What Kinds of Issues?
At Real Estate Mediation Service, we can work with attorneys and their clients to resolve any number of real estate related disputes.
Some of the most common involve:
Boundary and Easement Disputes
Boundary lines, especially boundaries (like roads) that have been long in use, and in the wrong place, are fertile ground for dispute. Lines in the sand (pardon the pun) get drawn and people get entrenched in their positions. The same applies to fences – or trees.
Often the conflict can be resolved when the interests of the parties are reviewed and respected. Arbitrarily moving a fence, or cutting down a tree (or 2) is a sure fire way to set up a battle. A good mediator can cut through “positions” and get to the meat of the matter. Because, almost always, it’s never about the tree itself.
Breaches of Contract
Markets in flux; unexpected turn of events; any number of reasons can crop up in a real estate deal that makes it advantageous to breach a purchase or lease contract. There are real, and often unintended consequences to breaching a contract.
An experienced mediator who understands the nuances of a real estate transaction can sometimes suggest ways to restructure a deal, or smooth an exit from one.
Non-Disclosure of Known Defects
No one likes to feel as if they were snookered into buying something that had a known but undisclosed defect. Most residential real estate purchase disputes have this kind of issue at their core.
A skilled mediator can sus through the disclosure documents and communications between the parties to learn what was and wasn’t spoken of or disclosed, and help the parties work through the feeling of having been duped or of being accused of trying to dupe someone, and help them reach resolution of the dispute.
Family Partition Actions, Partnership Dissolutions
Partition actions, and partnership dissolutions are a LOT like divorces. There is tremendous pent-up emotion – that (often) has nothing to do with the property in question. These kinds of controversies are some of the most difficult to work through because of the underlying personal animosities that have built up, sometimes over decades of life.
With patience, and empathy, a mediator can assist the participants in the mediation to express and work through those feelings and emotions, and guide them to a resolution they may have never thought possible.
A buyer or seller of real property relies on their broker in a tremendous way. Most have only bought or sold a single property in their lives before. Most brokers take the responsibility to act as a fiduciary to their clients seriously. But life, is full of surprises, and we all make mistakes. It is the consequences of those mistakes that matters.
The client has one set of goals. The insurance company representing the broker has an entirely different set – which sometimes even includes dumping the broker and claiming there is no coverage at all !
A mediator’s role can often be split into several Mini-Mediations: The one between a Buyer and Seller, the one between the client and Broker, and the one between the broker and his/her Insurance company. It takes a mediator who has experience in all three kinds of disputes. And who knows how to juggle too.
Fraud in the Formation
Nothing is more enraging than having been lied to and tricked into a bad real estate deal – or being (unfairly) accused of having done so. It isn’t an allegation that one makes lightly. Yet, nearly every real estate dispute contains a charge of fraud.
Battling through the emotion of claiming or defending a fraud claim – all the while doing justice to the feelings that such allegations bring with them – and still trying to reach a settlement (that doesn’t include a head on a spike) is one of the challenges of the mediation process.
Patience, empathy, a willingness to dig deeper into the perception of the events leading to the dispute, with objectivity, are all skills of an excellent mediator.
Having been through that process, from all sides – at one time or another, is one of the attributes we bring to the mediation table – all in an effort to help the participants work through the issues and reach settlement.
Loan Workouts and Renegotiations, Foreclosures
COVID 19 has shaken the real estate marketplace down to its core.
Legislation that prevents eviction, yet doesn’t prevent foreclosure puts property owners in an awful position. How does one pay the bank, when the tenant can (or won‘t) pay them? By going to the “money tree” in the backyard? We wish…
Lenders have problems too – they have investors and shareholders that need the return on those loans to pay their bills as well. Many servicing agreements call for the servicer to make up losses, or have insurance against them – which leads to a whole other set of problems.
When each side s locked into position, and each have a “contract” that they are waiving in the air to support it, how do you reach some kind of reasonable compromise?
In part by understanding the interests at stake, and searching for compromise that allows for each side to achieve what it needs – even if that’s not what they want.
Only a mediator that understands the nuances of the inter-relationships between Landlord-Tenant-Bank-Servicer-Investor is going to be equipped to work with the various stakeholders to reach a compromise that works for all of them.
Commercial property represents a significant investment for most owners – and their tenants. In many cases, the value of a tenant’s business is predicated upon its longevity in a single (leased) location. Being forced out of a lease can mean killing a long established business.
But landlords have lenders too (or, at least, most of them do), and those lenders want to stay in business as well. The lenders want to get their loans paid. And the tenants have a contract that says they will make rent payments – which the landlords use to pay the lenders.
Can the tenant get rent-relief? And still stay in the leased property?
Many tenants are attempting to use the “force majeure” or “frustration of purpose” doctrines to get rent relief as a result of governmental forced COVID 19 closures. Can they? And even if they can, should they? What are the consequences of doing so?
When one side or the other has a different position on the matter – then what?
The lawyers will likely have a briefcase full of cases – for and against, and in support of their clients’ positions.
A good mediator is also a peacemaker (or a magician…) that can take these different positions, work through the various legal theories, and work with the landlord and tenant to come up with a solution that affords everyone the ability to sleep at night.
Title Insurance Claims
Title insurance is often misunderstood. It is not “homeowner” insurance. It doesn’t cover damage to your roof if a tree falls on it. In many states there isn’t “title insurance” at all, but rather an “abstract of title” prepared by a lawyer that is designed to give a buyer assurance of just what it is that is being bought.
But, what if the abstractor gets it wrong, and missed that 100 year old easement which runs through the front 20 feet of your property?
Do you spend untold months and hundreds of thousands of dollars litigating that dispute?
A mediator that understands how title is researched, how the insurance process works and what is covered – and what isn’t – can be a significant contributor to guiding the parties to resolution of a title insurance claim, without the need to do battle for years.
The list seems never ending.
Having been in the real estate industry for over 44 years, as an Advisory Title Officer, Real Estate Broker and Trial Attorney, I’ve experienced all these kinds of issues and conflicts, more than once.