In addition to litigating fraud cases, some real estate attorneys focus on land use, subdivision, and zoning law or practice in fraud cases like disclosure fraud. Real estate experts may also specialize in residential or commercial properties.
The Real Estate Attorney and Broker Issues
The heart and soul of real estate is the transaction – the buying and selling of property. The real estate broker helps individuals do this. However, there are many legal issues a broker can encounter along the way. According to the National Association of Realtors®, these include misrepresentation, violation of fiduciary duties, fair housing compliance, misleading advertising, employee versus independent contractor status, environmental issues, unauthorized practice of law, and the Americans with Disabilities Act.
Misrepresentation
The broker often makes statements about the condition of the property. Sometimes, those statements are not correct. Examples include representations about structural features, easements, unpermitted renovations, and environmental issues.
The real estate attorney helps the broker avoid misrepresentation claims by having the broker use seller disclosure forms and reviewing them with the seller.
Violation of Fiduciary Duties
More than twenty years into this century, the law still allows dual agency – that is, when the real estate agent represents both seller and buyer in a transaction. Such an arrangement is ripe with the opportunity to breach fiduciary duties. So, it is no surprise that it happens all the time.
To prevent this issue, the real estate attorney counsels the agent on the latest agency disclosure laws.
Fair Housing Compliance
Sometimes sellers refuse to sell to someone of a certain race or gender identity. Although brokers should refuse to do business with these people, sometimes they do, and then they run afoul of fair housing laws.
The real estate attorney encourages their broker clients to take all the education and training they can on fair housing laws and comply with them.
Misleading Advertising
Each state has strict advertising laws that must be complied with, and recently Internet advertising has been under intense scrutiny.
Employee versus Independent Contractor
Brokers have real estate agents working for them. Most of the time, these are legitimately independent contractors. However, occasionally, an arrangement will lead to where a person is actually an employee instead.
Environmental Issues
Sometimes, a property comes with asbestos or lead-based paint issues. These can lead to lawsuits if the broker does not recommend the right experts to evaluate those hazards.
Unauthorized Practice of Law
Brokers may not engage in the unauthorized practice of law. They can fill in forms created by an attorney but may not draft documents or give legal advice.
The real estate attorney is there for their broker client to answer any legal questions they may have.
Americans with Disabilities Act
Brokers must take reasonable steps to serve clients with disabilities. This includes making their office accessible through the use of ramps and similar measures.
The Real Estate Attorney and Property Attributes
Many property owners considering selling their property may have concerns about an issue on their property or activity near it. For significant or complicated matters, they retain a real estate attorney for counsel and assistance.
Nuisance
A landowner has the right to the use and enjoyment of their property without unreasonable interference. Occasionally, new activity nearby interferes with that enjoyment. For example, assume an owner in a residential zone lives near the boundary of an area zoned for business. A lumber mill opens nearby and makes constant noise night and day. The real estate attorney can help negotiate limitations on activity to reduce the nuisance.
Easements
Easements can become a big issue. When purchasing property and reviewing all the encumbrances on the land, the buyer may miss the existence of a private easement. This can be very detrimental if it allows other people to invade the owner’s privacy. There are ways to restrict easements and, in some cases, eliminate them. The real estate attorney helps the property owner with this.
Negative Easements
Just as a normal easement can cause consternation, so can negative easements. These prohibit a landowner from doing something on their property.
Prevalent today are negative environmental easements. These have goals such as preserving water quality, forest growth, or maintaining wildlife habitats.
Water Rights
Given the scarcity of water in some parts of the country, water rights are often a hot issue. Whether in a riparian rights or appropriative rights jurisdiction, disputes arise over who has the right to take how much water from a water source. Water law is complicated, and the real estate attorney helps their client with issues related to these rights.
Cell Towers
Cell towers dot the entire landscape of America. But what if a carrier wants to install one near a client’s property? The concern is the cell tower’s impact on property value. The real estate attorney can help fight against the installation at the local level – the planning commission or local city council.
Eminent Domain
A person has the perfect property. They love the house and surrounding land. Then the government comes by and asks to buy your property. They are planning a highway interchange nearby and need to buy the property to have enough clearance for the project.
