December 5, 2012

IS THE GEORGIA HOMEOWNER ARBITRATION PROCESS FAIR TO HOMEOWNERS?

As an Atlanta Construction Lawyer, I have worked with clients who have taken their Georgia construction arbitration, litigation, and disputes to the court system for resolution, and others who have gone through the process of arbitration. Many times, a construction contract specifically states that all disputes must be resolved through arbitration, yet unless contractually mandated, arbitration is often overlooked. It is important to note that while both methods have their advantages, arbitration is often the fastest and can be very cost effective.

In Georgia it can take a minimum of a year for a case to go to trial, while the date of the final arbitration hearing can be set much sooner. Disputes are often resolved just a few months after the arbitration process is initiated. The disadvantage to arbitration is that the parties named in the dispute will pay for the time of an arbitrator. Arbitrators belong to arbitration associations that are usually private businesses, and fees for an arbitrator can cost several hundred dollars per hour. The court system, on the other hand, is funded by tax revenue and requires that the parties pay only filing fees.

Besides the timing advantage, another strong point to arbitration is that the parties can choose the arbitrator that will preside over the case. Arbitrators have been trained in specific technical areas of the law and can be picked with this in mind. Judges in court proceedings cannot be picked and, although they have a broad knowledge of the law, the judge assigned to a case may not possess proficiency in the area that the dispute covers. In complex construction disputes, having the option to choose a knowledgeable arbitrator will ensure that all parties are treated fairly under Georgia law.

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July 19, 2012

ATLANTA LAWYERS FIND ‘FAILURE TO DISCLOSE’ CASES ON THE RISE

As an Atlanta, Georgia lawyer, I have noticed that failure to disclose defects in Georgia real estate (mainly in residential homes), are on the rise. In fact, some cases of ‘failure to disclose’ serious defects in real estate rise to the level of real estate fraud in Georgia, and even involve action on the sellers behalf to hide, cover up, and disguise defects so the buyer or inspector will not notice them.

As an Atlanta Property Attorney who advises clients on the purchase and sale of real estate, I make sure and advise the sellers of real estate it is illegal to fail to disclose to potential buyers, major and/or material construction defects, in the ‘home for sale’. While sellers may view these disclosures as a burden, these laws exist to protect sellers and homebuyers.

By being upfront about your home’s defects in Georgia, a home seller can avoid serious lawsuits and legal liabilities in Georgia for failure to disclose defects. Your seller’s disclosure form shows both parties exactly what the defects are, so you can be exempt from future problems.
Before you put your house on the market, consider getting an inspection, so you are aware of any potential problems that need repair. This will allow you to decide if you wish to repair the defect now, or offer a discount to buyers who wish to repair the Georgia construction or home defect themselves. In fact, you may even consider having the house inspected by a high-level inspector such as a person with an engineering degree. This is because not all defects are evident, foreseeable, and/or predictable. Remember, the term “CAVEAT EMPTOR” means buyer beware under Georgia real estate law! This means that there is a high-level of responsibility put of the buyer to inspect the property thoroughly and in a manner such as a reasonably prudent person would do under like circumstances.

What is in a Georgia Real Estate Disclosure Statement?

Your Atlanta real estate agent should be able to give you a standard disclosure form, so you can see what you need to disclose. This Georgia Seller's Disclosure Statement is treated as part of the Purchase and Sale Agreement and incorporated by reference. So, this "Disclosure Statement" is part of the Georgia Business Contract for the Sale of Georgia Real Estate. Thus, it is wise to disclose any defects that may affect a buyer’s decision to buy your house.

These include:

• Plumbing defects

• Sewage issues

• Water leakage

• Fire damage

• Termites

• Bug infestations

• Roof defects

• A/C or heating system defects

• Drainage problems

• Foundation cracks

• Issues with neighbors

• Lead paint or hazardous materials

• And more

Choosing Not to Disclose

If you are selling your home and do not disclose a known defect, you may face serious legal consequences. Buyers can demand money for repairs and damages due to the defect long after your house is sold. If an agreement is not reached or if someone was injured due to the neglected defect, you may also face a serious lawsuit. This can result in you owing the buyer large sums of money for repairs, legal fees, compensatory damage, exemplary damages, and even punitive damages if it is determined you have committed fraud, and/or more. In addition, you could be forced to take or buy the house back the house under the theory of rescission.

Contact Us

If you feel you have become the victim of a real estate scam in Georgia by being sold real estate with hidden defects or defects, which were not properly disclosed, or you are being threatened by homebuyers who did not adhere to the Georgia law principle of Caveat Emptor, our Firm can assist you.

The Libby Law Firm Atlanta Real Estate Attorneys have significant experience representing both sellers and purchasers in real estate transactions. It is my strong advice that you find an experienced real estate lawyer to assist you with any Georgia “failure to disclose” issues. This is true whether you are the buyer or the seller.

These cases are also known under Georgia law as “hidden defect” cases and usually arise in the context of the sale of residential real estate. The Libby Law Firm Atlanta property and real estate lawyers represents clients in “failure to disclose” claims and lawsuits throughout the metro Atlanta area and Georgia. Our Firm can protect you from over-zealous home purchasers and keep you from being swindled by tricky sellers. Contact our Main Office by calling our Main Number (404) 467-8611 or through our Buckhead confidential Contact Us Form. Our Main Office is easily found, has safe secure free parking, and Our Firm is conveniently located near the intersection of Piedmont and Peachtree Roads near the Buckhead Triangle.

