Law Offices - Michael C. Beller

Real Estate Law

My real estate experience, coupled with my experience as a litigator, has proven to be invaluable for handling real estate litigation

The practice includes both commercial and residential real estate. Clients include individuals, businesses, builders, contractors, developers, property owner associations, and government entities. Projects range from individual residential transactions and commercial leases to assisting developers subdivide large tracts of land. In addition, his litigation experience includes boundary line disputes, suits to quiet title, adverse possession, prescriptive right claims, deed restriction controversies and eminent domain.

What is construction law?

It involves the formation of agreements and disputes between the builder and homeowner, covering a project that could run into several hundred thousand dollars.

I have heard the terms “color of title” and “cloud over title.” Other than colorful phrases, how do they impact title?

Color of title, also referred to as “apparent title,” occurs when any fact which appears on its face to support a claim of present title to land for some reason fails to establish ownership by law. For example, you purchased a ski chalet for investment purposes at Squaw Valley, receiving what you thought was a valid title. Later, it turned out that the previous owner’s title, handed down through several generations of his family, was defective.

Typically color of title occurs in the form of a writing – an instrument which contains a description of land which has been conveyed but because of some defect falls short of the mark. A “cloud on title” exists when any outstanding claim affects your title to land. If a cloud exists over title to your property, you might have to bring a lawsuit to quiet title and firmly establish in law that you own the land.

A “cloud on title” exists when any outstanding claim affects your title to land. Suppose, for example, that you are informed by letter that your ownership of your Maui beach bungalow is invalid because of an earlier deed on the property. In other words, someone else is challenging your ownership of the beach bungalow. The remedy usually for removing a cloud on a title is to bring a proceeding in court to firmly establish in law that you own the land.

What is adverse possession?

Traditional common law provided a method for someone to obtain title to land through use. The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see. For example, your neighbor built a fence on your land with the intention of taking the property, paid property taxes, and you knew about it but did nothing. If this continued for a period of time set by state law, your neighbor may be able to claim this property as his/her own. The theory is that, by not disputing your neighbor’s use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. There are several elements needed for adverse possession to result in title:

The length of time required for adverse possession in title varies – it could be as short as a few years or could run for twenty years or more. Typically public entities must establish a longer period of possession than individuals. Some states have adopted a rule which requires the adverse possessor to pay taxes each year on the land.

The possession must be open for all to see.
The possession must be exclusive to him or her (e.g., the fence in the above example, a driveway, road, etc.)
The possession must be hostile to the actual owner of the land.
To gain title to land through adverse possession requires strict compliance with the law, but can have dramatic impact upon land ownership rights.

An encroachment could result in title to your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbor from getting title to your land through adverse possession.

If you own land, it is important that you do not “sleep on your rights” since you could lose ownership of the land.

What is eminent domain about?

It is another word for condemnation – the right of the government to take private property for a public purpose, for example, to make way for a road. The Constitution requires the government to pay you fair compensation if it takes your property.

What is real property?

Real property is generally defined as land and the things permanently attached to the land. Things that are permanently attached to the land, also can be referred to as improvements, include homes, garages, and buildings. Substances that are beneath the land (such as gas, oil, minerals) are also considered permanently attached. Other items which can be attached to the land, such as mobile homes and tool sheds, are not considered to be real property.

Michael Beller

Law Offices