WEEKLY ROUND -UP

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

 

 

 

 

 

 

Week Of January 15, 2024

QUESTION: NO. 1: Why is it that property in a trust is not subject to going to probate? I have an investment home that I want to leave to my family but I am not sure if I want to create a trust. Please help.

A: A living trust, is just that, a trust that lives on even after your death. You don’t have to put a home into trust, but if you are the only owner, after death, the home title needs to belong to someone. Probate is the legal process used to make sure assets like a home, are distributed to a living person. A trust is its own legal entity. So if the property is titled in the trust’s name, then there is no need to have it go to probate because it is owned by the trust for the benefit of your beneficiaries. A home will have to go through probate if it is not deeded out to someone, or the trust before death. If this is not the case, then Probate will be required for the home whether there is or is not a will.

QUESTION NO. 2: My mother was supposed to leave our family home to me, but after she died, I learned that the home was deeded to her ex husband, my step father, who I have no great love for. How can that be? I saw the deed to me and it was dated over 5 years prior to the deed to my step dad. I did everything for my mother. How can her deed be cancelled out and a new and later deed give the home to my step dad?

A: Without having seen the conveyance documents first, it sounds as if your mother may have agreed to give you the home under a Contingent Remainderman Deed, commonly known as a ‘ladybird’ deed. The language in that deed has a contingency that allows the grantor to change their mind even after they have signed it, and convey their interest in property to another party during their lifetime, even AFTER they deeded the property to you. This is why deeds and legall conveyances need to be reviewed by an attorney. Sure it’s easy to complete a form, but do the non attorney parties understand the far -reaching consequences of their act.

QUESTION NO. 3: I purchased a property through the county foreclosure auction. I want to secure the home and kick out the resident there. The home looks abandoned now - will that allow me to just go in and secure the home?

A: Generally, in Michigan, steps to declare a foreclosed property abandoned include: A. Inspection: The owner or new owner may inspect the property to determine if it appears abandoned. B. Notification: Notice must be provided to the former owner, occupants, or other interested parties, informing them of the intention to declare the property abandoned. C. Wait Period: There is a waiting period for the response to the notification. If there is no response or action to reclaim the property, it may be deemed abandoned. D. Legal Proceedings: The new owner’s attorney shall begin an action to obtain a court order officially declaring the property abandoned. It’s crucial to consult the specific statutes and regulations in Michigan that govern foreclosure and abandoned property to ensure compliance with the law. Failure to do so will cause significant delay as most title underwriters require a court order to issue title insurance for conveyances.

Week Of January 6, 2024

QUESTION: NO. 1: Recently an investor gave me a cash deposit of $6500 to purchase my property. No written contract was signed and no receipt was given. A month later he called me to cancel the deal. Do I have to give the money back?

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.

QUESTION NO. 2: When I went to court to enforce my land contract against my buyer for non payment, the court dismissed my case outrightstating that my land contract does not provide for the legal redress that I wanted. It lacked a forfeiture clause. Is this correct? I thought the form I found online was sufficient - is there anything I can do?

A: When it concerns a Michigan land contract, default remedies must be spelled out in the provisions of the agreement. In a land contract, the legal language must give the seller the ability to proceed with a forfeiture, otherwise, the seller will need to proceed with other remedies such as breach of contract. This is true for all contracts, by the way. Detailing your legal remedies is essential to having a properly drafted contract. This is why downloading documents off the internet or sharing legal drafts of documents between friends is ill-advised.

QUESTION NO. 3: I initially collaborated with my uncle and his friend to open a franchise business. They proposed using my name for the store and placing the lease under my name and my cousin's (my uncle's son), assuring me of a 35% stake in the business. Trusting their closeness, I agreed. However, within a week before the store's opening, I foresaw the location's unsuitability for business success. Consequently, I removed my name from the business, but the lease remains under my and my cousin's names. Upon contacting the landlord and property owner to remove my name from the lease while leaving my cousin's intact, they demanded $1600 for this change. They stated that even after removing my name, I'd still be held responsible for rent and other obligations. I'm puzzled as to why I'm still accountable after removing my name from the lease. Is this a matter of my lack of understanding or am I being taken advantage of?

A: If your name is on a lease, the only person who can agree to let you out early from the lease is the landlord, and not your business/ family partners. Only the parties to the lease can agree to modify or change the lease terms, including releasing a party from their legal obligations.

Week Of December 30, 2023

QUESTION: NO. 1: At what point can I consider property a rental home abandoned by a tenant? Can I just take photos showing no one lives at the home anymore? Can I get witnesses to say the tenant left? They haven't paid me in months anyways. Please help.

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.

QUESTION NO. 2: I own a small 18-unit apartment complex. The leases say that the contract “binds my successors and assigns.” Does this mean that if I have a revocable trust, that my trust is bound?

A: I have not read your estate planning papers but generally, the Trust is bound if the property interest is titled into the Trust. The Trust is only bound by the terms of the lease if the property has been titled in the Trust’s name as the Trust becomes the successor to your interest. If the Trust is not named as the owner of the building, then the property is part of your personal estate. Whoever you have named as a beneficiary to your will may be bound by the lease terms. If you need help with this further let us know.

QUESTION NO. 3: We would like to bring a legal action against the person who sold us our home/the inspector for nondisclosure. I bought a home in May of 2018. At the time of inspection, damages to the ceiling and other concerns were labeled as cosmetic damage only. Only after we purchased did we learn from a neighbor that the home was a rental house for 30 years. It was not disclosed before hand. Now, since our purchase, we have replaced multiple ceilings, plumbing, etc, and have found that most of the fixtures prior to the sale were not up to standards and done incorrectlly. Some items were physically dangerous (Our bathtub is not on the proper size supports, the plumber stated that filling the tub with water could cause it to collapse). We've spent thousands of dollars on this house less than 4 years in because of all the damages. Can we sue our seller for this?

A: To prevail in a Seller Non-Disclosure Action, which is essentially a fraud action, you need to prove that the Seller intentionally made statements or omitted information designed to mislead the buyer. In other words, the Seller had to have a knowing disregard for the truth; and the buyer must have relied upon the Seller’s statements. The first step is to have a real estate attorney review the Seller’s disclosure, the purchase agreement, your home inspection report and all related addendums and emails surrounding the transaction. You will also need to provide evidence of your damages. Even if you have a legitimate grievance, you may have missed the time to file your lawsuit due to the statute of limitations (the controlling time frame where you can bring a lawsuit).

Week Of December 17, 2023

QUESTION: NO. 1: I am finishing a divorce. Part of my settlement is to sell my interest in the home, but when the buyer ordered the title work, there is an IRS tax lien that shows up on the title, and it is more than the equity I have in the property. What can I do to avoid losing the sale? This is klling me. My heart is already broken, but if I can't get rid of this home, I won't be able to move on with my life! Who should I speak with?

A: If there is a federal tax lien on your home, you must satisfy the lien before you can sell or refinance your home. There are many options to satisfy the tax lien. Normally, if you have equity in your property, the tax lien is paid (in part or in whole depending on the equity) out of the sales proceeds at the time of closing. If the home is being sold for less than the lien amount, the taxpayer can request the IRS discharge the lien to allow for the completion of the sale. A payoff that is less than the full amount most often will require some tough negotiations with the IRS. Property attorneys or tax attorneys are usually consulted to do the negotiations so that the taxpayer does not lose valuable legal rights when negotiating with the IRS. Don’t wait as time is of the essence since without IRS cooperation, your transaction is in jeopardy.

QUESTION NO. 2: I was sued by a collection agency for a bank account that was overdrawn. I was never notified or served about this lawsuit until I went to refinance my home. The collection is now screwing up my credit. Is there anything I can do?

A: Based upon the facts that you have presented it seems that you will have to motion the court for Relief from Judgment. You will have to show the court ‘good cause’ and that you had a ‘meritorious’ defense. Basically, you would have to show the judge reasons why the plaintiff’s case would not have won when it was filed. However before you do that you have to show the court ‘good cause” – a reasonable excuse as to why you did not respond to the summons or that there was a substantial defect in the process itself. This is where you start. If you can meet these requirements, then you may have an opportunity to persuade the judge to set aside the judgment.

QUESTION NO. 3: How can I report suspected real estate fraud? I believe my agent misrepresented the 'turn - key' nature of an investment property that I had under contract. It turns out that months later, I was notified by the city, the the home did NOT pass it's inspection before the sale and that my agent was actually informed by the city, that the home did NOT pass. Yet, I closed on the home and now I cannot get it rented.

A: Your real estate agent is supposed to represent your best interests. You should contact their broker if you are having concerns about their service. If you are not satisfied thereafter, then you should escalate the matter to a real estate attorney. You can also contact the state licensing authorities and file a complaint.

QUESTION NO. 4: How long does a person have to complete a court order judgment in Michigan? The court order is to repair the easement and install a culvert that was removed earlier in my development to my property, so the water can flow back in to the drainage ditch like it was before I changed it. The problem I have is that I can't seem to get the engineer to redo some of the plans. There is no response but the city inspector is now giving me a whole lot of grief. What can I do about this so that I do not get held in contempt?

A: It will depend on what the court order or settlement agreement (if applicable) requires. If there is not a time set to complete the work, then it should be done within a reasonable time frame. However, most court orders will have a set time for a party to follow the court’s requirements. If you are running into further problems, you should consult with a real estate attorney to get involved with the court or communicate the issues to the municipality. Don’t let this get worse!

Week Of December 10, 2023

QUESTION: NO. 1: I have been staying in this house for 10 years now and the mortgage company is trying to take it back. My mother-in-law gave it to me and my wife. She said that she was in bankruptcy and all we had to do was pay the taxes, which I did. What can I do?