July 15, 2012

THE GEORGIA REPAIR ACT IS AN IMPORTANT WEAPON IN GEORGIA CONSTRUCTION ARBITRATION

As a construction lawyer in Atlanta and a homeowner, I am painfully aware that doing any form of modification to your home is not only time consuming but expensive as well. Stress builds up even more when things do not go according to plan, and Atlanta construction disputes brought by Georgia homeowners and Georgia construction contractors can ultimately lead to lawsuits and court time. To control the amount of construction cases going through the Georgia legal system, the Georgia Right to Repair Act became effective in 2004 to facilitate the settlement Georgia construction defect arbitration, disputes, lawsuits, litigation, and other construction issues outside of court. The following steps should be followed prior to filing a Georgia construction defect lawsuit or Georgia construction defect arbitration proceeding against a contractor in the State of Georgia.


Step 1: Homeowners Understanding Of The Georgia Right To Repair Act

Prior to beginning a home improvement project, Atlanta contractors are supposed to alert homeowners to what the Right to Repair Act states and what is required of both parties if the construction does not satisfy both pairings. As an Atlanta homeowner, it is necessary to do your research before you begin any home improvement project, so you are aware of your rights. Not following the Act correctly can result in a loss for you as well.


Step 2: Homeowners Must Notify Contractor Of Any Issues

If you have any concerns about a project that was completed, you must submit a written notice to the Georgia contractor describing in detail the issues you have with the construction. This “notice of claim” should outline all problems including photographs and the nature of the defects. To ensure your problem gets resolved you must address the problem immediately.


Step 3: Contractors Reaction To The Claim

Once a contractor has received the claim notice they have exactly 30 days to respond in a variety of ways.

Option A: Offer a settlement in the form of money, repairs, or both. Some contractors prefer to fix the problem themselves until you are satisfied with the finished product. This allows for positive client relationships and a high reputation in that area for being a reliable company.
Option B: Contractors have the right to get another option and have the home inspected by a third party. This gives an outsiders perspective that does not have a bias toward the project and can offer a true estimate of the problem.

NOTE: If your home is to be inspected you must allow for that within the 30 days

Option C: The contractor decides to do nothing regarding your claim. If the claim is denied then they must also provide a written explanation of why they do not believe their work to be defective. Regardless a contractor must respond to your claim within 30 days otherwise you are free to pursue legal action.


Step 4: Acceptation Or Rejection By Homeowner

Once the contractor has chosen how to respond to your claim, you must then accept or reject their proposal. If you chose to accept their proposal, then both parties will create a settlement for the project to be re-done until deemed accepted. If you decide to reject the offer, then you must again put into writing your reasoning and you can then decide to take the matter to court.

The Georgia Right to Repair Act was put into effect to help Georgia homeowners get their money’s worth when it came to home improvement projects. Knowing your rights and what you are entitled to as the client can prevent any legal fees and additional upsets.

FIND AN ATLANTA, GEORGIA CONSTRUCTION ATTORNEY -- CONTACT US

The Libby Law Firm Atlanta construction arbitration lawyers and Atlanta construction litigation attorneys can help Georgia homeowners who are involved in any type of Metro Atlanta, Georgia construction disputes. To learn more about how the Atlanta, Georgia construction disputes and litigation attorneys at The Libby Law Firm can protect and advance the best interests of you and your family, contact our Main Office by calling our Main Number (404) 467-8611 or through our Buckhead confidential Contact Us Form. Our Main Office is conveniently located easily found and provides plenty of free covered secured parking.

April 18, 2012

GEORGIA CONSTRUCTION DEFECTS ARE HERE TO STAY, DESPITE CHANGES IN STATE LAW MAKERS UNDER OBAMA ADMINISTRATION

As an Atlanta, Georgia construction lawyer I stay very busy when I am preparing for a Georgia construction arbitration proceeding/hearing. Sometimes I have little contact with the outside world news. However, some matters do keep my attention in this upcoming election, such as healthcare reform, the estate tax debate, the “Buffet Rule”, and withdrawal of troops from Afghanistan -- ending a long war. These changes are taking place on a national level and to some extent, a local level. It is my opinion that if the Republicans control Congress after the 2012 elections and President Obama is not re-elected, then much of President Obama’s attempted changes will be put to rest. Thus, it is understandable we are living in uncertain times wherein we do not know what or will not change. What will not change is Georgia construction law and the need to proactively protect your property/real estate interests from unscrupulous Georgia builders, contractors, and sub-contractors. Georgia construction defects will continue at a high rate as Georgia builders, Georgia general contractors, Georgia sub-contractors, and other Georgia building professionals try to cut corners to make ends meet and extend their profits. This is being done at the expense and hardship of Georgia homebuyers and new home purchasers.

Fortunately, under Georgia Construction Law, there are options to hold your Georgia builders, general contractors, and sub-contractors liable for their negligence, shoddy construction, construction defects, and more. Please read on and into my article discussing some of the issues a homeowner, buyer, or purchaser of a new home should be aware of to protect their home investment interests. I offer you the following:

In my Atlanta, Georgia construction law firm, all of the Atlanta, Georgia construction lawyers are sure that current Georgia construction law and Georgia construction defect problems (especially in big metro areas like Atlanta) are here to stay. Every building over time will see the results of wear and tear, but knowing whether the problem is an easy fix or a major reconstruction project needs to be determined before you buy. After all, construction defects can reduce the value of your property significantly. These defects can range from design issues to faulty systems to failure to meet Georgia industry building standards. Remember – not all construction defects are created equal. What may look like a simply crack in the ceiling could actually turn out to be a major architectural default or foundational defect.

