btolle
Platinum Member
I had originally posted this to another forum at Help! I need legal advice re: easements but at the suggestion of stephan am posting it here so it is more easily accessible.
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First, let me say that I am truly sorry to hear what has happened to mdbarb. It is a sad that our justice system let this happen. However, I am looking for the lessons in this travesty.
DISCLAIMER: I am not a lawyer. I am a licensed Texas Real Estate Salesperson and as such cannot and do not give legal advice. All information below is just my personal opinion. Consult with an attorney if in doubt about any real estate transaction.
1. Judges and juries do not rule on the law, they rule on emotions. I know that for a fact. I can't tell you how I know that a particular judge ruled on emotion instead of law, but believe me it is true.
2. People, including those who you thought were your friends, and lawyers, will lie on the witness stand. I have had that happen to me. I was stunned to see what goes on in a courtroom. I have no doubt that those folks told all sorts of tales about mdbarb that were pure fiction but there is no way you can prove any different. It comes down to who the jury likes and believes. In this case the jury may have felt that mdbarb was taking advantage of those "poor old folks". You cannot win against a sympathetic opponent.
3. Lawyers will not fight for you like they do on TV. In some cases they are only concerned about their fee and couldn't care less about your welfare. If you ever get the feeling you have such a lawyer fire him or her immediately. Listen to your "gut". The first clue for me should have been when my lawyer showed up in court for a hearing and didn't even have my file with him. He had to use my notes in the file I brought with me. I was the dummy in that deal, I should have fired him on the spot.
4. Don't ever bother to take a lawyer (or any other "professional") before an ethics committee run by their association. Such committees are there to protect their brethren from you, the public. In my case the committee met with the lawyer for over 20 minutes before they let me and his lawyer into the hearing room. Wonder what they talked about? The only satisfaction I got was that he had to pay his lawyer to defend him and I didn't use a lawyer so I was not out any $.
I can tell you that the ethics committees in local real estate boards are usually made up of the shadiest agents in town.
I paid approximately $16K to learn the above lessons.
Beyond that:
A. NEVER, NEVER, NEVER, buy land without a survey and a title policy.
B. READ the title policy very carefully. If you don't understand it find someone who does. A few dollars spent on a professional is cheap insurance. Just because a title company issues a title policy does NOT mean everything is OK. You will often find exceptions in title policies.
Example: I bought a house on a corner lot where the West wall of the house was built on the city right-of-way by 0.55 feet. The house had been there for over 50 years. Before I would close I made the seller put enough money in escrow to pay all costs of acquiring that strip of land from the city. It took over a year to acquire title to that strip of land and the cost of the survey and appraisal was about 4 times the price of the strip of land itself. That portion of the house was NOT insured by the title policy, it was listed as an exception.
B. Be absolutely sure you understand what the survey says and then find the corner pins yourself, they should have wooden stakes with some type of flagging on them. The wooden stake will be right next to the corner pin which is normally a piece of rebar driven into the ground. Find the actual pins and draw a small map with distances from some surrounding objects so that 5 years later you will be able to find the iron pins.
Watch for easements on the survey. The survey will nearly always have some easements on it for utilities, these are reasonable and necessary. The electric and water companies will not serve you if you don't give them an easement for their lines. If there are any other easements locate them on the ground and mark them with iron pins if the surveyor did not already do so. If there is any easement other than utility easements and city or state road easements pay the surveyor to mark the easement with iron pins. Think seriously about putting up a fence along the easement lines. You can always leave gaps in the fence for access but you will delineate the bounds of the easement from the start and avoid someone saying "I think it is here".
C. Check carefully for problems such as fences being inside or outside the property lines and make the seller correct those problems. In Texas the buyer has a set number of days after receipt of a copy of the title policy and survey to protest any discrepancies. Always make such notice IN WRITING to your real estate agent and demand that they pass your letter on to the sellers agent, certified mail, return receipt requested, and demand a copy of the return receipt save a copy of the letter.
D. NOTHING, absolutely nothing, counts in a real estate transaction unless it is in writing. Do NOT ever rely on any verbal representation from anyone at all under any circumstances. Do not take a real estate agents word, make them put it in writing. A competent agent will never have a problem with putting what he/she says in writing. If the agent says they are too busy, it is not necessary, or "we never do it that way, we always do it verbally", demand to talk to their Broker immediately and let them know that the agents actions are unacceptable. If the Broker doesn't correct the agent contact a lawyer immediately.
