A recent Washington State appellate court affirmed a trial court decision which found in favor of a property owner arguing that a common boundary was the real designation between adjacent owners of land as opposed to a legal description.

The common grantor doctrine protects an original grantee acquiring property in “good faith reliance on the boundary description provided by the common grantor who originally owned both lots in their entirety” and thus had power to determine the location of the boundary. Even without a formal agreement, the boundary binds grantees if the land was sold and purchased with reference to the line and the parties agreed about the identical tract of land transferred by the sale.

The case stems from a property owner that sold two adjacent tracts of land at different times. A fence separated the two parcels of land. Both purchasers of the property bought the land and operated under the assumption that the fence was the boundary between parties. It was not until a year after a survey commissioned by one of the property owners (and three years after the actual purchase of the lot) did the property owner claim a dispute with respect to the property boundary. The court asserted that the parties operated under the assumption that the fence was the boundary between the parties and it was clear that the fence provided notice to subsequent purchasers.

The opinion is notable as it begins with an excerpt from a poem by Robert Frost.

I assist in real estate matters. If you have any questions please do not hesitate to contact me.

A Washington state court clarified the rules related to the cause of action of implied warranty of habitability. The claim focuses on protecting "the first occupants of residential property against the risk of fundamental defects in the structure of a home."  Washington courts apply this claim to vendor-builders which relate to "a person regularly engaged in building, so that the sale is commercial rather than casual or personal in nature."  This implies that the builders must be professionals.

In Montgomery v. Engelhard, Division III of the Washington State Court of Appeals had to determine whether a real estate broker that claimed to not be a commercial builder, could be held liable for alleged construction defects and violating an implied warranty of habitability.  The court held he was not.  The opinion noted that the defendant "did not have a builder's license, was not an experienced developer, and was not engaged in building."  Therefore, the claim did not apply.  It should be noted that there were other causes of action (e.g. breach of contract) that remained in the lawsuit.

Although the court did not reach the issue, the court opined that the claim applies only to those homes that are built for sale and not as personal occupancy or if the vendor contemplated an eventual sale.  In this case, the defendant lived in the home prior to putting up the home for sale.  Thus, the court sided with the broker.

For those that may look to build homes in seeking to "flip" them or for those that may seek to purchase homes from flippers this case seems to clarify at least one of the many claims that one might see in real property law.

The purchase of a residential property is a stressful process.  While you may have a real estate agent that helps you find real estate, there are legal issues that you have to think about when going through the process.

For instance:

Purchase price questions

• What is the purchase price?
• Does it include the value of any low-interest-rate mortgage being assumed?
•  Has there been a recent FHA or private appraisal made?
• Should purchaser make deal conditional on seller’s obtaining an appraisal in excess of the proposed purchase price?

Down Payment

• How much is to be paid down including the earnest money deposit?
• Will this cover seller’s selling expenses, including the broker’s commission, attorney fees?
• Should purchaser or purchaser’s lender, require that outstanding encumbrances be paid from down payment proceeds?

Easements.   An easement is a certain right to use the property of another without possessing it.

• Do any other persons use paths, roads or sewer lines,  or have any easements over the property  being purchased?
• Is the purchaser satisfied that he has ingress to or egress from the property?
• Are easements needed for access, utilities, view?

Earnest Money.  Earnest money is a monetary deposit toward the purchase of real  estate property.

• How much earnest money is to be required?
• Who will hold it pending final agreements on terms?

Closing costs

• Who is to make payments for title insurance? Transfer taxes? Assessments outstanding?  Escrow charges?  Filing Fees?  Mortgage Assignment charges?  Attorneys’ fees?

All of these questions (and more) should be addressed prior to taking the keys to your home.  A real estate attorney can assist with the sale of your home by answering your legal questions.