As an Atlanta, Georgia construction defect attorney, I want to note what constitutes a Georgia construction defect is based upon a variety factors. Our Atlanta, Georgia construction defect lawyers always engage a professional such as a Georgia structural engineer, Georgia construction expert, or other Georgia construction professional with the qualifications under Georgia law and the knowledge under Georgia construction law, to evaluate the work of Georgia builders, general contractors, and sub-contractors. Moreover, we have an expert behind each and every Georgia construction defect claim we bring on behalf of clients (there are a few exceptions to this internal Firm policy).

1) The potential buyer’s reasonable expectations. Most consumers do not have a realistic expectation of what is to be expected and thus may over analyze issues that are in actuality an easy fix.

2) The builders understanding of building codes and their willingness to comply with those regulations.


3) Whether the construction of the building was completed in the appropriate manner by individuals who possess the required workman behavior.

4) Whether the materials used to construct the structure were used for their intended purpose and were suited for the project at hand.

5) If the intended plans of the architect and/or engineer were used to the correct extent and followed according to their drafts.

THE FOLLOWING IS A LIST OF COMMON TYPES OF GEORGIA CONSTRUCTION DEFECTS:

Asphalt or Concrete - Not taking the time to properly install asphalt or concrete can result is cracking or other series problems.

Electrical - Faulty wiring is a common defect that can result in hazardous fires and electrical voltages.

Plumbing and Drainage - Plumbing defects can range anywhere from improper installation of water heaters to leaky pipes. These deficiencies can cause ceiling cracks and water damage to your venue.

Heating and Cooling Systems - Improper installation of these systems can lead to extreme harm. If air ducts are blocked gas buildup can occur leading to carbon dioxide poising.

Floors and Ceiling - Improper design can result in floors and/or ceilings collapsing, because they are not able to sustain the weight put upon them.

Roofs - Many issues can occur with roofing from shingle misplacement to the underlay. The most common damage caused is water intrusion into your building resulting in dangerous molds.

Windows and Doors- Not having these features installed property can result in mold and rot, because the moisture is able to seep in. Toxic mold can lead to major health complications and illness.

Structural - On of the most serve types of defects starts at the ground level. Not having the base of your building strong enough to withstand a variety of weather can have a devastating outcome.

Mold and Wood Rot - These problems occur when buildings are exposed to moisture for long periods of time weakening your building structure.

Before you plan to purchase a new property seek professional advice from someone familiar in the construction field to ensure you are getting a great property for a great price. In addition, it is important to speak with an Atlanta, Georgia construction arbitration attorney if you believe you may have a construction defect issue.

The Libby Law Firm Atlanta, Georgia construction arbitration, dispute, and litigation attorneys have momentous experience representing Georgia homeowners, home purchasers, Georgia contractors, sub-contractors, builders, landlords and more. The Georgia construction defect lawyers are skilled, knowledgeable, practiced and experienced in all aspects of Georgia construction law, and the Georgia dispute proceedings associated with them, such as binding Georgia construction arbitration. We are also well-known for our ability to build a case from the right to repair letter, to the defects, to the dispute proceedings. If you believe you have construction defect issues, “Contact Us” to discuss a strategy that protects your property interests.

To learn more about how the Atlanta, Georgia construction dispute attorneys at The Libby Law Firm can protect and advance the best interests of you and your family, contact our Atlanta office to schedule a consultation. Contact our Main Office by calling our Main Number (404) 467-8611 or through our confidential “Contact Us Form” located on our websites and blogs.

The Libby Law Firm Main Office is conveniently located in the Buckhead section of Atlanta and easily found. There is plenty of secure free parking and our offices have street level access.

January 1, 2012

A GEORGIA LIEN LAWYER MUST FILE A LIEN IN CONSTRUCTION PAYMENT DISPUTES

In my practice as an Atlanta, Georgia lien attorney, I can assure you Georgia liens are an important tool that builders, subcontractors and suppliers use when a property owner is delinquent on payment for a construction project. As a Atlanta, Georgia Construction lien attorney, I have seen changes in recent years to Georgia lien laws that have had a dramatic impact on the outcome of payment disputes on construction projects. The changes include important benefits for all concerned.

Changes to the law include how a lien is filed, removal of a lien and enforcement of a lien. One important modification is that in Georgia, only a licensed Georgia attorney may file a lien. Some of the changes to the law are so subtle, that only lawyers specializing in Georgia construction law may be able to properly file a lien. As a result, property owners, contractors, subcontractors and suppliers should always seek the qualified counsel of a Georgia construction attorney to handle lien issues.

Benefits of the changes in the lien law include the following. Property owners can contest a lien by sending the contractor a “Notice of Contest.” After receiving the notice, if the contractor wants to proceed, then the contactor must file a lawsuit within 60 days. Failure to file within 60 days invalidates the lien. Another benefit to the property owner is that an expiration date now is required on the lien. The modified law states that contractors will receive a copy of a filed lien when a “Notice of Commencement” is issued and subcontractors and suppliers will be notified when the property owner has bonded out a lien.

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December 20, 2011

ATLANTA CONSTRUCTION LAWYERS ISSUE ALERT! MAKE CONSTRUCTION INDUSTRY PROFESSIONALS BEWARE - WATCH FOR THESE TELLTAIL SIGNS YOUR NOT GOING TO GET PAID BY THE HOMEOWNER-PURCHASER

As a Construction Lawyer in Atlanta, Georgia, I have noticed the poor economic climate is forcing more and more people to take desperate measures. As an Atlanta, Marietta, Buckhead and Sandy Springs Commercial Litigation Lawyer, I have seen an increase in claims by construction professionals against homebuyers who are backing out of real estate construction deals. In many of these cases, the homebuyers are looking for ways to blame construction professions for poor quality and workmanship so that they can walk away from the contract and not pay at all, or pay a lower price for work already done.

