Category Archives: Real Estate Law

Common Types Of Real Property Ownership

Common Types Of Real Property Ownership

When you file for bankruptcy, you have to list all aspects of your financial situation, including all of the property that you own. If you own real estate known as real property—you’ll also be asked to disclose your ownership interest using legal terminology.

Although this seems simple, you can hold property in different ways, including:
• fee simple
life estate
• future interest, and
• contingent interest.

Listing Real Property on Bankruptcy Forms

When you’re filling out your bankruptcy forms, you’ll need to describe all real estate that you own on Schedule A/B: Property of the official bankruptcy forms. You’ll be asked to include:
• the property address
• the property type (single-family home, duplex, condo, and such)
• who has an interest in the property
• the property value, and
• the nature of your ownership interest.

Real Property Ownership Types

Here are some common ways to own real estate.
• Fee simple: This is the most common type of interest. It is outright ownership. Even if you still owe money on your mortgage, as long as you have the right to sell the house, leave it to your heirs, and make alterations, your ownership is fee simple. A fee simple interest may be owned by one person or by several people jointly. Normally, when people are listed on a deed as the owners even if they own the property as joint tenants, tenants in common, or tenants by the entirety—the ownership interest is in fee simple.
• Life estate: This is the right to possess and use property only during your lifetime. You can’t sell the property, give it away, or leave it to someone when you die. Instead, when you die, the property passes to whoever was named in the instrument (trust, deed, or will) that created your life estate. This type of ownership is usually created when the sole owner of a piece of real estate wants a surviving spouse to live on the property for the rest of his or her life, but then have the property pass to the owner’s children. In this situation, the surviving spouse has a life estate. Surviving spouses who are beneficiaries of AB, spousal, or marital bypass trusts have life estates.

Other Important Real Property Terms

Most people will use one of the terms mentioned above to describe their real estate ownership interest. But, other situations can exist. Here are some terms that you’re not likely to need, but, depending on your circumstances, you just might.

• Future interest: This property right comes into being sometime in the future. A common future interest is owned by a person who under the terms of an instrument such as an irrevocable trust—will inherit the property when its current possessor dies. Simply being named in a will or revocable living trust doesn’t create a future interest, because the person who signed the deed or trust can amend the document to eliminate your interest.
• Contingent interest: This ownership interest doesn’t come into existence until one or more conditions occur. Wills sometimes leave property to people under certain conditions. If the conditions aren’t met, the property passes to someone else. For instance, Emma’s will leave her house to Josh provided that he takes care of her until her death. If Josh doesn’t care for Emma, the house passes to Emma’s daughter Jessica. Both Josh and Jessica have contingent interests in Emma’s home.
• Lienholder: If you are the holder of a mortgage, deed of trust, judgment lien, or mechanic’s lien on real estate, you have an ownership interest in the real estate.
• Easement holder: If you are the holder of a right to travel on or otherwise use property owned by someone else, you have an easement.
• Power of appointment: If you have a legal right, given to you in a will or transfer of property, to sell a specified piece of someone’s property, that’s called a power of appointment and should be listed.
• Beneficial ownership under a real estate contract: This is the right to own property by signing a binding real estate contract. Even though the buyer doesn’t yet own the property, the buyer does have a “beneficial interest”—that is, the right to own the property after completing the formalities. For instance, property buyers have a beneficial ownership interest while escrow is pending on property.

Community Property

Community property is a form of ownership by spouses during their marriage that they intend to own together.

Under community property, each spouse owns (or owes) everything equally, regardless of who earned or spent the money. Thus, each spouse gets an equal division of real estate property in the event of divorce or death. In the United States, nine states have community property laws. Outside of real estate, personal property acquired during one’s marriage, such as vehicles, furniture, and artwork, may be deemed community property. Depending on the community property state you reside in, real estate acquired during a common-law marriage may also be held as community property.

Community property with the right of survivorship is a way for married couples to hold title to property. It allows one spouse’s interest in community-property assets to pass probate-free to the surviving spouse in the event of death.

Other Ways to Hold Title

Entities other than individuals can hold title to real estate in its entirety:

Corporation ownership

Ownership in real estate can be done as a corporation, whereby the legal entity is a company owned by shareholders but regarded under the law as having an existence separate from those shareholders.

Partnership owners

Real estate can also be owned as a partnership. A partnership is an association of two or more people to carry on business for profit as co-owners. Some partnerships are formed for the express purpose of owning real estate.

These partnerships can also be structured as limited partnerships, where investors take limited liability by not making managerial decisions regarding management or transaction decisions. In these cases, one general partner is typically responsible for making all business decisions on behalf of the limited partners.

Trust ownership

Real estate also can be owned by a trust. These legal entities own the properties and are managed by a trustee on behalf of the beneficiaries to the trust. There are many advantages and disadvantages to holding real estate that falls outside the scope of this article, but all have to do with benefits surrounding managerial influence and financial and legal liability, in addition to tax and beneficiary considerations.

Transferring Property by Deed

The transfer process happens by way of deed. A property deed is a formal, legal document that transfers one person or entity’s rights of ownership to another individual or entity. The deed is the official “proof of transfer” for real estate, which can include land on its own or land that has a house or other building on it.

Every deed should contain the following information:
• An indication that it is a deed
• A description of the property involved
• The signature of the individual or entity that is transferring the property
• Data regarding who is taking title to the property

As deeds do not require much information, the document itself is often very short. However, the document may also contain additional information such as the conditions or assurances that go along with the transfer. Each deed must also be validly delivered to the individual taking ownership of the property. In most situations, it should also be filed with the appropriate authority as well. Every real property transfer will require the use of some type of deed. It is important to use the legal description of the property for the deed so that it can be recorded accurately.

There are several types of deeds. Each type varies based on the warranties provided to the grantee. Different varieties of deeds provide varying levels of title. Deeds help show ownership of the property. However, the deed itself is really only used for transfer of the property. The real “test” of whether you have ownership of a property is based on whether your name is on the title. When you have a title to a property, you also have various other rights that go along with property ownership, including the right to:
• access and occupy the property;
• place encumbrances on the property (i.e. mortgage);
• the property as you wish within legal bounds; and
• transfer the property in whole or in part.

