WEEKLY ROUND -UP

Each Week We Answer 100s of Legal Questions.  These are some of the questions.

 

 

 

 

 

 

Week Of Jan 21, 2023

QUESTION NO. 1: "I’d like to keep the house I bought with girlfriend but she will not let me buy her out nor will she agree to sell. She is 50/50 on deed in Michigan and mortgage is in just my name. Do I have options?"

A: A real estate attorney will need to see how the title on the deed is held. Being 50% owner is not enough for a court to intervene with legal instructions as to how a property may or may not be partitioned. Real estate law is steeped in centuries of legal history – deeds contain “magic” legal language that has serious legal consequences. So have the deed reviewed by a real estate attorney who can tell you best how to proceed.

QUESTION NO. 2: "We sold our cottage on a land contract. The buyer is asking for a quitclaim deed so she can get help with repairs since she is now handicapped and habitat for humanity is saying she needs this in order for them to help her out. My concern is the loss of money owed to fulfill the contract?"

A: Until the buyer satisfies the terms of the land contract, they should NEVER be given a deed. That is the point of having a land contract. It works like an installment sales contract; only upon successful completion of all terms will the buyer satisfy the agreement and have a legal right to the deed. Until all instalments are paid, the buyer has not earned the right to property.

QUESTION NO. 3: "I was buying a house out of a probate and waited for months because the estate had to get permission to sell from the court. Three days before the closing date, the estate says they are now selling it to one of the sons. What are my rights?"

A: It will depend on what the purchase agreement between you and the seller says. Whenever you are dealing with such a large purchase, such as a home, and there are legal proceedings, probate or otherwise, it is best to have your own attorney represent your interest as the purchaser.

Week Of Jan 7, 2023

QUESTION NO. 1: "In disclosure the seller said a hot tub would not stay. We asked to keep in via the purchase agreement, they signed it. Who is right?"

A: A purchase agreement is a legally binding contract. Generally speaking, if the seller represents in the purchase agreement that an item will remain at the home after the sale, then they need to leave that item when they close on the home.

QUESTION NO. 2: "My former business partner removed me from the deed to a business property we owned together. My name is signed on the deed, and the signature is notarized, but on the date in question, I can prove that I was out of the country. What can I do?"

A: You should challenge the deed for fraud and have your signature verified by a handwriting expert. If the notary does not recant, and if your former business partner refuses to correct the problem then you will have to challenge the validity of the deed with a lawsuit.

QUESTION NO. 3: "I purchased a home with a pool in the winter. It was covered at the time of the home inspection. Once spring came, we removed the cover, it revealed that the pool was in terrible working order. The sellers deny responsibility. What are our rights?"

A: First, your sellers should have completed a separate disclosure form for the pool. These are necessary especially when the purchase transaction occurs in the winter, where it is virtually impossible to inspect a pool’s overall condition. If one was not completed, but still the seller failed to reveal the pool’s true condition, they still may be held accountable for intentional misrepresentation and in certain circumstances, you may be able to rescind the entire transaction even after the closing.

Week Of Dec 17, 2022

QUESTION NO. 1: "Can a township building inspector enforce more stringent building code requirements that exceed the state's building code? I am rehabilitating a historic barn as a residential home. There are some challenges because of the age and location of the barn and I have been told to get a structural engineering report before I proceed further."

A: Generally, the municipal building codes will set the forth minimum construction standards required to complete a building project. Your property sounds unique and therefore, it creates concerns for the building inspector. They can request an engineering report in order to issue your permit.

 

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QUESTION NO. 2: "I want to sell my home without my wife’s signature. The home was purchased during the marriage, but the title and loan are in my name only. Do I need her signature?"

A: In 2017, Michigan ended what you describe as “dower rights”. A spouse’s signature is no longer required to convey property. However, this does not mean that the title insurance company won’t still require her consent in order to convey marketable title.

