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What You Should Know About Real Estate Disputes: An Interview with John Z. Toscas, Attorney at Law

By John Z. Toscas

Please tell us a little bit about your firm and the areas of law that you practice?

I started my own firm the day after I was sworn-in as an Attorney in November, 1993. There are other attorneys in my office as well. I was a State Prosecutor early on and now practice in the areas of Real Estate Law, Government Law, Wills & Trusts, Worker's Compensation and Personal Injury. I am also an Administrative Law Judge and Hearing Officer hearing municipal ordinance violations.

What are some of the most common types of residential real estate disputes?

Some of the most common disputes arise from the inspection of the home. The Buyer has the home inspected and there were several issues or defects that the Buyer would like repaired or replaced and the Seller refuses to accommodate the Buyer's request. This often becomes a contentious situation.

Another area where disputes may arise is during the Attorney Review period. The Buyer's and Seller's attorneys may make modifications to the contract in order to clarify the terms of the contract. Sometimes, there is no agreement between the Seller's Attorney and Buyer's Attorney with regard to the modifications, which may lead the termination of the contract.

Can you briefly describe what a typical easement dispute might be?

An easement is the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property, (often called "ingress and egress easements); for utility or sewer lines, both under and above the ground; use of spring water; and entry to make repairs and other uses.

Oftentimes, the potential Buyer may not know that the easement exists until a survey is conducted. Once the survey is prepared, if there is an easement on the property, the easement and it's dimensions and the easement's purpose will be shown. This may lead to a dispute if the Buyer intended to build on the property, only to find out that the easement prevents any building on the property located in the easement.

How does an Attorney help home buyers when the seller failed to disclose a material defect in a house?

Under the "Residential Real Property Disclosure Act", the Seller of a home is required to complete a Residential Real Property Disclosure Report. The Act requires the Seller to disclose material defects of which the seller has actual knowledge.

Obviously, if the Seller failed to disclose a material defect in the home that the Seller was aware of, the Buyer's attorney may file suit against the Seller for violating the Residential Real Property Act. However, the Buyer must prove that the Seller had actual notice or actual knowledge of the material defect that may be a difficult task.

What are some circumstances that can lead to a title dispute?

Every Seller is required to tender "clear title" to the Buyer. Clear title means that there are no legal errors in the title. That means; 1) no mistakes in prior recordings that affect the title, 2) no other parties in title, other than the seller, that have an interest in the property such as a bank who is owed a debt on the property (usually a mortgage); an ex-spouse; a named heir in a will; State, Federal or local taxing authorities; or any other lien holders. The Seller must transfer "clear title" in order for the transaction to be successful.

If a closing transaction involves any of the aforementioned issues that prevent clear title from being conveyed, this presents a dispute and the Seller's attorney must conduct the necessary legal work in order to "clear" the title issues.

What recommendations do you have for home buyers before hiring a lawyer to help settle a real estate dispute?

Home buyers should speak to an attorney as soon as they are aware of a dispute. You should not wait, or try to act as your own attorney. Time is of the essence!

You should make sure you contact an attorney who specializes in real estate law. Ask some questions when speaking to various attorneys who specialize in real estate law, such as the following:
a. How long have you been practicing real estate law?
b. How would you handle my case?
c. How many cases that are similar to my case have you handled?
d. What are your fees?

What's the best way for people to reach your firm?

Our telephone number is (708) 448-0200. Our website is www.johnztoscas.com. The best way to reach me is to call me so we can talk about the issue and see if we can help!

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