Do I Really Need a Real Estate Attorney?

A question I commonly encounter is why a buyer or seller needs an attorney’s assistance for the sale, purchase, or refinancing of property. A title company ensures that the title to a piece of real estate is legitimate and then issues title insurance for that property…why involve another party in the process? The answer is simple – because attorneys do what title companies cannot. Title companies, and their employees, are prohibited from providing any type of legal advice to those in the closing process.

A real estate attorney can review important documents (such as deeds, loan documents, purchase contract, title insurance policies, etc.) and advise clients of potential problems and/or issues that must be addressed in advance of a closing. By foregoing the use of an attorney, a party restricts their ability to get answers to legal questions. What does right of survivorship mean? What is my legal obligation to my lender? How will a restrictive covenant affect me in the future? All of these, and more, are consistently asked by my clients – and it is my solely my role to answer them. If questions go unanswered, parties may be sorely misinformed of their rights and responsibilities, leading to only more legal troubles and expenses down the road.

In addition to answering routine real estate questions, I often have to address other aspects of law that arise in real estate transactions. For example, when an owner of a property is deceased, and someone is selling that property on their behalf , the most important inquiry is who has the power to sell the property and under what authority that power is provided. A title company can provide a copy of the deed and the will, if filed,of record from the clerk’s office, but this does little to address the looming issues –who has the power to sell? What action needs to be taken to transfer the property correctly? To answer this often requires complex, intricate knowledge of trusts and estates law…simply examining the title does not reveal the answer. It is not uncommon for a real estate attorney to be familiar with a multitude of practice areas, such as estate planning, contract law, and litigation.

Buying, selling, and refinancing property can be high-pressure and high-stakes. When going through the process, be sure to have someone looking out for your interests alone. Use a McBrayer real estate attorney to assist with all your transactions.

BMacGregor

Brittany C. MacGregor is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at bmacgregor@mmlk.com or at (859) 231-8780.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

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Landlords, Make Sure Your Eviction is URLTA-Compliant

As tempting as it may be to immediately attempt to throw an unruly and non-abiding tenant out of the house or apartment, doing so can have serious legal consequences. Kentucky has codified the Uniform Residential Landlord Tenant Act in KRS 383.500 – 383.715 (“URLTA”). Pursuant to KRS 383.500, in order for the URLTA to be applicable in a given locale, that particular city, county, or urban county government must adopt the URLTA in its entirety. In areas where the URLTA has been adopted, tenants are often afforded greater protection at the landlord’s expense.

It is imperative that if your property is in an URLTA jurisdiction, you follow the specific, detailed requirements to effectuate a legal, proper eviction. Adequate notice must be provided and contain precise elements, such as the tenant’s name and property address, the nature of the breach and the time period within which said breach must be remedied. Depending on the type of breach, URLTA also requires that the tenant be given a certain period of time to remedy the breach (i.e., 7 days for nonpayment of rent; 14 days for material noncompliance with the lease agreement). It is only after the URLTA notice requirements have been satisfied and the period for remedying the breach elapsed that a landlord may initiate eviction proceedings by filing a petition with the court.

In Kentucky, the eviction procedure is known as a “forcible detainer” action under the law and is outlined in KRS Chapter 383. The biggest misconception in forcible detainer actions is that the end result will be the landlord receiving the money owed to him for past due rent and/or damages. However, this is not the purpose of a forcible detainer action. The purpose is solely to determine who has the right to possession of property. If a forcible detainer judgment is entered against the tenant, the tenant has seven (7) days to vacate the premises. If the tenant does not vacate within the allotted seven (7) day period, the landlord may seek a writ of possession and have the tenant’s property removed from the premises. A separate civil action must be filed against the tenant in order to recover the past due rent, late fees, damages, etc.

McBrayer provides representation to landlords, both in and out of court. If you are dealing with a tenant who has overstayed their welcome, we are here to help. Contact us anytime for more information about URLTA and how to ensure your eviction procedure is lawful.

BYates

Brendan Yates joined the Lexington office of the firm as an associate in 2002. Brendan is a member of the firm’s Litigation Department, where he focuses his practice on construction and real estate litigation, workers’ compensation defense litigation, insurance defense and commercial litigation. He has successfully defended his clients in state and federal courts, the Kentucky Court of Appeals, the Kentucky Supreme Court, and in administrative agency proceedings in Kentucky. He can be reached at byates@mmlk.com or (859) 231-8780, ext. 208.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

 

The Limits of Regulating Morality through Zoning Regulations

Zoning regulations are a reflection of a community’s identity and the image it desires to project to the larger world.   Some otherwise lawful activities are perceived to be unsavory, immoral or conducive to crime. As such, they are often regulated more stringently than other lawful businesses. Although some of these activities can generate more police reports and government oversight than other kinds of businesses, often such establishments are safe and well operated. Even so, many community residents have moral, religious, or cultural beliefs that cause them to oppose the existence of these types of businesses anywhere at all. Not only do they fight to shutter existing businesses, but they also support zoning regulations that would prevent any new such businesses from opening within the borders of their community. Examples of such activities include sexually oriented businesses (such as adult nightclubs and book stores), gambling establishments, tattoo parlors/ piercing studios, pool halls and internet cafes that offer video games with sweepstakes prizes.

The law, however, sets limits on the power of zoning to eliminate or unreasonably restrict these types of businesses from operating within a community. For example, many states, including Kentucky, have constitutional and statutory prohibitions from using zoning laws to force a business to close down , if that business is not a criminal enterprise or otherwise in violation of applicable health safety or welfare laws.

If the government used its zoning powers to force such an otherwise lawfully operating business to close down, the business would have a viable claim for taking its property without compensation.   The law also prohibits communities from entirely eliminating otherwise lawful uses from opening within its borders. Instead, zoning regulations must accommodate businesses that are considered morally questionable or in need for more stringent oversight.

Rather than making such activities permitted by right in all zones, an acceptable approach is to make them permitted only in certain business zones, or require spacing them a certain distance from residential zones or making them a conditional use that requires board of adjustment approval and a public hearing. This approach balances the community’s need to control such uses with the businesses’ right in a free country to offer activities that are not considered morally acceptable by a large segment of the population.

CWestover

 

Christine Neal Westover is an attorney in the Lexington office of McBrayer. Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.