QUESTION NO. 3: "We are in a contract to purchase a bank-owned auction property. We had to put down a 5% buyer premium on the house. The house appraised for $10,000 under our winning bid. If the bank is not willing to let the property go for the appraised price and we have to walk away, are we able to get our 5% buyer's premium back?"

A: When dealing with a private property auction company be prepared to engage with a more involved sales contract. They are very often “boiler-plate” and favorable to the seller. From the facts as presented, the contract provisions will prevail. Usually, there is very little room for refunds. A competent real estate attorney should review your document further. It is also better to have an attorney draft or review the sales auction contract beforehand, and not after the fact.

Week Of Dec 10, 2022

QUESTION NO. 1: "I own some real estate with a friend. We are falling out. Can a property owner force the co-owner to sell the jointly held property in order to obtain their share of a property's value?"

A: Tenants in common can compel the sale of a co-owned property through a legal action called “partition”. In certain circumstances where ownership is held as joint tenancies, courts cannot compel co-owners to sell their property. This is why it is so important to have an attorney review the “magic legal language” when creating a deed so there are no far reaching legal consequences that one lives to regret at a later date.

 

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QUESTION NO. 2: "Our real estate agent is acting as our buyer’s agent and she disclosed our financial information to my brother-in-law. Is this legal?"

A: Well, it would be quite unprofessional and unnecessary if your brother-in-law has no relation to the contemplated purchase transaction. You may want to contact the agent’s broker or the State of Michigan (LARA) to register a complaint. With regards to bringing a legal action, you would have to show how you were financially damaged.

QUESTION NO. 3: "When will a second addendum to a purchase agreement supersede the terms of a first addendum? The real estate agent wants to enforce terms to our agreement that we thought were removed by our second addendum?"

A: A purchase agreement can have multiple addendums. With each new addendum, the provisions found in the earlier purchase agreement and / or addendum will remain enforceable unless they are specifically revoked.

Week Of Nov 12, 2022

QUESTION NO. 1: "In my divorce judgment, I was given exclusive rights to a rental property of ours. My ex-wife is refusing to sign the refinance paperwork, removing herself, and initiated an eviction of my renter at the property. What should I do?"

A: The lender should recognize the judgment giving you the exclusive rights to the property, provided that the court order for divorce that awarded you the property was recorded with the registrar of deeds.

 

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QUESTION NO. 2: "What is the difference between a mortgage broker and a mortgage lender?"

A: Mortgage lenders and banks control the entire financing process, while mortgage brokers are ‘money-finders’ and typically do not control the underwriting process or funding of a mortgage. In my experience, while brokers are better able to shop your loan request around to different lenders to get the best rate and terms for their clients, lenders can make quicker and more flexible loan decisions.

QUESTION NO. 3: "I'm buying a home. The seller's trustee had a life estate and was allowed to sell the property during their lifetime. They died soon after they signed the purchase contract. Does this bind the trust beneficiaries?"

A: The provisions of the trust should control. Regardless of their recent passing, if the seller had the authority to sell the property during their lifetime, then the other beneficiaries of the trust are also bound by that provision. This is provided however, that your sales agreement was signed by all parties and there were no further contingencies to close your transaction.

Week Of Nov 4, 2022

QUESTION NO. 1: "If I am the seller on a land contract, how is my interest protected if there is a fire or other damage to the home? Do I need to get hazard insurance or does the buyer? How does this work?"

A: Your buyer has an insurable, equitable interest in the property. The buyer needs to have a hazard insurance policy on the home for the purchase price — at a minimum. They then named YOU as the LOSS PAYEE on the insurance policy. If there is a fire or any other damage, your balance gets paid off first. You are the legal owner. The buyer gets the difference between what they owe you and what they insure the property for. That’s how it works.

QUESTION NO. 2: "My seller's partner needs to sign papers to close the home. He is not lucid. Their realtor said she would get him to sign a power of attorney to his son. Is this right or even legal?"

