Real Estate & Construction Law

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Real Estate Law is a branch of civil law that covers a wide variety of issues.  It governs your right to possess, use and enjoy land and any structures on it.  Real estate law affects most of us, either directly or indirectly, on a daily basis whether you are a homeowner, tenant, landlord, home buyer or seller, or contractor.  If you have questions regarding Real Estate Law issues, call Mountain View Law Group at 801-393-5555 to schedule a free consultation with one of our experienced attorneys.

What is a REPC?

REPC stands for Real Estate Purchase Contract, and it is the standardized contract used in Utah to describe the terms and agreement between a buyer and seller of real estate.  The sale or transfer of real estate is almost always required to be in writing, and the agreement is controlled by contract laws.  Buyers and sellers are not required to use the REPC as the written contract for the sale of real estate, but the REPC is typically used because it contains all of the terms generally necessary or desirable in a real estate contract.  Or, in other words, buyers and sellers generally use a REPC because it is thorough and is easier than creating a new contract that would likely contain all of the same terms as a REPC anyway.

What is foreclosure?

Foreclosure is the legal process by which a mortgage holder or other lien holder takes control of the real property (land, houses, buildings) which is securing the payment of a mortgage or loan if the mortgage or other lien is not being paid.  The point of foreclosure is to allow the mortgage holder or other lien holder the ability to sell the real property in order to recover what is outstanding on the mortgage or loan.  Utah has laws that must be strictly followed in order to have a valid foreclosure.  Certain notices need to be sent to the property owner and/or posted on the property, starting with a Notice of Default, and there are deadlines and waiting periods that must be followed.  If done properly, foreclosure can be an effective way for mortgage holders and other lien holders to recover money owed; if done improperly, foreclosure can be a long and expensive process.

Sometimes mortgage holders and other lien holders improperly or mistakenly start a foreclosure process.  If this happens, an experienced attorney can help protect the rights of the property owners.  In order to ensure that a foreclosure is appropriate and to make sure Utah laws are strictly followed in the foreclosure process, an experienced attorney should represent the mortgage holder or lien holder.

I am receiving letters from my mortgage lender regarding missed mortgage payments.  What should I do?

If you are having problems making your mortgage payments, the most important thing to remember is DO NOT ignore the letters from your lender.  Call or write your lender’s loss mitigation department as soon as possible and explain your financial situation.  They may have programs to help you.  You can also call the US Department of Housing and Urban Development (HUD) for information on any government services or programs that could help you.

There are alternatives to foreclosure, such as forbearance, modification, deed in lieu of foreclosure, or bankruptcy reorganization.  Be aware of scams, and people that promise quick relief from your financial difficulties.  It is important to speak directly with your lender, or a licensed professional, such as an experienced attorney, to come up with the solution that is right for you and your family.

Should I make sure to have a written agreement before I rent or lease an apartment or house?

Yes!  It is important that all lease agreements are in writing.  This is true whether you are the landlord or the tenant, or if you are moving into an apartment along with a roommate.  The lease agreement will cover the basics like the amount of the rent and when it is due, whether pets are allowed, what obligations each party has, etc.  Then if any questions arise during the rental period, the parties can simply look to the lease agreement for the answers. A few things that should always be included in lease agreements are: how long the lease agreement will be in effect, the amount of rent, who is paying for utilities, the amount of and purpose of security deposits, who is responsible for repairs to the property, rules for overnight guests, quiet times and noise issues, and the termination process.

What happens if a tenant remains in the property and continues to pay rent after a Lease Agreement expires?

If you have a written lease agreement with your landlord, then you need to review that lease agreement for anything explaining the termination process.  But unless your lease agreement provides otherwise, when a lease ends a tenant may choose to move, continue to pay rent as a month-to-month tenant, or sign a new lease agreement.  If a tenant continues to pay rent, typically the terms of the expired lease agreement carry over into a month-to-month tenancy.

Can I terminate a lease and move out before it expires?

Unless the landlord agrees to let you terminate the lease early, Utah law does not provide protection for a tenant that terminates a lease early.  There may be certain federal laws that apply to your situation, such as laws involving military transfers.  But in general, if you move out early, the landlord can still hold you to the terms of the lease agreement and sue you to collect unpaid rent and for any damage to the property.  The landlord is required to mitigate or minimize his or her damages by taking reasonable steps to re-rent the property, but you are still responsible for rent until the landlord finds a new tenant.

Does the landlord always have to return the security deposit to the tenant?

No.  A landlord may use a tenant’s security deposit to pay unpaid rent or for fixing damage to and cleaning the property after the tenant moves out.  However, if the landlord keeps the security deposit, he or she must provide the tenant with an itemized list of deductions after the tenant moves out.  If less than the entire amount of the tenant’s security deposit was needed for unpaid rent, repairs or cleaning, the landlord must pay the remaining amount of the security deposit to the tenant.

I Am a Landlord, How Do I Collect Unpaid Rent and/or Property Damage?

If your tenant has stopped paying rent, you cannot simply lock them out.  You have to follow the legal process, or you will find yourself in trouble.  In Utah, you first need to post a Notice to Quit.  This is a notice that tells the tenant that they are behind on rent and gives the tenant a deadline by which to either pay rent or vacate the property.