A: Generally speaking, an underlying mortgage does not simply go away when a homeowner files for bankruptcy. So if your mother-in-law “gave” you the home, it sounds as if it is still subject to the underlying mortgage provisions, even if your mother-in-law was absolved from paying on the promissory note. This is where bankruptcy law and real estate law intersect. She may NOT have had the authority to even convey the property without permission from the bankruptcy trustee. The mortgage remains. I recommend that you consult further with a real estate attorney to help with negotiating some new terms with your mother-in-law’s bank as well as confirm the validity of the transfer to you in the first place.

QUESTION NO. 2: How can I remove a co-signer who has been missing for years and I have no clue where they are?" I am trying to modify my business loan but without them, the bank won't change the loan terms.

A: If the person cannot be found and you want them off the loan, then you would have to file an action in court to have a judge’s order remove that person’s obligation. However, it seems that the bank may still require the co-signors to be on the loan – you should have a lawyer review the bank’s modification proposal first. It is counter intuitive and going through litigation may not be the best option.

QUESTION NO. 3: I created a lady bird deed on my condo naming both of my children. I recorded the deed. Now my son wants my daughter to be the sole beneficiary. How do I correct this?

A: The power of a properly drafted lady bird deed is that you maintain 100% control over the property until the time of your death. To cancel your initial intentions, you could either revoke the earlier deed, by just issuing a new one to your daughter only, or have your son quit claim his interest off the current deed to your daughter. Conveying property interests or preparing estate planning tools without the assistance of a qualified attorney has consequences. So review the deed with a real estate attorney.

Week Of December 2, 2023

QUESTION: NO. 1: It was recently revealed that the access to my well is actually on my neighbor's property. He has never prevented me from servicing the well or going on his property. I always assumed it was on my property. So now, he is selling his home and the survey revealed the true location. My neighbor said that he will let the new owners know about the 'arrangement.' Is this sufficient or should I be doing something more?

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.

QUESTION NO. 2: I was in the middle of a mortgage modification with my bank when I learned that my home was still scheduled for foreclosure sale. It went to sale about 8 months ago. Now I was just served with a notice to quit - to leave the house. What can I do about this? The mortgage numbers are incorrect and now I need to challenge them! Can I?

A: In Michigan, you need to be in the redemption period to be able to challenge the mortgage terms / servicing of the account. If you have a case, it needs to be brought long before the redemption expires. The courts have held that once the redemption period expires, there is no longer a mortgage to sue under. There is, as we say, no standing to bring a case. This is why it is important to seek real legal advice from an attorney the minute you suspect a legal problem.

QUESTION NO. 3: I have a moblie dumpster rental business. I use a pretty basic agreement - a one -pager. Now the customer has not returned the dumpster for over 40 days and they owe me over $8700. I went to court on my own and the judge said that I cannot get any penalties or interest because they were not in the agreement. Is that so?

A: Generally speaking, contracts need to have a “remedies’ provision that spells out the financial and legal consequences for the defaulting party. A court will look to the contract to apply remedies for the winning or complaining party. Without such remedies, the court cannot enforce consequences that are not in the contract already. That is why it is important to have an attorney draft your agreements, otherwise you don’t know what you don’t know.

Week Of November 25, 2023

QUESTION: NO. 1: I purchased a home from a self-professed real estate 'Guru." He said the home was 'turn-key' which means that the house is in good shape and there is a renter already in the property. I come to find out that after the closing, the home has been deemed 'uninhabitable' by the City and they want it demolished. I am out over $53000 - What can I do? Is the "Guru" liable to me?

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.

QUESTION NO. 2: Buyers are attempting to rescind their offer after completing the home inspection. Can we retain the Earnest Money Deposit (EMD)? We went under contract in a competitive bidding situation 6 days ago. An earnest money deposit of $10,000 was agreed upon and the only meaningful contingency was obtaining a satisfactory home inspection. The contract language proposed by and agreed with buyers for the contingency clause considers only those issues for repair in excess of $5,000 per item. So the kitchen concrete counters are unique and need to be replaced or refinished. All the prospective buyers saw was an estimated cost of $7,000 for full replacement. Buyers toured the home twice, seeing the 8.5” x 11” placard on the countertops prior to going under contract. The home inspection was completed. We have not seen a written list of items that they propose to remedy, but understand the buyers want out of the deal as a result of the countertops. We have not declined to repair or negotiate a new price. Seems like “buyer’s remorse." Reverting to the other, now reduced, competing bid incurs damages. Can we force this cash buyer to perform? How do we retain the $10,000 EMD and move on?

A: A real estate attorney needs to see the purchase agreement to confirm, but in general, if a contingency date is not met or if a provision is not followed in accordance with the purchase agreement, you may be able to keep the prospective buyer’s EMD. This is despite the buyer’s concern over the countertop repair amount. They still need to register their objection with you on a timely basis per the inspection contingency. This can be highly contentious and it is imperative to provide a copy of the agreement to an experienced real estate attorney.

QUESTION NO. 3: My husband and I own a second home that my son wants to "rent to own". How to go about this?

A: You should have a real estate attorney review and prepare the legal documents for you and your son. Terms and provisions for these “rent to own’ arrangements vary widely and can impact future bank financing options for the lessee. Moreover, each contract is different and you will need to determine what obligations are that of the tenant, and how monies will be allocated. For instance, how much of the rent will be applied towards the equity if the tenant chooses to purchase the property?

QUESTION NO. 4: My father has dementia and I co-own a property in Florida with him. He and I are listed on the title and he has a will that states upon his death the said property will go to me (I have other siblings). Because my sister has a Power of Attorney for my father, is there any way she can prevent this from happening?

A: Unless you are speaking of having title by and through a lady bird deed, then you own a portion of this property. As for the provisions of the will, they would apply after death. Someone with a Power of Attorney (POA) cannot change the terms of a will. In most cases a POA cannot remove your name from the title either. You should consult with a real estate attorney to have them review the documents that you speak of.

Week Of November 18, 2023

QUESTION: NO. 1: Is a probate required for every estate? My parents left their home to me in a deed, but my sister and brother are disputing it alleging it is a fraudulent deed. Now they are speaking with a lawyer to open an estate and challenge the deed. What should I do?

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.

QUESTION NO. 2: I have a remodeling contract with a contractor. It has an arbitration clause. What does that mean to me if I have to sue them?

A: The legal complaint goes to arbitration instead of being filed with a court. Arbitration is a legal process that the parties agree to go through outside of court. The same legal pleadings are used, but instead of a judge – the parties have an “arbitrator” who acts as a judge. The process is usually no different, except that it is a faster process and it can be more expensive, since it is funded by the parties, unlike the courts, which are funded by public tax dollars. Additionally, arbitration is usually binding and therefore, an arbitrator’s decision is more difficult to appeal.

QUESTION NO. 3: I have a former business partner trying to sue me on an old loan and promissory note that I haven't paid on in over 12 years. How can he sue me after 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 breach of contract claim may be barred. However, don’t ignore any lawsuit. You would have to answer a complaint with an affirmative defence concerning the statute of limitation.

Week Of November 11, 2023

QUESTION: NO. 1: I am in a partnership dispute. I am a member of a 50/50 partnership and we both agreed to dissolve the company. Are there any case laws for me to ask for a non-compete or moratorium for both of us not to be able to use the existing customers of the business for a certain amount of time?

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.

QUESTION NO. 2: Is a Probate Filing Required for Every Estate?

A: In Michigan, not every estate must go through a lengthy probate process. Probate may not be necessary if the deceased left behind a modest estate with few assets or if the assets have been left to a trust. However, it’s crucial to speak with a lawyer or estate planner to determine whether probate is required in your particular circumstance.

QUESTION NO. 3: If I hold title to a property as a tenant in common with multiple people on unoccupied land in Michigan, can I move onto the land if I want to? I was recently made aware that I am one of the tenants in common with my siblings on my deceased grandmother's 47-acre land. The day I moved onto the land, one of the sibling co- tenants, waited for me to complete my move and then said I cannot be on the property without approval from all the tenants in common. Is this true?

A: Holding title as tenants in common means that each party on the deed has a right to an equal or unequal undivided ownership to the property. It also means that if one of the owners dies, their share is conveyed to their heirs, not the other owners who are still alive. Based upon the facts as you describe, you have a right to occupy the property as described in the deed. If there is further disagreement between the co-owners, one way to resolve occupancy or ownership interest is to file an action for partition to split up the property under a court order.

Week Of November 4, 2023

QUESTION: NO. 1: I am in the middle of a refinance of my home because my bank says that I have to refinance my mortgage since I am now renting out my home. I have to move to another city for my job. Is this correct? Do I have to refinance my property in order to move? I always wanted this to be my residence, but now duty calls and I have to leave outstate for work.

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.

QUESTION NO. 2: I lost my home to a property tax sale. The amount owed was negligible compared to the equity in the home. It was supposed to be on a payment plan. Now a third person has put a bid on the property? What can I do?

A: Not sure about how you didn’t meet the payment plan, but even if you have recourse against the county, you should definitely file a Notice of Intent to claim surplus proceeds; that way you would be entitled to get back the surplus proceeds paid at the tax auction. There is a deadline for this Notice so do this first. Then seek redress with your real estate attorney.

QUESTION NO. 3: Can a title company to give me a legal opinion on how I can cure a defect in the chain of title? There is a deed from me transfering my building that shows my signature, but the signature was forged. I think it was done by my former business partner. Will they give me insurance to cover it?

A: First, title companys and title agents do not provide legal opinions. Only licensed attorneys can render a legal opinion. Second, if you have a title issue that needs to be legally challenged, then you need to speak to an attorney. If the challenge relates to a fraudulent signature on a deed, then you would want to have your signature verified by a handwriting expert. Also, consider speaking to the notary, the official who witnessed the alleged signature. 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. 4: Is the probate process in Michigan the same as in other states?

