We all know it is getting harder and harder to find our little piece of this earth to call our own. Housing prices continue to rise and the demand for houses has only gotten more competitive. This have never been more true than on Cape Cod, where one condo owner believed they owned more than their deed described.
In a recent Land Court decision in Barnstable County Massachusetts, an owner of a condominium filed suit against the Trustees of the Condominium, stating they have acquired a piece of the common area property as their own property through adverse possession. Adverse possession is law designed to promote the use of land throughout the Commonwealth. In Massachusetts to acquire land through adverse possession, one must have exclusive use and control of property for over 20 years. This use must be done openly, so that the owner would be able to see another using the property. The person using the land must also not have permission to use the land. In the case at hand, the plaintiff met all the requirements of obtaining the common area land as their own via adverse possession.
In this case the judge ruled against the plaintiff. Even though all the requirements for obtaining land via adverse possession were met, it violated the Massachusetts condominium laws, stating each condo owner already owns a proportional, undivided interest in the common areas, which can not be modified without the consent from the other owners in the association, and a modification of the Master Deed would be required. Furthermore to award the property to one owner via adverse possession would make the laws pertaining to the governing of condominium associations meaningless.
It’s understandable why the court came to this decision. As more and more condominiums are built, we need well defined laws to allow them to peacefully and independently run.
Thinking of buying or selling a condominium? Do you have questions about your current condominium or its association? Contact us at Topkins and Bevans, we have decades of experience in all types of real estate law, including condominiums.
These are both very good questions. Let’s start with the first question and then the answer to the second question will be obvious.
What is Owner’s Title Insurance? It is Insurance that insures you against losses you may suffer as a result of issues affecting the title to your property. When you are buying a property in Massachusetts usually a title examination is completed that complies with MGL Ch 93 Sec 70. Based upon the result of this search a Title Insurance Policy can be issued and a Certification of Title may be issued to you. The Certification is dealing with the record title to your property. It is provided by the law firm closing your purchase. They may also be issuing the title insurance for the transaction.
They can issue two different types of policies. The policies issued in most transactions involving the purchase of real estate are:
- Owner’s Title Insurance and
- Lenders’ Title Insurance.
The Owner’s Policy protects you and the Lender’s Policy protects your lender. The lender will make you buy their policy, but your policy is optional. Even tough your interests may coincide with that of the lender their policy only protects them in the event of a loss. This often means not until they have acquired ownership of the property. At that point you no longer have an interest in the property.
When you buy your house, you are buying more than just the structure you will live in. You are also buying the property’s legal history. All the good and bad that comes along with it. Any title issue that impacts the property is now your problem. You may be able to look to the law firm that closed your purchase to address the issue or maybe not. There are numerous problems that can impact your ownership of your property that cannot be detected by a title exam and therefore are not addressed by the Certification. These title issues may be covered by your Owner’s Title Policy.
The Owner’s Policy will insure that:
- You are the legal owner of the property
- That there are no defects, liens or encumbrances effecting your property other than those listed on your policy
- In the event that there is a title defect, you may be able to convey your property to a potential buyer if they are willing to accept insurable title
If you are trying to refinance a loan policy may be issued
Things that are covered:
- Forgery and impersonation;
- Lack of competency, capacity or legal authority of a party;
- Deed not joined in by a necessary party (co-owner, heir, spouse, corporate officer, or business partner);
- Undisclosed (but recorded) prior mortgage or lien;
- Undisclosed (but recorded) easement or use restriction;
- Erroneous or inadequate legal descriptions;
- Lack of a right of access; and
Deed not properly recorded.
Things that may also be covered depending upon the type of Owner’s Policy you purchased:
- Off-record matters, such as claims for adverse possession or prescriptive easement;
- Deed to land with buildings encroaching on land of another;
- Incorrect survey;
- Silent (off-record) liens (such as mechanics’ or estate tax liens); and
- Pre-existing violations of subdivision laws, zoning ordinances or CC&R’s.
- Post-policy forgery;
- Forced removal of improvements due to lack of building permit (subject to deductible);
- Post-policy construction of improvements by a neighbor onto insured land; and
- Location and dimensions of insured land (survey not required).
Your Owner’s Policy will insure the entire value of the property. It will protect you from any legal action taken against you to enforce a lien or property right to your property. The amount of your coverage may increase each year for the first five years of your policy. It is automatically added to your policy with no additional premium due from you. Your policy will protect you during your entire ownership of the property. It may even protect your heirs depending upon the type of policy you purchased.
You should want to protect what maybe the largest investment of your life anyway that you can. The purchase of Owner’s Policy is that one-time investment that should not be missed. You will have the peace of mind that no matter what the issue that comes up with your property’s title you are protected, and the title company will defend your rights. It is no surprise that your lender requires it and so should you.
