Real Estate Law: Damages For Breach Of Warranty Covenants By A Seller

If you own real estate and sell it to a buyer under a general warranty deed, you can be liable to the buyer years later for some defect in the title that you didn’t even know about at the time you sold him the real estate, and you could end up having to pay the buyer up to the amount that he originally paid for the real estate, or in some cases the value of the land if it is more than what the buyer actually paid. Here’s how it could happen:

(1) If you breach the Covenant of Seisen or the covenant of the Right to Convey:

You can breach these by not having a freehold estate at the time you sold the real estate (you were only renting the property, for example), or by having a freehold estate that was illegal and didn’t give you the right to sell it to anyone. You can’t easily breach the first covenant accidentally, but it is possible to accidentally breach the second covenant. Damages will amount to the price the buyer paid for the property or whatever portion of it you failed to legally transfer to him. Some courts won’t even require to transfer the property back to you when you pay him the purchase price.

(2) If you breach the Covenant Against Encumbrances

You can breach this one if there is a mortgage on the property, for example, at the time you sell him the property. It is, then, quite possible to breach this covenant accidentally because you breach it even if the mortgage was taken out by the guy who sold the property to you and even if you didn’t know about it. Damages will amount to either the amount of money needed to remove the encumbrance (pay of the mortgage, for example), or the amount by which the market value of the real estate has been diminished on account of the encumbrance. In no case, though, will damages exceed the value of the land

(3) If you breach the Covenants of Warranty, Quiet Enjo

If you own real estate and sell it to a buyer under a general warranty deed, you can be liable to the buyer years later for some defect in the title that you didn’t even know about at the time you sold him the real estate, and you could end up having to pay the buyer up to the amount that he originally paid for the real estate, or in some cases the value of the land if it is more than what the buyer actually paid. Here’s how it could happen:

(1) If you breach the Covenant of Seisen or the covenant of the Right to Convey:

You can breach these by not having a freehold estate at the time you sold the real estate (you were only renting the property, for example), or by having a freehold estate that was illegal and didn’t give you the right to sell it to anyone. You can’t easily breach the first covenant accidentally, but it is possible to accidentally breach the second covenant. Damages will amount to the price the buyer paid for the property or whatever portion of it you failed to legally transfer to him. Some courts won’t even require to transfer the property back to you when you pay him the purchase price.

(2) If you breach the Covenant Against Encumbrances

You can breach this one if there is a mortgage on the property, for example, at the time you sell him the property. It is, then, quite possible to breach this covenant accidentally because you breach it even if the mortgage was taken out by the guy who sold the property to you and even if you didn’t know about it. Damages will amount to either the amount of money needed to remove the encumbrance (pay of the mortgage, for example), or the amount by which the market value of the real estate has been diminished on account of the encumbrance. In no case, though, will damages exceed the value of the land

(3) If you breach the Covenants of Warranty, Quiet Enjoyment, and/or Further Assurances

If your buyer ends up getting thrown off his property by someone who comes along with a superior claim to title to the real estate (you’d be surprised how easy it is for that to happen), you may have to pay the buyer back the amount he originally paid for the real estate (or a proportion of that if he’s only been thrown off part of the property).

yment, and/or Further Assurances

If your buyer ends up getting thrown off his property by someone who comes along with a superior claim to title to the real estate (you’d be surprised how easy it is for that to happen), you may have to pay the buyer back the amount he originally paid for the real estate (or a proportion of that if he’s only been thrown off part of the property).

Recording The Sale Of Real Estate – Know The Law And Don’t Get Burned

In the United States, every state has enacted one of three different types of recording statutes to govern the official recording of a transfer or real estate from one party to another:

(1) Notice Statutes

Suppose you sell your house to Party A, Party A fails to record the sale, you turn around and sell the same house to Party B who doesn’t have “notice” that you previously sold the house to Party A (that is, Party B not only didn’t know about the previous sale, he also had no reason to know about it). Now Party A and Party B wind up in court fighting over who owns the property because you skipped off to Tahiti with all your money and property, whose house does it belong to? In states with a notice statute, the house belongs to Party B, because Party A had a chance to record the previous sale but didn’t. The result would be the same even if Party B didn’t record his purchase either.

If Party A wants his money back he’s gonna have to fly to Tahiti and sue you there. In practice, this usually plays out when somebody buys a piece of real estate without knowing that the bank has a mortgage on it, because the bank neglected to record the mortgage.

Keep in mind that if Party B knew (or should have known) about the previous sale to Party A, Party B would lose even if he recorded first.

(2) Race Statutes

It’s a “race to the courthouse”, and the first one to record his purchase wins. In states with race statutes, Party B would win even if he knew about the previous sale as long as he recorded his interest first. Only a few states have race statutes – they are considered by most judges to be outdated and unfair.

(3) Race-Notice Statutes

Under this system, in order for a subsequent purchaser to win against a prior purchaser of the same property who didn’t record his prior purchase, the second purchaser will have to prove that he (i) didn’t have notice of the first purchase, and (ii) he recorded his purchase before the first purchaser did. The difference with the notice statute is that if Party B lived in a state with a race-notice statute, Party A could still win as long as he beat Party B to the courthouse to record his purchase.

Landlord Tenant Law And Real Estate Investing

Investing in real estate can be a great idea, but if you invest in rental property then it is a good idea to have a general idea of the law and what your responsibilities, as well as your rights, are as a landlord. Landlord tenant law may vary from state to state but almost all states have similar laws with some minor changes according to the state you are in. Landlords and tenants have certain legal rights and responsibilities concerning the rental property and it is important to be aware of these before you invest in rental real estate. Many times disputes between a landlord and a tenant could have been avoided if both parties understood their rights and responsibilities under the law.

Landlords have some rights concerning their rental property but they must follow the proper procedure to get rid of a problem tenant, no matter what the problem is. Landlords have a right to expect the rent to be paid on time, for the tenants to keep the property clean and not cause damage besides normal wear and tear, for tenants to exist peacefully in the area and not bother neighbors with loud or illegal behavior, for the rental unit to be occupied by only those persons listed on the lease unless permission has been given, and that all of the lease conditions are followed. There are other various rights that vary from state to state so finding out your specific rights besides these listed is a wise investment idea.

Tenants also have some basic rights under landlord tenant laws in almost all of the states as well. They have the right to expect their rented property to be maintained in a safe and reasonable manner, to have privacy in the property that they rent, to have at least twenty four hour notice before allowing the landlord in to inspect or make repairs unless the tenant agrees to less notice, and in most states forty eight hour notice must be given to allow the tenant time to arrange to be in the rental property when the landlord is there. A landlord does not have the right to enter the property when the tenant is not present or is not aware of the visit. In some states a landlord who enters the property without the required notice to the tenant can be arrested for illegal trespass. A tenant also has the right to expect the premises to be repaired if needed at no cost to the tenant if the problem was due to normal wear and tear or age. It is illegal for a landlord to turn off basic services to a tenant like water, heat, electricity, or gas.

The best way for you to protect your rental real estate investment is to learn the landlord tenant laws in your area. Understand and follow your rights and responsibilities as a landlord when dealing with your tenants. Follow the proper procedures when dealing with a problem, a tenant, or a problem tenant. Document problems so that if you do wind up in court, you can provide proof and documentation of the problem.