Do Real Estate Lawyers Visit the Court? Their Role Explained

How Real Estate Lawyers Help Out

The general duties of real estate lawyers include contract negotiations, title searches, and ensuring client’s real estate activities are in compliance with the law. They analyse real estate agreements to make sure their clients are treated fairly and fairly represented in real estate transactions. Negotiation is a very substantial part of real estate law. Lawyers can increase their client’s bargaining power by drafting comprehensive leasing contracts covering their client’s best interests and terms.
Real estate lawyers take part in traditional law practice by representing their clients in criminal or civil court cases . However, attorneys are not required to represent their clients in court unless the client’s legal affairs require litigation.
Currently, there are no laws requiring real estate lawyers to appear in court for real estate-related issues (such as LWBs, which are handled by Property Law Act [PLA] provisions). Therefore, it is not unusual for a real estate lawyer to refuse to represent a client at a civil court proceeding. Because of this, if lawyers don’t appear and act on behalf of their clients, they can be freeing up their schedule to handle other type of law for their clients.

Litigating in Real Estate

There are a host of reasons that you might need the services of a real estate attorney to pursue litigation. As mentioned above, these include issues with contracts, or actual disputes with homeowners’ associations about their governing documents or specific actions.
Boundary disputes can often invoke litigation. These might be cases where an intentional fence has been moved or incidentally encroached (fences can change locations for a variety of reasons), where trees, shrubs or landscaping have been planted across invisible lines, where improper surveying has connected to the sale of the property, or where a neighbor has affected the land of another out of negligence. Most boundary disputes start as negotiation and cease only when both property owners agree on the delineation, set the lines into their properties with a fence, or otherwise connect with the local authorities about the registration of the lines.
Breach of contract is a common reason that a lawyer will ultimately appear in court for real estate issues. This is especially true for homeowners’ associations. HOAs may sue members to collect HOA dues that were not paid or to compel owners to discontinue behavior that violates the association’s bylaws. These issues can often be resolved, however, prior to litigation, and are best discussed with the homeowners’ association’s lawyer, prior to litigation actually commencing. For example, they can be settled by payment on the due and return of the deeds, by agreed upon conversion of the property, or by assignment of the property back to the HOA (in cases of short sales, for example).
Fraud cases are another reason that real estate lawyers will wind up on the court docket. When there are allegations of fraud, the other party may sue in order to seek damages for the value or use of the property.

When to Turn to the Court

However, while many lawyers urge their clients to settle their cases, this does not mean they can do without assistance from the courts. Some cases are simply not appropriate for resolution without judicial intervention. Sometimes there are disputes over property rights or a tenant refuses to vacate a property after the tenant has been served notice to leave. In these types of cases, the protection of the court must be sought to enforce a legal right or obtain some form of an award from a judge which would promote fairness.
An owner of land may realize that they own a portion of land because the person who has entered onto that land without the permission of the owner has made improvements to it which otherwise legally result in the person owning the land. The owner will seek to have the improvement order removed. A court will have to intervene to decide how the burden should be shared between the parties. Often, tenants refuse to leave a tenant premises even though the lease has ended or notice of termination has been given to the tenant. A court will have to intervene to strike a balance between the rights of the landlord and the tenant in that type of case.
Some cases are simply impossible to settle. The parties are so entrenched on opposite sides of the dispute that all possible avenues for settlement have been exhausted. Only once the court decides the matter are the parties able to put it behind them with their dignity intact. Finally, the law requires that certain matters be dealt with by a court. Tenancies, for example, must find their way to a court for adjudication even though the parties themselves can agree to do without a judge by just agreeing on the matter.

How to Prepare for Court

If you do not have a litigation lawyer involved in your case then your real estate lawyer will likely assist you in gathering evidence to present in court. This means that they may coordinate bringing in expert witnesses and gathering documents related to the case, like invoices, contracts, and receipts. Real estate lawyers can also file motions on behalf of their clients to speed up the resolution of the case or limit the discovery requested by the other side .
Real estate lawyers can represent you in court. If you are sued, this means that it is a best practice to hire a real estate lawyer that focuses their practice on representing clients in court. Because we are experienced litigators, we know how to craft a compelling argument in court that will convince a judge or jury of your position and intent. This can result in you receiving the relief that you were seeking or avoid you having to pay damages if you are being sued.

Settling Real Estate Disputes Outside of Court

While litigation may seem like a lawyer’s bread and butter, many real estate lawyers are adept at resolving disputes through other forms of alternative dispute resolution (ADR), such as mediation or arbitration. These forms of ADR can be preferable in conditions where litigation would be unduly burdensome or not practical for the parties involved. Mediation is a form of ADR where a neutral third-party, the mediator, oversees a voluntary settlement discussion between the parties involved in the dispute. The mediator’s role is not to decide for the parties or to give legal advice, but rather to facilitate discussion. After an agreement reached through mediation is in writing and signed by all parties, the terms in that written agreement are enforceable just like they would be if the court entered an order or judgment. Arbitration, on the other hand, is where a neutral third-party, the arbitrator, acts as a judge or lawyer for a specific proceeding. Any documents – agreements, mutual complaints, answers, etc. – are submitted to the arbitrator, who then hears testimony and decides the outcome. A decision reached through arbitration can be included in a court order or judgment, because it is still enforceable by the court, although the process can be longer and more expensive than simply litigating through the court system. While lawyers don’t always have the opportunity to be creative in the legal process, finding solutions outside of the court system is one instance where a lawyer can push the limits.

Selecting a Real Estate Lawyer

When it comes to choosing a real estate lawyer for a court case, there are a few factors that one should consider. Does the lawyer have experience in this area? If they is not familiar with the process and procedure, they are probably not going to do a very good job. They will likely spend a lot of time, and your money, researching things that would be second nature to a lawyer who has handled these cases before. They might miss things and make mistakes. I have seen lawyers forget to file something, or forget to serve something, which can cost thousands of dollars to correct. When someone from opposing counsel is unprepared, it can create a mess and your lawyer needs to fix it, which takes their time and your money.
Does the lawyer specialize in real estate? They don’t need to, but real estate is its own unique discipline, and if your real estate lawyer does not have a solid background in it, you may be better off switching lawyers. It would cost you considerably more if your lawyer has to hire a land surveyor and/or a title examiner to explain to him the issue at hand, and that is if they even know enough about the issue to determine whether they should call for such help .
Is this their first time in court? I have seen many seasoned lawyers argue and lose a case, simply because it was their first time in court. Being a good negotiator is very different from being a good litigator. Someone who spends a lot of their time in the courtroom is probably going to be much more familiar with what to expect and how to handle themselves, and their clients, than someone who rarely sees the inside of a courtroom.
How successful are they in court? This is a little tricky, because someone might loose an important case, but still be very successful. For instance, I worked on a case where we won the motion, but lost the decision. We were also able to get the court to deny our opponent’s motion for attorney’s fees (which were significant) not once, but twice. The opposing counsel lost not one, but two rounds of attorney’s fees and it cost them a whole lot of money. My client was very happy by the time that we were done.
So just because they don’t always win, doesn’t mean that they aren’t very good at what they do. They might just know when you should save your money and stop fighting, or feel that it is worth the fight.