A: Michigan has unique legislation and laws that control the probate procedure. Understanding these rules is essential to ensuring compliance and a seamless administration of the probate process. In-depth information on probate and estate administration is available in the Michigan Compiled Laws (MCL) Chapter 700. You can read that section or contact an attorney licensed in the state where the probate is needed to ask your probate questions. Remember, there is the law, and then the practical application of the law. An attorney practicing in the area of concern should know both.

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Week Of October 29, 2023

QUESTION: NO. 1: My son died and his ex-wife has custody of their 2 minor children. We need to plan his funeral. The funeral home is tellng us that for them to provide services, we need to first have authority from the probate court (he died without a will.) Do I begin probate or does his ex-wife? I was advised to get permission from the ex-wife. Then the ex-wife was told she needed to get permission from the deceased son's father to be in charge of the probate process. This seems to be a conflict as to who has the authority to plan the funeral and we need help in this matter.

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.

QUESTION NO. 2: I have a signed contract with a corporation to purchase my property and the closing date is tomorrow. They just sent me a text message saying that they can’t go through with the deal because they can’t get a contractor. Can I take them to court and force them to close?

A: You can bring a lawsuit provided that the purchase agreement allows you to do so. The legal remedies available to you are listed in the purchase agreement. Most likely, when you are dealing with a real estate investor or company, the only money that you can retain for damages is the amount of the earnest money deposit. Check with a real estate attorney to review your contract.

QUESTION NO. 3: What debts are paid first in a probate process? The mortgage payment for my parents' home (now deceased) is behind while my siblings and I are fighting in the the probate action. I am afraid we are going to lose the home if we don't get our differences resolved - Please help - what do we do?

A: Before distributing assets to beneficiaries, unpaid taxes and obligations must first be satisfied. In addition to submitting the decedent’s last income tax return and estate tax return, if necessary, the personal representative is also responsible for contacting creditors, paying legitimate bills, and notifying creditors. “Legitimate bills” means mortgage payments. So the PR should continue to make payments or your family’s home could be lost to the bank. You should also know that there is federal law that will help to protect beneficiaries from losing a loved one’s home during the probate action. Check with your attorney to learn more on this as it can be quite frustrating and complicated to deal with the bank during probate.

QUESTION NO. 4: I am about to file for divorce. I own the home in my own name. I want to put it in my son's name before I file my action. My son is 14. Can I transfer the property into his name?

A: A transfer of an asset in anticipation of litigation can be undone. A divorce is a legal action. Transferring property to anyone during this time can be challenged. Moreover, transferring the home to your son, who is underage, will not be effective either. You would need to put the property in a trust on his behalf. But not until after the litigation has been completed.

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Week Of October 21, 2023

QUESTION: NO. 1: I have a concern about my neighbor's driveway. They asphalted the driveway last summer, way beyond my fence line. I have tried to explain this to the neighbor that their driveway has now extended onto my property - I called their contractor who told me straight out - they can't help me. That I have no right to call them to demand to remove the asphalt. Are they correct?

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.

QUESTION NO. 2: If I have tenants with a lease that has expired and they are now month-to-month, can I give them a 30-day notice to vacate since they aren’t willing to sign a new lease? They have been behind on rent the last 4 months on their month-to-month lease but recently got caught up.

A: Yes. You can provide the tenants with a 30-day Notice to Quit once the lease has expired. Generally speaking, and barring any provision to the contrary that makes the lease automatically renewable, upon the expiration of an annual lease, the lease becomes a month-to-month lease.

QUESTION NO. 3: I am in a land contract in Michigan and the owner of the deed has incorrectly recorded the ledger. What are we entitled to?

A: If you contest your payment ledger or your payment history, you may be able to bring an action for an accounting, challenging the pay history. It is important that both buyer and seller on a land contract keep good records of their payment history.

QUESTION NO. 4: I am about to file for divorce. I own the home in my own name. I want to put it in my son's name before I file my action. My son is 14. Can I transfer the property into his name?

A: A transfer of an asset in anticipation of litigation can be undone. A divorce is a legal action. Transferring property to anyone during this time can be challenged. Moreover, transferring the home to your son, who is underage, will not be effective either. You would need to put the property in a trust on his behalf. But not until after the litigation has been completed.

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Week Of October 7, 2023

QUESTION: NO. 1: "I bought a property in Mount Clemens, Michigan and the seller intentionally left behind garbage and some personal belongings. I spoke with the seller to come pickup his items and he didn't respond. I told him that he had a week to get his stuff out of my house and he never showed up. What can be done next, can I get rid of these items?"

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.

QUESTION NO. 2: "How would I calculate the assets when probating real estate?"

A: Identification and valuation of the decedent’s assets are two of the main responsibilities involved in probating an estate. This consists of any assets that belonged to the decedent, such as real estate, bank accounts, investments, personal property, and other assets. It is necessary to create and submit an inventory and evaluation of the assets to the court. Many disputes in probate concern real estate and so proper valuation of real property is important. Real estate mortgage issues ‌also arise when a home is involved in a probate action. The easiest way to avoid valuation issues in probate is to have a solid estate plan drafted by an attorney.

QUESTION NO. 3: "How would I start the Michigan probate process for the sale of my parent's home?"

A: You must submit a petition to the relevant probate court in Michigan to start the probate procedure. The petition will either state that the decedent died with a will or left no will (intestate). The court will examine the petition and the will when available, and either name the executor as selected in the will, or choose an executor or administrator as the personal representative. The court will then issue letters of authority. These letters provide the personal representative with the power to handle the estate legally. When real estate is involved, the court may restrict the sale of the property or allow the executor to sell the property without further court supervision. Speak with your real estate or probate attorney for more information when real estate assets are involved.

Week Of September 30, 2023

QUESTION: NO. 1: "I own 10 acres of land with my brother in Michigan. Can I build on this land? The deed as written states the grantee as "sole survivor." But there are two of us on the deed and there are no further restrictions. What process do I have to take to be able to make sure the deed language does not prevent me from building on my land?"

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.

QUESTION NO. 2: "The land contract sellers requested a forfeiture and the judge granted it to them. The judge wasn't told that the buyer paid the seller the required six thousand dollars within the 90-days. What can I do?"

A: First, if the land contract seller’s stated balance of the amount due is not accurate in their complaint, then you should have raised the discrepancy at the time of the hearing. The time to do this is not after the judgment is entered. However, while you may be able to go back to the court and set aside the judgment BEFORE the 90-day redemption period expires, it is highly unlikely that you can set aside any judgment after the 90-days run. I hope this helps.

QUESTION NO. 3: "How are assets distributed to the beneficiaries in MIchigan? My sister is the personal representative and she says the house is being sold at her discretion even though the deed shows it is still in our father's (deceased) name. She says she does not need the court to tell her what to do. Is this accurate?"

A: The assets can be transferred to the beneficiaries under the terms of the will, or the rules of intestate succession if there is no will, after all obligations and taxes have been paid. The task of the personal representative is to oversee the equitable distribution of assets and to settle any beneficiary disputes that may occur. Assets do include real estate, and so if the real estate was not put into a trust or deeded out prior to death, it will be included in the decedent’s estate – and she MUST follow the court’s orders. By the way, she will never be able to sell the property with clear title until there is a recorded deed that reflects a Personal Representative deed in accordance with the court’s permisson.

Week Of September 24, 2023

QUESTION: NO. 1: "I have a private road easement on my land. New owners bought the land behind and are widening and cutting trees and want to put gravel on the road. They are tearing up my yard with machinery and parking it on my land. I live in Michigan and on my deed it says my land doesn't just abuts up to a private road but it runs through my land. My access to the main road may be limited or even cut off entirely if these new neighbors continue to do what they are doing. I am not only concernbed. I am afraid! Online research shows that in Michigan it needs to be 33 feet wide with a turn-around big enough for a fire truck and have 3 or more parcels that abut up to it. So, it technically cannot be a private road easement. What do I do?"

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.

QUESTION NO. 2: "Who is responsible for paying a mortgage when the owner of a home dies? My mother passed and she still owes money to the bank. We want to keep the house in the family. We have been making the payments and have not contacted the lender."

A: The estate can continue to pay the mortgage for a short while after your mother’s death. Federal law allows children and spouses to continue to pay under the mortgage after the mortgagor dies. This is provided that you and your family probate your mother’s estate. You must also remain current with the mortgage, however. If you are not current, then the lender can take steps to protect its interest and then foreclose. So remain current with payment, insurance and property taxes. Then reach out to a qualified attorney to deal with the lending institution to make arrangements the heirs to continue with the mortgage payments.

QUESTION NO. 3: "Can the State of Michigan file a claim on a deceased person’s home. The deceased was in a nursing home getting government assistance?"

A: Generally, yes the state can file a lien on a resident’s home where it has a valid claim. You would need to provide further details to address your particular matter,. An attorney would want to know tha nature of the lien, the age of the lien and how it came to be filed against the property.

Week Of September 16, 2023

QUESTION: NO. 1: "Is a land contract legally binding in Michigan if the owner dies or is incapacitated? Does it have to be entered into their will? We were advised by a real estate agent that it has to be entered into their will in order to be binding in a court of law if the next of kin wanted to challenge it. I printed out a Codicil for the seller. Is that sufficient?"

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.

QUESTION NO. 2: "My Father passed away and my mom is still alive. She is not on the deed to the home that she currently lives in, but my older brother is. How do we transfer ownership to my mom, then her children in the future and avoid probate?"

