ATLAS/BRIEFINGLaw, organized for consequential decisions.

PROP · PRACTICE DESK

Property & Development

Title and survey risk, boundary and easement conflicts, construction change control, and commercial acquisition diligence — the paper that governs land, buildings, and the money in between.

Foundational briefing

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PROP-01 · 01

Title Insurance and Surveys: What Each Protects in a Real Estate Purchase

8 MIN · PROP

A title policy insures the record; a survey establishes the ground. This brief maps what each one covers, which standard exceptions a survey can remove, and where both leave the buyer exposed.

  • A title policy is an indemnity contract covering defects that existed on the policy date — it does not insure against future events or physical conditions.
  • The lender's policy protects the lender's lien for the loan balance only; a buyer who wants protection must buy a separate owner's policy.
  • ALTA forms carry standard exceptions for survey matters, parties in possession, unrecorded easements, unrecorded mechanics' liens, and taxes not yet shown of record.
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PROP-02 · 02

Easements and Boundary Disputes: Documents, Use, and Available Remedies

8 MIN · PROP

Neighbor disputes over crossings, fences, and driveways are decided by how the right arose. This brief sorts the origins first, then matches each one to the remedy that actually fits.

  • An easement is a nonpossessory right to use someone else's land; it can arise by grant, reservation, implication, necessity, prescription, estoppel, or dedication.
  • A prescriptive easement gives use rights only; adverse possession transfers ownership and generally requires exclusive possession that prescription does not.
  • Statutory periods, tax-payment requirements, and boundary doctrines such as acquiescence and agreed boundary differ substantially from state to state.
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PROP-03 · 03

Construction Change Orders: Scope, Price, Schedule, and Documentation

9 MIN · PROP

Most construction payment fights are not about whether the work was done. They are about whether the paperwork that authorized it exists. This brief maps the sequence that decides those claims.

  • Work changes three ways: a signed change order, a unilateral directive the contractor must follow while price is unresolved, and conduct that changes the work without paper.
  • A constructive change is extra or different work compelled by owner conduct rather than a formal order; it is provable, but only with contemporaneous documentation.
  • Standard general conditions, including the AIA A201 family, impose short written-notice periods for claims — commonly measured in days from the triggering event.
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PROP-04 · 04

Commercial Real Estate Due Diligence Before Closing

8 MIN · PROP

A diligence period is short and the findings that end deals are not evenly distributed. This brief sequences the work so the discoveries that kill a transaction surface first.

  • Order diligence by kill risk: environmental, title and access, zoning and entitlement, then lease and income verification, then condition and cost items.
  • A Phase I environmental site assessment performed to ASTM E1527-21 is the route to satisfying EPA's All Appropriate Inquiries rule and the CERCLA landowner liability protections.
  • Those protections require continuing obligations after closing, and they do not reach every contaminant, every statute, or common-law claims by neighbors.
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PROP-05 · 05

Environmental Liability in Property Transfers: CERCLA and the Defences

9 MIN · PROP

Buying contaminated land can make the buyer liable for cleanup it did nothing to cause. This brief sets out how that happens, which federal defences exist, and what each one costs to keep.

  • CERCLA liability is strict, joint and several, and retroactive: a current owner can be held responsible for contamination caused entirely by someone else, decades earlier.
  • The bona fide prospective purchaser, innocent landowner, and contiguous property owner defences all require All Appropriate Inquiries completed before acquisition — never afterwards.
  • Each defence carries continuing obligations after closing. Ignoring land-use restrictions or refusing site access can forfeit a status that was validly earned at purchase.
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PROP-06 · 06

Water Rights and Drainage Disputes Between Neighbouring Owners

8 MIN · PROP

Two different fights hide under the word water: who may use it, and who must accept it when it runs downhill. The governing rule is state law, and it changes at the state line.

  • Most western states allocate water by prior appropriation — first in time, first in right, conditioned on continued beneficial use — while most eastern states apply riparian doctrine.
  • Groundwater runs on its own doctrines, which include rule of capture, reasonable use, correlative rights, and appropriation, and often differ from the surface rule in the same state.
  • Unwanted surface drainage follows one of three rules: common enemy, civil law, or reasonable use, and many states apply a modified version of whichever they nominally follow.
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PROP-07 · 07

Purchase Options and Rights of First Refusal in Real Property

8 MIN · PROP

An option is fired at the holder's choosing. A right of first refusal only wakes up when someone else makes an offer. Confusing the two produces most of the litigation in this area.

  • An option is exercisable whenever the holder elects during its term; a right of first refusal stays dormant until a third-party offer the owner will accept appears.
  • Options generally need a stated term, a price or a price mechanism, and consideration; without those, courts treat them as revocable offers or as unenforceably indefinite.
  • Rights of first refusal live or die on the transfer definition: affiliate transfers, foreclosure, condemnation, gifts and portfolio sales are commonly carved out.
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PROP-08 · 08

Payment Bonds and Miller Act Claims on Public Projects

8 MIN · PROP

Public property cannot be liened, so the payment bond is the unpaid contractor's security. This brief sets out who it covers, the two deadlines that control, and where state versions diverge.

  • Federal property cannot be encumbered by a mechanics' lien, so the Miller Act payment bond is the substitute security for those who furnish labour or materials.
  • A claimant without a direct contract with the prime must give written notice within 90 days of its last labour or material, or the bond claim is lost.
  • Every Miller Act suit must be filed within one year of the claimant's last labour or material, in the federal district where the contract was performed.
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PROP-09 · 09

Operating Expense Reconciliation: Auditing a Commercial Landlord's Charges

8 MIN · PROP

A reconciliation statement is an arithmetic conclusion drawn from a lease. This brief works backwards from the invoice to the clauses that produced it, and to the audit clock that closes the argument.

  • Operating expense disputes are lease-interpretation disputes: the inclusion list, the exclusion list, the pro rata share definition, and the cap language decide the answer.
  • Gross-up provisions adjust variable expenses to an assumed occupancy level; applied to a comparison year but not the base year, they inflate the pass-through.
  • Caps only bite if the lease says they are cumulative and compounding, and most caps exclude taxes, insurance and utilities as non-controllable expenses.
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PROP-10 · 10

Development Agreements, Exactions, and Impact Fees

9 MIN · PROP

Approval conditions are where most of a project's cost is set. This brief separates what a local government may lawfully require from what a developer agrees to buy peace.

  • Approval conditions fall into three families — dedications of land, required off-site improvements, and money — and each is tested slightly differently.
  • A condition must have an essential nexus to a legitimate government interest and be roughly proportional to the project's actual impact, on an individualised assessment.
  • The Supreme Court held in 2024 that this scrutiny is not avoided merely because a fee is imposed by legislation rather than by an official's discretion.
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Scope

Questions this desk answers

  • What does my title policy actually cover?
  • Who has the right to cross this land?
  • Was that change order properly authorized?
  • What must diligence uncover before closing?
Reference

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