Often, titles will be in more than one person’s name. For example, if a married couple owns their home together, both of their names will often be on the title for the property. When this occurs, each spouse generally holds a one-half interest in the property. That also means that the property cannot be transferred without both spouses’ permission.

The Importance of Having Good Title in Real Property Transfers

As property is held in such high regard in the Utah, having a good title is critical when you transfer property.

Every time a property is transferred, it is recorded in a public way, usually with the County Recorder’s office in your area. When a property is not recorded properly, there may be “holes” or “gaps” in the title. These deficiencies make your ownership questionable because it is unclear whether the person who received the transfer after a gap did so validly. That is, the person transferring the property may not have had the necessary ownership rights to assign it.

These concerns about titles lead to products such as title insurance, which will indemnify losses related to defects in the title to real property. Problems associated with the title become particularly relevant if there are encumbrances or debts that you are unaware of or did not agree to.

General Warranty Deed

A general warranty deed is often considered the most common way to transfer real property. It is used when you are aware and confident that the title to your property is good and marketable. It is most commonly used for residential real estate transactions. A general warranty deed is a buyer’s best protection against title challenges. The guarantee not only applies to the seller, but it applies to all of the individuals or entities involved in the chain of title for that particular property.

By providing a general warranty deed, you are also positively asserting that there are no debts or liens on the property. This concept may be confusing for some homeowners because they have a mortgage on their home. However, when you sell your property, your mortgage is often paid off with the proceeds of the sale, and may even transfer to a new property that you purchase. This is part of the covenant to convey free of encumbrances.
A general warranty deed also includes several other covenants that are built into the guarantee.

• Covenant of Seizing: This promise assures the buyer that the grantor has the right to the entire property that he or she is conveying. Generally, this applies to the quality and size of the asset transferred.
• Covenant of Quiet Enjoyment: A property owner is entitled to enjoy his or her property free of disturbances or challenges to his or her ownership. The covenant of quiet enjoyment assures the grantee that he or she will not be challenged by someone that is alleging to have a superior title or a lien on the property.
• Covenant to Defend Title: Arguably the most important covenant, the covenant to defend title includes a promise that the grantor will help the grantee if anyone does challenge the title to the property. That is, the grantor will provide a defense to all claims that contest the title and compensate the grantee for any damages or losses associated with that claim. The most common examples of a title challenge often include claims of previously unknown heirs, lenders, or lienholders, including mechanics’ lien holders and tax liens.

Quit Claim Deed

Unfortunately, not every property can be transferred with a general warranty deed. There are often many unknowns for property transfer that could create problems for a title. In those situations, using a quit claim deed may be appropriate. While a quit claim deed still conveys the owner’s total interest in the property, it contains no warranties regarding the title. That is, there is no assurance that the title the owner holds is valid and marketable. That means that the deal only transfers whatever rights of ownership that the seller has at the time of transfer. In most situations, the owner does have a valid ownership interest in the property, but still does not want to provide the warranties afforded in a general warranty deed.

Quit claim deeds can be concerning, but they are often the fastest means to transfer property. They essentially deal with potential title defects by avoiding addressing them altogether. Many title insurance companies will be reluctant to provide title insurance related to real property that is conveyed by quit claim deed.
Quit claim deeds are used most commonly in situations where:
• there is some uncertainty about whether a particular heir could claim title to the property;
• a party may have acquired the property through adverse possession;
• family members are transferring property between one another;
• you are transferring property into a trust;
• there has been a division of property, often related to divorce or business dissolution, wherein one member of the partnership transfers property to the other; or
• there may be some remainder interest in the property, but the owner wants the holder of the interest to disclaim their interest.

If you are considering purchasing a property through a quit claim deed, it may be helpful to ask the seller why he or she is using a quit claim deed as opposed to a general warranty deed or special warranty deed. The rationale may be something simple, or it could trigger red flags that may require you to rethink the purchase.

Of course, it may be a good idea to simply avoid these types of deeds unless you have significant trust in the seller or his or her title. Special considerations for title insurance may be necessary as well.

Property Abstracts

Part of the buying process includes an investigation into the title of the property. When you do not know the seller, this inquiry is often conducted by a real estate attorney. The attorney will determine the legal status of the seller, which is particularly relevant when the seller is a business or trust.

The Ascent Law firm attorney will put together what is commonly referred to as a “property abstract.” An abstract details the ownership record of a particular piece of real estate and provides information about whether the title may have any potential issues from a legal perspective. The abstract will go back as far as possible, using public and government records. In states that use title insurance, property abstracts are less common. They may not be used at all in other states. Regardless, it is useful information to have if it is available to you; if nothing else, it provides peace of mind knowing you have a good and marketable title in your real estate.

Create a Deed or Deed Transfer

You may not need to involve an attorney to create a particular deed if you already have all the information. This is especially true if you are transferring property between family members or into or out of a trust.
Ascent Law Firm Attorney provide several real estate forms that can help you transfer property validly in your state. Our deeds, including general warranty or quit claim deeds, are drafted by our team of lawyers to meet legal requirements in your state. Every document is backed by our industry-leading, 100% satisfaction guarantee.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews

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What Is FSBO?

What Is FSBO?

If you are selling your home without a real estate agent, you may end up need a For Sale By Owner (FSBO) purchase agreement. However, many FSBO sellers are not familiar with this document. It is normal to find yourself asking: what is a FSBO agreement? This is a way to list your home without the help of an agent or brokerage. People will do this if they are hesitant to pay a real estate agent’s commission. However, the benefits of having a real estate agent outweigh the cost of not having one.

You may review the specifics of FSBO agreements right here. Go over what must be included in a FSBO agreement. Find out if this document is legally binding and learn more about your options for completing a FSBO agreement to sell your property.

FSBO Purchase Agreement

Anytime you sell a property, there must be a purchase agreement. If you work with a realtor, they may draw up this purchase agreement for you. However, if you sell your property on your own, you must provide the document. This document is considered your FSBO purchase agreement. If you’re asking what a FSBO Agreement is, you should know that it is considered a legal document. It will need to include information to protect your legal rights. Note that if your FSBO agreement is not written carefully, the sale of your property could fall through. You could also end up losing money on the sale.