A: It depends if your brother will deed the property back to your mother. Based upon your facts, he has an interest in the property now. Deeds are contracts and have legal implications. You need to have a real estate attorney first review the deed you mentioned and then, if necessary, draft the proper conveyance instrument to suit your mother’s request that includes estate planning issues as mentioned in your question.

QUESTION NO. 3: "Can you add an addendum to a quitclaim deed? Can you have a quitclaim deed written and notarized but not file it and also have an addendum attached that states no other deeds may be filed without me signing off."

A: The reason you record your interest in a property when you are named in a deed (quitclaim or otherwise) is to put the “world on notice” of your interest in the subject property. There is no need to have any further addendum when the instrument is recorded. Deeds that are recorded take priority over all other unrecorded deeds. Deeds themselves are considered a contract. There is a promise to convey between the grantor and grantee, and there is the stated value of consideration for the conveyance, and finally, the property, which is the subject of the conveyance. No external promises , writings or ‘memorandums” can alter a recorded and delivered deed.

Week Of September 9, 2023

QUESTION: NO. 1: "My father left my stepmother a life estate. She passed away and I am named in his will along with my siblings. Her children were not included in the will. They do live in the home with her however. Only my father's children from his previous marraige were included. Do his step children have any legal rights to anything from the life estate? They refuse to leave the home and now they are going to kill our sale of the property because they claim they are rightful owners to the home. What can we do?"

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.

QUESTION NO. 2: "Is there a penalty under law for failure to tender the deed on a land contract purchase (contract fulfilled by buyer in full)? Does such a statute exist?"

A: The closest thing to a statute dealing with the failure to provide a deed upon a land contract payoff is one that relates to requiring a discharge after 60 days. However, a land contract clause will control and so if the deed is not provided to the buyer and the buyer performed as required, then the buyer can maintain an action for a breach of contract claim along with an action for declaratory relief against the seller.

QUESTION NO. 3: "How do we get our money back from a contractor that breached our contract? The contract was signed for completion by a specific date. He left the house torn up and never came back; just kept giving us excuses. We have paid 2/3 of the total."

A: If you have a contract then you would have to put the contractor on notice with a demand letter that you intend to sue them for breach of contract. Consult with a real estate or contract attorney to start the process. Sometimes, just a demand letter from a competent attorney will set the matter straight. Otherwise, you may have to escalate it to court.

Week Of August 26, 2023

QUESTION: NO. 1: "My brother is a co-signer on my mother's home and since my mother passed he has gone crazy. He will not help me save the house from the mortgage company. He will not sign the refinance papers. He won't sign the quick deed. He is creating nothing but chaos for my sisters and I. We're going to lose this home without his cooperation!!! Is there any recourse for me?

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.

QUESTION NO. 2: "When should a mortgage company automatically cancel private mortgage insurance from a conventional loan? My loan-to-value is currently 47%."

A: When your mortgage balance reaches 78% of the original purchase price — in other words, when your loan-to-value (LTV) ratio falls to 78% — the lender or servicer must immediately work to cancel PMI. This is provided you are current on your mortgage payments and have not missed any payments.

QUESTION NO. 3: "My mother is deceased and didn't have a will. She had been remarried for 9 years and her spouse is a Texas resident. She had a home in Michigan for 22 years. The home is in her name but her domicile is in Texas. There will not be probate in Texas, no property. She also has 4 adult children. Who will receive the home according to probate in Michigan. Can her spouse sign a quit claim deed to a certain person?"

A: We would have to first see the deed to the Michigan home. Secondly, a probate can be opened in Michigan when real estate of a decedent is located here. It is preferable to open a probate, however, where the decedent was domiciled.

QUESTION NO. 4: "The land contract seller misinformed the judge about the outstanding balance that I owed on a business land contract. The judge then entered the judgement against me. What can I do?"

A: First, if the land contract seller’s stated balance of the amount due is not accurate in their complaint, then you should have raised the discrepancy at the time of the hearing. The time to do this is not after the judgment is entered. However, while you may be able to go back to the court and set aside the judgment BEFORE the 90 day redemption period expires, it is highly unlikely that you can set aside any judgment after the 90 days run. I hope this helps.

Week Of August 20, 2023

QUESTION: NO. 1: "I am selling my home. I do have a very common name, The title agent is refusing to close the sale without me obtaining a letter from a bank who has filed a bank judgment on my property saying that this is not mine. What can I do?"

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.

QUESTION NO. 2: "Is there a generic and blank “Satisfaction of Land Contract” form to fill out for a person who recently paid off their contract?"?"

A: When a buyer on land contract satisfies the terms of the agreement, the best evidence of satisfaction and the buyer’s full performance is a deed. The seller will issue the deed that puts the buyer in full title. There is no other document necessary to show performance – the buyer should then ensure that the deed is recorded with the county register of deeds.

QUESTION NO. 3: "How do I find out the name of the attorney who prepared my mother's will for her, so that I can retrieve a copy?"

A: Short of calling every local law firm that does estate planning in her area, even if you find the attorney, they may not even have a signed copy of the will. A better use of your time would be to determine how assets would be disbursed as if she had passed intestate. Sometimes, the results of probating an estate intestate may lead to same results.

QUESTION NO. 4: My property was foreclosed. My house was sold and I received a release of mortgage and an account paid-in-full letter only to find out I had a deficiency on the balance. My mortgage company admitted years later they should never have sent the mortgage discharge letter that I have. Does this void the deficiency balance? At closing I was never made aware that there was a deficiency balance either. They aren't actively trying to collect the balance either as they just put it on my credit report. The balance never has been through collections. What should I do?"

A:  The discharge, if done in error, does not change the status of your loan deficiency. However, the mortgage lender would need to file a notice with the Registrar of Deeds that the discharge was not effective.

Week Of August 12, 2023

QUESTION NO. 1: "I have been in a relationship (not married) and we own a home together. What are my rights now that it is ended?"

A: When parties are co-owners of a home or any other piece of property, and the parties are not married, then any issues related to real estate are addressed and resolved under legal theories and remedies concerning contract law. Only a family law judge can order parties who are married to sell a property. It is not so easy when there is a co ownership relationship where the parties are NOT married. The best legal steps forward are to have all understandings about the maintenance and disposition of property well documented and in writing.

QUESTION NO. 2: "How did a Michigan township give a building permit for an owner to build a house, and later a garage, on a landlocked property?"

A: First thing you will need to do is to go down to the township and visit the planning or building department to determine how the permits were issued. That will tell you the “how.” You will also want to see the location survey for the property. It is very possible that there is an “easement by necessity” available to the owner of this property as real estate law encourages access. If not, then seek the advise of a real estate attorney after you obtain the necessary documents for a review.

 

QUESTION NO. 3: "Can a court-ordered nursing home patient's guardian sell their property if there is a beneficiary? Grandma passed away and her husband is in a nursing home. His guardian is selling their property. Can they legally do that if there is a beneficiary?"

A: In Michigan, a guardian shall not otherwise sell the ward’s real property or interest in real property. Conservators have the right to convey property, once they have court approval. Restrictions for what a guardian or a conservator vary and are addressed by the probate court case by case.

Week Of August 6, 2023

QUESTION NO. 1: "My brother and I inherited my parents' former residence. I want to keep the home and sell it to my daughter who is getting married in less than 6 months. My brother agrees to sell the property, but not to me! He refuses to allow me to buy it or keep it for her. He says I can get the money from the sale of the home instead. We didn't get along before my mother's passing, now it is WAR!!! What do you think?"

A: You have the right to purchase the property, but you will have to enforce this legal right by bringing a court action for declaratory relief before a judge.  The judge will look at the fair market value of the home which is determined usually by a licensed appraiser.  Then, you will most likely be able to purchase your brother’s share of the home for half of the fair market value.  Any previous contributions or financial outlay used to secure or maintain the home will also serve as an offset against the sales price.

QUESTION NO. 2: "When filling out a quitdeed to avoid probate court in Michigan, do you need to put in a survivorship clause with 2 people being on the quit deed in case something happens to one of them?"

A: Deeds must contain the “magic” language to convey title properly to a grantee. Failing to have this language may create legal problems and unnecessary expense if the deed is not drafted properly. There are several types of deeds and there are various ways that title can be conveyed and held. My suggestion is NOT to play attorney with real estate conveyances. The “survivorship” language that you speak of and seek online counsel for is not as clear cut as you would like it to be. Please contact a qualified real estate attorney and have your deeds correctly drafted.

 

QUESTION NO. 3: "Is a text message legally binding if an amount was agreed to but the other party now wants more. Our son and uncle own a home we are selling. Our son moved away last year and we have done all the improvements and upkeep. We agreed on $5,000 but later told him $6,000 in a text. He has since said he wants half which isn't reasonable. Can he be held to what we agreed on in the text?"

A: Generally, text between parties can be used to show agreements and understandings between them, even where there may not be a written contract or signatures. The conduct of a particular party performing certain tasks or actions in reliance upon statement made in text communications can be used by a court to infer that a contract does indeed exist.

QUESTION NO. 4:"The sellers agent gave my personal cell phone to the buyer a few months after the transaction and now the new owner will not stop harassing me. Are there laws preventing the agent from doing this?"

A: Sharing personal information is addressed in the purchase agreement and listing agreements. If it is not specifically addressed and excluded, then there is little if anything that you can do legally.

Week Of July 22, 2023

QUESTION NO. 1: "After a house is sold, what can be done if the prior owner won't move? The realtor did not put a clause in the agreement for the Seller after closing."

A: It will depend on the occupancy clause in the purchase agreement. If the agent did not put a date for the buyer’s occupancy (not good) then, generally speaking, at the very least, the seller would have 30 days to vacate from the date of closing. Thereafter, the buyer could provide a 30-day notice to the seller to quit as the seller could be considered a hold over tenant.

