How much does it cost for a real estate attorney?

The classic answer is, “it depends,” but I’ll try to give you a better idea.

Real estate attorneys perform a variety of services. Many real estate attorneys perform only “transactional” work which means preparing documents and conducting real estate closings (where the property is sold or transferred form seller to buyer).

Other real estate attorneys handle litigation which are lawsuits. For instance, and to simplify matters greatly, when a seller decides to sell her property, she finds out through the sale process that there is a problem that prevents the land from being sold. She would hire an attorney to fix that issue. This might be that there isn’t access to the road. Or there was a prior owner that had a loan that wasn’t paid off and fell through the cracks. Or a prior owner died and her estate wasn’t handled property. There are many tools to fix these problems, but it often requires a lawsuit and the litigation process.

For transactional attorneys, prices can often be given as flat fee costs. For instance, if you need an attorney to review title (the transfer history) of your property, many will do so for around $250.

If all you need is a quitclaim deed, for instance to transfer a property to a child or spouse, then that can be handled for around $200. I’ve heard of attorneys in town that do it for $100.

If you need an attorney to prepare deeds and closing documents, this will depend on what documents you need. If there is a lender involved, then a title company will work with the lender and agents and add this to the closing costs. It then comes out of the proceeds at closing. You can contact the title company to get the exact fees they charge.

If you are trying to handle a “cash” sale, without a lender, an attorney will often prepare a deed and a closing statement, a seller’s affidavit and a few other typical documents for $600-$1000.

For litigation, it really depends on the circumstances. Attorneys that handle a lot of these types of cases may still quote flat fees. For instance, a quiet title action, which is a very useful lawsuit to resolve a host of issues, might run about $3500. Of course, this still depends on how many defendants are involved and the likelihood of lengthy litigation.

In other situations, attorneys will just bill you their hourly rate. For instance, my current rate is $250. Although that sounds like a lot, an experienced attorney can do a lot of work in a few hours. The costs really increase when there is a trial, so that’s a good thing to avoid if possible.

I hope this gives you some idea of the costs you’re looking at with your real estate issue. Feel free to call or email with specific questions.

Here’s a summary table. Please understand this is just a general idea; these are not necessarily the prices I charge or anyone in particular charges.

Quitclaim Deed	Transfers property when no money changes hand, like to child or spouse	$200
Cash closing (no title insurance)	Transfers property when money is paid, but no lender is involved and title insurance is not purchased	$600-$1000
Quiet title action	Lawsuit that resolves title issues resulting in court order	$3500 and up
Basic probate	Transfers property at death of owner	$750 and up
Title search/abstract	Shows transfer history and identifies title issues with property	$250

Watch those process servers! How to kick out a judgment

Tennessee process servers can sometimes play fast and loose with the rules of service. Here are a few things to look for to make sure you have good service (or ways to get out of a judgment!).

1. The return of service must have the server’s name and address.

2. The return must have the name of the person served and the manner of service.

Simply writing “served defendant” is not enough.

In Cornerstone Financial Credit Union vs. Joshua Mundy, the trial court dismissed the action of the lender trying to collect after a default judgment. In doing so, the court noted that the return of process did not have the process server’s address and did not describe the manner of service. Instead, it just said “J. Smith” had “served Joshua Mundy.” This wouldn’t do.

The Court of Appeals affirmed the trial court. It listed the relevant Tennessee statutes as to proper service:

Tennessee Code Annotated section 16-15-901(b):

A civil warrant, attachment or any other leading process used to initiate an action in general sessions court and subpoenas or summons may be served by any person designated by the party or the party’s attorney, if represented by counsel, who is not a party to the action and is not less than eighteen (18) years of age. Service of other process and orders of the courts of this state shall be by sheriffs, constables or as provided by law. The process server must be identified by name and address on the return.

Tennessee Code Annotated section 16-15-902(a):

Any person serving the process from the general sessions court shall promptly and within the time during which the person is served must respond, make proof of service to the court and shall identify the person served and shall describe the manner of service.

Courts will stick to these requirements.

In Apexworks Restoration Vs. Derek Scott, a man and woman lived together. The process server met the man, served him and the man signed the warrant. The woman wasn’t there, but the process server entered a return of service stating that she was (perhaps thinking he served her through her roommate).