In this case, the real estate attorney helps the property owner avoid eminent domain. If that is not possible, they help the owner get the best price for the real estate.
Title
Title insurance is supposed to protect an owner from defects in the property title. But it does not always, leaving the property owner with a serious problem. Common issues include:
- Public records errors
- Undisclosed liens
- Missing heirs
- Forgeries
- Unknown encumbrances and easements
- Boundary disputes.
If any of these issues arise, the landowner will need to consult a real estate attorney for assistance.
Zoning
Zoning laws are prevalent throughout the United States. A property owner may have purchased land, not realizing that zoning restrictions prohibit them from using the land as intended. The real estate attorney can help with trying to obtain a variance.
The Real Estate Attorney and Depreciation of Commercial Real Estate
Like most assets, commercial real estate depreciates. Depreciation refers to the reduction in value that an asset experiences with time.
While the land itself does not appreciate, the buildings on the property do. The depreciation of the property is one reason to invest in it. There are several aspects of tax depreciation, including how it works and exactly what assets on the land can be depreciated.
How Tax Depreciation Works
Assume a person owns downtown real estate worth $2 million. The building is worth $500,000. The Internal Revenue Service allows owners to depreciate their real estate over 39 years. This depreciation begins when the property starts generating revenue, not when it was purchased.
Here, in the first year, you would calculate your property’s depreciation as:
$500,000/39 years = $12,821
Therefore, it would reduce the taxable income on the property by $12,821 in the first year.
Depreciation Methodologies
There are several different depreciation methodologies based on generally accepted accounting principles. The simplest is the straight-line depreciation method used in the example above. However, there are three other common types: declining balance, sum-of-the-years’ digits, and production units.
The real estate attorney is knowledgeable about these tax laws and can assist the property owner with any questions.
Law School Professor
Those with years of practice in the real estate arena may become law school professors. Many law schools today offer LLMs in real estate law. Examples include the University of Miami School of Law, Chapman University’s Fowler School of Law, and Fordham Law School.
How Do I Become a Real Estate Attorney?
A law degree and bar membership is required. Before law school, experience as a real estate agent or broker is helpful but not necessary. For those attorneys in other fields interested in getting into real estate law, an LLM is an option for continuing education.
Skills Required for a Real Estate Attorney
Recruiters and employers often request the following qualifications when hiring real estate attorneys:
- Knowledge of legal terminology and ability to work long hours.
- Providing support to clients in cases where they are dissatisfied requires negotiation skills.
- Possessing analytical thinking skills and being able to solve legal problems.
- Ability to effectively and accurately communicate ideas and propositions to clients, judges, and other legal professionals through written and verbal communication skills.
- Being competent and acting with good judgment when dealing with client matters.
- A high degree of organizational and self-motivation skills.
- The ability to network and collaborate.
- Experience in title insurance underwriting, curative, and claims.
- An analytical thinker with strong conceptual and research skills.
- Good judge and detail-oriented leader.
- Meeting deadlines and working under pressure.
- Networking expert with excellent interpersonal skills and communication skills.
- Experienced in real estate law and proficient with Microsoft Office programs.
- Working knowledge of litigation, lease transactions, and property management.
- Experience in insurance underwriting.
- The ability to meet tight deadlines and work under pressure.
- Expertise in the use of Microsoft Office and computer technology.
- Strong legal background and business acumen.
- Expertise in finance and specific real estate knowledge.
- An investigative researcher who is skilled at analyzing information located.
- A good understanding of foreclosure and conflict resolution
- Ability to work long hours and familiar with legal terminology.
See also:
- Search All Real Estate Attorney Jobs
- Real Estate Attorneys Play Bigger Role In Corporate Deal-Making
- Junior to Mid-level Broker-Dealer Attorney
- The Case Of A Unduly Conspicuous Advertisement By A Law Firm And The First Amendment
Harrison Barnes is a prominent figure in the legal placement industry, known for his expertise in attorney placements and his extensive knowledge of the legal profession.
With over 25 years of experience, he has established himself as a leading voice in the field and has helped thousands of lawyers and law students find their ideal career paths.