QUESTION NO. 2: "My father passed away and he left a will. I am the personal representative. The home is not listed in the will. 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. It must be included as an asset of the estate on the Estate Inventory report as well.

QUESTION NO. 3: "My mother and I were both on a mortgage where she was the principal borrower. She passed 3 months ago and didn't leave a will. My sister says she is entitled to half of the home's value and now wants me to sell it. What are my rights?"

A: Quite a few items will need to be reviewed by an attorney before a definitive answer can be given. First, we would need to see how you hold title to the property. Was it held jointly? If it is just you and your sister, and your mother left no will, the home will still need go through probate. If your mother passed without a will and you did not hold title jointly with your mother, then the probate court may order the home sold in order to satisfy your sister’s interest in your mother’s estate. You may have the ability to purchase your mother’s half Interest in the home, but only the probate court can determine the amount needed after a valuation of the property and all other creditor claims against your mother’s estate are addressed and satisfied. So many issues that are left to be sorted out because your mother failed to have a will or a proper estate plan in place. This is why an having an estate plan, is so important.

 

Week Of July 8, 2023

QUESTION NO. 1: "I’m assuming the mortgage and buying out my partner due to a breakup. Will I have to pay a state/county tax in Michigan?"

A: By paying “state or county tax” I am going to assume that you mean ‘transfer” tax. Assumption of a mortgage should not be a taxable event since you state that you are already a partner / member of the organization. However, you need to look at your partnership agreement or operating agreement to determine if you already are on title. Otherwise you could have a taxable event. You also can check with your CPA since he will know your tax status best.

QUESTION NO. 2: "Can I use a quit claim deed to transfer a property if there are back taxes owed on the property - I don't want to pay the back taxes at this time?"

A: Yes. Generally, a quit claim deed can be executed and recorded without having to pay back property taxes. This is different than issuing a warranty deed, where the county register of deeds will require all property taxes to be paid current before recording. It should be noted that if this property is being transferred from an estate, the personal representative of the estate has a fiduciary duty to protect the property from tax foreclosure.

QUESTION NO. 3: "I bought property using cash as the owner wanted cash. We transferred the deed, now he is trying to say I did not pay him. What can I do?"

A: If you have a signed properly created deed and there are no other written contract provisions that stipulate any other contingencies for that conveyance —then based on your short narrative, it appears that you would own this property. Upon delivery of the deed from the owner/seller to the grantee, the conveyance has officially taken place. It will be up to the grantor to prove otherwise.

Week Of June 25, 2023

QUESTION NO. 1: "I had somebody give me money to start a business that never got off the ground. There were problems on top of problems and no money to continue forward. Am I required to give the money back? I never signed anything and only talked about hoping it would be successful. It never made it to an official business."

A: What was the agreement with the person or entity that gave you the monies? If the business never took off but you did work to get the business moving forward, was there any agreement concerning compensation to do the work to even start work on the business? It is always best to have agrements such as these reduced to writing.

QUESTION NO. 2: "Can my neighbor put a shed, or chicken coop, on my 60’ wide private ingress/ egress easement that cuts across his property? He currently has a shed that he has put within a few feet of the driveway and this affects the use my easement. Can I sue?"

A: Generally speaking, the owner of the dominant estate is the one who has an easement over another landowner’s land. The proprietor of the servient estate is a landowner whose property is traversed by an easement. One of the most frequent disagreements centers on the extent of the easement and whether its intended use has improperly grown over time. Similar disagreements frequently occur over cost-sharing plans for easement upkeep. An action for declaratory relief addressing the scope of an easement may be required if a dispute cannot be settled outside of court. Depending on the situation, a claim for monetary damages or injunctive relief may be justified.

QUESTION NO. 3: "What is included in a warranty deed transfer upon death? Does it include both real estate and personal property? My brother states he receives not only the physical home in Michigan from my mother but all personal property inside the home as well. One clean swoop. Is this true? The personal items are worth as much as the physical property."

A: Generally, a warranty deed is a form of deed that provides an unlimited warranty of title. The grantor guarantees that tthey have good and marketable title to a subject property. It is important to know that the warranty is not limited to the time that the current owner owned the property. It does not have anything to do with the contents of the property. Usually, contents are assigned based upon a purchase agreement, a bill of sale or a will. It is assumed that without a written agreement, that the contents will come with the property, unless you object otherwise.

Week Of June 17, 2023

QUESTION NO. 1: "Can we start Probate on my brother's estate without one of our sibling's cooperation in appointing a Personal Representative? My deceased brother had no spouse, children, or living parents and passed without a will. He had a huge home and a few investment properties. Five of the six siblings are trying to start Probate and one sibling is refusing to cooperate- they are volatile- and refuse to cooperate in this process. They won't sign the document to allow for assignment of personal representative to my sister. What do we do to start Probate?"

A: You can start the probate process at any time. When someone dies without a will, they die “intestate.” This means that any of the decedent’s assets will go through the probate process and are administered by the probate judge. The judge will use state statutes to decide on the distribution of all assets. You do not need any permission from your siblings to start this process.

QUESTION NO. 2: "I entered into a bad land contract deal and I need help. The title company signed the deed over amongst other things. I bought my house in February 2020 and put it up for sale in October 2020. I did not know this wasn't allowed as I have a Rural Development loan. I used a Realtor and she wrote a bad land contract for the sale. The buyer does not pay as agreed and I want to do a forfeiture but don't trust myself to try that alone. I also received a letter from my mortgage company calling the loan due to illegal title transfer. I am of the understanding the title company had me sign over the deed when they should not have. I did try to ask the broker for help and he said "Sorry about your bad deal, but that realtor doesn't work here any more." I am at such a loss and do not want to lose everything I've worked hard for."

A: The real estate agent and their broker may be responsible for writing a legal document as non-attorneys. With regards to your land contract being called due, lenders and banks usually have provisions in their mortgage that call a note due upon the conveyance of title. The issue is whether or not title was actually conveyed at the signing of the land contract. Finally, instead of doing this on your own, you should consult with a competent real estate attorney regularly who deals with land contracts and mortgage banks.

QUESTION NO. 3: "I received a phone call from a tenant stating that a leak in a bedroom had started the night before as a result a part of the ceiling fell down due to the excessive raining damaging some of the tenants property. Am I responsible for any property that was damaged of the tenant?"

A: The landlord – tenant relationship has several implied warranties that the state law recognizes. The warranty of habitability requires landlords to keep their property habitable regardless if their are provisions in the lease that require a tenant to make minor repairs. Large repair items such as this are going to be the landlord’s responsibility unless clearly spelled out otherwise in the lease. On another note, there is never any harm in having your tenant purchase their own renter’s insurance to protect their personal property from such events as these.

Week Of June 10, 2023

QUESTION NO. 1: "Can an unlicensed general contractor file a lien using the subcontractor's license? Currently, the general contractor on my residential project is filing an invalid lien on my property but he is not licensed. The subcontractor who performed the work is licensed but he is not filing the lien. Can the General Contractor do this?"

A: No. The general contractor must be a state licensed contractor to file a lien. The lien would be unenforceable. The contractor cannot enforce the lien in a court action. They will have no standing – no recognition in court. However, they will have the ability to defend against a lawsuit for work performed. They cannot however, seek any monies for work performed.

QUESTION NO. 2: "Can property only in my wife's name be changed to reflect tenants in entirety? My mother-in-law gifted my wife a 10-acre property in 2020. My mother-in-law wanted it only in wife's name, which we agreed to at the time to avoid conflict. We have been married since 2009. We are finally building on it and my wife and I want to change the property title to " tenants by entirety" with both our names. I am confused reading some of the language as it states it must be in both of our names when acquired, however at the time she acquired it we were already married for 11 years. Would this be a tenants by entirety, or a tenancy in common or other?"

A: To create a joint tenancy the parties must hold an undivided right to possession and have equal ownership interests. Joint tenants must acquire their interest at the same time and they must acquire their interest by the same instrument of conveyance, such as a deed. Our real estate law is rooted in over a thousand years of English legal history and the language that is on a deed can be considered “magic” legal language. Use the wrong language and your interest may not be as you intended. Therefore, have an experienced real estate attorney draft the correct document for your needs to put both parties in proper title and have them explain the legal implications of having a joint tenancy with full rights of survivorship. In other words, there is a way you can hold this property as ‘tenants by entirety.

QUESTION NO. 3: "Can a leasing agency legally enter my apartment when I am not present and without my permission if I live in Michigan? The leasing agency did a complex-wide inspection for pets. My apartment was inspected while I was not there, and I did not give permission. They claim to have sent six notices of the inspection to my email weeks beforehand, but I did not receive any emails about an inspections. Is what they're doing legal if the reason for entry is not an emergency? The lease states they can enter a residence at any time for any reason. However, if this were breaking a law, that lease would obviously be invalid. It's like if a lease said the landlord has the right to punch the tenant in the face whenever. Just because it's in the lease doesn't mean it coincides with the law. And there are several online resources that state it is not legal unless for an emergency."

A: They can enter only if there is proper notice that is usually defined in a provision within the lease, or if there is an emergency. I would also caution against relying upon ‘online legal chatter” as with most legal issues, no one ever has the same fact pattern and laws and legal rulings vary from state to to state and different jurisdictions. and judicial interpretations.

Week Of June 3, 2023

QUESTION NO. 1: "How do I get current month-to-month tenants out of a home that I just purchased? The sales agent told me that they had a lease when I bought the property, but now I have learned the hard way. There is no written lease. It is middle of the month and they still are not out of the home as they promised they would be."

