Written on April 25th, 2019
Over the years I have represented many parties involved in real estate disputes. One of the challenges in handling such matters is that in addition to the significant financial investment that people make when purchasing real estate, most people have an emotional investment. This emotional investment is often tied to a perception that many people have about what it means to own property. I have been asked by clients many times in one way or another, “What do you mean I can’t do that with my property?”
Sometimes the disconnect is that people tend to think about real estate in terms of exclusive use and control. Although exclusive use and control is a well-understood concept in real estate law, in practice it is very seldom the case that a person will exercise 100 percent exclusive use and control of real estate. It is more realistic to think of ownership of real estate as a “bundle of rights,” as my former law school professor used to say. A person may own some, but not all, of the rights and that is usually the case. Situations involving nonexclusive use or control of real estate include property subject to covenants, zoning, easements, timeshares, common use and maintenance agreements, environmental and other governmental regulations, and encumbrances, to name a few. With so many overlapping interests it is easy to see why real estate disputes are commonplace.
Given the potential for conflicting interests, it is important to understand which issues may affect the use and control of the particular real estate under consideration. Gaining this understanding may involve consultation with a number of professionals involved in real estate transactions on a regular basis, including real estate agents, design professionals, and legal counsel. It is equally important to use well-drafted agreements to define the rights and obligations of the various interested parties prior to purchasing the real estate. An ounce of prevention is worth a pound of cure in almost all situations.
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*This article presents general information for informational purposes only and does not constitute specific legal advice.
Jason M. Smiley was born and raised in Rapid City, where he lives with his wife Darby and their two children. He is a partner at the law firm of Gunderson, Palmer, Nelson & Ashmore, LLP, and is admitted to practice in South Dakota and Wyoming.
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