Many property owners don’t know where to start when it comes to designing a FSBO agreement. Your state may actually have specific requirements for writing up a FSBO agreement. Utah, for example, has an entire division dedicated to real estate contracts and forms, called the Division of Real Estate Contracts and Forms. Many title companies provide different templates designed to meet the needs of different states around the nation. It is important that you use the correct template when designing an FSBO agreement. Failure to include the correct information in your contract may prevent you from closing the sale to your property. Note that, sometimes, the escrow company may provide you with a contract template as well.

Information to Include in Your FSBO Agreement

In order to draw up a FSBO agreement, you will need to include a lot of specific information. This includes:
• sale price of your property
• The method the buyer will use to pay for the property
• Information about property taxes
• The method used to handle a default
• The amounts for closing costs
• terms and conditions of the sale
• Responsibilities for the buyer and seller

You should also include your full name and the full name of the buyer(s). After you use these names once, you may simply use the terms Buyer and Seller. Ensure that you give the agreement a title (“Real Estate Contract” is often acceptable) and that you date the contract. An FSBO agreement may also need to include information about the property to be sold, including:
• The address of the property
• A description of the home
• A list of everything you are selling, such as appliances

Including all of this information may make a FSBO agreement quite lengthy. Depending upon the nature of your property the contract may become very complicated. However, it is important that you ensure the contract is completed carefully, as the sale of your property may not go through if there are issues with your FSBO agreement.

Your FSBO Agreement May Be Legally Binding

Note that, in most cases, a FSBO agreement will be considered legally binding once both the buyer and the seller sign the document. This applies even though most FSBO agreements are not notarized. Once you sign a FSBO agreement, it may be more difficult to back out of the contract. Ensure that you consider the document carefully before you sign anything. Sellers, especially, may face legal penalties if they take steps to back out of a FSBO agreement once they have signed and completed the document.

Advantages and Disadvantages of Homes For Sale By Owner

Selling your home involves a lot of homework. Make sure your home is priced right for the market. Research the recent sales and home prices in your area. Overpricing a property can make it languish unsold for months or even years, undermining any leverage you as a seller may have later in negotiating. It’s easy to become subjective about the value of your home, especially if you’ve lived there awhile and made upgrades to it. You have to put aside your pride, avoid setting an unrealistic price and be willing to lower it if necessary. It can be a worthwhile investment to spend a few hundred dollars to have your home professionally appraised. Visit open houses in the area to get a general idea of going prices. Ask the listing agent how long the house has been on the market and if there have been any price reductions. Make full use of the Internet as a research tool.

Make sure everything in your home is in working order. If you somehow miss a problem before the contract is signed, it’s a pretty safe bet that the professional inspector will catch it and you’ll be forced to fix it anyway before the closing.

Don’t ignore cosmetics. Make your home attractive to buyers. It should be clean and clutter-free, with fresh paint and clean carpets — the perfect opportunity for that fix-up project you’ve been putting off! Help buyers envision themselves living there.

Know the rules. Research state laws and regulations governing fair housing, lead paint disclosure and other requirements, so that you’re in full compliance. Also bone up on the rules governing offer-and-acceptance (your sale negotiations with a buyer) and sales contracts. The last thing you want is to risk a future lawsuit for not disclosing some defect on your property. Go to a library or bookstore to get familiar with these procedures.

Know about financing. Ask the buyer if they have been pre-approved for a home loan. This is especially important in the current credit crunch. You should get an earnest money deposit to ensure they are serious about purchasing your house. Financing can fall through at the last minute, so be prepared for that possibility.

If you’re selling a condominium, townhome or co-op, it is the buyer’s right to be informed about the association and its financial health. This includes information about the bylaws and reserves (how much money the association has in the bank to fund needed repairs and improvements to the property). It’s your duty as the seller to disclose these facts. Hire a lawyer to draw up a sales contract and represent you at closing. If you were happy with the attorney who assisted you as a buyer, consider him or her. Otherwise, get recommendations from family or friends. Be aware of the tax implications. Your attorney should be able to advise you on whether or not you will owe capital-gains taxes on the sale.

Reasons FSBO Home Sellers Fail

Selling a house is not as easy as selling a car. It’s an extensive process that demands a lot of knowledge, patience and time. First, you have to familiarize yourself with all the relevant legalities that go into preparing the contract for the sale of your house. This is crucial for home sellers without an agent. You will have to hire a real estate attorney for that or else you could get yourself into legal trouble quickly. If you choose to list your home FSBO, you should consult a real estate attorney before listing your house for sale.

If you are listing your home on your own, you are effectively the agent of your own house. Make sure to be sure to become a good one. There are plenty of acronyms and other terms to be aware of in the real estate industry.
Research everything, from the FSBO listing websites to the cost or repairs demanded by potential home buyers. Try to reach as many potential home buyers as you can using social media and your personal contacts.

Not Knowing the Value of Your Property

People who list their home on their own often make a huge mistake before they even get to show their home to potential buyers. Everyone is emotionally attached to their home. This makes it harder to objectively price the property and understand its value from the buyer’s point of view. Buyers will point out problems in your home that you don’t even consider noteworthy. And they will negotiate for a lower price.

Pricing the house accurately is crucial. When an agent helps you price a house, they do it with a wealth of experience backing their numbers. They’ll account for the state of the real estate market and a variety of factors that will influence the value of your home and the time it takes to sell. If you are doing it yourself, you must research the current housing market trends. It helps to find the median price of a property in your neighborhood and prepare a realistic estimate of the necessary repairs. This is something you will have to reevaluate after every potential client’s visit. It is also important to stay objective and not get emotional when buyers seem to undervalue your beloved home. Know that in most cases, properties sold through a realtor sell for a much higher price than the ones sold by the owners. FSBO owners typically sell their home for less than 94% of the price they would have sold with a real estate agent, so the safer option is to hire a realtor to help you sell.

Bad Marketing and Open Houses

Even though the FSBO sites are a great way to place your house in a listing, most buyers stray away from these listings. A great way to advertise your home is through hosting open houses through your social media accounts. Even still, this may not attract any people to view your home besides your friends and family. The competition for ads is fierce, and you don’t want to burn a hole in your wallet.

If you list your house on your own, you should always be ready to show your house. It would drastically shrink the list of potential home buyers if you are only available to show your house on weekends or after working hours.