The man later contested service when the plaintiff pursued collection efforts. The man argued that the service return did not have the server’s address and was therefore deficient. However, the man had signed the warrant as having received it.

Does the technical defect render the service void? No. The court mentioned that “it is the service of process – rather than the return of service – that must be accomplished before a court obtains personal jurisdiction.” The man had adequate notice of pending judicial proceedings to satisfy the applicable law.

Watch those process servers! A judgment entered without jurisdiction is no judgment at all.

Georgia Foreclosures during COVID-19

There is a 60-day foreclosure moratorium on most mortgages. How does that affect the purchase of foreclosed properties in Georgia?

Several very important federal departments that back home mortgages, have issued letters or bulletins prohibiting foreclosing on properties for the 60 days after March 18, 2020. These include the Department of Housing and Urban Development, the Department of Veterans Affairs, the Department of Agriculture and Fannie Mae. There are some exceptions, particularly for properties that have been determined to be vacant or abandoned.

All in all, this covers about two thirds of all mortgages. There are big penalties for violating these rules, even if the property is not ultimately sold at foreclosure.

All this to say, you may not be able to obtain title insurance on a property bought at foreclosure if the foreclosed security deed was federally insured. Even if the note and security deed are privately held, title companies may give you a hard time. With so many foreclosures being prohibited, they may not want to look into the gritty details to make sure your foreclosure purchase was done just right.

It’s a risky business out there, so be careful.

You can find more information here, and specifically HUD’s Mortgagee Letter 2020-04 here.

Free Assistance with Powers of Attorney for Georgia and Tennessee

If you cannot go out, or have a loved one who cannot go out due to the COVID-19 issues, you should look into preparing a power of attorney. A general durable power of attorney will allow someone else handle your finances including bank accounts and transferring property. A healthcare power of attorney allows someone to make healthcare decisions if you are not able. Below are free forms of these powers of attorney prepared by legal service providers. Of course, it is better to have an attorney prepare these documents for you. I also do not guarantee these templates and did not prepare them.

Tennessee Power of Attorney (for finances)

Tennessee Healthcare Power of Attorney

Georgia Power of Attorney

Georgia Healthcare Power of Attorney (pages 7-12)

UPDATE: Georgia’s governor issued an executive order allowing notaries public to notarize remotely when certain conditions are met. Getting a power of attorney notarized is often a cumbersome issue for people that have a hard time getting out, so this makes the process much easier.

Upcoming County Delinquent Tax Sales

Here’s the most current schedule of upcoming tax sales in the northwest Georgia and southeast Tennessee area:

Dade County, GA tax sale - no date set

Walker County tax sale - November 5, 2019: properties will be posted in October here

Catoosa County, GA tax sale - October 1, 2019

Whitfield County, GA tax sale - October 1, 2019

Hamilton County, TN tax sale - First Thursday of June, 2020 - properties will be posted in May

Bradley County, TN tax sale - September, 2020

Please contact me if you have an interest in the process, or help with quieting titles or obtaining excess funds.

When you can sell property after the death of a Tennessee resident

The chart below gives a general idea of how long someone must wait to sell property after a decedent’s death in Tennessee, along with the relevant authority.

Can I do my own quiet title action for a tax sale property?

Buyers who purchase tax sale property often seek to "quiet title" to their purchases. This is a necessary task if a buyer at a county tax sale wants to sell the property, and the new buyer wants to obtain title insurance. Lenders almost always require title insurance. These title insurance companies have a heightened review of tax sales, so they look pretty closely at the quiet title action before issuing title insurance.

Often, no one contests the suit, so getting an order is not too hard after the initial work is done. However, getting an order that satisfies the title insurance company is much trickier.

What happens if a tax debtor cannot be located and served? Or what is he or she has passed away? These are common circumstances and there are methods to deal with this. Yet the methods can change depending on the particular circumstances.

Often, the tax debtors and lien holders don't respond to the quiet title action because of resignation or ignorance. Tax debtors and lien holders often ignore the service of the quiet title action, and are therefore subject to default. Even lenders with big loans on the properties sometimes don't enter an appearance in these actions in time. Then, after the statutory time has passed (30 or 45 days, depending), judges will sign orders for uncontested cases. 

