WEEKLY ROUND-UP

A: Generally, in Michigan, when one party wishes to remain the owner of a property but a joint owner wants to sell the property, an action of partition is advisable. This is when both parties cannot work the matter out between themselves. The court orders the sale of the property, and the net proceeds from the sale are divided in accordance with the court orders. In this case, 50/50. This is also going to be dependent upon how the title was taken – meaning that deeds have ‘magic” vesting language that may or may not allow a court to order a 50/50 split. Seek the advice of an experienced real estate attorney.

A: The adverse possession time frame in Michigan is 15 years. The elements needed to establish adverse possession are: 1) possession under the claim of right or color of title; (2) actual, open, and notorious possession that gives reasonable notice to the true owner; (3) possession that is hostile to the true owner; and, 4) continuous use for the 15 years claimed. Before the 15-year period elapses, the quickest and easiest way to defeat an adverse possession claim is to provide written notice to the other party that they either do or do not have permission to use the property at issue. Your “permission” is key to undermining one of the elements listed above. Make sure you send a certified notice and seek the advise of good real estate counsel.

A: You could use it, but you would be considered a trespasser. You may be able to obtain the right to use the “road” through a legal process known as easement by prescription. Similar to adverse possession, you must use a portion of a parcel of land in a manner that is open and obvious to the landowner, and it must be used consistently for a certain number of years. You would need to file an action only after you had a real estate attorney review and opine on all of your documents.

A: Any time there is a transfer of real estate in Michigan, the local property tax assessor is supposed to re-assess (uncap) the real property’s taxable value up to 50% of the real property’s current fair market value. Whether there is an exemption to this rule will be dependent upon the status of the grantor that conveyed the property and their relationship to the grantee. So we would need more information on the entity that you conveyed the property to. Ladybird deeds between close family members would be a good example of a property tax exemption. Seek the advice of real estate counsel before proceeding with a property conveyance.

A: A deed is essentially a contract that conveys real estate. Once the deed is signed over to another party (the grantee), the grantor (the person deeding the property) has no further interest in the property. There are exceptions to conveying real estate by deed, and when it comes to probate or estates, a real estate attorney should review the deed to see that it was executed properly and that it contains all of the items within the document that will make it legal.

A: It is better to make payments directly to the land contract seller, provided that you make your payments with a check or some other verifiable payment source. Some sellers do not want to collect the payment directly and can designate a bank account or a third party (such as an escrow agent or attorney) to collect the payment. The most important thing you need to know is that when making payments, keep track of the date the payment is made and the amount paid. You can do this on a spreadsheet. You should do this so that later, when you have to pay off the land contract, you have accurate payments and do not have to rely upon the seller’s ‘recollection’ of payments made.

A: Changing rules and fees mid-lease can only be done if the lease provisions provide for such changes. Leases are contracts that can be negotiated, and so what the parties to the lease agreed to at the onset of their relationship would prevail. The lease should be reviewed by an attorney before signing as you don’t want to be in default of any lease provision and risk losing your security deposit or even worse, occupancy.

A: Generally speaking, a free initial consultation does not include a full legal study or advice from the attorney. It’s more important to have a broad understanding of the problem and assess whether legal assistance is necessary. A good and qualified attorney is unlikely to offer a thorough legal strategy, document review, or legal action plan during a free consultation since this would require closer knowledge and investigation of the matter. A free consultation has no hourly charge; it is a cursory overview of your situation in a 10 to 15-minute session.

A: Sue the debtor for the balance invoking this provision. You don’t have to sue for a judgment in Georgia. You can file in the state in which the contract was executed and where the debtor or lender resides. You have to first obtain a judgment by filing a winning lawsuit. Then you can pursue the debtor. You should also consider the statute of limitations. In general, receipt of the last payment in 2011 may only give you until 2017 to collect. Check your state statutes.

A: The terms of your lease control. What you want to negotiate and what the landlord will agree to are two different things. Maintaining your home during the lease usually falls upon the landlord, but I have seen many leases with yard duties or restrictions in them. It will all depend on what both parties agree to.