Because you already have a smaller list of potential buyers because of your FSBO listing, you can’t afford to miss any showings for potential buyers. When you consider listing your house as FSBO, you will have to be positive, enthusiastic and energetic when you show your house to strangers. It is typical that viewers will complain about the worn staircases, creaky doors, and other quirks about your house they find undesirable.

If you work all day and have to do showings right after, you have to ask yourself, can you handle that after a hard day of work? For most people, it’s better to let a realtor field buyer’s complaints and market your home so that you can sleep easy and keep your free time free.

Not Knowing how to Negotiate

The most tricky and most important part of selling a home is undoubtedly the final negotiations. Negotiating is a skill that many people feel they are intuitively good at. However, a lot of people overestimate their ability to facilitate a good negotiation- especially when negotiating terms they’ve never handled before. Negotiating is a skill that takes practice. Negotiating terms for a real estate sale takes even more. There are so many variables to take into account, and a skilled agent would be a pro.

Consider the following if you’re thinking about listing your home as FSBO:
• How much lower than the listing price would you be willing to sell for?
• Someone is willing to buy the house at your price, but is not willing to put in the earnest money. What would you do?
• The buyer hands you a list of thousands of dollars worth of repairs as part of the contract, can you renegotiate?
• Do you know what a rent-back agreement is and how much that is worth to you?
• Would you sell to someone who isn’t a pre-approved buyer? Would your price be different for a buyer who isn’t pre-approved?
• If someone was willing to pay cash, how much would you be willing to sell for?\
• Your first buyer lowball your offer and says “Take it or leave it.” what would you do?
• How would you handle a lowball offer if you aren’t getting interested buyers?

These final negotiations are the hardest part of closing the deal without an agent. Many properties for sale by owners tend to sit for months because the owners are unable to close deals. Or they can end up selling the house at far too low a price because of inexperience in negotiating.

Why Sell Without an Agent?

The benefits of selling without an agent are endless, but there are a few positives worth highlighting. Our customers repeatedly tell us 3 things they love about selling real estate without an agent:
1. Savings – more money in your pocket: One of the primary attractions to selling a house privately is quite apparent. Sellers with no agents not only save these real estate agents fees, but also save expensive marketing costs that are usually paid to agents. So, you stand to save quite a lot on real estate selling fees by selling your home without an agent.
2. Control – you have the power in your no agent sale: No agent real estate may seem scary at first, but it’s actually an empowering experience. Our vendors love being able to make their own decisions, especially when it comes to how their property is advertised and what is communicated to their buyers. Vendors also have the greatest knowledge about their property, making the process of how to sell property without an agent quite efficient, as you’re the best person to sell your own place. When you’re in control of selling your property, you’re in control over the experience that potential buyers have and their first impressions of your home. Agents are busy people because they have several properties to manage at once, but when you’re in control, your number one priority is selling your own property. Selling a house without an agent can be convenient, as you have one on one access to interested buyers and you can work within your schedule to find mutually convenient times to show them through your home. You have control by effectively taking on the role of an agent, saving real estate commissions in the process. In selling a house without an agent, you have access to the same audience, but without the agent.
3. Transparency – the importance of being upfront and open: Transparency is a word that many sales professionals use, but unfortunately some of them do not abide by, with many of our vendors telling us they’ve been burned by agents who were just after a quick sale. In selling your home without an agent, you’re the one who signs off on your advertising and you’re the one controlling the narrative with prospective buyers. This means you can ensure a transparent process that is upfront and honest. You also know what buyers are saying, as you’re hearing the feedback firsthand. When you sell without agents, no middleman means greater transparency, with the added benefit of controlling the costs of selling a house and paying no real estate sales commission. No agent sales mean the information that’s being communicated with the potential buyers is verified and controlled by you. You are responsible for the negotiations, and when and if to accept an offer, and you are not relying on the word of the agent. Selling with no real estate agent gives you the opportunity to adhere to a high standard of ethics and transparency.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is Eminent Domain? The Government Can Force You To Sell Your Home

eminent domain
What Is Eminent Domain? The Government Can Force You To Sell Your Home

Eminent domain refers to the power of the government to take private land for public use under certain circumstances. For example, the government may sometimes take someone’s house to make room for a new highway or a bridge.
In these instances, the homeowners typically are entitled to compensation for their loss, and the government must first follow several different procedures before it can take property. This section provides information about the government’s power of eminent domain, limitations on that power, and your rights under the law.

Eminent Domain and Federal Law

The law of eminent domain originates in the “Takings Clause” of the Fifth Amendment to the United States Constitution. The U.S. Supreme Court helps decide major cases regarding eminent domain. The framers of the Constitution were generally wealthy landowners who wanted certain guarantees against tyranny. However, they understood that sometimes land would have to be taken for the public good. The Takings Clause states that “private property [should not] be taken for public use without just compensation.” This only applies to private property and must be used for the public good.

Just Compensation

The Constitution requires that private landowners who lose their home or land due to the use of eminent domain be paid “just” compensation. But what exactly does that mean? Generally, this is based on how much the landowner might expect to get in fair market value. The value of the land could be determined by many factors, including its size and any resources it may have. Sometimes, the federal or local government takes land for limited periods, which tends to make valuation much more difficult. If the police can prove “by a preponderance of the evidence” that the property was being used for criminal activity, then the government generally may seize the property without compensation.

Eminent Domain and Condemnation Proceedings

The government follows a particular process when it takes private land for public use under eminent domain law. It begins with its broader expansion or public improvement plan. Once planners determine which private land may be affected by these plans, they work with their own appraisers to come up with an appropriate valuation. If the private property owner accepts the offer from the government, the transaction is fairly straightforward. But if the parties are unable to agree on a price, the dispute will get resolved in condemnation proceedings.

If the matter goes into condemnation, the property owner (typically with the help of an attorney and an appraiser) will offer their own property valuation. One option for property owners is to dispute the forced sale by challenging the government’s proposed use of the land, but these challenges typically fail as long as the use is determined to be “proper” and for the public good. Another option is to suggest that the claim is too broad, which in some limited cases, may reduce the scope of the purchase. But the value of the property is generally the main issue when eminent domain cases go into condemnation proceedings.

Public Use

Since invoking eminent domain requires that the taken property be used for public use, it’s important to understand what that means from a legal perspective. The term “public use” is not limited to the actual, direct use by the public as would be the case for parks or roads but refers to any use that generally gives a benefit to the public.

