Articles Posted in REAL ESTATE

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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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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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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“Due Diligence,” is an expansive term used in commercial real estate. This term is commonly used to refer to the process of examination, inspection, and investigation of real property to determine the suitability of the property for a certain transaction before a purchaser consummates the purchase of the property. The term “Due Diligence” is also used in business transactions to refer to the process of examination, inspection, and investigation of a business entity before an acquisition, merger, buy-out, loan, or other transaction takes place.

In almost all Georgia Commercial lease agreements and other commercial real estate transactions, due diligence should be unconditionally carried out before any agreement is entered into. Commercial transactions are usually complex and frequently cause problems when the parties involved fail to seek legal counsel to help them understand and guide them through the Georgia real estate transaction process. One reason for the complexity is that some real estate terms are not commonly understood by people outside of the industry and can carry significant legal consequences. Some of these terms include “subordination,” “triple net lease,” “tenant improvement allowance,” “estoppel certificates”, “demised area”, “CAM charges”, “base rent”, “escalation,” and/or “rise” An Atlanta, Georgia Real Estate Lease Attorney understands and uses these terms and can ensure that their client’s needs are met. In addition to terminology, there are many other factors that complicate real estate transactions but that need to be negotiated, like parking space allotment, signage restrictions, exclusivity provisions, and/or insurance requirements.

Because of the complex nature of commercial real estate leases and contracts, without thorough investigation and due diligence, a lessee or buyer can be bound by a contract that does not fully serve their needs or inhibits their business venture. Sometimes the terms of these agreements span several years, many decades, or are final. Thus, proper review, negotiation and preparation of contracts and agreements is critical. Additionally, most lease agreements or property purchases add value to a Georgia business entity as either an asset or a liability, so careful consideration is required during the due diligence period.

In my Atlanta, Georgia Real Estate Law Firm, I have seen many clients come to me regarding Georgia real estate transactions only after issues have already surfaced. It is much more efficient and cost effective to seek legal counsel before signing any real estate agreement. The trouble and money saved by putting in the proper due diligence up front is worth the nominal expense. As a lessee, it is important to keep in mind that commercial landlords will always present lease contracts that promote their own best interests. As a result, it is imperative to have your own Georgia attorney review all commercial real estate contracts and make the appropriate modifications in favor of your interests. The same is true for the seller’s of commercial real estate, and the same extreme caution must be taken to protect the buyer’s interests.
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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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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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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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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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Imagine the scenario: you and your partner establish a new business entity in Atlanta and after some minor adjustments to the layout of the new office space, you are finally ready to move in and begin day-to-day operations. You quickly realize that your current office equipment is inadequate and outdated. Furniture and computer equipment is required. Because this is a new business venture, there is little cash available and it is decided that each one of you will buy some of the equipment for the office. You both pay for the equipment with personal funds. You buy the furniture at a cost of $12,500 and your partner buys computer equipment for $18,200. As time passes, you and your partner enthusiastically focus on generating business and the exact amount that each of you spent on the equipment is a fading memory.

Initially these expenditures do not seem to pose a problem. Yet without proper documentation, this seemingly innocent scenario can turn into a conflict that, even when business is good, may put a strain on your relationship with your partner. More serious legal consequences may arise if your business is sold or liquidated. Without adequate legal intervention, it may become a matter of “he said, she said” debt that is difficult to resolve.

The good news is that this situation can easily be avoided by property setting up Personal Guarantee Promissory Notes. These promissory notes should reflect the specifics of the business deal in order to ensure fair treatment for all involved, so using a boilerplate agreement is usually insufficient. Seeking the help of an experienced Atlanta, Georgia Business Attorney who will take into consideration the relevant facts specific to your business is critical to having your interests fully addressed and enforced.

Never go it alone. Protect your self and your business by implementing the proper legal instrument through a qualified business attorney. Your attorney will draft a Personal Guarantee Promissory Note that is specific to the unique circumstances and needs of your business and will ensure that your wishes, needs and desires are fully addressed and enforced.
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Atlanta business law firms that practice in the area of fraud litigation have seen a dramatic rise in the number of cases. The fraud lawyers at my firm believe the increase in the number of fraud cases is due to the troubled economic times that persons and businesses in the Atlanta, Georgia, area are experiencing. In this troubled economy, we believe otherwise honest people have turned to fraudulent activities to make ends meet.

In a well-known case, ReMax North Atlanta v. Clark, 244 Ga. App. 890 (2000), the Georgia Court of Appeals elaborated on the tort of fraud, which has five essential elements. They are as follows:

1. A false representation or omission of a material fact;

2. Scienter – or knowledge;

3. Intention to induce the party claiming fraud to act or refrain from acting;

4. Justifiable reliance; and,

5. Damages

Fraud can take place in many areas of business. Presently, our Atlanta fraud lawyers are seeing the largest number of fraud cases in the areas of real estate transactions, the construction and building of homes, and the accounting and managing of monies or assets.
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