Barnes is a former federal law clerk and associate at Quinn Emanuel and a graduate of the University of Chicago College and the University of Virginia Law School. He was a Rhodes Scholar Finalist at the University of Chicago and a member of the University of Virginia Law Review. Early in his legal career, he enrolled in Stanford Business School but dropped out because he missed legal recruiting too much.
Barnes' approach to the legal industry is rooted in his commitment to helping lawyers achieve their full potential. He believes that the key to success in the legal profession is to be proactive, persistent, and disciplined in one's approach to work and life. He encourages lawyers to take ownership of their careers and to focus on developing their skills and expertise in a way that aligns with their passions and interests.
One of how Barnes provides support to lawyers is through his writing. On his blog, HarrisonBarnes.com, and BCGSearch.com, he regularly shares his insights and advice on a range of topics related to the legal profession. Through his writing, he aims to empower lawyers to control their careers and make informed decisions about their professional development.
One of Barnes's fundamental philosophies in his writing is the importance of networking. He believes that networking is a critical component of career success and that it is essential for lawyers to establish relationships with others in their field. He encourages lawyers to attend events, join organizations, and connect with others in the legal community to build their professional networks.
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Finally, Barnes is a strong advocate for community service and giving back. He volunteers for the University of Chicago, where he is the former area chair of Los Angeles for the University of Chicago Admissions Office. He also serves as the President of the Young Presidents Organization's Century City Los Angeles Chapter, where he works to support and connect young business leaders.
In conclusion, Harrison Barnes is a visionary legal industry leader committed to helping lawyers achieve their full potential. Through his work at BCG Attorney Search, writing, and community involvement, he empowers lawyers to take control of their careers, develop their skills continuously, and lead fulfilling and successful lives. His philosophy of being proactive, persistent, and disciplined, combined with his focus on personal and professional development, makes him a valuable resource for anyone looking to succeed in the legal profession.
About BCG Attorney Search
BCG Attorney Search matches attorneys and law firms with unparalleled expertise and drive, while achieving results. Known globally for its success in locating and placing attorneys in law firms of all sizes, BCG Attorney Search has placed thousands of attorneys in law firms in thousands of different law firms around the country. Unlike other legal placement firms, BCG Attorney Search brings massive resources of over 150 employees to its placement efforts locating positions and opportunities its competitors simply cannot. Every legal recruiter at BCG Attorney Search is a former successful attorney who attended a top law school, worked in top law firms and brought massive drive and commitment to their work. BCG Attorney Search legal recruiters take your legal career seriously and understand attorneys. For more information, please visit www.BCGSearch.com.
Harrison Barnes does a weekly free webinar with live Q&A for attorneys and law students each Wednesday at 10:00 am PST. You can attend anonymously and ask questions about your career, this article, or any other legal career-related topics. You can sign up for the weekly webinar here: Register on Zoom
Harrison also does a weekly free webinar with live Q&A for law firms, companies, and others who hire attorneys each Wednesday at 10:00 am PST. You can sign up for the weekly webinar here: Register on Zoom
You can browse a list of past webinars here: Webinar Replays
You can also listen to Harrison Barnes Podcasts here: Attorney Career Advice Podcasts
You can also read Harrison Barnes' articles and books here: Harrison's Perspectives
Harrison Barnes is the legal profession's mentor and may be the only person in your legal career who will tell you why you are not reaching your full potential and what you really need to do to grow as an attorney--regardless of how much it hurts. If you prefer truth to stagnation, growth to comfort, and actionable ideas instead of fluffy concepts, you and Harrison will get along just fine. If, however, you want to stay where you are, talk about your past successes, and feel comfortable, Harrison is not for you.
Truly great mentors are like parents, doctors, therapists, spiritual figures, and others because in order to help you they need to expose you to pain and expose your weaknesses. But suppose you act on the advice and pain created by a mentor. In that case, you will become better: a better attorney, better employees, a better boss, know where you are going, and appreciate where you have been--you will hopefully also become a happier and better person. As you learn from Harrison, he hopes he will become your mentor.
To read more career and life advice articles visit Harrison's personal blog.