Real estate agents will hate me for this next suggestion, but I don't care. If necessary, write to the seller directly, again certified, return receipt requested. There is no law that forbids you from communicating directly with the seller (or if you are the seller, communicating directly with the buyer).
E. If you find anything parked, stored, or whatever on the property make the seller remove it PRIOR to closing. If that RV referenced in this thread had been moved prior to closing and the road clearly surveyed none of this mess would have happened.
F. If the seller refuses or cannot get these encumbrances cured do NOT buy the property or you will expose yourself to a situation like we have seen here.
G. If anyone ever wants to store anything on your property lease them the space on a written lease even if you only charge them $1 a month. In many instances a lease or other real estate transaction is not considered valid unless some value is exchanged, hence you must charge them something. In Texas a phrase that is used in property sales is "$10 and other good and considerable consideration". The consideration can be anything you want it to be but there must be actual money involved. Do this even if it is your brother-in-law. He may not be your brother-in-law forever, you never know.
E. If you are buying acreage be sure you see the entire property. Look for any signs of dumping. If there is anything suspicious be very wary. If you buy a property that happens to have had hazardous material dumped on it you will be liable for the cleanup. If it is chemical the bill could be astronomical.
F. Be sure you know what ponds and low places are on the land. If there is a low place that holds water for more than 7 days a year it could be considered wetland and protected by federal law. Fill it and you may have the EPA on your back. I know a man who had to move his house, dig the low spot back out, pay about $85K in fines, and who knows how much in legal fees. He would have been a lot better off had he not told the EPA person to get the h**l off his property on her first visit. Her parting words were "I'll be back" and she was, with a vengeance.
G. If there is any equipment or household items that are to remain with the property put it in the contract or have a separate, written addendum to the sales contract that spell out the description exactly. Once saw someone buy a house where the refrigerator was included. Renters were occupying the house. Refrigerator was brand new looking water-in-the-door high dollar model. When seller took possession there was a 25 year old ratty refrigerator in the house. Guess what, the new refrigerator was the renter's property, the old refrigerator was in the garage visible to all. Don't assume the refrigerator you see is the one you will get. Write out brand, model number, and if possible, serial number of any items.
Unfortunately, life is more complicated than ever. The days of handshake deals are long gone. And the only sure winners in a lawsuit are the lawyers. Everybody else is on their own. As a friend once told me "A poor settlement is better than a good lawsuit any day". He was right.
Bill Tolle
-----------------------------------------------------------
First, let me say that I am truly sorry to hear what has happened to mdbarb. It is a sad that our justice system let this happen. However, I am looking for the lessons in this travesty.
DISCLAIMER: I am not a lawyer. I am a licensed Texas Real Estate Salesperson and as such cannot and do not give legal advice. All information below is just my personal opinion. Consult with an attorney if in doubt about any real estate transaction.
1. Judges and juries do not rule on the law, they rule on emotions. I know that for a fact. I can't tell you how I know that a particular judge ruled on emotion instead of law, but believe me it is true.
2. People, including those who you thought were your friends, and lawyers, will lie on the witness stand. I have had that happen to me. I was stunned to see what goes on in a courtroom. I have no doubt that those folks told all sorts of tales about mdbarb that were pure fiction but there is no way you can prove any different. It comes down to who the jury likes and believes. In this case the jury may have felt that mdbarb was taking advantage of those "poor old folks". You cannot win against a sympathetic opponent.
3. Lawyers will not fight for you like they do on TV. In some cases they are only concerned about their fee and couldn't care less about your welfare. If you ever get the feeling you have such a lawyer fire him or her immediately. Listen to your "gut". The first clue for me should have been when my lawyer showed up in court for a hearing and didn't even have my file with him. He had to use my notes in the file I brought with me. I was the dummy in that deal, I should have fired him on the spot.
4. Don't ever bother to take a lawyer (or any other "professional") before an ethics committee run by their association. Such committees are there to protect their brethren from you, the public. In my case the committee met with the lawyer for over 20 minutes before they let me and his lawyer into the hearing room. Wonder what they talked about? The only satisfaction I got was that he had to pay his lawyer to defend him and I didn't use a lawyer so I was not out any $.
I can tell you that the ethics committees in local real estate boards are usually made up of the shadiest agents in town.
I paid approximately $16K to learn the above lessons.
Beyond that:
A. NEVER, NEVER, NEVER, buy land without a survey and a title policy.
B. READ the title policy very carefully. If you don't understand it find someone who does. A few dollars spent on a professional is cheap insurance. Just because a title company issues a title policy does NOT mean everything is OK. You will often find exceptions in title policies.