After you have served the Notice to Quit, if the tenant does not either leave or pay the past due rent, then you can evict the tenant.  Eviction is the legal process of removing a tenant from a property and obtain a judgment against the tenant for unpaid rent and for cleaning and repair costs for the property, if any.  Utah law provides an eviction process that must be strictly followed.   The eviction process is initiated by filing a complaint in court and requesting that a judge order the tenant out of the property and order the tenant to pay past due rent and for damage to the property, if any.  The judge can also order that a sheriff can assist you in removing the tenant and the tenant’s furniture and possessions from the property.

Utah’s eviction process is not particularly complex, but it is very technical and you have to follow it precisely or you will not get what you request from the court.  It is very helpful to have an experienced attorney represent you in the eviction process.

What Is An Easement?

There are reasons you may let your neighbor have access your property:  for something like hunting or fishing, or just to drive across your property so they can access their own property.  But if their use becomes excessive, or your neighbor begins altering your property, this could lead to conflicts and problems.

If you allow your neighbor to have access to your property, this is called an easement.  If an easement exists, legal title to the property remains in the name of the property owner, while the neighbor owns the easement, or the right to use the property.

If you decide to give your neighbor permission to use your property, it is important to create a clear, written agreement that states the names of the parties, the location of the property, and the allowed use.  It should also state that the property owner can revoke the permission at any time.

My neighbor is building a fence, and it seems to be on my side of the property line.  What  can I do?

Surveys done at the time of any property purchase should reflect the boundary lines.  However, full surveys are not always completed at the time of purchase, because they are expensive.  Prior to erecting a fence on a boundary line, an updated survey should be performed.  If the new fence is indeed on your property, and your neighbor refuses to move it, you can go to court and ask a judge to order the fence be removed from your property.

Sometimes the legal property line and the property line accepted by neighboring property owners are not the same.  If an accepted (but not legal) property line is marked by a fence or something else which clearly indicating that a particular line is the edge of the property, and that fence or marker has been there for at least twenty years, the court will often issue an order stating that the property line is now where the fence or marker is located.  This requires filing the appropriate request with the court asking for the order identifying the new property line.

What if a survey does not resolve the boundary dispute?

In some cases, a complete survey will not be able to accurately determine the property boundary lines.  This can happen in the case of older deed, such as “50 feet from the bend in the stream” on a piece of land.  Streams can move or dry up, and then where does the boundary line lie?  In cases such as this, a property owner may file a quiet title lawsuit and ask that a judge determine the boundary lines of the property.

Who Is Responsible When My Condo Roof Leaks?

Owning a condo is unique, because it is considered ownership of real property, like a house.  But, there are common areas and maintenance fees that are the responsibility of an association.  Generally, condo owners are responsible for everything from the drywall inward and the association is responsible for everything on the exterior of the building (such as foundation, roof, sidewalks, common park areas, etc.).

So when a roof leaks, it is typically the responsibility of the association to contact their insurance company and have the roof repaired.  If the sink leaks inside your condo and causes flooding damage, then you will be responsible to repair the damage.  If a pipe bursts inside the wall and causes damage, the condo regulations should address who is responsible for the repairs.

What is a construction defect?

A construction defect is any issue with your home caused by improper construction technics or by use of improper or substandard materials by the contractor in building your home.  Some construction defects are obvious, such as foundation cracks or a leaking roof, but many such defects are less obvious and may not show up for years.  Common construction defects include: mold, plumbing issues, electrical system failures, soil and drainage issues, foundation cracks, leaky roofs, or structural failures.  If the contractor is not willing to remedy the construction defect, you can ask a judge to order the contractor to make the repairs or to pay you enough money for you to hire another contractor to make the repairs.

What causes a construction defect?

This depends on the defect.  Many defects arise from a combination of factors, such as:  improper soil analysis and preparation, civil and structural engineering defects, negligent construction, and defective building materials.  A successful construction defect claim will rely on the testimony of experts who specialize in different areas of construction.  There may end up being several responsible parties, such as contractors, developers, architects, designers and other subcontractors.

What is a Mechanic’s Lien?

A mechanic’s lien is a lien provided under Utah law that secures payment for labor or materials used by a contractor when repairing or improving your property.  Any individual or business contractor who performs labor or services, or provides materials to repair or improve a property may file for a mechanic’s lien.  This lien may remain on the property until the work is completed and the contract is paid.

How Do I Remove an Improper Mechanic’s Lien From My Property?

If the lien has not been filed properly, it may be considered a wrongful lien.  A person who files a wrongful lien is subject to civil penalties under Utah state law.  Utah has a wrongful lien statute, which allows damages, attorney fees and other monetary penalties.

Why Should I Look For a Licensed and Bonded Contractor?

There are many individuals and businesses that advertise as contractors, and the State of Utah has attempted to make sure that parties involved in a construction contract are protected.  The state does this by requiring a contractor to be licensed with the state, and to hold bonds that guarantee the contractor will perform work that is professional, ethical and follow safety and building codes.  When a contractor is licensed and insured, they are indicating to the general public that they can be trusted and the project will be safe and secure.  In the event that a licensed and bonded contractor doesn’t complete a job or doesn’t follow safety and building codes, the customer can file a claim against the contractor’s bond and file a complaint with the State of Utah against the contractor.

Call Mountain View Law Group Today at 801-393-5555 for a Free Consultation with an Experienced Attorney Regarding Your Real Estate and Construction Law Needs.