Tag Archives: real estate law

Evictions – If a tenant installs a fixture does it become the property of the landlord?

When a tenant installs an item in an apartment, such as track lighting, a chandelier, cabinetry, etc., which item is removable, but is attached to the wall, ceiling or floor of the premises, the installed item is known as a “fixture.”   The standard rule in real estate law is that a fixture becomes a permanent improvement to the premises and may not be removed without the consent of the owner of the premises.  However, in the area of landlord tenant law the courts generally have a bias in favor of allowing a tenant to remove a fixture when the tenant vacates an apartment; although that bias is conditioned upon there being no material damage caused to the premises by the removal of the fixture.  If the landlord wants the fixture to remain then the landlord must show that the tenant intended or agreed that the fixture would remain at the premises.  Additionally, or alternatively, if the landlord can show that the removal of the fixture would cause material damage to the premises then the court will likely not allow the removal of the fixture unless the tenant pays for the necessary restoration of the unit after the removal of the fixture.  So, in the area of landlord tenant law the general rule is if a fixture can be removed without causing any material damage to the premises then the fixture may be removed, unless the landlord can show it was intended by the tenant that the fixture become a permanent part of the premises or that the removal will cause material damage to the premises. 

I advise all tenants to first check with their landlords before installing a fixture.   Indeed, most written tenancy agreements require the landlord’s advance approval to install a fixture.   The landlord and the tenant should then enter into a written agreement to establish whether the fixture will stay or go when the tenant moves out.

At Topkins & Bevans we have years of experience in handling commercial and residential evictions on behalf of landlords as well as tenants.   If you have need of an eviction attorney please contact Topkins & Bevans so that a skilled attorney may assess your case and guide you through the process

When is an Offer to Purchase a P&S? The answer, Almost Always!

Many people that deal with real estate on a daily basis do not realize the ramifications of a signed Offer to Purchase Real Estate (the “Offer”). If the Offer meets the requirements of the Statute of Frauds, the parties intend to be bound and the other essential contract terms are present, presto, you have a Purchase and Sale Agreement or an enforceable contract to purchase real estate (“P&S”).

1 The Requirements of the Statute of Frauds:

A contract for the sale of land must be in writing and signed by the parties or an authorized agent of the parties. The parties would be the buyer and seller. Make sure the record owner of the property is signing the Offer. The property must be described so that it can be identified.

Compliance with the Statute of Frauds does not necessarily require a purchase price, a time to complete the transfer or the quality of title that has to be conveyed Inflatable Arches.

2. Intention to be Bound:

It is not sufficient to make the offer contingent upon the execution of a P&S. If the parties do not want to have the Offer become a P&S, they must include language that is similar to “this offer is intended only as a memorandum of the anticipated agreement and the parties do not intend to be bound but its terms.” The inclusion of this language may not be enough for a court to find that the Offer was a P&S but it gives you a much stronger argument.

3. Essential Contract Terms

The parties are indentified, purchase price, title condition and a closing date. In certain cases even these terms have been determined to be non-essential. Most of the Standard Offers used contain all of the essential terms and a binding agreement will be found. So if you are completing an Offer to Purchase assume it can be determined to be a P&S. If you assume this you must make sure that all of the anticipated terms of the transaction are included.

Your continued conduct and actions will also determine your ability to enforce the contract. If you do not comply with all of the terms of the offer your ability to enforce the Offer as a P&S will be significantly negatively impacted.

So before you execute that Offer make sure you have met with and discussed it with an attorney that will be representing your interests as a buyer or seller, we recommend that you contact us Topkins and Bevans.

Thinking and going outside the box for your client

We were recently faced with a problem for a client. The property they had acquired through a foreclosure was missing small but crucial additional lot (the “small lot”). This smaller lot of land had been added to the main lot some twenty years ago.  This was done when work was being done on the house. When the building permit was applied for a zoning issue came up. The solution to the zoning issue was to obtain the small lot from the neighbor. This is not an unusual situation at all. The deed was recorded and the work done.

We now must fast-forward 25 years. The property had been foreclosed upon. The legal description included in the mortgage was for the main lot only. The Deed to the person that was foreclosed was also just for the main lot. The small but crucial small lot had been left out. The property now could not be conveyed due to the fact that it violated the zoning ordinances for the town. The issue presented is how can we get the small lot to be owned by our client?

The easiest answer is to file a claim under the title policy. This issue may or may not be covered and most likely would not be a quick solution. In search for the most efficient way to resolve this issue you can allow yourself to be part of the problem and you might find the answer. Sounds fairly deep but analytically speaking it is fairly simple, put yourself in their shoes. The person that had conveyed the main lot to the people who had conveyed it to the borrower had the same last names. They also conveyed the small lot. They used the address on the deed as the property adjacent to the main lot. So we checked to see if they still owned the property next door, they did. Next we checked the probate court and registry records. We found no probate filings for them but we did find a mortgage granted by them from a few years ago. These were both very good signs that they were still around. We also checked for the people who had conveyed the property to the person who had been foreclosed upon. We did not find any activity in the registry of deeds but did find they had been divorced. The last thing we did was to drive by the property. Our property as expected was vacant. The mail-box on the house next door displayed the name of the previous owners for the main lot and small lot. This provided us with more evidence that they were still there.