The following is a list of items that you may have received or experienced that should be considered a possible indication that the homebuyer is considering backing out of the construction contract:

• documents on behalf of the homeowner from a Georgia lawyer regarding pricing or quality of the work performed

• a Notice of Claim regarding your contractual obligations

• a written offer of settlement from the client that changes the terms of the original contract

• a proposal to inspect the building site


• an offer to settle a claim without an inspection


• a request to have a third party, for example a contractor or friend, work on or oversee the project


• continuous complaints about the quality of work

• failure to pay in a timely manner, for any reason

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June 26, 2011

REAL ESTATE – PROPERTY ATTORNEYS IN ATLANTA, GEORGIA, LET YOU KNOW WHICH CONTRACTS MUST BE IN WRITING – DO NOT REGRET FAILING TO RETAIN AN EXPERIENCED REAL ESTATE – PROPERTY LAWYER

As an Atlanta property lawyer that regularly handles proceedings dealing with Georgia business, real estate, construction, property, and contract matters, it is imperative that I know when a Georgia contract must be in writing to be legally enforceable. Being an attorney who does not cut corners and can be stubborn about achieving perfection, my quick answer is that every contract must be in writing. However, this is not true. Many contracts are not in writing. This is especially true for Georgia contract disputes and litigation, which in one way or another; end up on my desk to correct. In short, failure to memorialize your contractual agreement causes a plethora of problems, so please put everything in writing.

This is even true if you write your contractual agreement on a napkin from the restaurant, while having lunch with the contracting parties, with the waiter’s pen. The written contract should be a detailed written agreement that is signed, witnessed, and understood by all parties of the contract. Do not sign a contract you do not understand. This is because your signature on a contract affirms that you read, understood the contract fully, and agreed to it. The contract must contain and cover all material terms of the subject matter contract.

Now, the truth be known, the above-referenced scenario, while not a bad idea, is really me making a vain attempt to prevent future problems that could arise stem from uncertainties that often arise from oral contracts, and which are oftentimes prevented by written contract – even if it is on a restaurant napkin. Now it is time for the truth. I must admit I am purposefully wrong to prove a point. Georgia law holds that only certain Georgia contracts must be in writing. I still want to get one last word in that a contract on a restaurant napkin is abundantly better than an oral agreement.

In my Atlanta based property and Georgia real estate transaction and property dispute and litigation law firm, I know that contracts must legally only be in writing when they are subject to the Statute of Frauds. O.C.G.A. § 13-5-31 states that the following contracts do not have to be in writing to be legally enforceable. In short, they are not subject to the Statute of Frauds, which requires them to be in writing.

Conversely, it follows that contracts must be in writing when they are subject to the Statute of Frauds. In my Atlanta property dispute and litigation law firm, I know the exceptions to the Statute of Frauds. To be clear, contracts that must be in writing must meet the requirement that they be in writing because the Statute of Frauds dictates so.


Under O.C.G.A. § 13-5-31, the following types of cases are do not have to be in writing and thus one could say, they are not subject to the Statute of Frauds to be enforceable.

They are as follows:



• There has been performance concerning the contract terms by a party to the contract, and another party to the contract has accepted this performance. This indicates there is a contract, thus Georgia law states there is.

• Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.

• The contract has been fully performed. Since the contract has begun and finished, there is no reason to back up in time and require this contractual agreement be in writing.


As such, any oral contract is valid and legal enforceable so long as it complies with one of the above exceptions to the Statute of Frauds.

The binding authority that set forth and solidified the Statute of Frauds can be found in the case of Atlantis Realty Co., Inc. v. Morris, 142 Ga. App. 470, 236 S.E.2d 163, (Ga. Ct. App. 1977).

The lesson of this Blog Article? While it is possibly not evident, is that parties should always take the time to make a contract. Even more so, that certain contracts need not be in writing to be legally enforceable. However, if you are party to a contract, please take the time to put it in writing. If you feel a contract is pending, please take the necessary steps to have this contract put in writing. Truth be known, putting the contract in writing is only half the battle. If you are engaging in business with another party, please retain an experienced Atlanta, Georgia contract attorney to draft your contracts and make them binding on all parties. Additionally, by having your attorney draft the contracts, you can make sure your best interest are protected and promoted. I stated earlier that much litigation is generated from disputes over oral contracts. Well, there is a whole other sector that deals with Georgia contract disputes over poorly, ambiguously, or improperly drafted Georgia contracts. While a contract is just an agreement, in this business environment, a “handshake will not do anymore.” It is sad, but true.

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February 1, 2011

ATLANTA CONSTRUCTION ATTORNEYS STATE, “GEORGIA HOMEOWNERS BEWARE, HOME CONSTRUCTION QUALITY IS DECLINING”

As an Atlanta Construction Attorney, making up for the recent decline in the Georgia construction industry, many builders, contractors, and sub-contractors are cutting corners to produce homes that cost them less material in and labor to produce. In some cases, poor workmanship is the result of lack of experience on the part of a well-meaning contractor. Regardless of the cause, the outcome is the same for the homeowner, a home with construction defects. Poor quality and workmanship creates a financial hardship for the homeowner, who in the most severe cases may not be able to remain in the home. Building defects in your home can affect your life in very adverse ways. I even know of many couples who were on the verge of divorce because of a builder’s construction defects. Ironically, this was supposed to be their dream home.