A: A quitclaim deed is one type of deed that can be used to transfer real estate. It is a very easy form to complete. However, while the form may be straightforward, the circumstances surrounding the transaction need to be examined. The grantor of a quit claim makes no representations as to the marketability of the title. They are giving whatever interest they have in the property, which could be nothing, or it could be loaded with liens and other title problems. Accepting a quitclaim for a property means that the grantee agrees to take the property with all the title deficiencies with it. It’s best to have a real estate attorney review the title and understand what you are trying to accomplish by using a QCD. There may be better transfer documents that warrant the quality of the title and keep you from legal trouble at a later date.

A: The land contract terms control, but generally speaking, without a provision that prevents you from doing so, you should be able to sell the property. If there are profits to be made, coordinating this will take professional assistance from a real estate attorney/professional, and it should be done before you request a land contract payoff from your seller. Otherwise, your current land contract seller could take advantage of the situation.

A: Sounds as if this did not have to be so ‘tough’ had there been more legal forethought in the preparation of the deed. So the best thing you can do is to first provide a copy of the Quitclaim Deed (QCD) to a real estate attorney to review. We would need to know the title history after the specific deed you refer to was endorsed. Were there subsequent deeds on title? Was there a will? In all likelihood, your deceased brother’s estate will require a probate for your former sister-in-law to assert her interest. However, from what you are stating, it doesn’t sound as if you will be selling your property soon without an attorney’s assistance. I am sorry to learn of your circumstances, but deeds are legal instruments that have far-reaching legal consequences and should not be completed ‘lightly.’

A: Generally, challenging the foreclosure should really be brought during the redemption period. Courts have ruled that once the homeowner does not have standing (right to bring an action) to bring an action after the redemption period has expired, there is no longer a mortgage on the property, so there is no further interest. Federal law gives you some remedies through the Federal Consumer Protection Act or Bureau. At the very least, 2 years from the date of the foreclosure sale would seem like the appropriate statute of limitations unless there was fraud committed.

A: Piercing the corporate veil refers to a special instance where the court holds the shareholder or director of a corporation personally liable for the corporation’s debts. Piercing the corporate veil is also known as veil-piercing, disregarding the corporate entity, or lifting the corporate veil and exposing the owner to personal liability. The corporate veil can be lifted, and penalties can be inflicted upon the person representing the company because the owner is not meeting their corporate duties under the law, most likely because they are co-mingling business and personal funds or they are not keeping corporate minutes and procedures. They treat their company as a personal asset, hiding behind it for liability protection, but it really is just their ‘alter ego,’ and the owner is not doing anything in furtherance of their corporate responsibilities. You need to consult with your business attorney immediately to avoid potential personal liability.

A: After the redemption period expires, if you wish to purchase the property back, you need to approach the foreclosing lender or the investor who purchased the sheriff’s deed at the sale. It is not automatic. Your rights have been extinguished. If the investor wants to sell the home back to you, you will need to negotiate the price and terms. Otherwise, prepare for an eviction.

A: If you are in a flood zone, it should be disclosed. Moreover, if the buyer obtains financing with a government backed loan such as FHA or VA, the underwriter will require a flood certification. The buyer will know eventually. In a conventional or alternative loan transaction, where the flood certification is not usually performed, I recommend that buyers have a flood certification so that there are no surprises later as flood insurance is expensive to obtain.

A: Generally, the power of attorney must address the right to deed that specific property. In Michigan, the power of attorney must be filed with the county in which the property sits. It is also best to have a third party witness the signing of the deed, since at a later date, if you have other siblings interested in the home, they may contest the legal sufficiency of the transaction.

A: I don’t recommend selling your home to a third party if the home is somehow involved with the business. Normally when real estate is involved in litigation, it is considered a fraudulent transfer in anticipation of litigation, if you sell the home to get it out of your name and avoid judgement creditors. If challenged, it can be undone by the court and you could be held in contempt of court. So, it could be argued that as long as there is a different intent behind why you are transfering the home, then it is not a fraudulent transfer. However, if there is any relationship between the home and the business agreement, then I would advise against it.