Example: I bought a house on a corner lot where the West wall of the house was built on the city right-of-way by 0.55 feet. The house had been there for over 50 years. Before I would close I made the seller put enough money in escrow to pay all costs of acquiring that strip of land from the city. It took over a year to acquire title to that strip of land and the cost of the survey and appraisal was about 4 times the price of the strip of land itself. That portion of the house was NOT insured by the title policy, it was listed as an exception.
B. Be absolutely sure you understand what the survey says and then find the corner pins yourself, they should have wooden stakes with some type of flagging on them. The wooden stake will be right next to the corner pin which is normally a piece of rebar driven into the ground. Find the actual pins and draw a small map with distances from some surrounding objects so that 5 years later you will be able to find the iron pins.
Watch for easements on the survey. The survey will nearly always have some easements on it for utilities, these are reasonable and necessary. The electric and water companies will not serve you if you don't give them an easement for their lines. If there are any other easements locate them on the ground and mark them with iron pins if the surveyor did not already do so. If there is any easement other than utility easements and city or state road easements pay the surveyor to mark the easement with iron pins. Think seriously about putting up a fence along the easement lines. You can always leave gaps in the fence for access but you will delineate the bounds of the easement from the start and avoid someone saying "I think it is here".
C. Check carefully for problems such as fences being inside or outside the property lines and make the seller correct those problems. In Texas the buyer has a set number of days after receipt of a copy of the title policy and survey to protest any discrepancies. Always make such notice IN WRITING to your real estate agent and demand that they pass your letter on to the sellers agent, certified mail, return receipt requested, and demand a copy of the return receipt save a copy of the letter.
D. NOTHING, absolutely nothing, counts in a real estate transaction unless it is in writing. Do NOT ever rely on any verbal representation from anyone at all under any circumstances. Do not take a real estate agents word, make them put it in writing. A competent agent will never have a problem with putting what he/she says in writing. If the agent says they are too busy, it is not necessary, or "we never do it that way, we always do it verbally", demand to talk to their Broker immediately and let them know that the agents actions are unacceptable. If the Broker doesn't correct the agent contact a lawyer immediately.
Real estate agents will hate me for this next suggestion, but I don't care. If necessary, write to the seller directly, again certified, return receipt requested. There is no law that forbids you from communicating directly with the seller (or if you are the seller, communicating directly with the buyer).
E. If you find anything parked, stored, or whatever on the property make the seller remove it PRIOR to closing. If that RV referenced in this thread had been moved prior to closing and the road clearly surveyed none of this mess would have happened.
F. If the seller refuses or cannot get these encumbrances cured do NOT buy the property or you will expose yourself to a situation like we have seen here.
G. If anyone ever wants to store anything on your property lease them the space on a written lease even if you only charge them $1 a month. In many instances a lease or other real estate transaction is not considered valid unless some value is exchanged, hence you must charge them something. In Texas a phrase that is used in property sales is "$10 and other good and considerable consideration". The consideration can be anything you want it to be but there must be actual money involved. Do this even if it is your brother-in-law. He may not be your brother-in-law forever, you never know.
E. If you are buying acreage be sure you see the entire property. Look for any signs of dumping. If there is anything suspicious be very wary. If you buy a property that happens to have had hazardous material dumped on it you will be liable for the cleanup. If it is chemical the bill could be astronomical.
F. Be sure you know what ponds and low places are on the land. If there is a low place that holds water for more than 7 days a year it could be considered wetland and protected by federal law. Fill it and you may have the EPA on your back. I know a man who had to move his house, dig the low spot back out, pay about $85K in fines, and who knows how much in legal fees. He would have been a lot better off had he not told the EPA person to get the h**l off his property on her first visit. Her parting words were "I'll be back" and she was, with a vengeance.
G. If there is any equipment or household items that are to remain with the property put it in the contract or have a separate, written addendum to the sales contract that spell out the description exactly. Once saw someone buy a house where the refrigerator was included. Renters were occupying the house. Refrigerator was brand new looking water-in-the-door high dollar model. When seller took possession there was a 25 year old ratty refrigerator in the house. Guess what, the new refrigerator was the renter's property, the old refrigerator was in the garage visible to all. Don't assume the refrigerator you see is the one you will get. Write out brand, model number, and if possible, serial number of any items.
Unfortunately, life is more complicated than ever. The days of handshake deals are long gone. And the only sure winners in a lawsuit are the lawyers. Everybody else is on their own. As a friend once told me "A poor settlement is better than a good lawsuit any day". He was right.
Bill Tolle