A: If the seller is not competent to sign closing documents, he certainly cannot make his son his power of attorney at this point. Instead, the family needs to file for a conservatorship and have the court appoint the son as a conservator. A conservator is legally authorized to manage an incapacitated person’s financial affairs. This would include the sale or mortgage of a home. While this may delay the closing, doing anything less than this may open the transaction up to legal challenges later.

QUESTION NO. 3: "The contractor I hired is ignoring my calls to do the agreed upon work? What are my rights against a company who took but did not earn my money, according to a contract?"

A: If your contractor has failed to provide the services that you hired them to perform, then you have a breach of contract claim. If you are not having success with resolving the matter on your own, then seek out the advice of legal counsel — often, a little legal pressure can go a long way.

Week Of October 29, 2022

QUESTION NO. 1: "I purchased a mixed-use property. I have several tenants that are leasing from me, but these were leases in effect at the time that I purchased the building. If the lease agreement is for three years after that period, can I raise their rent amount?"

A: It will depend on what the lease provisions in the contract says. If the tenant has an option to renew for a specific amount already stated in the lease, then you may not be able to raise the rent. If there is no provision addressing an option to renew, then you can.

QUESTION NO. 2: "I am going to act as the banker for family members in order to buy property. How do I go about creating the necessary documents?"

A: It sounds as if you wish to provide private financing. You most likely are going to need to create a land contract between you and your family or create a private mortgage. Either selection has its pros and cons. You should consult with a competent real estate attorney to address your concerns further.

QUESTION NO. 3: "Can a seller's realtor sue me if I cancel the purchase agreement and back out of a closing that did not occur by the date listed in the purchase agreement?"

A: Generally “no,” the seller’s agent has no rights against you directly for commission or any other fees. Their agreement is between the seller only. However, a buyer’s agent can bring an action against you for their portion of the commission that the buyer’s agent would have earned had you closed. The seller may have an equitable action against you (depends on the remedies set forth in the purchase agreement) for specific performance and can compel a sale.

Week Of October 22, 2022

QUESTION NO. 1: "Can I sue a home inspector who had falsely reported roof conditions?"

A: Normally, home inspectors limit their liability to the amount of the price of their inspection report. They state this in their contract with the prospective homeowner. However, they are not protected from gross negligence. It is important for you to have an attorney review the home inspection report further. The extent of damages would be based upon the disclosed lifetime of the roof at the time of your purchase.

QUESTION NO. 2: "Can a mortgage company pursue me on the mortgage even after I filed bankruptcy years ago?"

A: Even though your personal liability under the promissory note has been discharged, the terms of the mortgage remain in effect and the owner of the mortgage can still have a lien on the real estate. After the bankruptcy, the lender can ask for a new payment plan from the borrower or they can foreclosure on the property. They just can’t pursue you personally.

QUESTION NO. 3: "How do I make sure that a buyer cannot back out a few days before closing on my home? Can you suggest some language to add in the contract?"

A: Valid purchase agreements are contracts and are legally enforceable. The provisions of any contract spell out the legal remedies that parties to a contract have against each other in the event one party defaults. In your instance, there should be language in the contract that addresses the buyer’s performance contingencies. Once a certain time has passed in a purchase agreement, performance contingencies need to be waived by the buyer. With the contingency having been satisfied, if the buyer defaults thereafter and does not close the transaction, the seller can then enforce their legal remedies, which will vary by contract.

Week Of October 14, 2022

QUESTION NO. 1: "My father passed away and I am the personal representative. He left a will but the home is not listed. Can I still sell the home because I am the personal representative?"

A: Being named as a personal representative in a will is not enough. You must have the Probate Court’s permission to sell the home. You cannot just sell a home that is not listed as part of the estate until you list the home as an asset of the estate.

QUESTION NO. 2: "I have real estate documents that prove I own a home, but my significant other wants to sell it without me? Can my partner sell a property that I have an interest in without me?"

A: Provided that your real estate documents are actually conveyance documents recognized by statute, and recorded, then the answer is ‘no’, your partner cannot sell the home without you.

