One of the most basic human needs is a place to live. Whether you own or rent your residence, chances are that you have been involved in a real estate transaction. Since new real estate is not being created, transactions involving real estate are important and can become quite controversial if there is a dispute between the parties to the transaction. Ownership of property is one of the core rights that state and federal law protect. The real estate lawyers of Kennedy, Kennedy, Robbins & Yarbro, LC, can help you with your real estate needs.
An interest in real estate, whether as an owner, a tenant, or as someone with the right to use a piece of property, is usually signified by a written document. If there is no written document, the Statute of Frauds normally operates to void any real estate transaction, except for a lease of property that is for no more than one year. There are many written documents that commonly appear in real estate transactions, including: (1) a General Warranty Deed; (2) a Quit Claim Deed; (3) a Deed of Trust; (4) a Promissory Note; (5) a Lease; and (6) an Easement. These documents are described below.
A General Warranty Deed is a written document that guarantees that the title conveyed is good and its transfer rightful. A General Warranty Deed includes a promise by the Grantor/Seller that s/he will defend the Grantee/Buyer from any and all claims of others. A General Warranty Deed offers the greatest protection of any deed.
A Quit Claim Deed makes no guarantees that the title conveyed is good, and in fact, transfers whatever right, if any, the Grantor may have. A Quit Claim Deed is typically used to correct title problems that appear of record and is also used to convey title between spouses during a divorce.
A Deed of Trust is a written instrument which secures payment of a promissory note with a piece of real estate. Typically, the Buyer of a piece of real estate will borrow money to pay for the property. Evidence of the borrowed funds is a promissory note. The deed of trust allows the holder of the promissory note to take possession of the property to secure payment if the loan is not paid. This occurs when the Deed of Trust holder forecloses on the property, in accordance with state law.
A Promissory note is a written instrument detailing the terms of a loan. It is required to be in writing and to denote the parties to the loan, the amount borrowed, the interest rate to be charged, if any, and a schedule of payments.
A Lease should be in writing. A lease, for no more than one year in duration, may be oral, but this is not the preferred manner of entering into a lease. The lease should describe the property being leased, the rent, the term of the lease, and other particulars so that there is a clear understanding of the rights and obligations between the landlord and tenant.
An Easement is a written document that gives another individual the right to use a defined portion of your property. Typical easements include utility and road easements.
Sometimes, a dispute can arise over the ownership or right to use a specific piece of property. Neighbors may disagree as to ownership of a fence line or a driveway; one neighbor may claim an easement across the other; a governmental entity may condemn an easement; or a landlord and tenant may have a dispute of possession of an apartment if the rent has not been paid.
An adverse possession suit is brought if someone claims ownership of another’s property and has used it for a period of ten years or more. To be successful with an adverse possession claim, you typically file a “quiet title” suit and must allege the following elements: (1) Actual (land used in the same way that nearby landowners use their land); (2) Hostile (under claim or right); (3) Open and notorious (so long as the adverse possessor acts as though the land is his); (4) Exclusive; and (5) Continuous for the 10-year period. If all of these elements are proven to the Court’s satisfaction, then title can be established for the adverse possessor. A situation that begins with one party giving permission to use the property can never become adverse because there is consent or permission to use the property.
An easement by prescription suit is similar to an adverse possession suit, but typically involves the right to use a driveway or roadway to get to another parcel of ground.
Condemnation, or eminent domain, is the power of a political subdivision of the state to take any or all of your property for a public purpose. Generally, condemnation occurs for roads, public utilities and/or public buildings. The public entity must pay “just compensation” for the property it takes. Missouri law specifies a procedure that must be followed by the state entity in terms of negotiations and possible court proceedings. As a landowner, under Missouri law, you have the right to the following in a condemnation case: (1) to seek legal counsel at your own expense; (2) to make a counteroffer and engage in further negotiations as to the price being offered by the public entity; (3) to obtain your own appraisal of just compensation for the easement or parcel at your own expense; (4) to have just compensation for the easement or parcel determined preliminarily by court-appointed condemnation commissioners, and, ultimately, by a jury; (5) to seek assistance from the office of the ombudsman for property rights, which may be reached at: Office of Public Counsel, Governor Office Building, Suite 650, 200 Madison Street, PO Box 2230, Jefferson City, Missouri 65102-2230 or by phone at (573) 751-4857; and (6) to contest the public entity’s right to condemn in the condemnation proceeding.
Inverse condemnation occurs when a public entity damages your property without just compensation. For example, if you experience a sewer backup on more than one occasion, you may have an inverse condemnation case.
Chapters 441, 534 and 535 of the Revised Statutes of Missouri govern landlord/tenant issues. The three most common actions are an eviction suit, a rent and possession suit and an unlawful detainer suit.
To legally evict you, your landlord must file a lawsuit in court. A judge will hear your case on the first court date, usually a few five days after you are served with a copy of the lawsuit. If the court rules in your favor, you are allowed to remain in possession of the property. If you lose, the court will order you to vacate the premises by a specified time and you are still liable for the remainder of the rent due to the landlord pursuant to the lease.
In a rent and possession suit, your landlord can sue you for all rent due, possession of the rental property, and court costs. At trial, the judge can award all proven damages and expenses.
An unlawful detainer suit can be brought if your landlord gives you a proper written notice to move and you fail to do so. The judge may order you to move from the property, and may order you to pay double rent for the time you stayed after the date you were supposed to move out, plus court costs. If the judge finds in your favor, you can remain in possession until the end of your lease or the until landlord gives you proper notice.
If you need legal assistance, or for further information about a real estate need, please contact the real estate lawyers of Kennedy, Kennedy, Robbins & Yarbro, LC, at (573) 686-2459. Our commitment is to earn your confidence by answering all questions and providing quality representation.