Property law applies to both real estate, or real property, and personal property. Property laws deal with things like property rights, contractual rights, personal rights, possession of property, transfer of property, getting priority of ownership defined by the courts, and leases. If you have specific questions about property, real or personal, tangible or intangible, it is best to consult with a lawyer to determine your rights under the law.
Property Rights vs. Contractual Rights
Property rights concern the ownership of the property, and your right to use and enjoy your property without interference. Contractual rights involve any rights to the property that are conveyed by a contract. Only an experienced property law attorney can help you determine whether property law or contract law applies to your particular case.
Property Law and Personal Rights
On occasion, there may be a conflict between one person’s property rights and another person’s personal rights. Property rights can interfere with personal rights; therefore, it is necessary to get a property law attorney to analyze your circumstances according to the various laws that may apply to the situation.
Property Law and the Transfer of Property
Usually a transfer of property requires the consent of the owner, who signs a deed of transfer. However, under certain circumstances, property law makes it possible for property rights to be transferred in lieu of consent of the owner. For instance, if the owner dies, the property can be transferred. The law also makes it possible to transfer rights of ownership in case of a bankruptcy or a judgment issued by the court. In such an instance, the owner may not consent to transfer the property, but the law makes it possible for the transfer to happen without the consent of the owner. If you believe that someone is trying to take your property without your consent, a property rights lawyer may be able to help you.
Improvements to the Property
This decision may be based on whether the improvements are moveable or unmovable. Before you sink your money into a property that you don’t own, be sure to consult with a property law attorney. The same can apply to repairs or improvements to leased equipment. Who will be responsible for the costs of repairs – the owner of the equipment or the person leasing the equipment? Questions such as this are answered by property law lawyers, but remember, contractual law may also apply.
Intellectual Property
Intellectual property law covers patents, copyrights, trademarks and trade secrets. Intellectual property includes art, literature, music, ideas, inventions, discoveries, and so forth. The creator of intellectual property has certain rights with respect to their property, whether or not it is created for commercial use, and whether or not it is registered as a patent, copyright, trademark or trade secret.
When you create intellectual property that needs to be protected, the best course of action is to have an attorney prepare the necessary paperwork before you release your ideas to the world. If you worked for a company when you made your discovery or invention, there may be a question as to whether the employee or the employer owns the rights to that intellectual property.
Property law attorneys may deal with intellectual property; however, there are also attorneys that specialize solely in intellectual property.
Discussing Your Case with a Property Law Attorney
1. Make sure that the attorney specializes in property law.
2. Discuss your specific situation in detail.
3. Be sure to tell your attorney whether or not there are contracts, bankruptcies, or others claiming a right to the property involved.
4. If the property is not in your possession, be sure to let the attorney know that the property is someone else’s possession.
When you face issues concerning property rights, don’t rely on your own knowledge or interpretation of the laws, anything that you read, or advice from other people. A one-on-one consultation with an attorney who specializes in property law is the best way to protect your property rights.
Property Liens
A property lien is a security interest in a piece of real estate that secures the payment of a lawful debt. A mortgage that is filed by the lender of money to purchase the property is the most common type of property lien, but it’s not the only type. When the owner mortgages the property to secure a debt, or gives a security interest in the property to a lender when purchasing a vehicle, consolidating debt ,or financing property improvements, the lien is placed on the property with the consent of the owner.
Property liens can also occur in non-consensual manner as allowed by statute or by common law. These property liens include tax liens, attorney’s liens, mechanic’s liens, judgment liens, maritime liens, and liens that are intended to rectify a public nuisance or hazard.
If you have been notified that a property lien has been filed against your property, consulting with an attorney can help you avoid foreclosure and get the lien cleared in a timely manner.
If, on the other hand, you are owed a debt by a property owner, you will want to consult with a real estate attorney to determine if you have the right to file a property lien.
Property Lien Foreclosure
The existence of a lien on your property does not necessarily mean that you will experience a property lien foreclosure. If you pay off the debt or work out the dispute, the lien will be cleared. If, however, you are unable to pay the debt or work out the dispute, the courts may enforce the lien, making it possible for the lien holder to foreclose on the property and obtain payment of the debt out of the proceeds of the property sale.
The lien holder of the first lien on the property, usually the holder of the mortgage, is the one to decide to foreclose on the property if the loan is not being paid. The IRS or the agency that handles property tax is also likely to start the foreclosure process if back taxes have accumulated and cannot be paid.
Other lien holders are less likely to attempt to force a sale. That’s because the mortgage holder is entitled to all the proceeds of a sale, up to the amount of the outstanding loan. Holders of junior property liens will only get paid if the sale of the property produces more than enough funds to pay the property taxes and the mortgage. If it doesn’t, their debt becomes unsecured, but the creditor retains the right to collect the debt..
If you are facing property lien foreclosure, it is advisable that you retain a real estate attorney to work on your behalf. You do have rights in the case of a foreclosure and an attorney can give you the best strategy to avoid the foreclosure and gain enough time to settle your debts. There are many stages of foreclosure that are governed by law, and a real estate attorney, in many cases, can stop a foreclosure in its tracks.
Filing of Property Liens
If someone owes you money and you have proper documentation to prove it, you can go to court to get a judgment. Once the judgment is filed, you can get a certified copy which will be used in filing a property lien against the property owned by the debtor.
The process of filing property liens can be quite confusing to a layman, so it is best to retain an attorney to represent you. In order for a lien to be effective, the proper documents and filing processes must be completed correctly.
Obtaining a property liens do not assure that you will be paid for the debt anytime soon, but it does mean that you will get paid the amount of debt plus interest if the property is ever sold. Most times, a junior lien holder cannot force a sale and even when they can, priority liens will be paid first if the property is sold. Therefore, filing a property lien should be used only as a last resort after all other means of collection have been exhausted. There are other ways to collect a judgment, such as garnishing the debtor’s paycheck, and a qualified lawyer can help you find the right approach.
Release of Property Liens
If you have a property lien filed on your property and you then pay off the debt, the lien holder should provide a property lien release. The release will then have to be filed with the county clerk in order to clear your property. Be sure to get a certified copy of the lien release to be sure that the release is actually recorded. Sometimes this step is neglected, and when the property owner decides to sell the property, the existence of the old lien can delay the sale.
Property liens can be a headache, both for the property owner and the lien holder. Handling the documents to file a lien and to release a lien is just part of the process. Property lien foreclosures are even more complicated and confusing. Regardless of which side of the fence you are on, it is advisable to retain an attorney to represent you through the process.
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