In my Georgia Home-Builder Defect law firm, we have seen an increase in the number of new cases that are related to home construction quality. Claims at our firm are common in the following areas: use of use of substandard material, breach of contract, non-disclosure of material defects, fraud in home construction, fraud on the home disclosure statement, construction negligence, misrepresentation of construction and sale, failure to meet industry building standards and incomplete work.

For many affected homeowners, the issues cited in these cases only became noticeable after the home construction was complete and the owners had been living in the home for a period of time. Under Georgia’s Right to Repair Act, even after the home warranty has expired, homeowners can seek resolution of these construction defects. It is imperative that homeowners who have found or suspect construction defects contact a Georgia Construction Defect Attorney who can guide them through the process.

Serious construction defects must be repaired or they can affect the value of the home and the safety of the occupants. If you have noticed any problems with the construction quality of your home, contact the qualified construction defect attorneys at The Libby Law Firm. Our lawyers have can easily handle the complexities of real estate and construction law and will work with you to ensure the best possible outcome of any arbitration or litigation.

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December 20, 2010

ATLANTA, GEORGIA, CONSTRUCTION LAWYERS ARE A MUST IN CONSTRUCTION AGREEMENTS

Atlanta, Georgia, Construction Lawyers know most new residential real estate contracts transactions in Georgia have a clause mandating binding arbitration if there is a dispute between the contractor/builder and homebuyer. Several years ago the Georgia Supreme Court ruled that arbitration is legally binding. As a result, once a decision is made during arbitration, it cannot be appealed to any other higher court of law. This is significant because most new construction contracts in Georgia today contain an arbitration provision.

Because most commercial and residential real estate contracts contain arbitration clauses, extreme caution is advised to anyone entering into one of these contracts. It is imperative to retain the counsel of an experienced Construction Defect Attorney in Atlanta, Georgia, who can help you protect your investment before any documents are signed. An attorney will review the original contract and negotiate any clauses that might be unfavorable to you. This is the best way to protect against future damages.

In my Atlanta, Georgia Real Estate Construction law firm, some of my clients are surprised to hear that their construction contract contains an arbitration clause. They come to me because they must resolve a construction issue and are very concerned when they learn that the decision reached in Georgia Construction Arbitration will be final. The fact is that most people do not realize that the contract they have signed contains an arbitration clause. For these clients, the best remedy is to work with a Atlanta, Georgia Construction Lawyer to prepare for arbitration.

Because of the financial implications associated with real estate transactions, it is critical to work with a Georgia construction and real estate lawyer to safeguard your investment. The attorneys at The Libby Law Firm represent all individuals during arbitration, including homeowners, investors, builders and contractors. If you would like to speak with an Atlanta construction attorney or Georgia real estate lawyer about a real estate transaction, please call us at (404) 467-8611. You may also send us a message through our confidential “Contact Us” form on our website. The Libby Law Firm' main location is conveniently situated in the historic Buckhead section of Atlanta near the Buckhead Triangle.

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September 28, 2010

COMMERCIAL REAL ESTATE ATTORNEYS AND BROKERS – HIRING BOTH IS AN EXTRA LAYER OF PROTECTION IN TOUGH ECONOMIC TIMES

In my Atlanta, Georgia Commercial Real Estate law practice, I help clients with all types of Atlanta, Georgia real estate transactions, disputes, and litigation. While some consider only consulting with a lawyer when problems occur, an experienced Georgia commercial real estate lawyer will work with his clients to prevent problems from occurring. Commercial real estate brokers and lawyers provide valuable services to anyone buying or selling commercial real estate. In fact, it is even more imperative to protect yourself in the current tumultuous and fragile real estate environment.

When selling and/or purchasing commercial property it is a good idea to work with both a commercial real estate broker and a commercial real estate lawyer. Real estate brokers help clients find properties and will negotiate the terms of the purchase agreement. A good commercial property broker has a wealth of knowledge about the market and will network with other brokers to gather information that will ultimately benefit the client. Real estate brokers also have contacts in related fields, such as mortgage brokers, and property inspectors.

Atlanta, Georgia Commercial real estate lawyers can help commercial property investors because they are qualified to dispense legal advice and will protect the client from costly mistakes. As an expert in real estate law, I know an our Georgia real estate attorneys will draft effective legal documents to represent and protect their both in and of court. An experienced Atlanta, Georgia commercial real estate lawyer can handle a wide variety of real estate issues, such as construction defects, land use and zoning and contract disputes. Moreover, at the end of the day, an Atlanta commercial real estate lawyer has no qualms about killing a deal, which does not serve his client’s bests interests. This is inherent because commercial real estate lawyers are usually paid hourly, and not only if the deal goes through. This is oftentimes the case with commercial real estate brokers and I fear there have been times when they have looked the other way to ensure the deal goes through, and thus payment of their commission is ensured.

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June 27, 2010

IN GEORGIA, THE SELLER’S DISCLOSURE STATEMENT IS PART OF PURCHASE AND SALE AGREEMENT

In my real estate litigation law firm, I wanted to make you aware that home sellers are required to disclose the home defects to any buyers or they could be held liable for failure to disclose defects when selling the home. Georgia law requires disclosure of defects on the “Seller's Disclosure Statement”, which is part of most sales contracts and incorporated into the contract. The seller of a home must disclose defects, which are not readily discoverable by the homebuyer.

