Lis Pendens and Real Estate

The Lis Pendens And Real Estate

Lis Pendens is latin for “suit pending”. If a Notice Of Lis Pendens is recorded at the local county recorder on property it means there is a law suit pending on that property.

The notice secures any interest the plaintiff in the lawsuit may be awarded in the property. Once recorded it will be difficult to sell a property without first clearing the notice. Title companies will not close transactions with a notice recorded on the property. The notice does not legally stop the sell of property but anyone purchasing would be subject to the lawsuit referred to.

Anyone can record a Notice and many are not legitimate. To remove a notice on your property you need to file an action in court to have it removed. The judge will determine if the notice is legitimate and either remove or uphold it.

How a Lis Pendens Affects Sellers

This notice notifies land owners there is, or soon will be, a lawsuit which involves them, their land or both. The lawsuit could be anything from a public condemnation of property to a action to collect child support.
This type of notice is relatively rare but does happen. When it does it makes it nearly impossible to sell land until the lawsuit it represents is resolved. Some Notices are are not legitimate and can be removed by a court action.

How a Lis Pendens Affects Buyers

If a notice is recorded on property you are considering purchasing, DON’T!. You can wait and see if the seller is able to clear up the lawsuit but do not purchase until the notice is officially removed from the property, as determined by the title company.

Who Can File this type of Lien

Anyone can file this notice for any reason. Sometimes it is recorded to stop a property from being sold or as a vendetta against the seller. If there is no legitimate lawsuit behind the notice it can be removed by a court and the seller can ask for damages.

Reasons For Filing it on Utah Real Estate

Creditors often record them as they prepare a law suit to collect overdue debts from the real property owners. Government agencies or public utilities that plan on condemning (taking) the property for public purposes may also record a notice. They are recorded in a wrongful death suit against the real property owners.

Any attempt to collect money from the land owners or to condemn the property can result in this notice being recorded.

Affect On Selling Land

The notice will stop the sell of real estate. It is legal to sell real estate with this notice recorded against it, however a title company will not insure and most buyers will not buy real estate in this condition.

Summary

A Notice of Lis Pendens is a notice that someone is filing a lawsuit that will affect the property upon which it is recorded. The notice needs to be released before the property can be sold. Never buy land until it is released.

February 25, 2016

Open Range and the Land Owner

Open Range And The Land Owner

Wikipedia 2016 states: In the Western United States and Canada, open range is rangeland where cattle roam freely regardless of land ownership. Where there are “open range” laws, those wanting to keep animals off their property must erect a fence to keep animals out; this applies to public roads as well. Open Range, the 2003 Western movie co-starring, co-produced, and directed by Kevin Costner..

We are not talking about a Kevin Costner movie.

What Is Open Range?

It is an area declared as such by the local county or other municipal government. This affects the landowners in many ways, creating an area helpful to farmers and ranchers. In effect it declares that livestock can roam anywhere in this designated area unless a landowner fences them out.

How Is It Created?

Areas designated as such are usually open grazing areas. Local ranches, often with the help of the local farm bureau, petition the county to choose an area. By doing so ranchers are not liable for damage caused by their animals to other land owners unless that owner has constructed a fence.

How Do I Find Open Range Areas

The county keeps a record of these areas and you can ask for the information. Check before you buy if you are concerned about this. You will also see signs along the highway when you enter such an area.

How Does It Affect Land Owners?

It changes the standard from “fence in” to “fence out”. In a fence out area livestock owners are not required to fence in their livestock. In this situation any land owner that doesn’t want livestock on their property must build a fence to keep them out.

In areas that are not designated, livestock owners are required to fence in their animals.

How Does It Affect Motorists?

It also affects motorists. If you hit a cow or any other livestock with your car you are liable for the cost of the animal. The owner of the animal is not liable for any damage to you or your car.

If you hit livestock in an area that is not designated you are not responsible for the animal but the owner is still not liable for your car. This is the law in Utah and Washington but could vary in other states.

Summary

Most areas are “fence in” meaning the owners of livestock are required to fence in their animals. Open range is “fence out” meaning if you want to to keep livestock off your land you will have to build a fence.

February 25, 2016

Mineral Rights and Utah Real Estate

Understanding Mineral Rights

Mineral rights are a cause of controversy among property owners. This is especially true in areas with oil and gas exploration. Owners of these rights have certain rights which are difficult for land owner’s to accept. These rights are often called oil rights or sub-surface rights.

