Our Practice Areas
Undisclosed | Concealed Defects
When you purchase a home that has been occupied by others, you are, in most cases, entitled to receive a Sellers Disclosure Statement, often known as a “Form 17.” In this document, the Seller informs you of his/her knowledge of the condition of the property by answering “Yes”, “No”, or “Don’t Know” to a series of questions and supplying some additional information. The contents of the Form 17 provide you with a disclosure of the Seller’s knowledge of issues that may affect your decisions regarding whether to move forward with the purchase of the residence and/or what price to offer for the home.
Sometimes, a seller will fail to provide important information regarding defects that exist in the home and/or on the property. These issues range from cracked foundations to leaking roofs, from poor drainage to encroachments on the property by a neighbor’s fence, and they impact the cost of occupying the residence and the value of the home at the time of purchase. If a seller has no knowledge of the problem and would have no reason to have known of the problem, then the seller may have no liability for such problems that first surface during your ownership or occupancy of the residence. However, if the seller had knowledge of the problem, such as a roof that leaks during the wet winter months, and does not disclose that knowledge in the Form 17, then that seller may be liable for the repairs to fix that undisclosed problem.
The American rules regarding attorneys’ fees is that each party pays for their own attorneys’ fees, unless they are provided for in a statute or in a contract. Fortunately, most purchase and sale agreements provide for prevailing party attorneys’ fees, and, as such, if you have to pursue a seller for failure to provide disclosure of concealed defects, you will be entitled to recoup your reasonable attorneys’ fees incurred in pursuit of the seller. We suggest always having a pre-purchase inspection performed prior to making what is likely one of the most expensive purchases of your life. Follow up that general inspection with a more specific inspection of certain systems or items called out by your home inspector.
Boundary Line Disputes
Robert Frost wrote in his poem, Mending Wall, that “good fences make good neighbors.” The reality of this concept is subject to the corollary of: only if the fence is put up in the correct place. Boundary line disputes occur for a large variety of reasons. The most common scenario is when a property owner erects a fence that does not follow the legally described boundary lines of their lot.
When you purchase a piece of property, that property is legally described in your deed. The legal description is fairly unintelligible to the average person and, as such, there are many fences that are erected in places that are not entirely on one’s property. What looks like the appropriate point between your house and your next door neighbor’s house may well be different from the actual location of the boundary line between the homes.
Prior to erecting a new fence, it is a good idea to have a survey conducted to provide you with the actual location of the boundaries to your property. If the fence would only impact one or two boundary lines, you can limit the survey to those boundary lines and save a bit of money. If you are replacing a pre-existing fence or row of hedges, you want to do your best to establish how long the previous fence of hedge has been in its location. In Washington state, if a fence or other structure has been in a location for ten (10) years or more, the use of the properties up to the location of the fence may have provided you or your neighbor with rights to the property inside of the fence line, even if you did not have title to that property. This concept is known as adverse possession.
Commercial Leases
The drafting and negotiation of commercial leases for landlords and tenants of office buildings and retail space is part of our practice. While residential leases are tied very heavily to the dictates of the Residential Landlord Tenant Act, commercial leases are much more similar to contracts than they are to residential leases. They are mostly a matter of negotiation and real estate market forces. The ability to negotiate concessions is driven largely by the availability of rentable space and the willingness of tenants to commit to longer leases. In order to be prepared to negotiate a commercial lease, one has to do their research into the competition. You have to know what your options truly are and know when pulling the plug on one space makes sense because there is an equally attractive space available on better terms.
The psychological dynamics at play in the negotiation process must also be understood and used to your best advantage. Understanding the factors that impact the needs of both parties is critical to obtaining the best outcome from the negotiation.
The variables that arise during lease negotiations include: responsibility for utilities, responsibility for maintenance, common area maintenance charges, tenant improvements, noncompetition with other tenants, and options to renew. Resolution of disputes in a swift and economical fashion is also important, so establishing an alternative dispute resolution mechanism that is fair and practical is part of the lease negotiations. Also to be determined is whether damage to the leased premises will make a landlord responsible for the tenant’s lost profits or consequential damages. This is often tied to requirements of insurance coverage by both parties.
A central role we play in drafting and/or negotiating a commercial lease is to remove as much ambiguity in the language used as is possible. If the parties to the lease do not know by reading the lease who is liable and/or responsible for various issues, then if these issues arise, the lack of clear language creates additional problems at a time when swift action is necessary.
Fraudulent Misrepresentation Disputes
When you purchase a home that has been occupied by others, you are, in most cases, entitled to receive a Sellers Disclosure Statement, often known as a “Form 17.” In this document, the Seller informs you of his/her knowledge of the condition of the property by answering “Yes”, “No”, or “Don’t Know” to a series of questions and supplying some additional information. The contents of the Form 17 provide you with a disclosure of the Seller’s knowledge of issues that may affect your decisions regarding whether to move forward with the purchase of the residence and/or what price to offer for the home.