Even-though the owners of the property next-door could not help us from a title standpoint, we contacted them thinking they would have the most knowledge of all the parties involved. They turned out to very helpful. The people that they had conveyed main lot and the small lot were their son and daughter-in-law. They were able to provide us with some contact information for them. We also searched for them through the internet. We were able to contact them and get a deed signed to our client for the smaller lot. The problem was solved and we did not lose the buyer.

I am not sure that conventional methods would have solved this problem. I am sure that they would not have allowed us to correct the issue in time to keep the buyer in this transaction. Thinking outside the box allowed us to provide the best service we could for the client. There may come a time when you need this type of representation, and when you do make sure you think of Topkins & Bevans.

The Reverse Mortgage a Possible Salvation to the Senior’s Retirement Plan

Many senior citizens have been significantly impacted by the volatile economy. The downward swing has forced many to dramatically change their retirement plans. One option available to them is the Reverse Mortgage. It is a relatively new product and seems to be very misunderstood. The Reverse Mortgage is designed to allow the borrower the ability to access the equity in their home today. They are not required to make payments to repay the equity taken. The essence of the Reverse Mortgage is that it is a loan with no payments due until some later time, which very well may be after the borrower is no longer in the property for whatever reason. The ability to pay-off a conventional mortgage with a Reverse Mortgage will end that monthly payment which may be draining your funds.

What are the requirements to getting a Reverse Mortgage? You must be 62 years of age or older. The property being used must be your principal residence in other words you must live there. If you do have a mortgage secured by the property the balance on it must be low enough so that it can be paid from the proceeds of the closing. The Reverse Mortgage must be a first mortgage. The property can be a single family home, a 1-4 family dwelling as long as  you reside in one of the units, a HUD-Approved condominium or a manufactured home that meets FHA requirements. Your income levels do not matter. You will also have to work with an independent HUD approved counselor in their local community to review the Reverse Mortgage Process, to make sure you know your rights.

The amount you can borrow is going to depend upon a few factors, your age, the current interest rates, and the appraised value of your home. The amount you borrow can also be limited by the FHA’s mortgage limits for the area where your property is located. Basically the amount you can borrow will be greater the older you are, the more valuable your property is and the lower the interest rates are. The AARP has on its website a calculator to determine the amount the borrowers may have available to them. http://rmc.ibisreverse.com//rmc_pages/rmc_aarp/aarp_index.aspx.

You will have to attend a closing just like any other loan transaction. The documents creating the security interest in your home will be signed then with other disclosures. You will have the next three business days following your closing to cancel the transaction. You can cancel this transaction during that time for any reason at all, provided you cancel it properly. The cancellation period does not apply to purchases transactions using a Reverse Mortgage.

Once you get your loan how can payments be made to you? A lump sum of the loan proceeds can be paid to you after the cancellation period has expired. The funds can be paid to you on a monthly basis. The payment will be the same each month and will continue as long as at least one of the borrowers is living in the house. This is called the Tenure Payment. You can also select the Term Payment which is similar to the Tenure Payment but the number of payments is for a fixed period of months. The next option is the Line of Credit. This allows the borrower the ability to select the times and amounts when you want the money. You can do this until the amount in the Line of Credit is exhausted. The Modified Tenure option is a combination of Line of Credit and monthly payments for as long as one borrower is in the home. The last is the Modified Term, which is a combination of Line of Credit with fixed monthly payments for a set term. These options allow the borrower to plan their retirement with more certainty.

The borrower will have to pay their taxes and homeowner’s insurance. If they do not they may be subject to the bank making the claim that the loan has to be paid. Otherwise as long as one of the borrowers is living in the property no payments will be due. If the property is sold by the borrowers the loan must be paid off. If the borrowers are deceased then it will be the estate’s obligation to pay off the amount due. The estate when it sells the property will then be able to keep the funds that the property sold that exceed the amount due. The amount due from the estate cannot exceed what the property is worth. If the estate wants to keep the home they could pay off the balance of the loan at that time.

Most Reverse Mortgages are taken out on an owner occupied principal residence. There is the option of purchasing a home using a Reverse Mortgage. The borrower must meet all of the requirements mentioned above and also have the funds to purchase the property when added to the available Reverse Mortgage loan proceeds. The rest is the same, no monthly payments due.

The Reverse Mortgage can be a valuable tool in planning your future. You should meet with a trusted advisor that offers Reverse Mortgages. You will now be able to ask the questions you need to based upon this information. The Reverse Mortgage may not be right for everyone but everyone should understand it so they can be aware of all of their options and make sound decisions. You will be the one in charge and making the best decisions for you and your future.
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Foreclosures are taking longer and it is hurting cities and towns

The Country has been experiencing a lengthy period of increased foreclosure volume. Many states and municipalities have passed legislation that has lengthened the foreclosures process. The hope was that the homeowner with the increased period of time might be able to recover sufficiently financially to bring their loan current or there would be more incentive for the lender to work with the homeowners and a foreclosure would be avoided. The concept at first blush should be embraced, but the application of these laws may actually result in more harm to the cities and towns it sought to protect.

