What is real estate law?

What counts as real estate

Real property, or real estate, is land plus anything permanently attached to it — houses, buildings, fences, fixtures such as built-in cabinets — and certain rights connected to it, such as mineral, water and air rights. Everything else is personal property. The distinction matters: real estate transfers require a signed written deed, are recorded publicly, and are governed by the law of the state where the land is located.

Main areas of real estate law

• Buying and selling — purchase contracts, disclosures, inspections, contingencies, closings and deeds.
• Title — who owns the property, how it is held (sole ownership, joint tenancy, tenancy in common, tenancy by the entirety, community property), title searches and title insurance.
• Financing — mortgages, deeds of trust, liens, refinancing and foreclosure.
• Landlord and tenant — leases, security deposits, repairs and habitability, rent regulation, evictions.
• Land use — zoning, building codes, permits, subdivision rules and environmental regulations.
• Neighbor issues — easements, boundary and fence disputes, nuisance, adverse possession.
• Community associations — HOA and condominium governing documents, dues and disputes.
• Government actions — eminent domain, property taxes and assessments.
• Commercial real estate — commercial leases, development, construction and investment structures.

Federal law in a state field

Although most real estate law is state and local, several federal laws apply nationwide: the Fair Housing Act bans discrimination in sales and rentals; RESPA and TILA regulate mortgage disclosures and closing costs; federal rules govern lead-paint disclosures for older homes; and federal tax law shapes ownership decisions through the mortgage interest deduction, capital gains exclusions for a primary residence, and 1031 exchanges for investment property.

Typical legal issues people face

• A seller failed to disclose a known defect such as water damage or foundation problems.
• A buyer backs out and both sides claim the earnest money.
• A title problem surfaces — an old lien, a missing heir, a boundary error.
• A landlord will not return a security deposit or make repairs.
• A neighbor builds over a property line or blocks an easement.
• An HOA imposes fines or rejects a renovation.
• A city denies a permit or a zoning variance.
• A homeowner falls behind on the mortgage and faces foreclosure.

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What a real estate lawyer does

Real estate attorneys draft and review contracts, handle closings (required or customary in states such as New York, Massachusetts, Georgia and the Carolinas), examine title, prepare deeds, advise on how to hold title, negotiate leases, represent clients in eviction, foreclosure, boundary and construction disputes, and appear before zoning boards. In states where title or escrow companies handle most closings, many buyers do without a lawyer for a simple purchase, but hire one when problems arise.

Real estate agent vs. real estate lawyer

An agent or broker helps find a buyer or property and negotiates price, and is usually paid a commission. A lawyer gives legal advice, drafts and interprets documents, and represents clients in disputes. Agents generally may not give legal advice, and standard contract forms can have legal consequences that only a lawyer can fully explain.

Fees

For residential closings, many real estate attorneys charge flat fees, often roughly $500 to $2,000 depending on the region and complexity. Litigation and commercial work is usually billed hourly.

When to hire one

Consider a real estate lawyer for any purchase with unusual terms, for sales between family members, for commercial property, when title or survey problems appear, before signing a long commercial lease, and whenever a dispute involves significant money or your home.

How property can be owned

How a deed names the owners has major consequences. Joint tenancy with right of survivorship passes a deceased owner's share automatically to the survivors. Tenancy in common lets each owner leave their share to anyone. Tenancy by the entirety, available to married couples in about half the states, adds protection from one spouse's individual creditors. Community property rules apply in nine states. Owners can also hold property through a living trust or an LLC. Choosing the form of ownership at purchase affects probate, taxes, creditor protection and what happens in a divorce.