A: You have to wait until the 90-day redemption period is over. You could have the court declare the property abandoned, however, depending on how far along you are in the redemption period, it may not be cost-effective. A court hearing might be scheduled soon before the redemption has expired anyway. You do have the right to inspect and protect your property during the redemption. As for selling the property, there isn’t a title company that I am aware of that will insure the title when the property is still in redemption. A way to close it would be to have the land contract buyer provide you with a quit claim deed, canceling any further property interest.

A: You should photograph the tenant’s personal items, set them in a safe place, and send a notice to any forwarding address in the event that she claims she is coming back to pick up the items. You have the right to secure and repair anything in the unit, but again, photograph any ‘before and after’ repairs and deduct the costs from her security deposit. You need to exercise caution because landlord – tenant law can get tricky, and you do not want to get into a situation whereby the tenant accuses you of “Lock-Out,” which has significant damage penalties for a wayward landlord.

A: You first need to limit your options and consult with a Real Estate Attorney. This is not an easy situation to unwind if you have a mortgage securing the additional acres. However, it can be done if the additional acreage did not add any significant value to the home. (Usually a home is appraised on the first 5 acres.) You should definitely have a competent real estate attorney (not a criminal attorney or a personal injury attorney—a real estate attorney) review the papers before you do or concede anything to any “claimants” about this property.

“A: Sure, the title agent will be responsible to the buyer to clear the lien by paying off your line of credit. Then, the title company will soon be coming after you with a lawsuit. If you knew of the credit line and failed to disclose it to the agent, you will be held legally accountable. They will rightfully want the money back from the additional proceeds disbursed to you at closing. Do the right thing.

A: That sounds unusual and I would need to know more, but generally, a judgment for divorce or an outstanding and valid power of attorney can both work to allow the transfer of title without your signature. A title underwriter can look to the filed divorce decree to make that decision without your further involvement.

A: From your fact pattern, it sounds like you are saying she lost the property to ‘tax foreclosure.’ If this is the case, she no longer has an interest in the property and can’t evict. However, if the landlord still has her interest in the property (she may have been given the right to still redeem the property tax delinquency in Wayne County) then this will not negate your obligation to the landlord under the lease.

A: Depending on the amount of the balance owed, it is very possible to negotiate a settlement even though you have a judgment against you. Seek professional assistance to do it the proper way. You may be able to get the interest waived or reduced. Additionally, you may be able go back into court and request an instalment payment arrangement if the creditor refuses to cooperate with you.

“A: This is a very sensitive area of law and one must tread lightly under the law or face huge financial and legal consequences. To prove slander of title under the common law, a claimant “must show falsity, malice, and special damages, i.e., that the defendant maliciously published false statements that disparaged a plaintiff’s right in property, causing special damages.” Federal Nat Mortg Ass ’n v Lagoons Forest Condo Ass ’n, 305 Mich App 258, 269-70; The aggrieved party must show that a claimant must “knowingly file an invalid lien with the intent to cause the plaintiff injury.” Michigan Nat Bank & Trust Co v Morren, 194 Mich App 407, (1992) To show malice, one must show either express malice,” which “implies a desire or intention to injure,” or implied malice,” which means “a wrongful act, done intentionally, without just cause or excuse…” Glieberman v Glieberman v Fine, 248 Mich 8, (1929). Malice cannot be proven if the claim “was asserted in good faith, upon probable cause, or was prompted by a reasonable belief that [the opposing party] had rights in the real estate in question…” Id. So having an interest in the property by way of a purchase agreement, is a valid reason to file a claim, however, there is ONE caveat, and that is the purchase agreement must state that the buyer has the right to file this claim. Otherwise, to assert an interest in a property and have a legal right to the property, one has to file an action in court requesting declaratory relief, asking the court to award the property to the aggreived party.