Sometimes, a seller will intentionally not provide important information to you regarding defects that exist in the home and/or on the property. These issues range from cracked foundations to leaking roofs, from poor drainage to encroachments on the property by a neighbor’s fence, and they impact the cost of occupying the residence and the value of the home at the time of purchase. If a seller has no knowledge of the problem and would have no reason to have known of the problem, then the seller may have no liability for such problems that first surface during your ownership or occupancy of the residence. However, if the seller had knowledge of the problem, such as a roof that leaks during the wet winter months, and does not disclose that knowledge in the Form 17, then that seller may be liable under the legal doctrines of negligent misrepresentation and/or fraudulent misrepresentation for the repairs to fix that undisclosed problem.
The American rule regarding attorneys’ fees is that each party pays for their own attorneys’ fees, unless they are provided for in a statute or in a contract. Fortunately, most purchase and sale agreements provide for prevailing party attorneys’ fees, and, as such, if you have to pursue a seller for failure to provide disclosure of concealed defects, you should be entitled to recoup your reasonable attorneys’ fees incurred in pursuit of the seller. We suggest always having a pre-purchase inspection performed prior to making what is likely one of the most expensive purchases of your life. Follow up that general inspection with a more specific inspection of certain systems or items called out by your home inspector.
Easement Issues
Easement issues involve a person’s or property owner’s right to do something on another property owner’s property. There are many types of easements. The most common easements are easements for ingress and egress. These easements allow people to come and go from their property over another’s property. This scenario occurs when an owner subdivides his or her property and needs to provide access to the now landlocked property. This also exists where there are keyhole lots in subdivisions and in other situations.
Easements are also often necessary where new construction is undertaken next to existing buildings or homes. The construction crews often need to access the property they are working on over another adjacent property. Sometimes, foundational shoring needs to be tied into the existing lot or a crane needs to swing over the neighboring properties. Concessions for these temporary uses need to be negotiated and memorialized in construction easements.
City and county infrastructure often requires easements to function. There are often right of ways along the front of properties to allow for utilities. There are also utility easements that run under properties to enable the connections we need for sewer, water, and other large-scale systems to function. Maintenance easements are also negotiated to allow a neighbor to access their property by being on or over the neighboring property. This access may be limited to certain times of day or on predetermined dates.
Licenses are similar to easements, the difference being that easements are permanent and licenses can be revoked by the party granting the access or other permissive use. If one is granted the right to use a portion of a neighbor’s property until such time as the neighboring property’s owner says that the use will not be permitted any longer, that person was granted a license. On the flip side, if one has a shared driveway with their neighbor, they most likely share the driveway based on one property owner having an easement over the other neighbor’s property.
Brandt Law Group can assist you in negotiating easements and/or resolving easement disputes.
Purchase & Sale Agreements/FSBO Transactions
Buying and selling real property can be overwhelming. The professionals at Brandt Law Group understand the process by which real property is transferred in Washington State and bring that knowledge to the services that we provide to you. We can assist you in a multitude of ways, depending on your role in the transaction (Buyer or Seller), and how much involvement you would like from an attorney in such a transaction. We can perform a relatively simple review of a previously prepared Purchase and Sale Agreement, addenda thereto, and/or escrow documentation, and provide you with our analysis. This analysis can help answer questions if you are uncertain about any of the purchase and sale paperwork and streamline the transaction through closing.
If you are looking for more involvement from us than a simple review, we can provide services to fit your needs. We have the capability to represent you through the entire purchase and sale transaction, which may include, without limitation, drafting of Purchase and Sale Agreements and addenda, negotiations with the other party, and/or establishing and coordinating escrow. This is often referred to as a For Sale By Owner (“FSBO”) transaction. You tell us just how involved you would like us to be and we will tailor our services to your needs.
Brandt Law Group also has an extensive background in real property title transfers that do not always involve a standard purchase and sale agreement. There are endless scenarios by which our clients may seek to transfer title to real property. Our office will listen to your needs and implement the best course of action for your unique situation. This may involve transferring title by way of a Quit Claim Deed, interpreting the appropriate Washington Administrative Code (WAC) to determine tax exemptions that may apply, and/or reviewing title reports to determine how best to approach clearing title to real property on your behalf. We make title transfers as simple and painless as possible for you.
CONDOMINIUM CONVERSIONS AND CREATIONS
The concept of a condominium conversion is taking an existing building, typically an apartment building, and converting the structure into a condominium with individual condominium units that can be sold as separate tax parcels. Condominium conversion is popular among commercial owners and developers that have an interest in the creation of multi-family housing, corporate office space, and multi-use property.