QUESTION NO. 3: "What is a Land Contract?"

A:  A land contract is an instalment sales agreement for real estate. The seller (vendor) sells the property to the buyer (vendee), but the legal title (the deed) remains with the seller until the buyer complies with the provisions of the contract and the purchase price is completely paid off. A land contract is more or less a form of seller financing. A purchase agreement is needed to establish the terms for the land contract.

Week Of October 7, 2022

QUESTION NO. 1: "How long after a home inspection is complete do the potential buyers have to agree to move forward with a purchase agreement?"

A: That will all depend on the terms of the purchase agreement. Typically the buyer has 7 days from the date of the signed purchase agreement to perform an inspection (hire your own inspector – not one referred by your sales person). If there is a problem or concern raised by the home inspector, you usually will have 2 -3 days from the date you receive the home inspection report, to inform the Seller. These time frames can be negotiated.

QUESTION NO. 2: "I have a Power of Attorney for my wife. Do I have to be a co-signer on her separate bank account in order to access the bank account on her behalf?"

A: No. You do not have to be a co-signer on a person’s bank account provided that you have a valid Power of Attorney that gives you that authority. Just present that document to the bank official and they should accommodate you and your wife.

QUESTION NO. 3: "I agreed to purchase a building in "as is" condition. The property suffered extensive damage during the escrow period. Can I still collect the insurance proceeds paid to the Seller for extensive property damage?"

A: That will depend upon what you and your seller agreed to in the purchase agreement. If your understanding was that insurance proceeds would be disbursed to you, and it is not reduced to writing, then it is most likely that you lost the right to assert a claim for the proceeds. Our contracts have provisions that address the proper amount of insurance funds that can be allocated to either party in the event there is a problem with the property while under contract.

Week Of October 1, 2022

QUESTION NO. 1: "My son is having a hard time getting rid of everything in the home that he inherited in time for the closing. What can the new owners legally do to my son if we are unable to get rid of the contents in the home?"

A: Generally, purchase agreements have provisions that require that a home be vacated by the seller before a closing. That would include the seller’s personal property. Buyers should perform a “final walk through” of a home before a closing to ensure that the home is in the same condition that it was at the time of the purchase offer, and that repairs, if any, have been completed. Buyers do not have to close on a property if the overall condition of the home is not acceptable. If your son is having a difficult time paying for the removal of the home contents, the parties could also agree to hold money back from the seller’s proceeds to pay for the removal of personal property.

QUESTION NO. 2: "My tenant's daughter has epilepsy/autism. Her doctor prescribed her a service dog. My lease does not allow pets but according to the tenant, this dog is a psychiatric service dog, not just a pet. Can I legally say 'No' to my tenant?"

A: No. Under the federal Fair Housing Act, landlords and housing facilities must allow service dogs and emotional support animals, if necessary for a person with a disability to have an equal opportunity to use and enjoy the home. To fall under this provision, a person must have a disability and must have a disability-related need for the animal. In other words, the animal must work, perform tasks or services, or alleviate the emotional effects of your disability in order to qualify. A doctor’s prescription is sufficient evidence of the disability.

QUESTION NO. 3: "Can a purchaser legally sell or rent a house on land contract if there is a mortgage?"

A: Once a purchaser comes into legal title to a property, they can sell a property on land contract. They will need to have a real estate attorney review the underlying mortgage to see if the “due on sale” provision of the mortgage will pose a problem or not.

Week Of September 24, 2022

QUESTION NO. 1: "I have to get an apartment before closing. Can you suggest some language to add in the contract?"

A: Valid purchase agreements are contracts and are legally enforceable. The provisions of any contract spell out the legal remedies that parties to a contract have against each other in the event one party defaults. In your instance, there should be language in the contract that addresses the buyer’s performance contingencies. Once a certain time period has passed in a purchase agreement, performance contingencies need to be waived by the buyer. With the contingency having been satisfied, if the buyer defaults thereafter and does not close the transaction, the seller can then enforce their legal remedies, which will vary by contract.

