July 14th, 2009 at 10:38am
Under Estates Law
CYA Disclaimer: The following is intended for reference purposes only and not as legal advice.
Do you own the water running under your property? If you’re not the kind of person who would care one way or another, then read no further (although it is beyond me how anyone could fail to be fascinated by this topic!). Internationally, water law is of more critical importance than most people realize, because it is water rather than oil that causes the most political tension in the arid Arabian Peninsula.
The law concerning underground water is quite fractured in the United States, with several competing legal theories, this one or that one dominating depending on where you live and how much water they have here. Note that I am not talking about underground streams here but diffuse water, the stuff that percolates up to the surface or remains still. This matters more and more the dryer the climate you live in. Following is a very simplified summary of the four major legal doctrines:
1. Absolute Ownership
Finders, keepers. You can pump all the water you want from your own land, even if it squeezes the land of neighboring property like a sponge and leaves them dry as a bone. No slant drilling allowed, however.
2. Reasonable Use
You can pump as much as you can reasonably use for “beneficial uses”. How much is “reasonable” is anybody’s guess, but the answer can probably be found in state case law (and may depend on how much money you pay the judge!).
3. Correlative Rights
All owners of property over an underground basin jointly own the underground water and may only use a reasonable proportion of the annual supply. Note that this is different from #2 above, because what is “reasonable” is a lot more dependent ion the total supply of water in the basin – the less there is, the less water you can take and still be reasonable.
4. Appropriation
This one applies to underground streams as well. Under this doctrine, people who don’t even own land over the basin can take water out as long as they can do so without trespassing.
By Law Article
July 14th, 2009 at 04:38am
Under Estates Law
Put simply, the title to your real estate is unmarketable if it doesn’t belong to you, if it has encumbrances such as mortgages on it, or if there is a reasonable claim against it by someone else. So what are the consequences of having an unmarketable title to your real estate?
1. An unmarketable title can tank a sales transaction – it will allow the buyer to back out of a real estate purchase contract even after he’s already signed it. But the seller can cure any defects in the title right up to the point of closing – it’s just that the buyer can refuse to close the sale until and unless any title defects are cleared up. If you miss the contractual closing date because of title defects, though, then the buyer may have the right to back out. In some states the buyer must give a seller holding unmarketable title early notice and a certain period to cure the title defect. But if you are a seller and don’t live in one of those states, beware – if your real estate sale contract with the buyer states that “time is of the essence”, then you have until the contractual closing date and no later to cure all title defects necessary to make the tile marketable.
2. If the title defect is minor (a claim against the title with only a remote chance of ever being enforced, for example), then the seller might be able to obtain a court order forcing the buyer to purchase the property, although the price of the real estate may be reduced to compensate for the title defect.
3. If the buyer properly backs out of a real estate sales contract because of the seller’s failure to provide marketable title, then the buyer can sue the seller for the return of any down payment, and even “benefit of the bargain” damages in some states (the difference by which the market price for the property may have exceeded the contracted purchase price).
Unmarketable title is the buyer’s bludgeon, not the seller’s. If the buyer wants the property anyway, then the seller must abide by the real estate sale contract and sell it to him. If the title defect is small, the buyer can even force the seller to accept a small discount in the price; but if the defect is large, the buyer cannot force the seller to sell and then demand a large discount on the price because of the title defect.
DISCLAIMER: The foregoing is intended for reference purposes only and not as legal advice.
By Law Article
July 13th, 2009 at 10:38pm
Under Estates Law
Marketable title (sometimes called “merchantable title”) is of much greater concern for the sale of real estate than with the same of personal property, mainly because of the complex and sometimes arcane rules applicable to real property. Property law recognizes a myriad of interests and procedures in real estate including easements, future interests, leaseholds, mortgages, and adverse possession, among others. For this reason it is quite likely that the interests in a given parcel of land will be in dispute – the bank claims a mortgage over the real estate that was taken out by the previous owner, the city claims the right to build a road across your land (an easement), etc. Even if these claims are in fact invalid, the very fact that there is enough credibility to them to force them into court to resolve them could make your land quite difficult to sell. The absence of credible or serious claims against your full possession and quiet enjoyment of the land (that you can then sell to a potential buyer) is what is known as “marketable title”.
On the other hand, if the claims against your title are substantial enough to make a reasonable buyer think twice before agreeing to purchase your property at anywhere near the going market price, then your title is unmarketable. The consequence of this is that if the buyer finds out that your title is unmarketable after signing a real estate sales contract with you, he can refuse to close the sale until you clear up the problem, and there won’t be a whole lot you can do about it except either give him what he wants or wave bye-bye to him (and his money!). Furthermore, if the real estate sales contract states that “time is of the essence”, then you have until the contractual closing date and not a moment longer to offer the buyer marketable title.
Following are the legal requirements for marketable title:
(1)Seller has actual title to the property in fee simple absolute (the most complete form of real property ownership)
(2)The title is free from encumbrances (mortgages, leaseholds, etc.). If the property has encumbrances, then a clear description of them in the sales contract should close this loophole.
(3) The title is free from reasonable doubt. An examination of title records should reveal that there is no reasonable doubt as to whether the seller actually owns the property and whether or not there are encumbrances upon it that were not disclosed in the real estate sales contract.
DISCLAIMER: The foregoing is intended for reference purposes only and not as legal advice.
By Law Article
July 11th, 2009 at 04:38pm
Under Estates Law
Real estate law involves a person’s right relating to the ownership and possession of land, buildings or structures on land. Every home purchase involves a number of potentially complicated legal issues and a great deal of paperwork. Below are certain real estate laws in Florida that everybody should follow to avoid any kind of complications in buying and selling.
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