A: Based on your facts, as month-to-month tenants, they need to be evicted using a 30 days notice. Since they say they will be out by the middle of the month and they are still in the home, you will need to wait at least 30 days before you file the complaint with the court. For what it is worth, never purchase a home that allow tenants to remain in it after closing on the home, without first seeing a valid written lease and a rent roll – or payment history. Don’t close on a home without this. Also, make sure that you get an assignment of the leases when you do purchase a home with the home seller intending to sell with the tenants to remain.

QUESTION NO. 2: "Can I fight a lien? I have a contractor who did a very poor remodeling job on my home. I am happy to pay them for the materials but NOT the work. Does writing "paid in full" protect me? What about not getting any notice that a lien is being put on a property before it actually happens?"

A: One would have to see any documentation related to this matter. But there are laws that regulate when liens for work performed can be placed upon your property. For instance, only a licensed contractor can file a lien on property that they have provided work and materials., and they are limited to up to 90 days from the furnishing of the work to file the lien. Additionally, this matter from your fact pattern seems that it can be negotiated. Definitely provide documents.

QUESTION NO. 3: "Will I be held responsible for a foreclosure property that was purchased before I got married? I am on the deed, not on the mortgage."

A: No. If you did not sign on the promissory note, you are not personally obligated o the bank for payment. However, the default may still be reflected on your credit report since you are signed as a mortgagor on the mortgage.

Week Of May 20, 2023

QUESTION NO. 1: "Can the homeowner of the house that I live in, change the locks without notifying me?"

A: If the landlord’s intent is to put you out of the home, then It is illegal for a landlord to change the locks. They may be subject to penalties by the court. An illegal lock-out does not have to just be by changing the locks, it can also occur when the landlord shuts off utilities. Contact an attorney.

QUESTION NO. 2: "I have had a large billboard sign on a corner advertising my business for over 50 years. For at least 30 years, I have had permits from the state to use this billboard. Do I have a prescriptive easement?"

A: One of the key elements to your fact pattern that suggest you do not have an easement by prescription is that you have been issued “sign permits by the state for over 30 years.” If this was an individual, ‘granting permission’ defeats claims of adverse possession or claims of easements by prescription. Also, this being a government entity makes your assertions almost impossible. An experienced real estate attorney should review your documents / surveys / permits etc.

QUESTION NO. 3: "What do you do when you're getting sued for credit card debt? What's the next step to take?"

A: In general, if you feel you don’t owe the amount, then you will need to file a written objection within 30 days from the day you were notified by the creditor. There are federal laws that protect people against debt collectors / attorneys. If they do not respond to your letter or continue to insist that you owe them the money, then it is best to consult with an attorney. If you do owe the amount, but can’t pay the balance, perhaps you can save the money on an attorney, and negotiate a new balance and payment on that balance with the creditor.

QUESTION NO. 4: "Over the past 16 months, I fought hard for an investment property that another party claimed that they owned. Well, the judge disagreed with them and awarded me the property. The court gave me a judgment. It’s signed and everything, but now the title agent says that the other party still shows up on MY title. I gave them the judgment, but the title agent said I didn’t do enough and that they cannot use this judgment as a way to clear the title for my closing. What do I do as this is soooo frustrating?"

A: From your facts, it seems that while you may have received the judgment, you still have to take several more steps for the title company to accept it for their records. I am surprised that they did not help you with this further. Nonetheless, you will first have to get the court order certified. Just call the court clerk and they will issue a certified judgment for a nominal fee. Second, once you recieve the certified judgment, you will need to record it with the Registrar of Deeds for your county. This order then will show on your public property record – the title company will recognize this filing and honor the judgment. A quick note, you can also save valuable time and bring the certified court order to the title company for their office to record. This way you don’t have to wait for the county to process the filing.

Week Of May 13, 2023

QUESTION NO. 1: "Is a handwritten purchase agreement, signed and dated by both parties, enforceable in Michigan? I have a lease with an Option to Purchase. However, the seller got a better offer and is now treating my option as a lease only, using every available means to cancel my agreement and by having me evicted"?

A: A contract must have an Offer, Acceptance, Consideration, Mutuality of Obligation, Competency and Capacity. An Option to Purchase is a contract unto itself provided the above “elements of a contract” have been met. But options do expire. The Seller may be able to sell the property to someone else if the Option is no longer valid. You should allow an attorney to review the Option to determine its validity.

QUESTION NO. 2: "If your landlord lets someone other than the tenant store items in your business location, is that a breach of your lease"?

A: What do the lease provisions say? Lease provisions will prevail and if there are no terms that allow for such action, it may be a breach. The question is how have you been damaged? If you have evidence of damage or that you can’t store your own items on your leased property, and provide evidence that the third party items were stored in your leased space, then you may have a basis for an action. Contact an attorney to review the lease.

QUESTION NO. 3: "What can I do if I have a default judgment against me? I wasn't even aware of the fact that I was even sued and the allegations against me are not even valid."

A: When you have a default judgment that needs to be set aside, you have to file your motion to set this aside within a very short time frame. Usually up to a year from the date that the judgment was entered. Also, you will have to have had a valid defense against the allegations. You will have to have an attorney argue before the court that issued the judgment that you did not get served the lawsuit and that you had a ‘meritorious” defense.

QUESTION NO. 4: "My mother & I are both on a mortgage. She's the principal borrower. She passed 3 months ago. My mother left no will. Can I assume the mortgage? My sister says she is entitled to half of the home's value and now wants me to sell it. I have lived here for over 17 years. She says she can force me to sell the home and it doesn't matter that I paid half the mortgage payment when my Mom was alive. Now my sister's attorney just sent me a threatening letter. What rights do I have"?

A: To start, we would need to see how you hold title to the property. Was it held jointly? If it is just you and your sister, and your mother left no will, the home will still need go through probate. If your mother passed without a will and you did not hold title jointly with your mother. then the probate court may order the home sold in order to satisfy your sister’s interest in your mother’s estate. You may have the ability to purchase your mother’s half Interest in the home, but only the probate court can determine the amount needed after a valuation of the property and all other creditor claims against your mother’s estate are addressed and satisfied. So many issues that are left to be sorted out because your mother failed to have a will or a proper estate plan in place. This is why having an estate plan, is so important.

Week Of May 6, 2023

QUESTION NO. 1: "My landlord doesn't have a Certificate of Occupancy and he is not having any of the maintenance done to the house. They say that the lease controls repairs - not the city. What can I do"?

A: Most municipalities require that landlords register their rental properties with the city building department. Homes for rent must have occupancy permits. If the city requires registration and inspection, these regulations will prevail over any lease terms that you have with the landlord. The landlord will have to make the repairs regardless of what the lease says. Check with your city’s building department. Understand that if the home does not meet code you may be required to move as well. Another consideration is that if the property is not “habitable” you can notify your landlord that you are depositing rent into a bank escrow account for the landlord’’s benefit, and monies will be released upon repair. Document your communication with the landlord in writing.

QUESTION NO. 2: "The city wants my old barn demolished or fixed up? What are my rights against the city and can it be stopped"?

A: Generally, municipalities have the right to enforce building and zoning ordinances that do not comply with safety, fire or blight codes. While the property may not be open to the public, there are a host of other reasons the government can issue a citation. A real estate attorney would need to review your city’s zoning code.

QUESTION NO. 3: "Can a prospective landlord ask to "inspect" my current residence before renting to me in Michigan"?

A: I am aware of landlords that drive by a tenant’s current home to inspect the upkeep when making a decision to lease. You do not have to comply with this request, but then there is nothing illegal about the landlord refusing to rent to you provided that it is not based on any protected class under federal law and fair housing laws. (Race, sex, sexual orientation, religion, or marital status.)

Week Of April 29, 2023

QUESTION NO. 1: "How do I get a judgment put on someone's credit report"?

A: You have to be a subscriber to the various credit bureaus to report judgments and collection matters. It should be noted that certain credit agencies do send ‘researchers’ to the courts to pull this information. It is up to the agencies to then decide if they place on reports. I am aware of one bureau that will no longer report judgements.

QUESTION NO. 2: "How do I acquire property where the owner is unknown and it has been vacant for at least 10 years or more"?

A: Please know that in Michigan an action for adverse possession requires 15 years. To prevail there must be actual, visible, open, notorious, exclusive, hostile, continuous, and uninterrupted use of the property by the person filing for the right to possess the property. Just because the property is “abandoned,” someone must be paying property taxes to keep it from tax foreclosure. My suggestion is that you go to the property tax department and see whose name is on the tax bill, then write to them that you have an interest in their property. Remember, only licensed attorneys can dispense legal advice. Court clerks, real estate agents, accountants, etc must be a licensed lawyer to provide legal advice.

QUESTION NO. 3: "I purchased a house in Michigan and sold it to a couple on lease to own. They have now paid off the loan. How do I transfer the deed to them"?

A: You would convey your property interest by a deed. What type of deed will depend on the agreement that the two parties made. Did you agree to transfer with a quit claim deed, a covenant deed or a warranty deed? Which one you select affects your legal rights.

Week Of April 22, 2023

QUESTION NO. 1: "Can I purchase the redemption rights for $1000 from the owner of the property if the sheriff's sale happened last week?"

A: Yes. The homeowner can alienate or sell their redemption rights. However, the Michigan Court of Appeals recently held in a case that the mortgagor may, after the original mortgage transaction, sell or convey his or her equity of redemption to the mortgagee by a separate and distinct contract entered into for good faith and for valid consideration, but “the exchange must be fair, frank, honest, and without fraud, misconduct, undue influence, oppression or unconscionable advantage of the poverty, distress or fears of the mortgagor.” This means that you must have the proper conveyance and releases. Otherwise, you open yourself up to a lawsuit.

