Mr. MOGUL’s Real Estate Blog

Just for your edification, there are some aspects of your property of which you may not be immediately aware. I am referring to a realty owner’s rights to what is below their land. This is also referred to as your subsurface rights.

Subsurface rights may be sold and transferred separately from the surface rights. What would be the advantage of this distinction? Well, a farmer might keep the surface rights to be able to raise a crop and sell the subsurface rights to another company interested in taking oil of from under the surface of his property. Why would he want to do this? It may cost him more to take the oil out himself (oil drilling is an incredibly expensive business), so selling the rights will make sense in this case.

How about the crabapple trees, the Kentucky bluegrass and the award winning plants and flowers located on the property? Are they yours or someone else’s? All plants that grow naturally on the land, in a wild state are part of the realty. These are the plants (fructus naturales) that you never planted, that just grew naturally on the land. But, crops that are on the land, that were planted by someone else, (fructus industriales) will continue to belong to whoever planted and tended the crops.

For example, if a tenant on a rental property plants a pumpkin patch, and it produces pumpkins, they belong to the tenant, not the landlord. If a squirrel buried a pumpkin seed and a random pumpkin grew on the property, it would belong to the landlord, not the tenant.

Just be aware that there are distinctions in who owns what. Make sure you are the rightful owner before taking anything off of land that you own, and make sure of your rights per the deed to any contracts you agree to regarding the property.

Homeowners interested in selling their home themselves have much to ponder.  There’s the issue of whether to use an agent, or not, to hold open houses, how long to keep the home on the market, and more.  If the home would sell faster with an agent, then an agent should definitely be used.  Has anyone ever given a thought to all of those strangers coming in to case the joint, I mean, to have a look around the property?  How safe is that?  Do you know these people and are they really interested in buying or

Besides having everyone sign your “guest book,” left open on the coffee table, can you, as the seller, tell how serious these tire kickers really are?  Think about the fact that an agent often has an advertising budget, and can get to more people than you will doing it on your own.  Also, agents are experienced in setting the proper price on a property, so that it doesn’t sit so long that potential buyers start asking, “What’s wrong with it?”

If you have a sales job, this next statement doesn’t apply to you:  But for everyone else, are you an expert at negotiating?  Are you skilled enough to be able to move towards resolution and a firm closing if a serious buyer comes along, who is also new to the negotiating game?  Many homeowners blow the deal with clumsy negotiating skills and setting the price wrong. 

Finally, people looking for homes naturally go to an agent for help.  Unless you have a thousand person social network at your fingertips, you just don’t have the contacts that an agent would be able to utilize to sell your home quickly.  Using an agent frees up the homeowner’s time to do everything else, like live a life while trying to sell a home that has ceased to be the perfect place to live anymore. 

Quite simply, use an agent to sell your home.  If not, make sure those “strangers” coming into the home are really seriously interested potential buyers.  Is it in better form to ask for a fingerprint card completed before the tour of the kitchen or afterwards?

The difference between tangible and intangible property is not so great after all. Actually all property can be called intangible, since we all own property usually as it is represented on paper, called a deed or a map of the property boundary. It is the fact that we have rights to it at all that makes it tangibly “ours” or not.

Native Americans believed that property is shared and that it belongs to everyone. That is why the first inhabitants of our great lands had so much respect for our country and its property. No one and everyone owned everything. What a concept!

Today, though, we have ideas about our land ownership, and it is either mine or yours, nothing in between. Some of my neighbors at one of my vacation homes, felt that they had the “right” to cross-country ski through my backyard. My yard is one of the largest backyards in the area, backing up to a National Forest (lucky me). So, there were always ski tracks in the backyard, right across the garden area after every heavy snow. I asked them once, why are you in my backyard at all? I was always greeted with, ‘what a great day to cross-country ski’, or ‘how beautiful it was out’, ‘I should be out skiing too’…I never got a decent answer from these people (really, they were strangers with new ski equipment and brightly colored snowsuits).

For the record, most examples of intangible property will usually go under the category of a patent, or other types of copyrights, etc. since they cannot be readily “seen,” they are considered “intangible.” I’ll stick with selling the tangible property all day long. It’s what I do best…

What is a fixture? A fixture is an item that is attached to a property with the intention that it is to stay attached. Said another way, when the person moves out, this item is intended to stay put, not go on the moving truck with the furniture and other personal items people usually take with them at a move.

An item that is built into the wall of a home is definitely considered a fixture. Faucets, counter tops and bathroom commodes are surely fixtures. But what about that special lighting sconce, or an artist’s one-of-a-kind hand blown sink in the guest bathroom? If the intention when the item was installed was for it to be permanent, it is still considered permanent, even though the owner is leaving the home. Of course, a person may want to take the lighting with him to his new home. But if it is going to leave a hole in the wall, then it is truly meant to stay. One can make the argument that you would have to repair the hole before leaving town, so that the next buyer, renter or co-op owner will not have to deal with a room without a lighting fixture. It is only common sense.

Without getting too technical, another way to get property is to acquire it as a trustee. A trust can be set up to own property with two titles, or two owners at the same time. These titles are the beneficial title (equitable title) and a legal title. The trust is a legal relationship with a settler (person setting up the trust) and the “res” which is the property. The trustee has the legal title to the “res” or property, and the beneficiary is the person who will eventually receive the benefit of the trust and who holds beneficial title to the “res.” (“Res” is an older legal term for property).