A: Generally, in Michigan, stating ‘Married’ in the warranty deed will have the same legal effect as having a joint tenancy with rights of survivorship. Deeds contain “magic” legal language, and if the vesting clause (how grantees receive title) is not appropriate for the grantee’s circumstances, then it is important to speak up right away, contact a real estate attorney. Do not complete the transaction until you know for certain that the vesting language is how you wish to hold title.

A: Highly unlikely. Without anything in writing, the landlord could claim that you paid a non-refundable fee to hold the unit. This is why people need to reduce their agreements to writing, especially in real estate. You could still go to small claims court.

A: There is a rebuttable presumption against the conveyance or transfer of the home to your step-brother since he may have had what is known as ‘undue influence’ over your step-dad. He has to prove that your step-dad freely gave the property willingly over to your step-brother in the last weeks of his life, where he may have felt vulnerable. It is his burden to prove this. Unfortunately, you have to go to probate court to assert a civil action against your step-brother. Just so you know, there were other means to protect your step-dad’s property from this situation and it did not involve having a will. Consult with a real estate or probate attorney on this matter further.

A: First, you should definitely consider a durable power of attorney specifically drafted for your real estate transaction. In fact, property law will require a specific power of attorney to name this property, if you are incapable of signing documents yourself because of your medical condition. Pre-signing closing documents is a bad choice and not recommended, because real estate transactions and related documents change frequently, even at the closing itself. See your attorney to have a specific power of attorney drafted.

A: You should still try to fix the foundation problem during the time that you are pursuing a legal action. This is kno wn as “mitigating your damages.” The law requires that a party who has experienced a loss or harm take reasonable steps to decrease the extent of their losses rather than sitting back and letting the losses pile up. This theory applies to a wide range of legal issues, and is especially prevalent in property damage claims.

A: First, your father should give you an assignment of the land contract provided that the land contract terms allow for an buyer’s assignmen t. Most Land Contracts wi ll have favor rable terms for the seller to be able to assign their i nterests, but this is not typical for buyers. Second, a deed is worthless as your father does not have a title in his name. It is still with the seller. A deed (quitclaim preferably) would do very little at this time. Finally, a lender will most likely require that you should be on title for at least 12 months before you could finance the property in your name. Get the seller to approve the assignment of the land contract in your name as buyer, and make verifiable payments under the land contract for 12 months, then you can get a valid deed upon the payoff.

A: You can decide to just take the Seller’s warranty deed, which warrants to the buyer that the seller guarantees their title is clear. However, in the event that you need to actually call upon the Seller to make good on their guarantee, who is going to reimburse you for the significant monetary costs for defending a lawsuit ? The title insurance is the policy that pays for the legal costs when going to court to enforce your claim. The cost -benefit analysis cannot be emphasised enough – pay for a title policy. So many things can go wrong in real estate, and having this insurance is invaluable.

A: First, you should know that unless the land contract prevents a party from assigning over a contract to another party, then the assignment itself is valid assuming you are also notified of the assignment. Secondly, the new assignee to the land contract will need to honor the terms of the land contract. The only time a balance is due under a land contract is where a buyer’s default exists, or where there is a balloon payment due. So, which one is it then? If it is neither, the new assignee of the land contract cannot now call the land contract due simply because he is the new assignee and where the buyer is in compliance with its payment terms and other provisions.

A: Your next legal steps will be dependent on the terms of the divorce decree. You may have to go back to court and motion the court to enforce the terms of the agreement, to remove your name from the home. Additionally, you may want to bring a copy of the divorce decree to your tax assessor, who may be able give you the exemption nonetheless. You can only have one principal residence at a time and so the exemption is available for only one of the properties.

A: Yes, it is legal. Realtors can credit or reduce their commission to the buyer or even seller in a closing to cover closing costs. This should not be confused with a real estate agent sharing their commission with an unlicensed person, which is illegal. Also, ‘kickbacks’ are a violation under federal law (ReSPA). For instance, a title company cannot pay the realtor a fee for referring a seller or buyer. Still, this would be different than a title company reducing or waiving their closing fee for a buyer or seller.