Every condominium conversion is different and is driven by a number of factors, including, but not limited to, the location of the building (the city in which it is located), the size of the structure, the on-site amenities, and the types of units that will be sold (i.e. residential, commercial, multi-use). Legally, condominium units are ready to be sold once the Public Offering Statement is complete. In addition, there are a number of documents that must be provided to each prospective purchaser along with the Public Offering Statement pursuant to the applicable Revised Code of Washington (RCW) Sections. Given the complicated nature of condominium conversions, the use of a legal professional, such as our office, is essential to the success of the project.
The creation of a condominium is similar to a condominium conversion. However, there are a few differences, such as the stage of development that a property may be at when we begin the creation process. We need to be made aware of any pre-sale activities that developers and declarants may envision to make sure that these activities do not unwittingly run afoul of the condominium statute requirements.
Brandt Law Group utilizes its extensive background in community association actions to assist its clients with the condominium conversion/creation process. Our services related to condominium conversions and creations include the creation of the Declaration, Bylaws, Rules and Regulations, Articles of Incorporation, and Public Offering Statement. In preparing these documents, we work closely with the owner and/or developer, the land surveyor, building engineers, architects, inspectors, and any other parties that may be required to successfully complete the project. Owners and/or developers should be aware that there are many other documents that must be provided to a potential purchaser, along with the Public Offering Statement, that Brandt Law Group can assist in facilitating on behalf of the owner and/or developer, but that we do not prepare. These may include inspection reports, budgets, insurance documentation, engineer/architect reports and/or letters, and a Survey Map and Plans. Due to the magnitude of a condominium conversion or creation and the involvement of an extensive number of third-parties, these projects may take a while to complete.
HOMEOWNERS ASSOCIATION / CONDOMINIUM ASSOCIATION DISPUTES
Disputes in homeowners associations and condominium associations are about many different things. Construction defect issues often have to do with water intrusion or other problems that originate in association common areas or in one condominium unit and cause additional problems on another owner’s lot or in another owner’s condominium unit. In Washington, the biggest culprit is water. We assist owners in dealing with situations where water started in an upper condominium unit and flooded the whole stack of units below them. In homeowners associations, water runoff from one property may cause flooding problems on the neighboring property.
Sometimes volunteer directors of an association have not fulfilled their duty in maintaining association property and an individual lot owner or condominium unit owner is impacted by the deferred maintenance. Reserve studies are performed to guide association boards regarding their funding needs for maintenance over the long term. Sometimes reserves are unfunded or underfunded and special assessments are levied to pay for unfunded maintenance items. This often causes distress among some members of the association.
When people live next to each other, or in condominiums, ceiling to floor or wall to wall, some activities cause nuisances to their neighbors. These disputes may be about the smell of your neighbors’ cigarette or marijuana smoke. It may be about the volume of music or the alteration of flooring material in your upstairs neighbor’s unit that is now causing you to lose sleep. Often our first recommendation in these situations is to objectify the nuisance through the use of decibel meters, meters that measure cigarette smoke, and other recording devices. Through the use of this technology, you can gather evidence of things that neighbors are causing but only you are experiencing. With the evidence of these activities in hand, we can convince neighbors to alter their activities.
Sometimes, associations’ boards of directors fail to appropriately hold votes on important amendments to the association’s governing documents. Particularly prevalent these days are disputes over rental caps and short-term rentals, such as AirBnB listings. Amendments to the association’s Declaration are generally necessary to make these types of changes. Sometimes associations attempt to make these amendments in their Bylaws or House Rules, rather than in the Declarations, which often make the amendments invalid.
Brandt Law Group utilizes its extensive background in community association actions to assist its clients to resolve these disputes through communication, negotiation, alternative dispute resolution, and if necessary, litigation.
Construction Defect
Construction defects can occur in the creation and/or renovation of every structure. The issues may be huge, such as inappropriate foundational support for a home on a steep slope or external membranes for the house that are not keeping the water out. Or it might entail less critical, but important elements, such as the failure to properly stain a section of hardwood flooring. The bottom line is that these construction defects impact the value and habitability of your home.
When our office is presented with the problems underlying a dispute, we often engage outside experts to evaluate the extent of the problem and the monetary impact of the issue. These experts may be mechanical engineers or architects who may provide their expert opinions regarding how the structure at issue does or does not match the plans that were the guideposts for the creation of the home. If the problem relates to the composition of the land upon which the structure was constructed, or the route drainage from a swale flows, we may bring in a geotechnical engineer. If the defect at issue relates to air quality or the flow of water from a roof drain, we may retain an industrial hygienist or an environmental engineer.
After conducting appropriate analysis and discovery efforts, the experts involved will likely prepare reports upon which we can base our arguments for settlement of the matter. Site visits may also be conducted to gather information and to clarify factual and legal issues. These activities often lead to the mediation of the matter, which is a form of facilitated negotiation. Depending upon the result of the mediation, there may be a settlement of the matter. Negotiating a settlement allows a party to work with the opposing side to forge the terms of the agreement. However, if a settlement cannot be reached, litigation and a trial of the matter may be required, which will likely entail a large amount of necessary discovery efforts and trial preparation.