a plumber and an electrician do work to fix the house's plumbing and electrical systems.  Seller did not pay the amounts due.  The plumber and the electrician file liens against the property. A buyer would purchase the property subject to the liens, unless they were paid prior to the transfer.  In that case, buyer could be forced to pay the plumber and the electrician for the work performed while the seller owned the property.

Example 2:  The seller does not pay his credit cards and the credit card company obtained a judgment against the seller.  Buyer does not know this and purchases property from the seller.  The judgment against seller attached to the property as a lien and now the credit card company can seek to satisfy their judgment against the property, even though buyer is now the owner.

3) There is no deeded access to a public road:

Example 1:  Parents gave seller land behind their home and seller built a house on that land.  The deed to the seller does not grant an easement to the road, but the seller extended his or her parents' driveway and used that to access the property.  The buyer purchases the house and land from the seller believing that he or she could continue to use the driveway.  Six months later, the buyer has argument with the seller's parents and they block the driveway to the buyer's house.  Because the buyer has no deeded access to a public road, he or she faces expensive litigation to try to obtain access to the property.  

These types of problems are surprisingly common.  All could have been avoided if the people involved had consulted an attorney before transferring the property.  In all these cases, the buyers face costs that greatly exceed what they would have paid an attorney to perform a title search and close the transaction.  

If you are planning to purchase or transfer property, call the Law Office of John K. White, Jr. for help.  

We serve real estate clients in Buncombe County, Henderson County, and Madison County. This includes Alexander, Asheville, Arden, Biltmore Forest, Biltmore Lake, Black Mountain, Candler, Enka, Fairview, Flat Rock, Fletcher, Hendersonville, Laurel Park, Leicester, Marshall, Mars Hill, Mills River, Montreat, Mountain Home, Royal Pines, Saluda, Swannanoa, Weaverville, Woodfin.