How They Are Separated

Originally all property rights are owned by the same owner, and this is still the case in many places. If separate, it is because a previous owner separated them, selling one and keeping the other. When separated certain rights go with the minerals. The owner who separates them understands this but future owners may not.

The owners of each have certain rights to their property. This is where the issue comes up with surface owners. When they buy land they may not understand that others own an interest underneath their property and also have rights.

Surface Owners

The owner of sub-surface rights has the right to use the surface of the land to access and mine their minerals. This includes the right to open a mine, drill a oil or natural gas well, and build roads and other infrastructure to support this activity.

The last thing a land owner wants is a drilling rig right out the front window. The company handling the drilling or mining is required to restore the property after they are finished, but they may drill and extract minerals for many years.

Researching Ownership

If you don’t live in an area with mining or oil and gas exploration you may not have a problem and in fact may own both rights together. If you live in an area of exploration it is unlikely you own the oil rights. If you don’t own them you should remember the rights the owner of them has.

It is an expensive process to research mineral owners. Mineral researchers do this work and you can get contact information for them from the local county recorder.

Keep in mind that the lack of mineral rights and the possible access by mineral owners has already been factored into the price of the property.

Buying and Selling

Sub surface rights can be purchased and sold similar to surface rights. If not previously separated they will usually be transferred with the property. If you worried about the possible problems with mineral exploration and drilling you can offer to buy them.

Oil Lease

Before mineral exploration begins a lease is signed with the mineral owner. Exploration is expensive and the owner of the rights rarely does this themselves. A oil or mining company will lease the rights over a large area and do the exploration. Oil royalties will be paid to the owners if minerals are found.

Although buying property without the mineral rights is a concern, the odds of an oil rig on your property are low. It happens but this should not stop you from buying property if you find the property you want.

Summary

The owner of mineral rights has the right to enter property to access their minerals. This right was created when these rights were separated. When you buy land it is already subject to this right.

February 23, 2016

Property Rights in Real Estate

Real Estate Property Rights

When we own real estate or land we like to think we have all property rights to our land. That we can do anything we want. Build what we want, where we want, when we want. Keep everyone off. Unfortunately that is not the case.

Three Types Of Real Estate Ownership

Real Estate in the United States is divided into three separate property rights. Each can be owned together, or separately. Each can be owned by one or more people, companies or other legal entities.

Air Rights
Air Rights include from the surface of the land into space. It is possible to buy land that has limited air rights. An example would be not owning the rights above 50 feet. This would stop you from building anything higher than 50 feet. A previous owner may have retained the air rights higher than 50 feet to keep the view from being blocked.
Surface Rights
Surface rights are what we typically think of as land ownership. The surface rights owner has the right to use the surface, build on it, farm it, or use the land for any legal purpose.
Mineral or Sub-Surface Rights
Mineral rights is the ownership of anything below the surface. Mineral rights includes gravel, oil, gas, gold, etc,. Mineral rights include the right to use the surface as necessary to get access to the minerals.

I have heard many complain about the oil company stealing their property rights to drill an oil well. The oil company is acting for the owner of the mineral rights who has a legal right to access his minerals. To avoid this situation the surface owner must own the mineral rights.

In addition to the three basic ownership rights there are other situations where others can use or control your real estate.

Government Rights

Unfortunately the government has rights to your land which could be considered ownership rights. They have the right to tax, and to seize and sell land for delinquent taxes.

The government also has the right to regulate land use. Regulation comes in many ways from building permits to zoning. Unfortunately government regulation of real estate becomes more intrusive every year.

Lien Holders

Lenders and lien holders also have property rights. Lenders have the right to foreclose property if the loan is not paid. Other lien holders may not have that right, but can place a lien on your property.

Rights of Way and Easements

The owner of a Right of Way Easement has the right to cross your property as prescribed in the right of way documents themselves. The purpose of the easement and the width are usually described in the Right of Way document.

Eminent Domain

The most unpopular right is that of eminent domain. Originally this right was necessary so roads and public utilities could be built. The legal theory was, the needs of the many outweigh the needs of the few.
In recent years cities and counties have abused and expanded the right of eminent domain for questionable purposes.

When you buy land your property rights are limited. They are subject to all the above and to a continuous expansion of government regulation.

Understanding Mineral Rights. Mineral rights are a cause of controversy among property owners. This is especially true in areas with oil and gas exploration. Owners of these rights have certain rights which are difficult for land owner’s to accept. These rights are often called oil rights or sub-surface rights.

Lis Pendens. Lis Pendens is latin for “suit pending”. If a Notice Of Lis Pendens is recorded at the local county recorder on property it means there is a law suit pending on that property.