Conversely, the homebuyer cannot just rely on the home seller to gain a full knowledge of the condition of the home they are purchasing. The homebuyer must use due diligence to inspect the home and discover and defects which could be reasonably discoverable upon a diligent inspection. Homebuyers are not required to discover latent defects or defects hidden by the home seller. When a homebuyer is tricked by a home seller into buying a home through fraud and misrepresentation, many causes of action may be brought against the home seller. Unfortunately, in today's real estate market where homes are hard to sell, our Georgia real estate fraud law firm is seeing more and more cases where the sellers of a home have engaged in fraud, fraudulent inducement, or misrepresentation of material issues in order to effectuate the sale of their home.

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April 17, 2010

GEORGIA STATUTES DICTATE ADVERSE POSSESSION, PRESCRIPTIVE TITLE, AND COLOR OF TITLE -- “SQUATTERS RIGHTS” ARE ALIVE AND WELL

As a Georgia property title lawyer, I know that under Georgia law property title law, individuals that do not hold legal title to land may take ownership of land legally under several scenarios. For many non-lawyers, this is hard to understand or believe. Georgia property owners need to be made aware of these types of situations in order to protect their right of ownership. Georgia law offers a number of ways that real property ownership can be transferred. Under Georgia law, adverse possession, prescriptive title, and color of title, are commonly referred to as “squatters rights.” Georgia law states that an individual who occupies a piece of land, but who is not the legal holder of the title, may gain ownership under certain circumstances after 20 years, or under “color of title” after 7 years. Under Georgia law, “Color of title” is evidence that the individual has a legal claim to property, although that claim has a defect. Examples are when the individual claiming ownership has a deed, but the deed is deficient or when two individuals hold deeds to the property simultaneously.

Despite what the statute of limitations is (7 or 20 years), the individual occupying the property usually must truly occupy the property continuously for the specified period of time. One possible exception to this rule is referred to as “Tacking.” The individual must also occupy the land in an open manner (not hidden from the real owner) and the individual must be using the property exclusively. Common scenarios are the use of a pathway between houses that the “squatter” has improved with a brick-paver pathway. If the real titleholder did not contest the use and improvement of this piece of land, because that owner never realized that the property fell within his property line, then the individual who made the improvements and used the pathway could take possession under the law. Another example is if a church allowed a parishioner to occupy a vacant home on church property, free of rent for over 20 years. That individual could file for adverse possession and attempt to take legal possession of the property.

In both these cases, regardless of the statute of limitations, the individuals laying claim to the land would have to have used the land continuously for the specified period. Because the individual occupying the property must do so without hiding their intention, most landowners do not realize that a problem exists and that the individual is squatting on the land. The issue usually arises when it is time to sell the property and the title is being checked. Unfortunately by this time, it is possible that the 7 or 20-year statute of limitations has run out and the land could be transferred to the squatter legally. For this reason it is imperative that boundary lines are checked when any property is purchased. Also, for vacant land, it is important to have the property checked periodically to move off any squatters. A qualified Atlanta, Georgia Real Estate lawyer can work to provide protection from these types of situations.

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March 3, 2010

GEORGIA TITLE DISPUTES RESOLVED WITH QUIET TITLE ACTIONS: PART 1 OF 2

As an Atlanta, Georgia real estate litigation lawyer, I often work with clients to ensure that title disputes do not inhibit the sale of property. This two part series outlines several ways to resolve title disputes, including Quiet Title Actions. In this segment, I discuss how you can “quiet a title” without going to court, the circumstances under which you might need a Quiet Title Action to clear a title, and the two types of Quiet Title Actions in Georgia.

If the source of the problem with a title is already known, as might be evident in a case with a hostile partner who you know has no real interest in the land itself, you can opt to obtain a quitclaim deed from that person and put that on title. This will allow you to clear the title without going to court with a Quiet Title Action. But often the source of a dispute is not apparent and legal action with a Quiet Title Action is necessary. Disputes over titles can arise from tax sales, mechanics’ and materialmen’s liens, historical mechanics’ liens, issues of hostile ownership, boundary disputes, federal or state tax liens and disputes with a spouse or business partner (former or current). Adverse possession or prescription of title also cloud titles when an individual claims to have held the property for a long period of time without documentation or when, under Color of Title, that individual possesses a defective document that appears to show ownership.

Most of the issues listed above can be resolved using a Quiet Title Action, with the exception of federal or state tax liens and disputes involving a spouse. Federal and state tax liens must be addressed by another court and disputes involving a spouse fall under the domestic relations statutes in Georgia. When a Quiet Title Action is necessary, it is wise to seek the assistance of an experienced Atlanta, Georgia real estate lawyer. Your lawyer will choose from the two methods available to “quiet a title.” Both types fall under the Equity Code in Georgia (Chapter 23). The first is the Conventional Quiet Title Action that removes a known instrument or known instruments (Chapter 23-3-40). This method is not very common, but it is useful when you know exactly what is clouding the title and who is behind it. With this type of case you do not need to serve everyone with the petition, since you already know what and who is at the root of the issue.

Much more usual is use of the Quiet Title Act of 1966 (Georgia Equity Code Chapter 23-3-60 through 23-3-73). This method clears all known clouds on titles and as such, requires that the whole world be served with the petition. Because everyone is served, all disputes can be aired and resolved. This allows the title insurance company to insure the title, so that the seller can pass the property on to the purchaser with what is called “good and marketable title”. Because this form of Quiet Title Action clears any and all disputes on the title, it is an effective way to guarantee that a title is free and clear.

Keep an eye out for my next installment of this series on resolving Georgia title disputes. I will examine the general guidelines that need to be followed if you do go to court with a Quiet Title Action and take a look at a typical timeline for these cases.

