I’ve been a Louisiana Real Estate Attorney in New Orleans since 1993. Before I became an attorney I was a Louisiana Real Estate Agent and Broker who for over a dozen years managed rental property. I am an experienced professional who provides personal service. Call me or email me for a consultation. Your call goes right to my cell phone and I answer all my calls personally.
Real Estate law can involve a number of areas of law. I thought that it would be helpful to give examples of some of the kinds of problems I handle. What follows is a list of hypothetical clients and their questions.
Dad passed away 15 years ago and Mom has just died. Their major asset was their house. What do we need to do now?
Generally, it is necessary to open succession to confirm the ownership of real estate in the heirs. Although a succession is a type of lawsuit it need not be complicated if the debts were few and the heirs can be put directly in possession. There is an even simpler method if the value of the decedent’s estate is seventy-five thousand dollars or less. In this case there is no need to open succession and the real estate can be transferred by filing a simple affidavit.
JOINT OWNERSHIP ISSUES:
Dad left his house to me and my sister. She lives there rent free and I am getting nothing out of the property. I am married and have my own house. What can I do?
One thing you cannot do is charge her rent. As a partial owner she has the right to live there. If she and you cannot agree to sell the property the law provides for owners who cannot get along. In a Partition Sale by Licitation you could have the real estate sold at public auction. The proceeds would then be divided between you and your sister.
FORECLOSURE AND TITLE ISSUES:
I bought a house at a foreclosure. When I tried to refinance I was told there were clouds on the title. What do I do?
Many people erroneously believe that when real estate is bought at foreclosure it comes with a clear title. This is not the case The clouds on the title have to be evaluated on a case by case basis. Some liens prescribe and can be removed by filing a request with the mortgage office. Others require a quitclaim deed from a former party in interest. Sometimes a former mortgage holder or creditor will need to be involved to release a lien.
At the closing they are going to offer me title insurance. Should I buy it?
If you finance a property the lender will probably require you to pay for title insurance to cover their loss if there is a title problem that impinges on their mortgage. You pay for the insurance and they get the coverage. For a modest additional cost you can purchase an owners title policy which covers your loss if there is a title problem as long as you own the property. If a problem arises the title insurance company will either fix the problem or pay you the value of the policy.
I failed to pay a bill and got served a law suit. However, at the time I ignored it. How does that affect the real estate I own?
The creditor probably will have taken a default judgment against you and recorded it in the Parish where you own real estate. This judgment will act as a lien against your property. The creditor hopes that you will decide to refinance or sell the real estate. If you sell or refinance the creditor will have to be paid off with interest to release the judgment. However, this kind of judgment prescribes in ten years. If the judgment is more than ten years old it can be canceled by prescription.
TAX AND LIEN ISSUES:
I did not pay my income taxes and I got a notice that the IRS filed a lien against me. What does that mean?
The Federal Tax Lien acts as a lien against your real estate similar to the judgment described above. If you make arrangements to pay the lien then a cancellation of lien will be filed in the records which show that the lien is no longer in force. A Federal Tax Lien prescribes in ten years.
TAX SALES OWNER ISSUES:
Mom died and we never got a tax notice. We found out the property was sold for taxes. What are our rights?
If it is less than three years since the date the tax sale was filed then you have the absolute right to redeem the property by paying the taxes, a 5% penalty and 1% per month interest. This is arranged with the tax collector. If has been more than three years then it depends on what you can work out with the tax purchaser.
TAX SALES PURCHASER ISSUES:
I purchased a tax sale and it has almost been three years. What do I do now? I want to renovate the property.
You can file a Suit to Quiet Title after the three year redemption period is over. This begins a six month waiting period. The tax sale owner has six months after he has been notified that he is about to lose his property to challenge the tax sale in court. However, if you wait five years (instead of three years) from the date of the filing of the tax sale to file your Suit to Quiet Title then the tax sale owner has only sixty days to sue to challenge the tax sale (instead of six months) and the grounds he has to challenge the tax sale are more limited. In either case a reasonable but through effort must be made to actually find and notify the tax sale owner. If he lives out or state or cannot be located an attorney must be appointed to represent him. The filing with the Recorder of Mortgages of an affidavit with notice information and after certain delays acts to cancel all liens, mortgages and encumbrances prior to the date of the tax sale.
WILLS AND DONATIONS:
Our son is always in trouble. He is a good person but he does not know how to take care of his money. Our daughter is a doctor. She doesn’t need money now but wants to provide for her children. We want to be fair to both of our kids. We especially would like our son to know he always has a roof over his head.
Your children have different needs so the solutions would be different for each child. You could leave part of your property to a trust for your grandchildren with your daughter as trustee and the rest of your property to a trust for your son with again your daughter as trustee. The provisions for each trust would require your daughter to fulfill your separate objectives. Another solution in part would be to leave your house to your daughter and leave your son a right of habitation. He could live in the house as long as he lives but he could not sell or mortgage it.
We leased the downstairs of our duplex to a college student. Her boyfriend and his dog have moved in and they are tearing up the place. They are not on the lease. What do we do?
Your written lease probably has provisions concerning standards of behavior, preservation of the property and a waiver of five day notice. In Orleans Parish you would go to First City Court and file for a Rule for Possession. Other Parishes have a similar procedure. A Court date for the Rule will be set. You would then have the Constable serve the Rule for Possession. Do not take or hold any rent money once you have filed. You or your attorney will need to show up on the court date with evidence and testimony about the violations of the lease. If the tenant shows up he or she can give testimony. If the Judge rules in your favor then the Rule for Possession will be stamped “Rule Absolute.” A Notice of Judgment will be served the next day giving the tenant twenty-four hours to vacate. If the tenant fails to move you can obtain a Warrant for Possession from the Court. The Warrant will be enforced by the Constable but you will be responsible to provide the labor to physically move the tenant’s possessions out at the scheduled time.