Since I am not giving out free legal advice, I’d refer you to your attorney for the particulars. The point here is that there is more than one way to get a property, and a land trust is just as valid as any other way, in my opinion. Does anyone have an interesting land trust story out there? Send it along, I’d like to share it with other readers.

When the buyer walks away, it is always a sad day at the bargaining table.  What went wrong?

When buyers are tired of bantering back and forth over a few thousand dollars, they will leave the house for the next person who is willing to argue with the seller over what will amount to “pennies.”

These aren’t actual “pennies” but actually thousands of dollars, but in the larger scheme of things, it is nonsensical to be concerned with a few random dollars when trying to find the best mutual price for all parties involved.  The sociology of most people is that they avoid “confrontation” or the unpleasant feeling of having a disagreement with someone else.  In the buying situation, buyers want to get the process of settling over with as soon as possible.  Sellers who enjoy going back and forth over the price of the property will find that buyers will be fed up with the process very quickly. 

If you want to keep buyers at the table, settle with them soon.  If you want to scare them away, treat it like a game show, where they have more options after every turn.  Don’t be surprised if they take going out the front door as their final option. 

Property managers can make owning property out of state an easy endeavor.  Make sure to check out the management company that you hire and to check that they are a reputable team, as well.

The people managing your property (rental properties, commercial buildings) are responsible for hiring others to maintain the buildings and properties up to your standards.  This should be stated in contract form ahead of time.  For example, if the property management company is responsible for snow removal, make sure that it is removed per the town expectations.  You may be responsible for removing snow on the rental property, shoveling the walkways, and clearing snow from the sidewalks.  If the property management company doesn’t complete the job, someone could slip and fall on your property – making you 100% liable.

Also, the property management company is responsible for the people they hire.  They have an agency relationship with any outside contractors to make repairs on your property.  These contractors should have the proper licensing, bonding, and insurance to work on the properties you own.  They should also have a criminal background check run on them, and not just to “be safe.”  You will want to know the history and criminal past of the people being hired to go into the leased areas, since they will have direct and indirect contact with your tenants.  You will be responsible, indirectly, for any misconduct that happens from people hired by the property management company to do work for you.  This includes, but is not limited to:   assaults, thefts, mischief, arson, general liability, molestation, and any number of torts actionable at law and equity.  Just a word to the wise, it pays to have everyone checked out before signing contracts with out of state contractors working on your behalf in properties you own.

There are two tenancies that most people might experience while owning property.  These are Tenancy in Common and a Tenancy by the Entirety.  The Tenancy by the Entirety is a right in land when couples own the land together.  This right of survivorship is available only to a husband and wife.  This means if one of the spouses dies, the rights to the property transfer directly to the other living spouse, and that spouse living has the full rights to the property.

Tenancy by the Entirety may not be available to those couples living as “common law” spouses.  If you are not familiar with a common law spouse, it is a description of couples who have not been formally married, with a marriage certificate and the works, but who hold themselves out to the community, or the world, as being “married.”  An example of this would be a couple who have “been together” for 15 years, but have never married, because they don’t “believe in a piece of paper to make it formal.”  That piece of paper would have made them eligible for many formal legal rights, and this tenancy is no exception.  The rights of Tenancy by the Entirety traditionally don’t apply to common law spouses.

This is contrasted with a Tenancy in Common, which is a joint tenancy in property without a right of survivorship.  This would be the property co-owned and held jointly by two partners in a business.  An example would be two dentists who own the building where they practice dentistry.  If one partner dies, the rights to the land don’t automatically go to the other partner, hence no “survivorship.”  Rather, each partner gets to decide who will get the property, and it could have some surprising results.  Usually, partners in this situation write up contracts that specifically determine where the property will go, and where the rights begin and end regarding the practice.

Of course, local laws should be checked thoroughly before beginning any of these tenancies.  Many people use the terms Tenancy in Common and Tenancy by the Entirety interchangeably, although there are distinct differences between the two.  Most property owners will enjoy tax benefits with each of the tenancies, so an accountant may also need to be brought in before setting up either of these ownership rights to property. 

In a way, most realtors would relish all the help they can get, to aid in selling homes, in our economy.  But, is adding a widget that offers a social network the way to go?  I would offer that it turns a legitimate real estate site into a place for friends to chat.  Chatting is fine, even pleasant, but will it sell a home?  More people chatting, on seemingly real estate topics, might be a boon for the business.  But, how will realtors be able to keep everyone on topic?  As in, talking about the loft for sale, not the pop culture icon and what she did the night before.

Personally, I have seen good forums go bad, from just this phenomenon.  There is always one person, or a clandestine team of people, who plan to wreck a forum or site, with their carefully planned tactless comments.  You have seen examples of these sites, you probably have even come across one of these this week. 

This is the turn of events.  There is a site you trust, and enjoy reading the associated forum, from time to time.  Only one day, you come across a random comment that jolts your sensibilities.  It is certainly meant to be funny, but it is actually offensive on several levels.  After that, other members, viewers and managers all feel compelled to comment on it, and comment they will.  There will be comments for that one poorly written posted comment, for the next two years!  It will take on a life of its own, and the website manager will be unable to regain the credibility of the site. 

I guess then, my vote is uncertain as to realtors adding social networks onto their sites.  Maybe those gadgets should be left to the pros – social networks with forum administrators who act as police when moderating inappropriate content attempted to be posted to their sites. 

There will be some real estate websites that will ask those entering the sites, to look at available properties, to “register” before being able to search the site.  Be aware, these registrations ask for very personal information and potential homeowners may not be doing themselves any favors to give out personal data on themselves, at any stage.

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