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March 2, 2010

GEORGIA TITLE DISPUTES RESOLVED WITH QUIET TITLE ACTIONS: PART 2 OF 2

In the previous segment on resolving title disputes with Quiet Title Actions, I discussed what Quiet Title Actions are used for, in what types of title disputes they can be effective and the two types of Quiet Title Action lawsuits. In this installment I will explain where the case is tried and the general guidelines that need to be followed when going to court with a Quiet Title Action. We will also take a look at a typical timeline for Quiet Title Action cases.

Georgia’s Equity Code provides that a Quiet Title Action may only be filed in the county where the land in question is located. Because Georgia has 159 counties, it is critical to be specific about where the land is located and in what county the claim is filed. In Georgia, the highest plenary court in any county is the Superior Court, so these lawsuits must be filed in the Superior Court of the county where the land is located. When filing a petition it is required that you state specifically what land you are suing to remove the clouds from and the suit must be signed and verified by you, the petitioner (as a petition in equity, the petitioner must swear to the facts). If you are filing under the Quiet Title Act of 1966, you must petition to remove all disputes, or clouds to title. Also, you must file a recent plat of the land, a copy of a recent survey of the land and a copy of the immediate deed or interest of the petitioner (this is the document that indicates that the petitioner is the true owner of the land). Once the petition is filed, a notice to “the whole world” must be filed at the land records office stating that there is a lawsuit pending regarding the land and that anyone that takes the land by deed or transfer, takes it subject to the lawsuit under lis pendens.

When the lawsuit is filed, the Superior Court judge of the county will assign the case to a lawyer, called a Special Master. From this point on the Superior Court judge typically has limited involvement. The Special Master is a lawyer that resides in the judicial circuit or county where the Superior Court is located and who has experience in real estate law. The Special Master is charged with examining the title. He does this by holding a hearing, and sometimes a trial, and by reviewing the petition to see that everything has been filed appropriately. He will also ensure that everyone that was required to be served the petition was served. It is important to note that all neighboring landowners will be served, so that they have an opportunity to bring up any outstanding disputes, such as boundary issues. Everyone served has 30 days to respond to the claim.

Then, just like any other trial, the case goes into an evidentiary phase during which there may be requests for documentation, depositions, physical inspections of the land, subpoenas and any other action that is allowed in Superior Court. As the petitioner, you may do anything you want to acquire evidence to prove your case. You must have proof of ownership, though, as it is not enough to just disprove someone else’s claim to the land. Failure to show proof of ownership is grounds for dismissal of the lawsuit. Once the evidence is gathered, the Special Master will review everything and send a written report to the Superior Court judge. The Superior Court judge will then make a determination of the title. Most times the judge will make this ruling based on the Special Master’s report, but in rare cases the judge might ignore the Special Master’s report and require that a trial be held or that evidence be reviewed. Usually though, the Superior Court judge accepts the Special Master’s report, processes an order which decrees the title to the land (eliminating clouds to title) and files the order with the court clerk.

Once the judge files the order with the clerk, the title is considered “good and marketable” in Georgia, although technically at this point there is a 30-day waiting period to allow for all final appeals to run out. This appeal period allows for anyone in the world, who did not have notice of the case, to come forward and file an appeal. To be recognized however, anyone stepping forward during this appeal period has to prove that they did not originally receive notice of the Quiet Title Action lawsuit. When the 30-day period ends the judgment is considered final, and once this occurs it is very difficult to reopen the claim. All title companies in Georgia will issue a “good and marketable” title at this point when the appeal period is over and the judgment becomes final and non-appealable.

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February 9, 2010

HOMEOWNERS UNDERTAKING A SHORT SALE OR A DEED IN LIEU OF FORECLOSURE SHOULD HAVE AN ATLANTA, GEORGIA, FORECLOSURE LAWYER REPRESENT THEM

Our Atlanta, Georgia, loan negotiation lawyers strongly advise you hire experienced Georgia mortgage attorney if you are engaging in a short sale or a deed in lieu foreclosure to mitigate the losses incurred by foreclosure on your home. Remember, the banks have attorneys working hard for them to ensure that the bank losses as little money as possible.

A short sale occurs when the sales proceeds are less that the balance owed on the mortgage. The bank or mortgage lender agrees to accept the short sale and incur a smaller loss rather than waiting for a foreclosure. Sometimes the bank will forgive the remaining loan balance, but this needs to be negotiated and properly documented. Otherwise, the bank may initiate litigation against the homeowner to recover the remaining unpaid loan balance plus costs and attorney’s fees.

A deed in lieu of foreclosure provides another alternative to foreclosure. With a deed in lieu of foreclosure, you give your home to the lender in exchange for the lender agreeing to accept the loan without a foreclosure sale. The lender also should promises not to initiate foreclosure proceedings. In many cases, it is possible to have the lender agree in writing to forgive any deficiency that remains after the house is sold. Forgiveness of any deficiency needs to be negotiated and properly documented much as it would in a short sale.

Short sales and deeds in lieu of foreclosure are considered better for homeowners than a foreclosure. The main reason is that they have less of an adverse affect on a person’s credit report and can dispense with forgiveness of debt. However, they have many pitfalls. As such, it is very important to be represented by counsel when negotiating a short sale or deed in lieu of foreclosure.


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February 7, 2010

THE ATLANTA, GEORGIA, REAL ESTATE FRAUD LAWYER TO THE ATLANTA, GEORGIA, REAL ESTATE INVESTOR – “BE WARY OF HOUSE FLIPPING SCHEMES”

As Atlanta, Georgia, real estate fraud lawyers, we have seen a rise in the “house flipping” trend over the last several years. House flipping is the process of buying a home, renovating the home, and then selling it for a substantial profit within the course of a very short time. Often, an investor is able to make money from flipping a house by fixing less costly cosmetic issues - such as carpeting, painting, and appliances - and then selling the house at a significantly higher price.