For instance, a parcel of land with an abandoned factory may be obtained and cleared of all structures through eminent domain. Even if the end result is an empty lot, and not everyone “uses” the land, it could be argued that this benefits the community as a whole because of the aesthetic improvement from its removal.

What Property May be Taken Through Eminent Domain?

An eminent domain action typically is applied to real property (real estate, including buildings and land), but any kind of property may be taken if done within the legal confines of the law (based on the Fifth Amendment’s Takings Clause). This includes both tangible and intangible property, such as franchises and contracts.

Property That’s Deemed a Risk

Often, governmental units — particularly at the local level — begin condemnation proceedings for private property that isn’t needed for public use, but rather has been deemed a risk to the public health or safety. This, in fact, is the more appropriate use of the term “condemnation,” although the authority or power invoked to condemn the property is that of eminent domain.

For example, the government may decided to condemn and then seize the property of an old shipyard in order to clean up asbestos and other environment pollutants. Any private property may be taken if it’s proximity to the clean-up area is deemed unsafe. In this regard, the seizure is done in the best interests of the public even if the land ultimately is never used by the public.

“Dedication” of Land

A “dedication” of land is a similar form of appropriation of private land (or an easement therein) for public use.

But instead of going through the adverse process of condemnation, the transfer of property is affected voluntarily by the landowner. A dedication may be express or implied through the landowner’s conduct and the facts and circumstances related to the property. For instance, someone who owns a parcel of property that includes access to a historical site may dedicate this portion of the property to the government. Notwithstanding, a dedication also may arise following an adverse (to the interests and/or use of the landowner) and exclusive use by members of the public under a claim of right. Such claim, by an adverse public user, is similar to a common law “adverse possession” claim between private parties and is predicated upon the knowledge of and allowance by the owner. Many states provide for both common-law and statutory dedications.

Exceptions for Certain Property

Not all property may be taken for any purpose. Many states prohibit the exercise of eminent domain for property currently being used as:
• Cemeteries;
• Gardens and orchards; or
• Factories.

A landowner can’t convert the use of property to one of these uses in order to avoid condemnation once eminent domain proceedings have begun (i.e. filing of a notice of intent).

It can be confusing trying to wrap your head around exactly what types of property may be taken in an eminent domain action. Courts won’t allow takings if they’re not for the good of the public or if the landowner isn’t compensated fairly. If you believe your property is being unjustly taken, learn more about your options by meeting with an experienced eminent domain attorney near you.

Challenging Eminent Domain

An aggrieved party who objects to a government taking must have an opportunity to receive fair notice (a reasonable time to obtain legal advice and prepare a formal objection). Additionally, there must be opportunity for a fair hearing before the award (monetary compensation) becomes final. The hearing provides a forum to determine whether or not there had been an actual taking as defined by law; whether the taking was for a public use; and/or whether just compensation had been made. If the government is unable to justify its taking and fails to offer just compensation to the property owner, the taking won’t be allowed by law (as rooted in the Fifth Amendment’s Takings Clause); but challenging eminent domain is no easy task. The following information will help you understand the process of challenging an eminent domain taking.

Notice of Eminent Domain

No matter how well the government is able to justify the taking of private property, it can’t just take it unannounced. Prior to any governmental action to exercise its right of eminent domain, the government must negotiate in good faith with the landowner for an acceptable price for the land. Initially, most governments notify landowners of prospective action by serving a notice of intent. The contents generally describe the parameters of the property in question, the proposed use, and an offer (in dollars) of purchase. Extensive mediation and offers/counteroffers usually precede court action. A formal condemnation action only follows if an agreement can’t be reached.

Hearings and Determining the Necessity of a Taking

Not all condemnation proceedings are the same. State laws differ on the number of hearings and the procedural structure of each, depending on the type of property in question or the intended use. Generally, a landowner may contest both the proposed taking and the amount of compensation offered. Ultimately, if administrative appeals fail, the landowner may petition in court, typically claiming a violation of constitutional rights. Both sides may offer witness testimony and other evidence in support of their positions. Both sides may call attention to the fair market value (by expert testimony) of similar properties for comparison. Following court decision, appeals may take years, but generally does not stay the taking; if a landowner ultimately prevails on appeal, only money damages are generally available.

Challenging Eminent Domain: Remedies for Takings

Initially, an objecting landowner may request either or both injunctive and monetary relief. However, if the government’s action meets the legislative and constitutional criteria, the landowner may be responsible for court costs if the objection was not well-grounded or appears to have been motivated by excessive financial interest. In cases of excessive takings (in which the landowner or landowners claim the government is taking more than it needs) or partial takings (easements), adjudication includes a determination of the percentage interest in a property which is adversely affected, and monetary award is prorated accordingly. Likewise, if the complaint is for devalued property which isn’t directly taken, but adversely affected because of governmental activity on nearby property, adjudication includes a determination as to whether other factors have devalued the property. In these cases, courts will determine the monetary difference between the devalued property and its fair market value without the alleged adverse effect.

Compensation is required, effective from the date of the alleged taking. Payments not made at that time accrue interest, to which the landowner is entitled. Occasionally, subsequent actions or objections are filed years after the initial determination. This is especially true in the case of partial takings. Over time, a government entity may engage in additional activity that exceeds in scope of the initial taking. If this causes further decrease in residual use or enjoyment still vested in the original property owner, both injunctive and monetary relief may be available. Even if you have a very good reason for opposing a government agency’s proposed taking of your property through eminent domain, making the case on your own may be extremely difficult. Don’t fight an uphill battle; get professional help from an experienced, local eminent domain attorney today.

How the Government Takes Property

As cities and towns expand and undertake improvements to roadways, sewer and power lines, communications, and other systems, the government must often secure or acquire access to private land. Without the government’s power to do so, the size and capabilities of our public infrastructure would become inadequate to serve the needs of society. The right of the government to obtain private land for public purposes is known as eminent domain, and this right derives from federal and state constitutions and related laws. The power of eminent domain allows the government to take private land for public purposes only if the government provides fair compensation to the property owner. The process through which the government acquires private property for public benefit is known as condemnation.