The lender through its counsel has to make sure that it has complied with all of the laws governing foreclosure. Their failure to meet full compliance could result in the foreclosure being determined to be invalid. Many states and communities have enacted legislation that has lengthened the foreclosure process, and therefore it takes the lender a longer period of time before it can take control of the property. Often during this time or even before, the property becomes abandoned. Many homeowners will leave their property during the foreclosure process having determined that there is no hope of recovery. The vacant property is vulnerable to all types of activity much of which, if not all, is bad. The lender will try to secure the property during this time but that does not replace the presence of a homeowner as a deterrent to people doing things to or at the property. The results are not only bad for the property and the lender but also for the entire neighborhood. The longer foreclosure process results in the property being vacant longer and vulnerable longer.

A vacant property can eventually ruin an entire neighborhood. It may be used for all types of criminal activity. The vacant building is more susceptible to arson and drug activity. The property values in the neighborhood will be negatively impacted by the vacant property. This brings us back to the original discussion, the legislation enacted to lengthen the foreclosure process intended as beneficial, will actually do more harm than good. The net result will be a longer period of time a property remains vacant and a longer period of time for the neighborhood to deal with this blight. The lesson that we can learn here is that legislation that is consumer oriented, like all legislation, must be looked at not in a vacuum but in application.  The property abandoned by the homeowners leaves his neighbors and lender with the problem of cleaning up the mess left behind. The legislation could allow for a shorter foreclosure process in the case in which the property is abandoned. The legislation could also still provide the desired protection to the homeowner as long as she maintains an active role in residing in the property.

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The REO Attorney vs. The Foreclosure Attorney the Choice Will Save You Time and Money

     Many lenders and mortgage servicers continue to use the Foreclosure Attorney to represent them in the sale of the foreclosed property or REO Property; after all the Foreclosure Attorney should know the most about the property. This logic seems simple enough, but weighed against today’s REO market that choice may be one that prolongs the REO process and results in significant losses. The engagement of separate REO Attorney allows the transaction to conclude faster with less stress involved for you and a greater profit or at least less of a loss realized.

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     Your choice of REO attorney has to be based on the experience of the attorney. He or she has to be well versed in all aspects of the REO Transaction. This knowledge must include, at a minimum, foreclosure law, municipal regulation and complicated conveyancing. The utilization of inexperienced counsel, especially in today’s environment, could result in your losses increasing as the attorney climbs the learning curve at your expense.

    The process of the engaging an REO Attorney should commence as soon as the property is foreclosed upon. This will allow the REO Attorney to have a complete full title examination completed immediately. This full examination is different from the title done as part of the foreclosure. The foreclosure title exam usually covers the ownership period of the borrower who is being foreclosed upon. Often title issues will be discovered that existed well before the borrower took title. The REO Attorney, with a full title in hand, can commence any needed work to clear prior title issues that may be discovered. This may include commencing a title claim under the existing loan title policy or undertaking efforts to obtain the relevant documents to clear the issue. This completion of this task will allow the closing to take place when it is scheduled. The loss of a buyer or the financial losses that could be suffered from a delayed closing are then avoided.

    The REO Attorney will also complete a review of the foreclosure. This allows for a second examination of the foreclosure as soon as it has been completed. This is beneficial due to the fact that many Foreclosure Attorneys conduct numerous foreclosures, and mistakes can be made. They would then not be discovered until a closing is scheduled resulting in the cancellation of the closing or a lost buyer which cannot be acceptable to you. The REO Attorney’s review will allow for the immediate attention to any issues with the foreclosure. The correction of foreclosure issues may be made with affidavits or confirmatory documents; or the worst case scenario a” reforeclosure” of the mortgage. The advantage again here is that the fix is being done right after the foreclosure and not at the 11th hour prior to a closing, with the potential again of losing a buyer or the expansion of further losses.

    The experienced REO Attorney will be able to coordinate with the buyer’s counsel or counsel for the lender, to ensure an expeditious completion of the transaction. The REO Attorney will be familiar with any and all documentation required as part of the closing. The REO Attorney will be able to coordinate the issuance of title insurance if it is required and also the wiring of the funds to the client. Often the experienced REO Attorney will have working relationship, or at least a non-adversarial relationship, with the closing attorney, again resulting in a smoother completion of the transaction.

    The REO Attorney’s sole purpose is to make sure that the sale of the REO Property occurs as soon as possible, so the client can benefit. The process we have just set forth allows for any issues that are discovered to be addressed at the commencement of the process and not just prior to the closing. We at Topkins & Bevans have extensive experience representing clients in the sale of REO Properties. We bring our total focus and vast experience to serve the client knowing that the timely completion of the transaction is crucial to them and their profitably. Topkins and Bevans

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