If you are an investor interested in house flipping, you should contact a knowledgeable real estate attorney who can help with all aspects of your real estate transaction. Recently, several house flipping schemes aimed at potential real estate investors have come to light, exposing housing management investment companies and banks working together to defraud potential investors.

In one scheme, a Georgia Bank came under fire after the revelation that one of its co-founders and a chief executive was heavily involved in making fraudulent loans. Through the Bank, chief executive made short-term loans to inner-city investors interested in flipping house in low-income neighborhoods. Because the investors often did not have easy access to loans from traditional banks, the company charged hefty fees and exorbitant interest rates.

Another scheme in involved a European man who enticed flippers – for a substantial fee – with cheap properties and access to expert renovators. He then sent his investors to the Georgia Bank to obtain loans to buy his properties. Allegedly, kickbacks were paid to the loan officers at Georgia Bank who approved the funding. The European man is now in federal custody on charges of fraud. The European Man and the unnamed loan officer made money, but many of the properties were never renovated and the investors lost their money.

These flipping schemes have created additional problems in some of Atlanta’s most needy neighborhoods – with newly flipped homes sitting vacant and attracting criminals and squatters. Although many flipping schemes have come to light over the last several months, The Wall St. Journal reports that home flipping is making a comeback with investors buying up foreclosed properties. These flippers need “cold cash, lots of local-market knowledge and strong nerves.”

The best advice for real estate investors interested in getting involved in the flipping market is to do your homework, be wary of schemes, and be willing to take some risks. Contact a dedicated Georgia real estate fraud attorney who can help you determine if the property you are interested in is suitable for flipping. However, if you believe, you have been a victim of house flipping fraud; please contact The Libby Law Firm immediately to discuss your case.

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April 19, 2009

ATLANTA BUSINESS AND CONSTRUCTION ATTORNEYS – GEORGIA HAS NEW LIEN LAWS

As Atlanta construction litigation attorneys and Atlanta Business attorneys alike, I know that one of the most important tools for contractors and subcontractors looking to protect their rights and ensure payment on a building or construction project is a lien. I also recognize that nothing is more frustrating to a new homeowner or property owner than an improperly filed lien, or an unexpected lien filed by a subcontractor after the property owner believes everyone has been paid.

The Georgia Legislature has recently made subtle but significant changes to the lien laws in Georgia. These changes state when and how a lien must be filed, how it can be removed, and how the lien may be enforced.

Several years ago, the law was changed to state that only attorneys may file liens. However, even Georgia real estate and construction attorneys may not be familiar with these changes and the various statutory requirements and “hoops” one must “jump through” to have a valid lien on file in the property records. Consequently, it is very important to consult Atlanta Construction Lawyers very familiar with lien laws in general, and the new changes in particular, if you are a contractor, subcontractor, or supplier looking to protect your rights, or if you are a property owner looking to challenge a lien.

In this ever-changing real estate and construction market, it is increasingly important to protect your hard work and your real property investment. This is why you must choose Atlanta real estate, construction, and business attorneys who understand the complexity of these revised lien laws and who can advise you on how to protect your business, your hard work, as well as your investment.

The Libby Law Firm has been at the forefront of the revised lien laws and the new Georgia construction arbitration statutes as they relate to contractors, builders, and homeowners alike. Our Firm of Atlanta construction attorneys specialize in liens, the “Right to Repair Act,” the new Georgia construction arbitration statutes, procedures and laws.

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October 1, 2008

BANKS AND LENDERS WANT TO WORK WITH YOU AS GEORGIA MORTGAGE CRISIS WORSENS – THE BANKS ARE IN TROUBLE TOO – MAYBE MORE THAN YOU KNOW

Everyone knows that times are tough for homeowners right now, especially here in the Atlanta, Georgia area where there are unprecedented amounts of foreclosures. As a real estate lawyer in Atlanta, I have certainly seen a dramatic change in my own practice. Until fairly recently, I was able to help many clients become homeowners by reviewing and writing contracts and agreements for their new homes. Unfortunately, a large part of my real estate practice has now shifted to helping homeowners with financial problems avoid foreclosure by negotiating with the banks and lenders that hold their mortgages. In fact, we are seeing remarkable and unprecedented times as banks and lenders are in trouble, confused about where their institution will end up next and with no viable help from the government.

I believe that part of the problem is that some homeowners don't realize that there is a foreclosure process -- and that it offers several opportunities to work things out with a lender. Banks don't like to foreclose because they often lose money on foreclosures, and because maintaining and selling homes is not really part of their business. They are open to working with you to keep your payments current, especially if your financial problems are temporary. There several ways banks and lenders are engaging in this loan workout process as the banks and lenders know that getting something is better than nothing. They oftentimes will forestall payment requirements, work out different interest rate percentages, mortgage loan types and terms.

If you are behind on your mortgage payments in GA, you will get only get certified letters and maybe phone calls. If your having trouble paying your mortgage or have already missed payments, it is well worth the money to hire an experienced attorney to stall or re-negotiate your loan terms and the before the bank or lender begins the foreclosure process. At any point during that time, an experienced real estate loan workout attorney can call your bank or lender, explain your situation and ask about your options. You may be able to get a temporary break from payments, refinance or supplement partial payments with a loan. Even after foreclosure proceedings have started, in this unprecedented market and time, are likely still be able to have an experienced attorney negotiate with your former bank or lender to re-instate your mortgage or stay the official proceedings of removing you from your home.

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