 

QUESTION NO. 2: "My mom is elderly and wants my name on the deed to her house that is paid for. Do we need to hire a lawyer for this?"

A: What kind of deed? A quit claim deed? A Warranty Deed? A Covenant Deed? A Ladybird Deed? Does she want you to hold it Jointly with Rights of Full Survivorship or as tenants in common? If you don’t draft deeds on a regular basis, it is probably best to use a real estate attorney to properly convey title to a property. That way you know it is done right and there are no far reaching legal or tax consequences.

 

QUESTION NO. 3: "I have been fixing and renting houses for over 15 years. I am being told by the city building department that I have to hire licensed contractors to do work on my rental(s) because I am not licensed. Why should I have to pay an electrician when I am capable of doing the work myself. I pay the City an inspection fee anyways. Is their statement true?"

A: The city has to ensure that your rental property is up to building code and it is common for investors to pay an annual fee for a rental inspection. If you are doing work that requires a permit, the permit can be pulled in your name or in your licensed contractor’s name. Whoever pulls the permit is responsible for the quality of work. If it passes code, then there should be no further questions.

Week Of April 15, 2023

QUESTION NO. 1: "My home was sold in foreclosure in 2020. I received a letter regarding the release of mortgage account paid in full only to find out I had a deficiency on the balance. Should I still have a deficiency?"

A: The discharge, if done in error, does not change the status of your loan deficiency. However, the mortgage lender would need to file a notice with the Registrar of Deeds that the discharge was not effective.

QUESTION NO. 2: "We have a survey dispute with the neighbors. They are now selling the house, should we contact their realtor?"

A: No. You could be seen as interfering with a third party’s transaction. The Michigan Seller Disclosure Act requires your neighbor to disclose to potential buyers if there is a boundary issue. Additionally, until a court order clarifies the boundary, it is nothing more than a dispute with no basis and with no legal determination.

QUESTION NO. 3: "Can a person on SSI disability own property, when SSI limits the amount of cash that they can have ($2,000.00) in the bank?"

A: Generally speaking a person who collects disability can own real estate. If you are speaking in terms of financing a property with a mortgage, then your disability income should be included in the income calculations, provided the disability is not temporary. So for financing purposes, disability income may not help you qualify to refinance or purchase a home.

Week Of April 8, 2023

QUESTION NO. 1: "The advertisement for the property said the lot was 426' x 215', but would be redrawn to 500' x 250'. After the purchase order was signed, the lines were surveyed at 395' x 220'. What now?"

A: So the legal description / lot size was misrepresented in the home listing. Unless you made the listing document itself as part of the purchase agreement, it cannot be relied upon and the seller is not liable to you for the stated lot size. You did your due diligence by having the property surveyed. There should be a contingency period in which you can either move forward or cancel the transaction. You should also have your earnest money returned or if you determine if the price is appropriate for the lot size, you have the option to move forward.

QUESTION NO. 2: "In a house closing, are all credits and debits to the buyer and seller required to be written in closing paperwork? The loan officer emailed my wife saying that he is waiving the tax service fee. I called the loan officer and asked him to put it in a formal document and sign it. He refused saying the email was good enough."

A: First, a tax service is usually charged by the loan servicing company which is often a third party fee. It does need to be disclosed on the Good Faith Estimate. If this fee changes, the Good Faith Estimate must be re-disclosed. Based upon your narrative, the email is evidence in writing that he is ‘waiving’ the fee. However, he may not have the authority to approve said ‘waiver.’ Contact his manager and if it escalates, contact the state. Loan officers and mortgage companies are regulated by state and federal laws.

QUESTION NO. 3: "My mother, father and I are on a quit claim deed with survivorship. My mom passed and my dad remarried. Do I still have the rights to the deed?"

A: Generally, a recorded quit claim deed will prevail provided that the grantor language (right of survivorship) is expressed properly.

Week Of April 1, 2023

QUESTION NO. 1: "What type of deed must I file when I sell my interest in a land contract? My buyer says that I promised them a warranty deed, but I explicitly wrote in the contract that I would provide a quit claim deed. Now, the title agent insists that I provide a warranty deed or they will not insure the buyer's title."

A: There are several types of deeds that you could provide. This is based upon your contract provisions, and there is no required deed type per se. A quit claim deed is most preferred from a seller’s perspective, however, your buyer will most likely want a warranty deed. So your title agent is basically “killing your deal” if they are insisting on a warranty deed when you have contracted only for a quit claim deed.

QUESTION NO. 2: "I have been married for 10 years and own a house with my husband. We are now getting divorced. I do not want the house and he wants to refinance on his own and assume the mortgage. Will I get anything from the refinance?"

A: If there is a divorce decree, then the provisions of the divorce decree control how the proceeds of a refinance are issued. If the judgment has not yet been issued, then you will need to work out the amount of proceeds you are expecting from the refinance with your spouse, or it will most likely be negotiated between the attorneys.

QUESTION NO. 3: "I bought a new construction home last December. I've had nothing but problems. Is there a lemon law for homes?"

A: There are contract laws and building codes that pertain to new home construction. Hopefully your home was built by a licensed Michigan builder. That is where you need to start. Then have a real estate attorney review the provisions of your builder’s agreement. You will need to support your allegations with evidence of poor workmanship: third party estimates, photos etc.

QUESTION NO. 4: "I signed a land contract with a company. Two years later the company owner/manager directed me to make payments to his personal account and texted me his personal account number. I have made two payments to his account. Is this even legal? Am I doing something that can be a problem later?"

A: If the agreement is with the company, and payment specifies payment to the company, then the payment shouldn’t go elsewhere. If the LLC is a single member LLC, there may be an argument for the payment to go to their personal account and in this case, it is not fraud. Keep track of your payments – you should have an attorney review the land contract document.

Week Of March 25, 2023

QUESTION NO. 1: "Would you please tell me whether or not I have to accept an offer of the full asking price I received on my property? I feel that the realtor has been pressuring me to accept it."

A: Just because you receive a full list price offer does NOT necessarily mean you have to accept the offer. What are the other terms – there are variables that have nothing to do with price that may not make it a good offer – for example, what are financing terms, types, inspection and closing contingencies, etc. Too many to name. So 24 hours to review an offer when you want an attorney to review – is not acceptable – you should never feel rushed.

QUESTION NO. 2: "I am a landlord evicting a tenant. I am in the process of selling my home. Can I still go after my tenant after I sell the home, for past rent due to me?"

A: Generally speaking, you can sell the home, but then if you are NO longer the owner / landlord you will no longer have standing in court to bring your action for money damages or possession unless your new buyer assigns that right or leaves that right to you after closing.

QUESTION NO. 3: "I want to determine if it is worth bringing a law suit against a bad actor - should I first do an asset search on the potential defendant before proceeding with my attorney?"

A: While there is nothing wrong with having your attorney do an asset search, the results you seek are not indicative of future collectability. Judgements are good for 7 to 10 years so people with hidden or no assets can have their assets attached at a later date. Likewise people and companies with assets can and do file bankruptcy on judgements. No attorney can predict future collectability of a defendant, so overly rely on an asset search – which is nothing more than a snapshot of a person or company’s assets at any given time.

QUESTION NO. 4: "Can a commercial property owner kick a tenant out for subleasing a property to another party? There is a part of the building lease that says I can sublease?"

A: We would need to see the provision, but it is common in the industry for such provisions to require written approval from the landlord before the sublease can move forward. Check the provision again to ensure that this is not the case.

Week Of March 18, 2023

QUESTION NO. 1: "I am buying a condo. I have signed all documents including the Purchase Agreement. Next step Closing. Can I withdraw without losing my deposit at this point?" I used an AI generated documnent and I don't see where it allows me to get my deposit back if something falls through.

A: A real estate attorney needs to review the sales agreement to see what provisions apply and if there are any penalties, or legal remedies available to the seller. Artificial Intelligence (A.I.) may be the “next big thing” but it simply does not have the ‘experience” to cover all the bases for you, the client. A.I. content pulls information from across the internet, but there are numerous contract provisions that may or may not be appropriate for your circumstances; an attorney should create the document that will protect your specific interests.

QUESTION NO. 2: "Can an associate broker operate a property management business aside from the company he is licensed with?"

A: In Michigan, the state requires that a property management company be owned and operated by at least one person who is licensed as a real estate broker. To the extent that you can operate such a company and also be licensed with your current broker is a determination that can be made between the two parties.

QUESTION NO. 3: "Can a building inspector enter into a private home without a warrant?"

A: Municipalities have wide latitude to enact building codes and enforce them for the benefit of public safety. If the home is condemned or has other immediate safety issues, the city should have tagged the property and also sent letters to the owners, based upon the owners’ registered address, notifying the owners of the problems. If this property you speak of is a public safety hazard and they are not getting any responses from the owner, I believe the city has the right to enter the property to inspect and secure the property. Furthermore, I am assuming this property is located in Michigan and therefore, Michigan law will apply.

QUESTION NO. 4: "Our real estate broker is charging a base fee of $500 and this was not disclosed verbally or in writing. When we questioned the broker about it, he said the office charges a minimum $500 per house for administrative costs. Is this normal?"

A: Administrative fees are often disclosed in the listing agreement. Also, sometimes the property listing agreement will say the fee is “x amount, but never less than $X.” But whatever the charge, it must be disclosed in writing or it cannot be assessed or collected by the broker.

Week Of March 11, 2023

QUESTION NO. 1: "I bought a house without an inspection and found out that the seller closed off some basement rooms to hide mold and structural issues as well. What are my rights?"

