Zachary Lutz-Priefert

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Real Estate

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Attorney servicing Omaha, Lincoln, and Greater Nebraska

Real estate law is inherently scary. For most people, the biggest financial transactions they will ever deal with all involve land. Whether it is buying or selling a family farm, or investing in an investment property, real estate transactions involve large dollar amounts and decades of commitment. Each real estate transaction has its own headaches, and the contracts surrounding them generally are different in each state you buy or sell in.

The lawyer is currently providing legal advice on real estate trading.

FAQ

Can you tell me what I mean when I say I need a real estate attorney?

Maybe. Give me a call and let’s discuss what you really need. Real estate law is a very broad area of law used by a lot of people without any real common connection. Sometimes you are asking about a dispute, like a buyer refusing to go through with the sale of a house. Is that for a real estate attorney? Not really, it is more like Sometimes you are asking about buying property, and need a contract drafted. That contract drafting is something most attorneys who deal in contracts can handle…but why should you use a real estate attorney? Because that attorney knows what happens after the contract is signed. They know about land surveys, and due diligence, about environmental surveys, and associated procedures. Sometimes you need an attorney to help with zoning issues. This is clearly in the realm of a real estate attorney. Sometimes you are calling as a landlord whose tenant won’t pay. Again, this is specific to a real estate attorney, there are specific laws to be aware of and act upon.

What is a deed of trust?

A deed of trust is a document which “secures” the property and protects the lender. Not all states have deeds of trust, for instance, Nebraska recognizes them, however Iowa does not. Iowa strictly uses mortgages, where in Nebraska you will almost exclusively find deeds of trust. A deed of trust and a mortgage operate in the same fashion, they allow a lender to cease an sell a property in the event of non-payment. The different between the two is that a deed of trust does not require a court order, and a mortgage does. Deeds of trust are faster to enact a foreclosure. Pretty much every lender will insist upon the deed of trust (or mortgage). But it is particularly necessary in a situation where the seller is financing the sale. Frequently people refer to this as a “land contract” and while that is certainly an option, the better option would be to have a deed of trust and a promissory note (a written document with a promise to pay). If the buyer misses a payment, then the seller can reclaim the property. The whole process for this is detailed here.

What is an easement?

An easement is a legal document that allows someone to access one piece of property (the encumbered property) from another (the benefited property). Usually these are created by an agreement of multiple landowners. Sometimes easements are created by necessity such as if a property is split in half, but one landowner has no access to the property. In this case a court would deem that an easement exists even if it is not actually agreed to. The final type of easement is one created by governments and forced upon a landowner as a part of being a good citizen.

What is a survey?

A land survey is a map of the exact boundaries of land. It is a specific process by a licensed surveyor and is especially needed when buying a unique piece of land that maybe carved off from an existing plot.

What does adverse possession mean?

Adverse possession means that one landowner has occupied someone else’s land for a set period of time causing them to take ownership of the property. In Nebraska adverse possession takes ten years. The most common example is one landowner puts up a fence on his neighbor’s property. Here is a simple hypothetical: In 2010 Dan gets a puppy so he has a fence installed to contain the dog. Unbeknownst to anyone the fence company failed to actually determine the property boundaries and build the fence five feet into Joe’s yard. In 2021 Joe goes to sell his house, the new buyer asks for a survey, and it is discovered that the fence is over the line. Joe asks Dan to remove it, Dan says he will if Joe will pay the difference, Joe refuses and goes to his lawyer seeking a lawsuit to remove Dan’s fence from the land. Joe’s lawyer finds out the fence has been up for eleven years and tells Joe that he is out of luck. What if someone sells their property during the ten years? In Nebraska, it does not matter. The ownership “tacks” on to the earlier owner. How can you prevent the adverse possession? The easiest way is to give permission. Adverse possession requires the occupation of the land to be “hostile”. This means the occupancy is without permission. If at anytime between 2010 and 2020 Joe had told Dan, he could leave the fence on his land then the hostile nature is broken.

What is due diligence?

Due diligence is the act of investigating a property to ensure it is suitable for its selected purpose. Due diligence always involves a title search, this is a search of the property history to see if any unknown liens exist upon the property. Sometimes it also includes an environmental site assessment, also known as a phase one. This is a scientific determination if the property has any environmental issues. In some cities, like downtown Omaha, it was not at all uncommon for different buildings to have their own fuel tanks on the property. A good landowner would ensure that the tanks were properly sealed and removed when no longer needed. A lot of landowners took the easier way out, buried the tanks, hid the existence of them, and hoped no one found out. As a result, after years the metal breaking down the tanks then begin to leak into water sources. Nebraska law provides that whoever the current landowner is will have liability even if they did not install the tanks themselves. Due diligence also has a separate meaning in the corporate world. Read about that here.