But lien holders still have rights after a default, and can get an order thrown out. It happens. This is why it's important to work with an attorney that understands the title insurance business.

One-Fourth of Mississippi Sold at Tax Sale in 1932

Times were tough in 1932 Mississippi.

The state began the year with a grand total of $1,326.00 in the state treasury. There were outstanding warrants against that amount by creditors for almost $6 million. Besides that, there were still Confederate Veteran pensions to be paid, and many school teachers hadn’t been paid in a year.

One of the first acts of the 1932 legislative session to allow the state tax commissioner to borrow $750.00 so he could buy postage stamps and mail out tax notices. It takes money to make money, as they say.

All total, the state started the year $50,000,000 in debt.

The plight of the farmer was even more dire than the state institutions. About 11,000 Mississippi residents had been made homeless early in the year to due to flooding. Only 64% of property owners had paid their ad valorem taxes. Besides this, Mississippi maintained it’s long held status as the poorest state in the union

Then came tax sale day. By state law, land owners that did not pay their property tax were subject to having their property auctioned off at the court house by the sheriff to recoup unpaid taxes.

On a single Monday in April, 1932, one-fourth of the state of Mississippi was sold. Tax sale hammers went down in 74 counties affecting almost 40,000 farms. Old plantations as well as modest shanties were sold by the thousands.

People generally blamed “high taxes and cheap cotton” for the ridiculous tax sale. The cost and size of government was leading to communism, according to newspaper editors.

In fact, the vast majority of the sold land went to the state, or mortgage companies that already had a lien on the property to protect. If there were no buyers, the creditors took it to protect their lien. If there was no such creditor, the state took it, with no money going towards to the state.

The state of Mississippi bought about 400,000 acres in 1932. This brought the holdings of the state to about 1,400,000 acres of land, slightly less than the total acreage of Delaware.

As for the farm owners, they retained possession but not title, for up to two years. During these two years, they had the right to pay the delinquent tax and “redeem” the property from whoever bought it at the tax sale. Otherwise, it was gone for good.

The state relied on tax on land for the vast majority of its budget. It was a common complaint of the populists at the time that states depended too much on land tax. Rural land was owned or farmed by the poorest of the poor, who bore the burden of property tax. Meanwhile, wealthier industrialists who owned millions of dollars in equipment and tangible personal property bore very little tax burden.

The pathetic finances of the state and the failure of the land tax led to the state’s first substantial sales tax. After great drama, the state legislature approved a 2% sales tax in 1932. The results appeared to be amazing, increasing the state treasury to almost $2 million by the end of the year.

The burden on the farmer was lessened, and the diligent state tax commissioner could buy all the postage stamps he wanted.

Sources:

Garner, Alfred W., A Note on the Mississippi Sales Tax, Southern Economic Journal, Vol. 1, No. 2 (Jan., 1934), pp. 24-27.

One-Fourth of a State Sold for Taxes, Literary Digest, CXIII, May 7, 1932, p. 10.

Winter, William, Governor Mike Conner and the Sales Tax, 1932, The Journal of Mississippi History, Vol. XLI, August 1979, Number 3, Mississippi Historical Society, Jackson, Miss. available at https://bobmannblog.com/2013/04/15/a-thrilling-mississippi-sales-tax-saga/

The Deed to God

In Georgia and Tennessee, only the grantor (the seller) must sign a deed conveying real property. Even so, the grantee (the one receiving the property) must accept the property. This usually isn't an issue as real estate is usually a desirable thing. However there have been instances where this isn't the case. For example, someone had a piece of swampland he was tired of paying tax on, and tried to deed it away. This won't work.

My favorite example of this is the story of Hull Kerr. Mr. Kerr owned significant farmland in Murray County Georgia in the late 1800's. As a devout Christian, he sought to show his appreciation by giving away over 300 acres for use as an orphanage. To effect this, he prepared a deed as follows:

Hull Kerr of the county of Murray of the one part and God the Father and Jesus Christ- the son and the Holy Ghost of the other part Witnesseth: that I the said Hull Kerr For and in consideration of the many blessings received of him in hand paid at or before the sealing and delivery of those present the receipt whereof is hereby acknowledged has granted, bargained, sold, aligned, conversed, and confirmed, and by these present does grant, bargain, sell, align, convey, and confirm unto the said God the Father, and the Son Jesus Christ, and the Holy Ghost all that tract or parcel of land situated lying and being in the 8th District and 3rd section containing in all 321 acres 

Kerr gave property straight to the Trinity. Kerr was apparently trying to place the property in trust. When leaving property to a trust, however, the property must actually be titled to the trustee, not the trust or beneficiary itself.