A: Certified mail or certificate of mailing is the best way to prove that you provided notice to another party of a legal concern. More importantly, you always have to refer to the notice provisions of the contract. Even if you could prove that your email was sent and received, if the contract required you to provide notice through another method, it will be unlikely that you can prevail on the argument that you provided valid notice.

A: For a deed to be valid, it has to be accepted or delivered. Your brother and mother received title as tenants in common when they purchased the condo. So his estate has a 50% interest in the property. Unless he has made a will, his interest will be need to be probated and the rules of intestacy will prevail. Who gets his interest will depend upon his direct relationships and whether he was married or not.

A: Without a written purchase agreement, you do not have a valid contact. Real estate transactions, especially those dealing with purchases, need to be in writing pursuant to the Statute of Frauds. My suggestion is that you return the deposit. Based upon your facts, you haven’t even detailed the terms of how the deposit was to be treated. Questions remain as to when the deposit was to be credited to your proposed buyer or what bank or title company was holding the deposit. What other contingencies affect the deposit? Without written detail this ‘transaction’ is difficult to enforce. Hence, the need for a written document with specific provisions to guide the parties to a closing.

A: Generally speaking, a property can be considered abandoned when it is determined by a court officer or a court with proper jurisdiction, that a tenant has abandoned the property. Alternatively, if the tenant provides you with keys to the property, that is considered delivery of their interest. Other than that, you need to proceed with caution as you do not want to lock someone out of the home believing that they ‘abandoned’ the property. You can subject yourself to a serious lawsuit for ‘lock out’ which can be VERY expensive. Contact a competent real estate attorney before you proceed further.

A:  You may want to consider a private access agreement or an easement to preserve the previous informal arrangement. There is a saying that ‘you can pick your friends, but not your neighbors (and relatives.) If you don’t formalize access, your new neighbor could prevent you from accessing your well and cost you thousands to replace your well. Seek a real estate attorney for the proper easement.

A: Whether or not the ‘Guru’ is liable to you will depend on the contract and also on the extent of the due diligence that you undertook on your own. Before purchasing a property, the buyer should always take a ‘due diligence’ period to inspect the home and verify the municipal codes that regulate rental or investment property. If the ‘Guru’ was acting as your agent, then they may have a fiduciary duty to you. But if they are acting merely as a seller, then they may or may not have an obligation to you. A real estate attorney should review your contract to determine legal responsibility and available legal remedies against the ‘Guru,” if any.

A: In Michigan, not every estate must go through the probate procedure. This is because with proper estate planning, assets can be disbursed outside of a probate action. So probate may not be necessary if the deceased left behind a modest estate with few assets. However, a beneficiary or immediate relation such as a child or parent can dispute legal documents that purport to convey assets before a death. So it is critical to first speak with a lawyer to determine whether a probate action is required in your particular circumstance before you make allegations of fraud.

A: Good question. These items that you wish to have, such as a non-compete or a non-circumvention contract, are documents that should really be agreed to at the time you and your partner did your initial business deal – so PRIOR to the actual dissolution of a company and not during a dispute. Coming to terms with these items during dissolution negotiations will definitely make things more difficult for the parties, but “Yes” these items can still be settled and agreed to as part of the termination of the business relationship.

A: Generally speaking, if you initially took the mortgage out as a primary residential mortgage (or owner-occupied home) and you LIVED in the home for at least a year, there should be no issues with you moving out and renting the house. This is far different than selling a home on land contract, which would invoke a “due-on-sale” clause in your mortgage agreement and it would be cause for the lender to call your mortgage due and payable immediately. You should have an attorney review your mortgage documents further if you are unclear about how your mortgage provisions apply to you.

