Real Estate


A real estate contract embodies all the terms of sale between buyer and seller and must have, at a minimum, a price, a description of the property sufficient for its proper identification, a closing date and the names of the parties. The Statute of Frauds requires that all contracts for the purchase and sale of real property be in writing signed by the parties to be charged. "If it's not in the contract, it's not binding." Real estate practice tends to be very localized, that is, practices vary greatly from region to region. So if someone is moving from Buffalo or Syracuse to Long Island or a borough in New York City (or the other way around), it would be prudent to consult with an attorney in practice in that area.

Closing Date

The true significance of the closing date in real estate contracts is rarely understood. The designation of a specific date for the closing, without additional rather specialized language, is simply a "target" towards the parties must in good faith work toward. It is not a "drop dead" date. To turn the closing date into a date with "drop dead" characteristics, the contract must also specify that "time is of the essence." These magic words give strong legal rights to a party able and willing to perform on the closing date when the other party does not perform.

"Time of the essence" language is not common in residential real estate contracts in upstate New York. If you realistically are likely to suffer economic damages if your house purchase or sale does not take place on the date selected, you need to discuss this issue with an attorney before the contract is signed.

Quality of Title

One function of the contract is to specify the quality of title the seller must convey and the type of deed used for the conveyance. The gold standard of quality of title is "good marketable title free from liens and encumbrances." Usually there are "carve-outs" allowing utility easements, tract restrictions and the like. "Insurable title" denotes a title which may have defects for which a title insurance company will issue affirmative insurance.

Locally the majority of residential real estate transfers is accomplished by "warranty deed," by which the seller warrants that he or she has good title and can convey the same, and further warrants to defend and uphold the title in the hands of the purchaser should a title dispute arise. A "bargain and sale" deed contains no warranty from the seller as to acts prior to the time the seller came into title, but may contain a warranty that the seller, himself or herself, has done nothing to impair the title. A "quit claim" deed , as the name implies, is a deed in which the seller "quits" any claim to title in favor of the purchaser - there being no warranty that the seller has title.

Permits and Fences

With increasing frequency sellers are being required to show that municipal permits were issued for improvements such as decks, pools and sheds. This practice is, strictly speaking, not a real property issue but must be taken into account by homeowners when contemplating construction of such an improvement without first obtaining a building permit. The lack of a permit and the corresponding "sign-off" upon completion of construction can come back to bite at closing time.

Although it may seem counter-intuitive, a fence well inside your property line can cause a title issue if you do not have access to the other side of the fence and actually maintain the lawn area up to the legal survey property line. If the title issue does arise the only way of settling it may be to obtain a formal boundary line agreement from the abutting owner, something which is not always possible.

To avoid "buying into" such a situation, insist upon a recent instrument survey map for all acquisions. As owner, be sure to install your fence within one foot of a property line established and staked by a land surveyor.

Copyright (c) 2008, George T. Wolf. All rights reserved.