Kerr stored up his treasures in heaven, but his earthly plans did not work out. The land is now a mobile home park and some large residential lots. 

The Chicken Thief is Never Pardoned

Chicken stealing has a deep, lasting legacy. It has changed family trees and survives now in language, and in stereotypes.

In the pre-World War, Deep South, it was known as “doing the town.” Chicken thieves were both very talented and very resilient. One thief taught his dog to steal chickens for him. An experienced thief could steal hundreds of chickens in a year. One Georgia man caught in 1891 was known to have stolen 10,000 chickens.

To a poor farmer, the loss of his chickens at a quarter a piece was a sizable loss to his net worth. 

These farmers lived in ramshackle houses with flies on every surface, mattresses of full of corn shucks, bed bugs and fleas. Children slept without clothes, played without shoes, but with heads full of lice. Most every pot or brush or utensil in their possession had some broken part. Besides the gun and the mule, there was little else the farmer owned that had any actual worth besides his chickens. So, stealing his chickens was the biggest legal and criminal concern he ever had. 

Thus, in the South at the time, a thief caught in the act was fair game to shoot at. Neighbors would join in. Upon hearing shots in the night, a farmer’s neighbor would often hop out of bed, grab their gun, look to see which direction to shoot and jump into the action. One suspected chicken thief was shot and killed in Atlanta in 1907 by a random neighbor, knowing nothing more than there was likely a chicken thief about.

Chicken thieves were generally shot with shot guns, and injured but not killed. One thief who was killed was found to have bird shot in his digestive system from another shooting. One notorious thief was caught in 1912. He had collected 40 wounds from bullets and dog bites from all his years of thieving, but he was still alive. A doctor in 1874 picked out 80 shots from one dead thief.

Such a common problem produced a market of contraptions to assist farmers against thieves. Trap guns were a common solution. These booby traps were set up by farmers so that when a door to the chicken coop was opened, it triggered a gun or explosive by some connected wire. Woe to the thief or anyone in the way of the gun when it fired or misfired. There seem to be more stories of these trap guns going haywire and killing the person setting the gun, instead of any criminal. Many men died in such a way. One farmer in Dalton found a human thumb in his trap in 1880.

Drawing of an Animal Trap by J. A. Williams, photo from National Archives

The killer of a thief seldom faced any consequence for these homicides, unless he shot the wrong person. One Gainesville man killed his brother in 1909 after thinking he was a thief. In fact, he was walking down the street with chickens he had purchased.

In the early 1900’s, it was a common complaint about how much time courts spent on this petty crime. “A … chicken thief is just as liable to engage the entire machinery of the Superior Court for a day as of any felony case, and cost the people of the county just as much as if his offense consisted of a diabolical crime.” 

The court system was cluttered with accused chicken thieves that wanted their day in court. 
The court system did move more swiftly then. Plea bargains were non-existent and all cases had to be admitted, dropped or tried. A court could try two murder jury trials on the same day, and still do other business. Still, trial days were limited and a judge and jury could spend all day trying a chicken thief. 

Prosecuting chicken thieves was a burden on the legal system. Since the stealing occurred at night, without witnesses, there was almost always a burden to the prosecution to put forward a very convincing, but circumstantial case. It was also common that the alleged chicken thief was often not the true culprit. Thus, there could be a lot of he said/they said, making the jury work hard in deliberation and sorting out the truth. 

The typical sentence was 6 months in the chain gang, 30 days in jail or $50 in fines. Yet it seemed to the merchant class, and town dweller, that chicken thieves were punished more severely than bank robbers. 

The authorities in one county lamented that a church treasurer that swindled $80,000 of the church’s money would get an easier sentence than a common chicken thief.
A treasurer of one of the largest railroads in Georgia stole $643,000 was given 6 years with parole. The local paper commented that a chicken thief in the wrong court at the wrong time would get a similar sentence. For instance, Henry Crosby, a convicted chicken thief, was sentenced to 20 years in the Dade Co coal mines for chicken thieving. The conditions in those mines was so miserable, that the state inspectors refused to enter them to do their state required inspections.