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A: We are very sorry for your loss. Generally speaking, the ex-spouse has no authority to do anything related to funeral arrangements for the ‘son’ unless your deceased son left a will stating otherwise. The father or parents have the right and authority to conduct funeral arrangements for the son. If the funeral home has issues with that, then a probate court order will be necessary.

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A: Your issue with the property line is between you and your neighbor. It has nothing to do with the contractor. The Contractor has a relationship with the neighbor. Your legal rights are against the neighbor in an action to quiet title (if it escalates to that) but the contractual relationship is between the neighbor and the Contractor. If the Contractor made a mistake, they are obligated to the neighbor to correct it. They have no obligation to you.

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A: Generally, most purchase agreements call for the seller to leave their property “broom swept.” If you made several attempts to contact the seller either directly or through their real estate sales agent, you shouldn’t have to do any more for them. If it were me, I would give them 30 days to pick up their items, hold on to it for 30 days and then dispose of it. Failing to leave the property “broom swept” is a violation of the agreement.

A: The language related to “sole survivor” likely relates to the actual conveyance language and how the grantor conveys their legal interest to the grantee. This is sometimes called “vesting language.” Deeds do have “magic” language in them, so how property is granted and what the deed says will certainly affect a person’s legal rights to a particular property. You should have a real estate attorney review the deed so that you understand your current property rights. That being said, building restrictions, among other things, can be found in “restrictive covenants.” Restrictive covenants are often referenced in deeds, and so you may or may not be allowed to put a structure on the property. Only a licensed and well-informed real estate attorney can review the deed in question and give you legal advice on how to proceed further.

A: You may have to pursue a court action to obtain an easement by necessity. Courts may grant this type of easement if the access is absolutely necessary to reach the landlocked parcel and there has been some original intent to provide the lot with access. Also, an attorney would need to review the recorded easement to see your neighbor is using it in accordance with the original intent of the grant for the easement. The current access you have may be burdensome. However, if this access is recorded or meant to be the access point, you may have difficulty proving an easement by necessity. Like so many legal issues, further investigation into case law by a real estate attorney seems to be more than appropriate here – gleaning internet information is no substitute for competent legal skill, experience and knowledge.

A: The land contract is an executory contract, and therefore, the estate of the decedent will be bound by the terms of the seller or buyer. When drafting the contract, there should be provisions that state that the contract will be binding on heirs to the decedent. It is unlikely that beneficiaries to the estate will be able to set aside the land contract terms. They, as well as the personal representative of the estate, have the authority to enforce the terms of the contract. Finally, speak with an attorney on the subject of law, not a commissioned sales person whose business it is to sell real estate. The attorney who focuses in the area of real estate law and probate has what it takes to give you solid legal advice on your legal concern. Leave the sales of the home to the sales agent.

A: Based upon your brief narrative, the life estate is extinguished upon the death of the mother. If her children are not included in the will and they are still living in the home, then without a written lease they can be evicted. Their property rights if any, flowed from their mother. Any documents that you have need to be reviewed by a real estate attorney.

A: If he fails to endorse the deed, you may have to bring a legal action. Your question begs for more questions. Was this your mother’s home initially? Are you a personal representative of the estate? Was a probate even filed? If not a probate, could this be a partition action? So you see, real estate attorneys like myself would need more information to assist you.

A: First, the title examiner could do a bit more research and do a social security search to verify who the bank’s judgment is against. Another very quick way to get this resolved is to have the bank endorse a certificate of non-attachment. This attestation is most commonly requested when a person with a similar name is confused for the homeowner who is named on a judgment or Notice of Federal Tax Lien. It will help clarify whether the attachment of the lien in question is appropriate for the specific property.

There are also alternatives to have the estate probated even without your brother’s cooperation. It just makes for an even longer legal process.

A Quit Claim deed doesn’t contain any warranties. It is basically a document that conveys any interest that the grantor MAY have in the property; which could be no property rights at all. That is why the title insurance agent will not insure over a quit claim deed.

It does not matter how a deed is titled. The substance of the legal language contained within the deed controls.