As the government makes its plans for expansion and improvement of publicly maintained roads and utilities, it determines which private parcels will be affected. Once it makes that determination, the government will work with its own appraisers to determine the appropriate price for the necessary property interests. When the government has established its estimation of the property value, it may offer the landowner a particular price for the property. If the property owner agrees, the government buys the land. If the property owner disputes the government’s valuation and they cannot agree on a price, the matter will go to condemnation proceedings.

During condemnation proceedings, the property owner will get to offer his or her own valuation for the property. Typically, the property owner will work with an attorney and an appraiser. The attorney will protect the property owner’s legal rights respecting the involved property, and the appraiser will work to establish the property’s fair market value. The property owner may also oppose a forced sale by contesting the government’s proposed use of the property.

As long as the use is proper, however, this type of challenge will fail. As an alternative, the landowner may also claim that the extent of the property the government is attempting to condemn is too great and that its purposes can be fulfilled with less intrusion. Generally speaking, the government is only allowed to invade the property rights of individuals to the extent necessary to accomplish the intended public purpose.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is Real Estate Tax Sales Redemption?

What Is Real Estate Tax Sales Redemption?

Each state has different laws for tax sales. Generally, the taxing authority, usually the county, doesn’t have to go to court before holding a tax sale. Instead, the process is often started when the taxing authority files a list of delinquent taxes, which includes information about the taxpayer, the property, and the amount due, with the recorder’s office and publishes a copy in the newspaper. Also, the homeowner typically is entitled to some form of notice of the pending tax sale. Then, in some places, the county holds a public auction. Commonly, bidding begins at the amount that covers the delinquent taxes, interest, and related penalties that are owed to the taxing authority. The winning bidder at the sale normally receives either a:
• tax deed, or
• tax lien certificate.

In some jurisdictions, though, a sale isn’t held. The taxing authority simply executes its lien by taking title to the home. In other places, the taxing authority must foreclose the property, usually by filing a lawsuit in court, before holding a tax sale.

Tax Deed Sales

In tax deed sales, the taxing authority sells the title to the home. A tax lien certificate sale, on the other hand, doesn’t convey ownership of the property. Rather, the taxing authority sells its lien and the purchaser usually receives a tax lien certificate. This certificate entitles the purchaser to basically take over the position of the taxing authority and collect full payment of the past-due taxes, plus interest, from the delinquent taxpayer. If the delinquent taxes aren’t paid by a certain date, the purchaser of the lien generally has a right to foreclose the lien, or take specific steps to convert the certificate to a deed, and get title to the home.

Redeeming The Property

Most jurisdictions that sell tax deeds offer a right of redemption after the sale, which allows you to get your home back. To redeem, you must reimburse the purchaser the amount paid at the sale, or pay the taxes owed, plus interest within a specific time frame called a “redemption period,” which is generally between one to three years. Sometimes, the redemption period takes place before the sale. If you pay the delinquent taxes before the start of the sale, the sale will not take place.

Setting Aside The Sale

If you can’t redeem the home, you might be able to set aside (invalidate) the tax sale after it has occurred by showing, for example:
• defects in the tax lien or tax sale process
• the taxes were paid or are not owed, or
• a good reason why you neglected to pay the past-due amounts. (To learn more about redeeming the home and setting the sale aside, read Options After a Tax Sale on Your Home.)

Saving Your Home After a Tax Lien Sale

After a tax lien sale, you still own the home because the purchaser only buys a lien against your property. If you pay off the amount of the lien or the purchase price (depending on the situation), plus allowed costs, like interest, within a specified time period you get to keep the home. This, too, is referred to as “redeeming” the home. If you’re facing an imminent tax sale, or one has already occurred, consider talking to an experienced attorney in your state as soon as possible. A qualified foreclosure lawyer, tax lawyer, or real estate lawyer can answer your questions about how the process works where you live and the specific steps you need to take to save your home from a tax sale.

If you fail to pay your property taxes or other municipal charges, like a sewer or water bill, the past-due amount becomes a lien on the home. This type of lien almost always has priority over other liens, including mortgages. If the taxes remain unpaid, in most cases, the taxing authority will eventually:
• sell the lien (and if you don’t pay the past-due amount to the purchaser of the lien, that party can foreclose), or
• sell the property itself in a tax deed sale.

In some places, however, a sale isn’t held. Instead, the taxing authority executes its lien by taking title to the home. State law then generally provides a procedure for the taxing authority to dispose of the property, usually by selling it. In other jurisdictions, the taxing authority uses a foreclosure process before holding a sale. In many states, the home can be sold for the amount of the past-due taxes. So, a $300,000 home could be sold for $1,500 of unpaid taxes. This situation is very different from a home mortgage foreclosure where the purchaser at the sale usually pays an amount close to the property’s fair market value. Ultimately, in a tax sale, the purchaser can potentially obtain title to the home for a fraction of its actual value. Generally, people who lose their home to a tax sale have two options to get the property back: redeeming it or setting aside (overturning) the sale.

In most states, delinquent taxpayers get some time during which they can repurchase (“redeem”) the home after a tax sale by paying the buyer the amount paid at the sale or paying the taxes owed, plus interest, penalties, and costs. In some states, the redemption period occurs before the sale. But if you don’t redeem, the purchaser can get title to the home free and clear of any liens that existed before the sale. Usually, the homeowner gets the right to live in the home during the redemption period. Exactly how long the redemption period lasts varies from state to state; one year to three years is typical. In some states, though, the redemption period is much shorter. Check your state laws or consult with an attorney to find out the tax sale redemption period where you live. If you can, you should redeem as soon as possible to prevent additional interest and penalties from accruing. Sometimes, homeowners aren’t aware that a tax sale has been scheduled until after it’s already happened.

Defects In the Tax Lien or Tax Sale Process

Defects in the tax lien, such as omitting one of the property owners’ names, or defects in the tax sale process, like failing to give proper notice, might provide grounds to set aside a tax sale. Minor mistakes probably aren’t enough to invalidate a sale, but a defect that prejudices the homeowner’s rights probably will.

For example, let’s say a property owner provides the county (the taxing authority) with a new address for mailings. But the county doesn’t send any notices about the delinquent taxes to the property owner at the new address. So, the property owner doesn’t receive notice of a tax sale. In this situation, the sale could probably be set aside for lack of proper notice. Whether a particular defect is significant enough to invalidate the sale depends on a state’s statutes and case law.

