Real Estate Transactions
- Real estate contracts
- Deeds (Warranty, Quit Claim, Transfers-on-Death)
- Leases (read more)
- Easements and right-of-way
- Escrow agreements
- Billboard leases
- Oklahoma law on the Statute of Frauds (read more) (read white paper)
Real Estate Disputes
- Breach of contract
- Ownership disputes
- Foreclosure enforcement and defense
- Boundary and land-use disputes
- Quite Title
- Mediation and arbitration representation
- Environmental Damages (read more)
- Nuisance and trespass actions
So you’ve agreed on price. What’s next?
Suppose you intend to buy commercial property, which has an existing tenant with a triple net lease. After some preliminary negotiations with the seller’s agent, you agree on a price of $500,000. What’s next?
Typically, the seller’s agent will ask you to sign a Letter of Intent (“LOI”), which describes the important terms of the agreement like price, amount of earnest money deposit, apportionment of closing costs, and inspection period. Be cautious, dear reader. Even though the LOI is normally not a legally binding agreement, you should treat it as such. The seller, you can bet, will resist any changes to terms that were agreed upon in the LOI.
The LOI will allow a certain period, usually ten days, for the parties to sign a purchase contract. If you haven’t engaged an attorney, it’s time now. The attorney will perform a background check, the purpose of which is to spot any obvious problems before you spend money and time on the matter. For more on the background check, see my blog written on March 4, 2012.
Regarding the purchase contract, your attorney will a draft a worksheet of material terms. You should expect to be asked:
- What exactly are you buying?
- What has to happen for you to close?
- What documents must the seller provide at closing?
- What information do you need from the seller?
- Under what conditions do you receive a return of earnest money?
- What is the seller promising?
The next step is to draft a milestone schedule. It may look something like the sample illustrated above this article.
What is a survey?
Surveys are typically used to confirm the boundaries of the property and determine the encumbrances on the property. A licensed professional land surveyor will inspect the property and county records to determine:
- Legal description
- The location of all buildings
- Recorded easements and rights-of-way
- Bodies of water
Assume that you buy a piece of commercial real estate and the deed states that you will be granted “10 acres.” Further assume that you did not require a survey before closing. Three years later, you learn that a fence encroaches upon your property, reducing your tract to 8 acres. In this scenario, title insurance does not protect you.
A unique deed in Oklahoma that transfers property at the time of death of the owner/grantor, avoiding the need for a probate proceeding.
The Commercial Lease
Suppose that you want to open a spa in a retail center. The landlord will ask you to sign a lease, which was drafted by an attorney and is quite favorable to the landlord. Beware. Some common terms that should be negotiated on your behalf include:
- What is the landlord’s right to raise the rent?
- What are the renewal terms?
- What if you want to expand?
- What happens if you can’t pay the rent?
- What if one is harmed while visiting your spa?
- Is there designated parking for your patrons?
- Can you affix a sign? Is there an additional fee?
- Can you avoid a personal guarantee?
- What if your property is damaged because of a roof leak?
- What type of alterations can you make?
- Will the landlord agree to not lease any business that cuts hair; or offers manicures, pedicures, or massages?
- Have you read the center’s rules and regulations?
- Who pays for maintenance and utilities in the common area?
- Will the landlord deliver the premises “broom clean?”
- What if you make improvements to the space?
What is Oklahoma’s Homestead law?
The Oklahoma homestead law protects your primary residence from the forced sale by creditors. Our lawmakers consider the family home a cherished possession. As such, a creditor (one to whom you owe money) cannot force its sale unless to satisfy a mortgage, mechanic’s lien, or unpaid taxes.
A creditor can, however, file a judgment lien on the homestead. Although this creditor cannot force the sale of the home, the lien will act as an encumbrance that will need to be satisfied (paid) when you sell the home.
One implication of the homestead law is the requirement that any contract, deed or mortgage must be signed by both spouses if it affects the homestead.
Avoiding Liability for Environmental Damages
When purchasing property, how does one avoid liability for existing environmental damage?
Under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) parties may be held strictly liable for cleaning up hazardous substances at properties that they either currently own or operate. Parties may also be held liable if they owned or operated the properties at the time of harm. Before a purchase of real property, an “all appropriate inquiries” investigation should be conducted to obtain protection from CERCLA liability. All appropriate inquiries investigations are to be conducted by a qualified Environmental Professional according to prescribed guidelines, which include site inspections, reviews of historical information and interviews with past and present owners and occupants.
If one conducts an investigation and follows other guidelines after purchase, then CERCLA liability does not attach by virtue of several defenses:
- Innocent landowner’s defense: an innocent landowner is someone who can demonstrate that (1) the harm occurred before he or she acquired the property and (2) he or she “did not know and had no reason to know” about the harm.
- Bona fide prospective purchaser’s defense: a bona fide prospective purchaser is someone who acquires property with the knowledge that the property may be contaminated. However, the purchaser is protected from CERCLA liability if he or she complies with the statutory requirements, which include all appropriate inquiries.
Surface Damage Agreements
Surface Owner’s Rights: Oil and Gas Exploration
Bond: before the commencement of drilling, Operators must post a Surface Damage Bond ($25,000 minimum) with the Oklahoma Secretary of State. This bond is separate and distinct from Plugging Bond.
Pre-drilling Notice: before entering a site for oil or gas drilling, Operator gives Surface Owner(s) notice by certified mail, containing proposed location and approximate date to commence drilling.
Negotiations: within 5 days of delivery of pre-drilling notice, Operator and Surface Owner are required to enter into good faith negotiations.
In determining Surface Damages, these factors are considered:
- Location or site of drilling operation
- The quality and value of the land used
- Inconvenience suffered by Surface Owner
- Whether damage is temporary or permanent
- Changes in physical condition of the tract
- Destruction of native grass and /or crops
- How long the surface will be used
- Damages to the land beyond the land taken for the drilling
- Future damages
- Whether any of the Surface Owner’s water is to be used
Additional Considerations: other matters should be considered by the Surface Owner, e.g. pre and post drilling water samples.
Petition to Appoint Appraisers: if agreement cannot be reached, Operator must file a court petition to appoint appraisers; Operator appoints one appraiser, Surface Owner appoints one appraiser, and Court appoints a neutral third-party appraiser. Together, three appraisers create an Appraiser’s Report.
Lawsuit: If either party rejects the Appraiser’s Report, then a jury trial can be demanded. If the party demanding the jury trial does not recover a verdict more favorable than the appraiser’s report, then that party required to pay attorneys’ fees.
Compliance of the Oklahoma Surface Damages Act is enforced through the imposition of treble (triple) damages. If a surface owner proves that the Operator failed to post a bond, send notice before entering premises, agree on damages or petition to appoint appraisers, then court may treble the damages assessed by appraisers or jury.