All this work over chickens does seem wasteful. On the other hand, what the farmers lacked in social and cultural capital, they made up in sheer percentage of the voting public. Thus, the sheriff and judge and solicitor listened and spent a disproportionate amount of time tracking and prosecuting chicken thieves. There was a common saying at the time that “the chicken thief is never pardoned.”

Also, the police knew that if they didn’t punish the chicken thief, worse things would happen. As told before, small town papers from the time abound with these homicides of suspected chicken stealers. Poor and sometimes desperate farmers out in the country needed violent self-help to handle the threat of thieves, and society gave them that margin. 

As with most things in this era, there was a significant racial element with chicken thieving and how it was handled. Besides the accidental shootings, every story told so far involved the shooting of a black man.

Chicken thieving was disproportionately associated with young black men even though it was common among whites as well.  Likewise, the immunity from killing a chicken thief only applied to white men killing black men. 

One 1880 newspaper directed that “Hen roosts are visited nightly by the hungry d---y who is too lazy to eat bread by the sweat of his brow. Be on the look out, and if you can’t catch him, shoot him.”

Thus, white farmers were not prosecuted when killing a black man. On the other hand, when a black farmer killed a white chicken thief in Columbus, Georgia, he was charged with manslaughter with a $500 bond. A black farmer killing a black thief could also expect to be arrested, as happened in one case near Cedartown, Georgia.

The chicken thief as a black man was such a stereotype that the term “chicken thief” became a racial epithet. Similarly, raccoons as stealers of chicken evolved into an epithet against blacks.
Stereotypes combined. One lady enjoyed having a cemetery in her yard as she explained: “I don’t mind the tombstones or the graves. For one thing, they keep negroes away from our place. You see there is the chicken coop on one side of the yard and the watermelon patch on the other, and you couldn’t get a d—-y to go into either after sundown for any number of chickens or watermelons.”

These stereotypes also evolved into food stereotypes.
To even suggest some connection between a race and fried chicken or watermelon is hard to speak. In another place and time or context, this might seem a minor concern. However, it’s not that a group of people like particular foods; it’s the historical association that these foods were commonly stolen

There are other lasting things, too. Shortly after the Civil War, the Southern states set up the convict lease system. Wealthy men, usually politicians and large mining companies or railroads, would “lease” all the state’s convicts about at eight cents a day for a term of years. The prisoners were called slaves by the men renting them. 

This system was hell. One warden, who even supported the system, said it was demonstrably worse than the Siberian gulag.

A report by a Mississippi county described it as follows: prisoners “all baring on their persons marks of the most inhuman and brutal treatments. Most of them have their backs cut in great wales, scars and blisters, some with the skin peeling off in pieces as the result of severe beatings. We actually saw live vermin crawling over their faces, and the little bedding and clothing they have is in tatters and stiff with filth.”

A Georgia report was similar and included moral conditions where “men and women chained together and occupying the same sleeping bunks. The result is that there are now in the Penitentiary 25 bastard children, ranging from 3 months to five years of age.”

Historians have had to looked to Medieval torture and the death camps of WWII for comparisons.  

In one year in Arkansas, the death rate on the lease system was 25%. This was exceptional as the average yearly death rate for black prisoners was about 11%. This system required having enough prisoners.

The convicts were in these camps were 95-100% black, and they were often arrested as chicken thieves, or vagrants and other piddling matters. As one late 1800’s warden said “In the early days it was possible to send a negro to prison on almost any pretext, but difficult to get a white man there, unless he committed some very heinous crime.” Chicken thieving fueled this system and the disproportionate racial makeup of the system remains.

Chicken thieving and tenant farming are gone now. But some things don’t change. The chicken thief is never pardoned. As one young man resigned to his fate wrote:

Goin’ to my shack,
Goin’ have hump on my back;
Nobody’s business but mine.

Goin’ be hump on my back;
So many chickens in the sack.
Nobody’s business but mine.

Chickens in my sack,
Big hounds on my track,
Nobody’s business but mine.