QUESTION NO. 2: "My apartment complex removed everyone's balconies mid-lease. They claim that the city made them do it. What can we do?"

A: While it sounds as if the complex was removing the balconies in compliance with the city’s building enforcement, there is no harm in requesting a reduction in rent because the balcony was part of the space initially leased. You may have the ability to exit the lease without penalty, however, the lease provisions should be reviewed. A way to calculate the rent reduction is based upon the square footage of the balcony.

QUESTION NO. 3: "When a property is in foreclosure, does a tenant have to pay rent? If so, to who?"

A: Until the interest of the homeowner is completely extinguished, the lease obligation remains. But practically speaking, when tenants find out that their landlord is in foreclosure..they don’t pay.

Week Of September 19, 2022

QUESTION NO. 1: "Could knowledge of a lawsuit be considered "actual service" of the lawsuit?"

A: No, one must be personally served by a process server to be properly served, however, if, for some reason, you cannot be served personally, then the plaintiff can serve you through a court ordered publication in the legal news, regular mail or even a posting on the property. In the case of property tax forfeiture, posting and publication can be considered adequate notice.

QUESTION NO. 2: "My tenant's daughter has epilepsy/ autism. Her doctor prescribed her a service dog. My lease does not allow pets but according to the tenant, this dog is a psychiatric dog not just a pet. Can I legally say "No" to my tenant?"

A: No. Under the federal Fair Housing Act, landlords and housing facilities must allow service dogs and emotional support animals, if necessary, for a person with a disability to have an equal opportunity to use and enjoy the home. To fall under this provision, a person must have a disability and must have a disability-related need for the animal. In other words, the animal must work, perform tasks or services, or alleviate the emotional effects of your disability in order to qualify. A doctor’s prescription is sufficient evidence of the disability.

QUESTION NO. 3: "I have a former business partner trying to sue me on an old promissory note that I haven't paid on in over 12 years. How can he sue me now? So much time has passed?"

A: Generally speaking, the time frame to collect on a promissory note is no greater than 6 years from the last date of payment. Known as a “statute of limitations,” if your old partner has failed to bring an action within the 6 years, their claim may be barred.

Week Of September 12, 2022

QUESTION NO. 1: "My brother refuses to turn over my mother's original will to prevent my other siblings and I from probating her estate. Can he do that? What do I do?"

A: No, he cannot legally do that. Michigan probate judges have the authority to compel your brother to produce the original will if it does exist. Among other things, he can be held in contempt of court.

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

QUESTION NO. 2: "I received a deed titled "Warranty Deed", but when I went to secure title insurance for my property, the title agent refused coverage because he says the deed is really a quit claim deed. What can I do now?"

A: A warranty deed is the best type of conveyance deed a buyer or grantee can receive from a seller. It contains 6 implied legal promises; among the most important warranty is the grantor’s guarantee to defend the grantee against all third party claims to the property.

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.

QUESTION NO. 3: "A distant family member became a care giver to my sick father moving into the home to provide care two months before his death. After he passed away she filed a deed to this home naming her as the grantee. But in In his earlier will he had left his home to me. This is so sudden. What can I do?"

 If you suspect that your relative “overreached,” then you have the right to challenge this late and surprising conveyance. There is a “rebuttable presumption” of undue influence when a “substantial beneficiary” of a proposed will had a “confidential relationship” with the decedent and used that relationship to “actively procure” the will or in this case, the deed. In simple terms, if someone abused their trust to manipulate your father into leaving them the bulk of their estate, a judge will assume there was undue influence unless this family member can prove otherwise. So, the only way to challenge your relative is to bring an action against them in court.

 

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If You Like These Questions, then Join Us For “Office Hours”

at 4:00-5:00 P.M. EST on the 2nd and 4th Friday of each month for an open ended live Q&A session with Attorney David Soble and his associates.

The time is set aside for YOU to ask YOUR legal questions,           so Ask Away!

 

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