A: Just because you forgo a home inspection when you purchased your home does not necessarily mean that you are stuck with a property’s defective condition. However, it may be more difficult to make claims against a seller in these circumstances. Therefore, unless you were relying upon a seller’s completed disclosure statement that says the home is structurally sound, you may have taken the property in its current state without further recourse against the seller. Seek further counsel.

QUESTION NO. 2: "Recently an investor gave me a cash deposit to purchase my property. No written contract was signed and no receipt was given. A month later he called me to cancel the deal. Do I have to give the money back?"

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.

QUESTION NO. 3: "I just paid off my home and the mortgage was with a private lender (person). What documents should I expect from them and what should I get recorded with the county?"

A: After a homeowner pays off a mortgage in full, they need to obtain a mortgage discharge from their lender. The lender needs to provide the discharge to the mortgagee within 60 days of the receipt of the loan payoff. Additionally, most mortgage contracts call for the lender to record the discharge with the county registrar of deeds. In a private mortgage arrangement, it is best for the homeowner to record the mortgage discharge. If the loan involves a land contract, then land contract buyers do not receive a discharge. Instead, they receive a deed from the seller. The deed serves as proof that the terms of the land contract were met, and the buyer is now on title to the property as the owner.

QUESTION NO. 4: "I had a fire at my building. The company I bought it from through a land contract, still shows as the insured. Do I have a right to the insurance proceeds even if I am not named on the fire policy? The seller says I am not entitled to the insurance proceeds."

A: The insurance company will pay the claim to whoever is listed as a “loss payee” on the policy. How insurance proceeds will be handled thereafter will be controlled by the land contract provisions. This is an important clause that should be in every real estate contract. So if your seller is named on the policy, and you are not, your attorney would have to review the contract to make the claim for proceeds against the seller. Just a word of note, nothing stops you from being listed as a proposed insured on a property casualty agreement since it sounds as if you have an ‘insurable interest.’

Week Of March 4, 2023

QUESTION NO. 1: "I am buying a condo. I have signed all documents including the Purchase Agreement. Next step is the Closing. But now I don't want to move from my current home. I have so many memories here. My family and frieends are close by. I have changed my mind. Can I withdraw without losing my deposit at this point?"

A: A real estate attorney needs to review the sales agreement to see what provisions apply and if there are any penalties, or legal remedies available to the seller. By the way, we understand your reluctance to move, but make sure it is what you really want to do, because backing out of a deal can be costly.

 

QUESTION NO. 2: "Can an associate broker operate a property management business aside from the company he is licensed with?"

A: In Michigan, the state requires that a property management company be owned and operated by at least one person who is licensed as a real estate broker. To the extent that you can operate such a company and also be licensed with your current broker is a determination that can be made between the two parties.

QUESTION NO. 3: "Can a building inspector enter into a private home without a warrant?"

A: Municipalities have wide latitude to enact building codes and enforce them for the benefit of public safety. If the home is condemned or has other immediate safety issues, the city should have tagged the property and also sent letters to the owners, based upon the owners’ registered address, notifying the owners of the problems. If this property you speak of is a public safety hazard and they are not getting any responses from the owner, I believe the city has the right to enter the property to inspect and secure the property. Furthermore, I am assuming this property is located in Michigan and therefore, Michigan law will apply.

 

Week Of Feb 25, 2023

QUESTION NO. 1: "I found severe structural damage to a garage floor during the final walkthrough that the inspector didn't catch because the garage entrance was blocked during the scheduled inspection. Do I still have to close on this house?"

A: If there is a structural issue or home defect that comes to light prior to a closing and the seller should have disclosed the defect that was known to them, then you may have grounds to cancel the transaction. The fact the home inspector could not get into the garage to do their home inspection is important to note. I would suggest that you speak with a real estate attorney further so that they can review your documents, before an anticipated closing. As far as commission driven sales people, they are not attorneys and cannot provide legal advice.

QUESTION NO. 2: "What if my land contract buyer keeps ignoring the payment terms — they pay, but not the right amount. We are almost done with the contract after five years. I don't want to take them to court. What is my option otherwise?"

A: You can keep taking the payments, but let them know that you are not waiving any of your rights. Since the contract is almost paid off, when you generate your payoff, make sure you add any late fees to the final payoff before you provide them with the deed.

QUESTION NO. 3: "In Michigan, what happens when parties to a contract allege that the other party breached the contract terms? The building's seller is pulling out of our deal, alleging that I did not inspect the property in time, but they were the ones who had large metal crates that obstructed the inspection."

A: To establish a breach of contract, one must prove “(1) there was a contract, (2) the other party breached the contract, and (3) the breach resulted in damages to the party claiming breach.” Bank of America, NA v First American Title Ins Co, 499 Mich 74, 100; 878 NW2d 816 (2016). The salient element is the second, when both parties alleging that the other breached the contract. “The rule in Michigan is that one who first breaches a contract cannot maintain an action against the other contracting party for his subsequent breach of failure to perform.” Michaels v Amway Corp, 206 Mich App 644, 650; 522 NW2d 703 (1994). “However, that rule only applies when the initial breach is substantial.” Id (emphasis added). “In determining whether a breach is material, the court should consider whether the non-breaching party obtained the benefit it reasonably expected to receive.” Omnicom of Mich v Giannetti Inv. Co, 221 Mich App 341, 348; 561 NW2d 138 (1997).

Week Of Feb 18, 2023

QUESTION NO. 1: "How can I stop my sister from using a power of attorney for my father who happened to pass away last month? She was going to rent out of my father’s rental homes to a third party, but now, I need a place to live. I intend to move into this home."

A: A power of attorney expires upon the death of the party who grants their power of attorney (the “Principal”). So your sister, (the “attorney in fact”) cannot enter into any binding transactions after the death of the principal. What happens with your father’s rental home will have to be determined by his will, if he left one.

QUESTION NO. 2: "My land contract buyer has not been paying. For many reasons, we thought he abandoned the house. We went to the house, opened the door and found that his stuff was still there. We changed the locks but left a new key. Can he sue us for breaking and entering?"

A: You are the owner of the home. Provided that the facts are reasonable for someone to believe that the person had abandoned the property, then by law you have the right to secure the property. If you INTENTIONALLY changed the locks, knowing that the buyer / tenant was still in the home, then you have a BIG problem. It is called Lock-out and the penalties for Lock-out are very expensive. If you went to the home to secure it, reasonably believing that he had left, provided that you changed the locks and gave him a new key, then it will help to show that your conduct was not malicious. HOWEVER, there are two sides to this story, and while you are the owner of the home, you can still be sued this is a civil matter.

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QUESTION NO. 3: "In the disclosure, the seller said a hot tub would not stay. We did not want them to leave the hot tube because it was GROSS - in bad shape -Well, they left the hot tub behind (Thanks but No thanks!) and now it is going to cost us $1100 for it to be removed. We want them to pay for it. Who is right?"

A: A purchase agreement is a legally binding contract. Generally speaking, if the seller represents in the purchase agreement that they will remove the hot tub from the home upon the sale, then they need to take it with them either before or after the closing occurs.

Week Of Feb 11, 2023

QUESTION NO. 1: "I was told by my real estate agent that I can force my family member to sell a home that we own together. Is true or even possible that in a partition action (my brother and I are fighting over my late mother’s home) that a judge could force the sale of a house regardless of whether we consented to the sale? What if we own the property jointly? What if I want to buy out my brother’s interest?"

A: In a partition action, you could elect to pay off your brother’s interest if he fails to work with you. Nothing prevents you from paying off his 1/2 of the fair market value of the property. This would be offset by all of your contributions made to the home over these past years, including payment of taxes, repairs etc. real estate / probate attorney. Also, you need to know that if the property is held jointly, the court does not have such discretion to order the sale of a home. So you need to verify how title is held.

QUESTION NO. 2: "The seller is not cooperating with a payoff on a land contract to sell the home I purchased. I paid on a land contract for years and the seller will not give me the deed. What now?"

A: You should always have the seller execute the deed at the time the land contract is signed and submit the deed to an attorney’s escrow for when the land contract is paid off; the agreement is satisfied. This way you don’t have to chase after the seller at a later date.

QUESTION NO. 3: "I have an offer on my house that is less than the asking price. However, they also want me to pay seller concessions. Is it normal to ask the seller to pay the buyer's closing cost in addition to paying their own closing costs?"

A: Yes, this is common in a less than “robust” seller’s market. These days, seller concessions are not as common because the real estate market is very good. However, often the real estate agent will increase the asking price to accommodate for “seller concessions,” which usually is no more than 3% of the purchase price.

Week Of Feb 4, 2023

QUESTION NO. 1: "I want to sell half interest in my home to my son. He will be occupying the premises. I want to understand joint ownership with the right of survivorship. I am 75 years old and in good health. My goal is to avoid probate. Can this be done?"

A: The answer will depend upon several variables, but generally, owning a property jointly (with specific legal language) will allow your son to take title to the property upon your death. There are several types of deeds that will help accomplish your concerns without going through probate. You should definitely speak with a real estate / probate attorney.

QUESTION NO. 2: "Before my father died, he deeded our family home to his living trust. The problem is that there is no living trust because he never signed it. The title company will not allow the house to close now. What do I do?"

A: Because there is no effective and valid trust in existence, there is no where for the property to be conveyed to. Since there is an ineffective transfer, the property remains in your father’s estate. Therefore, there needs to be an estate opened with the probate court. Only then can the home be conveyed by an assigned personal representative of the estate to your buyer.

QUESTION NO. 3: "I’m currently getting ready to pay off my long-term land contract (20 years). Is there a way to avoid getting my taxes reassessed?"

A: You should contact your City Assessor’s office to let them know that you will have legal title. You may have been given the principal residence tax exemption earlier on. So check with them. I would recommend that you contact the office to discuss further if you have any other 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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