Do I Really Need to Hire an Attorney to Purchase Real Estate?

When purchasing a piece of real estate, you may wonder if it is really necessary to hire an attorney to facilitate the transfer. After all, people buy and sell real estate all the time; it seems like it must be fairly routine and straight-forward. However, hiring an attorney at the time of purchase may eliminate costly and unnecessary headaches down the road. For example, an attorney will search for any title defects that could cause financial loss, draft and file a properly executed deed to protect your interest, and review any association documents that may obligate the property owner to follow certain restrictions and pay association fees.

Title to property is actual ownership of the property. If a proper title search has not been completed there could be unforeseen issues with the title, including: liens or mortgages encumbering the property, easements such as a right-of-way, non-conforming zoning issues, or the purported seller’s lack of authority to transfer the property. A title search includes a review of the chain of title for any of these types of errors, assessments, debts, or other restrictions by reviewing documents at the Registry of Deeds, records on file with the Clerk of Courts, judicial liens, taxes, street easements, sewer easements, special taxes, and other documents. The buyer may require that any encumbrances revealed by a title search be corrected before closing such that the seller can provide marketable title, or in some cases it may prevent the deal from going through all together. Imagine buying a property without having a proper title search done, assuming it is entirely free of title defects, and suddenly another individual claims he or she owns the property because the person you purchased it from was not authorized to make the transfer. Or maybe you are expected to pay off a sizable lien you did not know about. Or you are notified that the building you own is not within the required set-back limits. A proper title search would uncover these types of issues. Additionally, an attorney can help you purchase title insurance, which is a low cost, one-time premium paid at the closing after a title search has been conducted to protect against financial loss due to unknown, adverse claims against the title to your property.

An attorney can also prepare and record a properly executed deed. A deed to property is the legal instrument that actually transfers the property from the seller to you. The deed should provide an accurate description of the property and be signed by the seller. It also should be recorded with the Registry of Deeds in order to put others on notice of the transfer and your ownership. Recording a deed is crucial to protecting your interest against others who may claim to have some interest in the property. For example, someone may sell a piece of property to you, but if you do not properly execute and record a deed, the seller could turn around and sell the property to someone else who will then claim to own the property you paid for. Maine has a race-notice statute governing these types of situations, which says that the later purchaser prevails if he or she had no notice of the earlier transfer and he or she recorded a deed before you did. On the other hand, if you had properly recorded a deed, you would prevail because the subsequent purchaser would have had both notice of the transfer to you and he or she would not be able to first record a deed for the property. Therefore, the proper execution and recordation of a deed is crucial to protecting your property interest.

Finally, if the property is part of an association, it will be necessary to have the association documents reviewed for any restrictions or obligations placed on the property. For example, annual association fees may seem straightforward, but looking more closely may reveal much higher sums that can be collected in the form of special assessments that the buyer should know about. Also, there may be restrictions about: what paint colors can be used, types and sizes of houses that can be built on a piece of land, types of vehicles that can be parked in a driveway and for how long, tree removal, fence construction, set-back limits, or a number of other rules. In order to fully understand the obligations and restrictions of a particular association, it is important that these documents be reviewed carefully.

Ultimately, it is less expensive and less time consuming to hire an attorney to make sure you take the right steps during a property transfer than it is to go to an attorney after a problem with the property arises. Whether an attorney is able to pick up on an error that can be corrected and allow the transaction to move forward, or the attorney finds such a substantial defect that you no longer wish to purchase the property, seeking proper legal advice can help you make an informed investment decision and avoid trouble down the road.

Tamlyn Frederick is a real estate attorney at Frederick, Quinlan & Tupper in Portland, Maine.

Associate Justice of the Supreme Court of the United States arrested and charged with murder

Stephen J. Field was nominated to the 10th seat on the Supreme Court of the United States by Abraham Lincoln (even in those contentious times, the confirmation was a quick one – nominated March 6, Confirmed March 10). He had previously served on the California Supreme Court, where he replaced Chief Justice David Terry. Terry had shot and killed a man (not just any ol’ feller- a Senator) in a duel, and fled the state. Now it gets juicy. David Terry later married a certain Sarah Althea Hill. Ms. Hill had previously been married to a wealthy mine owner, whose fortune from silver she tried to lay claim to by asserting that she had been married to the magnate. Some versions of the story characterize the legal battle as a divorce, but no matter: David Terry was one of her lawyers, and over the course of the long litigation, he married her. When the Circuit Court finally ruled against Ms. Hill, Justice Field was one of the three-member panel. Sarah Althea pitched a fit, marshals moved to remove her, and David Terry, seeing his expected payoff evaporate, and his hysterical wife in pitched battle, joined the fray. By all accounts, he was a big, formidable man, well-known for his willingness to use a Bowie knife he carried with him. Justice Field jailed both husband and wife for contempt, and Terry threatened the Justice’s life. Well, the the U.S. Attorney General took a threat to the life of an associate Justice of the Supreme Court seriously, and assigned a U.S. Marshal, one six-gun-slingin’ David Neagle to protect Justice Field.