First-Time Homebuyers have another arrow in their quiver in their attempt to slay the great monster, purchasing their first home. On April 26, 2018, Freddie Mac announced a new loan program targeted at first-Time homebuyers. It is called HomeOne. The Program requires a down payment of 3% and it is provided to otherwise qualified borrowers who are first-time homebuyers. This is not a FHA insured loan but a conventional loan. According to Freddie Mac, HomeOne will be available to borrowers commencing on July 29, 2018, so it misses this spring’s market but it will be positioned for the late summer and early fall seasons.
Freddie Mac’s release stated that “HomeOne mortgage is part of the company’s ongoing efforts to support responsible lending, provide sustainable homeownership and improve access to credit,…The HomeOne mortgage will provide our customers the flexibility they need to help borrowers anywhere in the country achieve the milestone of homeownership and overcome the common down payment resource hurdle. HomeOne is a great solution for aspiring homebuyers to grab that first rung of the property ladder and enjoy the financial and social benefits of participating in homeownership.”
The underwriting of the loans will attempt to make a complete risk assessment based on several factors. It will review credit as it applies to the capacity to repay and the value of the collateral as well as other factors. It was stated that HomeOne mortgage will be offered only for conforming fixed-rate mortgages. The loan must be secured by a single unit primary residence. Not all of the borrowers have to be a first-time homebuyer, but at least one does have to be a first-time homebuyer. According to Freddie Mac it is also adjusting the area-median-income (AMI) limits in an effort to sharpen its focus on low- and-moderate income homebuyers.
So, if you are a first-time homebuyer looking for a property, you may want to consider this loan program. It is also important to note that this is not the only program available to first-time homebuyers nor is it our firm’s endorsement of the program. You should always seek the advice of a well-informed lending professional when you are purchasing a home. Our Firm is prepared to assist first-time homebuyers in their purchase of their home in the Commonwealth of Massachusetts. We want to earn your trust and have you as a client for life.
Earlier this week new lending guidelines for first-time homebuyers were released in a statement by the FHFA Director Melvin L. Watt . Watt wrote “The new lending guidelines released today by Fannie Mae and Freddie Mac will enable creditworthy borrowers who can afford a mortgage, but lack the resources to pay a substantial down payment plus closing costs, to get a mortgage with 3 percent down.
The lower down-payment requirement will allow more first-time homebuyers the opportunity to buy a home. Often the greatest hurdle for the first-time homebuyer is saving enough for a down payment. Many first-timers would try to save 20% of the purchase price that many lenders required. It can take a significant period of time to save that large amount of a down-payment forcing first-timers to wait to buy a home. Right now with rates as low as they are it very well may be cheaper to buy than rent.
FannieMae in its statement regarding its My Community Mortgage® “announced an option for qualified first-time homebuyers that will allow for a down payment as low as three percent. …the 97 percent loan-to-value ratio (LTV) option will expand access to credit for qualified first-time homebuyers that may not have the resources for a larger down payment.” Other requirements will still have to be met by the first-timer. These include “the usual underwriting, income documentation and risk management standards. These loans will require private mortgage insurance or other risk sharing, as is required on purchase loans acquired by the company with greater than 80 percent LTV.”
FannieMae expressed its hope that “Our new 97 percent LTV offering is simply one way we are working to remove barriers for creditworthy borrowers to get a mortgage. We are confident that these loans can be good business for lenders, safe and sound for Fannie Mae and an affordable, responsible option for qualified borrowers.”
FannieMae will require for this program that at least one of the borrowers be a first-time homebuyer.
FreddieMac also provided its guidelines for the low down-payment program. The program is entitled “Home Possible Advantage”
FreddieMac also set forth its Key Facts:
- Home Possible Advantage offers qualified low- and moderate-income borrowers a conforming conventional mortgage with a maximum loan-to-value ratio of 97 percent.
- Home Possible Advantage mortgages can be used to buy a single unit property or for a “no cash out” refinance of an existing mortgage.
- First time homebuyers must participate in an acceptable borrower education program, like Freddie Mac’s CreditSmart®, to qualify for Home Possible Advantage.
- Home Possible Advantage mortgages are available as 15-, 20-, and 30-year fixed rate mortgages.
These programs are seeking to allow the first-time homebuyer the ability to buy a home with less of a down payment but also limit the risk that the loan will go bad or default. They are focusing on the borrowers’ credit worthiness as opposed to the size of their down-payment. There is always an element of risk with requiring a lower down-payment; the homeowner has less of their own money at risk. But when you balance this against the economic drag of so many potential buyers sitting on the sidelines the benefit of pulling pull them into the real estate market may outweigh that risk.
We offer reduced rates for first-time homebuyers. Contact if you are thinking about buying a home. We will provide you with over a century of experience in dealing with real estate.
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