The Taxes Were Paid or Aren’t Owed

If the homeowner already paid the taxes, the sale is invalid and could be set aside. Likewise, if the property is exempt from taxation, a tax sale would be void.

Excusable Neglect

A legitimate excuse for failing to respond to, say, a tax sale foreclosure action might justify setting aside the sale. For example, if a 74-year-old widow with a psychiatric disorder fails to do anything about the delinquent taxes until eviction proceedings start, a court would likely set aside the sale and let her keep the home if she pays the full amount of the taxes due.

Redemption Period

If a borrower or homeowner fails to pay their mortgage or property taxes, the local tax collector or lender has the right to pursue legal action against the borrower to reclaim the money owed to them. With delinquent property taxes, this is done through a tax lien foreclosure or tax deed sale. For a delinquent mortgage, it’s done through a mortgage foreclosure. The foreclosure process varies slightly for each but will eventually result in the property being either sold at a public auction or taken back by the lender or tax lien holder through foreclosure. In both events, the real property transfers to a new owner. However, in some states, there is a redemption period after the foreclosure sheriff’s sale, which offers a right of redemption to the property owner or third party with vested interest in the property. This redemption period is the specific period of time in which the foreclosed owner or other third party with vested interest, like a mortgage holder or junior lien holder, can redeem the foreclosure sale by paying the delinquent amount plus penalties and interest.

Not every state offers a redemption period. Statutory redemption, or the allowable grace period to repay the debt with interest and fees, is most commonly used in judicial foreclosure states, but the redemption grace period and whether it’s provided will depend on the type of foreclosure sale. If the home is going through foreclosure, it’s unlikely the property owner has the money to pay the debt or they would have paid it prior to the foreclosure sale. However, there are some instances when the foreclosed owner is able to pay the outstanding debt after the sale because they gained access to a new source of money. But in reality, the most common type of redemption is by third parties who carry an interest in the home.

For example, a mortgagor who still has an outstanding mortgage surely doesn’t want to lose the home through a tax sale. In the event the property does go to tax sale or tax lien foreclosure, they may have the ability to repay the outstanding tax amount with interest and fees. This allows them to regain title to continue with foreclosure proceedings if need be or recoup the debt paid for taxes in some other fashion.

It’s also fairly common for a junior lienor, or a mortgage lender who is in second position behind the first mortgage holder, to execute their right of redemption, but this is typically done before the sale.

For example, if the borrower is delinquent on their first mortgage and the lien holder is foreclosing, the junior lien holder can pay the outstanding amount in order to keep their security position in the property. This is usually only executed when the home has equity, because the redeeming junior lienor now has room to recoup their investment in the property through a sale after redemption and completing their foreclosure.

As you can see, redemption periods play a big role in distressed real estate sales. As a property owner or real estate investor, it’s important to understand how a redemption period can impact you or the potential outcome of your investment. It’s a good idea to speak with an attorney in the area who specializes in real estate foreclosure for further guidance on your local or state laws for right of redemption.

Tax Deed

The term “tax deed” refers to a legal document granting ownership of a property to a government body when the owner fails to pay any associated property taxes. A tax deed gives the government agency the authority to sell the property to collect the delinquent taxes. Once sold, the property is then transferred to the purchaser. These transactions are called “tax deed sales” and are usually held at auctions. A property tax is any tax paid on a piece of property.

Taxes are paid by the owners of real estate individuals or corporate entities and are assessed by the municipal government in which the property is located. The taxes collected are used to fund various municipal programs, such as water and sewer improvements, law enforcement and fire service, education, road and highway construction, public servants, and other services. Property tax rates vary by jurisdiction. When property taxes are left unpaid, the taxing authority may sell the property’s deed or title and therefore, the property to recover the outstanding taxes.

The taxing authority usually a county government must go through a series of legal steps in order to acquire a tax deed. These include notifying the property owner, applying for the tax deed, posting a notice at the property, and posting a public notice of sale. The exact steps that must be taken generally vary in accordance with local and municipal laws.

In a tax deed sale, the property itself is sold. The sale takes place through an auction, with a minimum bid of the amount of back taxes owed plus interest, as well as costs associated with selling the property. The highest bidder wins the property. The tax deed legally transfers ownership to the purchaser on one condition: The new owner must pay the entire amount owed within 48 to 72 hours, or the sale is canceled. Any amount bid by the winning bidder in excess of the minimum bid may or may not be remitted to the delinquent owner. This depends on the jurisdiction. The original owner may forfeit this excess amount if they do not claim it within a specified period of time.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Average Attorney Fee For Foreclosure?

What Is The Average Attorney Fee For Foreclosure?

One of the considerations in deciding whether you should hire a lawyer to help you fight your foreclosure is the cost. It’s essential to understand how legal fees work to make sure that you don’t end up paying more than you can afford.

Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways:
• by charging the homeowner an hourly rate
• collecting a flat fee from the homeowner, or
• charging a monthly rate.

Before you pay money to a foreclosure lawyer, consider whether you should hire a foreclosure attorney in the first place. Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer; an advance payment to the attorney before starting to work on your case of several thousand dollars. The retainer amount and hourly rate vary widely, depending on the attorney’s experience and the customary rates in the area.

Say you give your foreclosure defense attorney a $2,000 retainer. She charges $200 per hour. First, she reviews all of the documents in your case. Then, she prepares and files an answer and affirmative defenses to the foreclosure action. All of this takes five hours. The attorney also spends time preparing for and attending a foreclosure mediation with you. You’ll also get billed for the time it takes to make phone calls and emails related to your case. This work, too, adds up to five hours. The retainer is now gone, and the attorney hasn’t even attended any foreclosure hearings yet. Because the attorney must do more work, you’ll have to make further payments.

Pros and Cons

The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time actually worked on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be—and hourly fees can add up quickly. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process, you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option, and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners.

Other Lawyers Charge a Monthly Rate

Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this amount, called a “contingent fee,” if the case is dismissed due to the firm’s efforts.

Pros and Cons

The benefit of paying a monthly fee is that you know what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Foreclosure defense attorneys will also charge for costs, like mailing, travel expenses, and court costs, on top of their fee.