Now to the breakfast scene: August 14, 1889. Justice Field and Marshal Neagle are on a train bound for San Francisco. Turns out, David Terry and Sarah Althea are on the same train. From the testimony of Justice Field:

“A few minutes afterward Judge Terry and his wife came in. When Mrs. Terry saw me, which she did directly she got diagonally opposite me, she wheeled around suddenly and went out in great haste. I afterwards understood, as you heard here, that she went for her satchel. Judge Terry walked past, opposite to me, and took his seat at the second table below. The only remark I made to Mr. Neagle was, ‘There is Judge Terry and his wife.’ He remarked, ‘I see him.’ Not another word was said. I commenced eating my breakfast. I saw Judge Terry take his seat. In a moment or two afterwards I looked around and saw Judge Terry rise from his seat. I suppose at the time he was going out to meet his wife, as she had not returned, so I went on with my breakfast. It seems, however, that he came round back of me- I did not see him- and he struck me a violent blow in the face, followed instantaneously by another blow. Coming so immediately together, the two blows seemed like one assault. I heard ‘Stop, stop,’ cried by Neagle. Of course I was for a moment dazed by the blows. I turned my head round and I saw that great form of Terry, with his arm raised and his fists clenched to strike me. I felt that a terrific blow was coming, and his arm was descending in a curved way, as though to strike the side of my temple, when I heard Neagle cry out, ‘Stop, stop! I am an officer.’ Instantly two shots followed. I can only explain the second shot from the fact that he did not fall instantly. I did not get up from my seat, although it is proper for me to say that a friend of mine thinks that I did; but I did not. I looked around and saw Terry on the floor. I looked at him and saw that peculiar movement of the eyes that indicates the presence of death . . .”

Neagle and Field were arrested for murder by the County Sheriff. Neagle was held, and Justice Field was released on his own recognizance. The charges against Field were dropped, but Neagle was tried and acquitted.

Sarah Althea Hill Terry went insane. She lived in the Stockton State Hospital for 45 years.

Here’s the habeas corpus case:

What are the consequences to my pilot’s license if I am convicted of OUI in Maine?

If you are the holder of a Pilot’s License, the consequences of an OUITitle 29-A §2411 conviction in Maine are serious, if not severe. The FAA imposes rigid reporting requirements, as one might imagine, due to the real threat to public safety involved in operating an aircraft in any impaired state. It should go without saying that one must never act as a pilot or crew member while under the influence of alcohol, within 8 hours of consuming alcohol, while using any drugs that affect one in any way contrary to safety, and so on,14 CFR 91.17(a) but even outside the operation of an aircraft, the FAA has an interest in any violation of the law that involves alcohol. . . .

Advance Health Care Directives: Making Your Own Health Care Decisions, Even When You Can’t

When planning for the future, many individuals are so focused on how their assets will be used or eventually distributed, that they often overlook planning for their own health care in the event of their incapacity. Individuals can create a power of attorney with respect to health care, which is distinctly separate from a financial power of attorney. Because both the purpose and the parties involved are often different for a power of attorney related to health care than one related to finances, these documents are drafted separately. In fact, the Maine Uniform Power of Attorney Act does not even cover powers related to health care decisions. . . .

Are Your Discovery Practices Keeping up with Technological Advances?

The ubiquity of smartphones and the continuing development of mobile forensic software tools like Cellebrite have greatly increased the amount of discoverable electronically stored information. As a result, traditional methods of eDiscovery are increasingly being supplemented with evidence gathered from mobile device and cloud sources. As the use of mobile forensics grew first in criminal law, the refinement of both investigative techniques and technology has brought down many of the traditional barriers to the use of evidence contained on mobile devices in civil litigation discovery. . . .

The Pour Over Will: When is it the Right Estate Planning Tool for Maine Residents?

Estate planning can be a daunting process at any stage of life, but planning along the way can ease the process and help educate individuals about the challenging decisions they are making. The initial planning steps can introduce clients to new terminology, strategic family decisions that need to be made, and the use of various planning tools or documents. One particular vehicle that clients may not be familiar with is the pour over will, used in conjunction with a revocable trust which is a trust created during life that is fully revocable by the individual who creates it until it becomes irrevocable on death. When facing a decision as to whether or not to use a particular planning tool, such as a pour over will, one should understand the potential advantages and disadvantages as they relate to his or her specific situation. . . .