Beware of Unreasonable Foreclosure Defense Fees

When the financial crisis occurred, it became difficult for many people, including attorneys, to find work. As a result, many attorneys became foreclosure defense “experts” overnight marketing their services to homeowners in distress. In some cases, the fees that attorneys charge for services related to foreclosure aren’t reasonable. So you need to be careful and do your research when hiring an attorney to fight your foreclosure. Ultimately, when trying to decide if a foreclosure defense fee is reasonable, ask yourself whether the attorney is charging a fair amount considering the services provided or whether the lawyer is trying to get a windfall from your situation. One of the biggest concerns of people in need of the assistance of an attorney is how much it will cost. The type of fee arrangement that is available to a client will often have a lot to do with the type of legal issues you are bringing to your attorney. There are several common types of attorney fees and fee arrangements:
1. Consultation Fees: Some attorneys charge an upfront fee, usually on a flat rate basis, to meet with the attorney and determine whether he will be able to assist you with your legal issues. Many attorneys do not charge an initial consultation fee, but you will need to check in advance to make sure.
2. Contingency Fees: This is a favorite among personal injury and medical malpractice attorneys. The attorney’s fee is based on a percentage of the amount awarded in a judgment or negotiated in the settlement of the case, while if you lose the case, the lawyer does not get a fee. However, should you lose, you will still often be required to pay expenses, so read your representation agreement carefully. Contingency fee percentages vary, possibly even within the same case. A one-third fee (33 1/3%) is common. However, some jurisdictions and some lawyers adjust this rate depending on how far along the case progresses. For example, the rate may be lower if it settles before trial and higher if an appeal is required. Some courts may set a limit on the amount of a contingency fee a lawyer can receive. Many clients request this kind of fee arrangement, not understanding the business implications to the attorney. Contingency fee arrangements only work for attorneys if there is a large sum at stake in the lawsuit. If the case is relatively small, say under $50,000, the lawyer may actually end up on the losing end of the transaction given the amount of time and money s/he may have to invest in order to complete the suit. Also, attorneys may be prohibited from making contingency fee arrangements in certain kinds of cases, like child custody or criminal defense matters. Similarly, contingency fees are almost never available in typical business law settings.
3. Flat Fees: Some lawyers may charge a flat fee for certain types of legal matters. This is usually an option if the attorney handles large volumes of a particular kind of case, allowing the attorney to drive the cases through the use of forms and standardized practices. These are usually relatively simple cases like uncontested divorces, will preparations, tenant evictions, or mortgage foreclosures.
4. Hourly Rate: This is the most typical type of attorney fee arrangement. The lawyer charges a per hour rate, and usually tracks his or her time in fractions of an hour (often 10ths of an hour / 6 minute increments). Some attorneys may charge different rates for different types of cases, so a contract preparation may be $100/hour while litigation may be $200/hour. Additionally, the attorney will also probably charge for certain paralegal fees, usually at a lesser rate than attorney fees.
5. Retainer Fees: This is not technically a separate fee, but more of a deposit paid toward the total cost of legal services to ensure that the attorney will be paid. The lawyer is paid a set fee, often based on the lawyer’s hourly rate multiplied by a certain number of hours. The retainer is usually placed in a trust account and the cost of services is deducted from that account as they accrue. Many retainer fees are non-refundable, but this can be invalidated if the fee is deemed unreasonable by a court. Many attorneys use retainer fees as a means of putting that lawyer “on call” to handle a client’s legal problems whenever they may arise.
6. Statutory Fee: In some jurisdictions, a statute or regulation may set the amount an attorney can charge for a particular service. Examples include probate and bankruptcy cases. Regardless of the fee arrangement, attorney fees are normally required to be set forth in a written fee agreement. You should read such an agreement carefully, and not be afraid to ask for clarification if the terms seem confusing or conflicting. Often, costs, such as postage, copies, expert and deposition fees, and others are not included in attorney fees, so be sure to determine how these will be handled and try to get an understanding of just how much this could amount to in the course of your case.

What Does A Foreclosure Defense Attorney Do For You?

Foreclosure cases are rarely set in stone. Hiring an experienced foreclosure defense attorney early in the case gives you the best chance of success. The last thing you want to do is battle for your home in court without knowing all your options. Here are a few immensely helpful things a foreclosure attorney can do for you.

1. Provide You With Options: A foreclosure defense attorney knows the legal landscape better than you. Their experience and judgment will save you time, help you avoid pitfalls, and maximize your chances of saving your home. Depending on your situation, your best course of action may be to avoid foreclosure via loss mitigation, modify your loan, file for Chapter 13 bankruptcy, or have your foreclosure attorney represent you in court outright. An experienced foreclosure attorney in Los Angeles can help you understand the pros and cons of each option.
2. Represent You At Settlement Conferences: If you live in a state that mandates settlement conferences, your attorney can attend them in your place and negotiate with the bank’s attorney to save your home. The conference is an opportunity for both parties to reach an alternate resolution that doesn’t involve foreclosure. Without an attorney, you’d have to contend with the bank’s attorney on your own time with limited knowledge.
3. Help You Get A Loan Modification: A loan modification adjusts the terms of your loan such that you can afford the payments. While modifying a loan is free, few homeowners can convince the bank to approve a modified loan without help from an attorney. The bank must review several key pieces of information about your income before making their decision. An experienced attorney can provide and present this information in the best light to help you get approved for a new loan you can afford.
4. Help You Pursue Loss Mitigation: Certain loans carry loss mitigation options that give you an opportunity to stay current on your payments. Some lenders may withhold this option from you, and without an attorney you would likely have no idea that you could pursue this route. An attorney will not only let you know if loss mitigation is available to you, but also help you choose between the many different ways you can approach this option.
5. Raise Defenses In Court: If the bank made mistakes in foreclosing your home, an attorney can identify them and fire back. For example, the lender may have breached your loan contract or violated state foreclosure laws, or the foreclosing party may not be the rightful owner of the mortgage debt. You may unknowingly be the victim of unfair lending practices or an unlawful mortgage assignment. There are dozens of strategies and tactics an experienced attorney can use to postpone foreclosure. And if the court accepts your attorney’s argument, you may receive the option of a settlement or even have your lawsuit dismissed entirely.
6. Help You File For Chapter 13 Bankruptcy: If all else fails, an attorney can help you file for Chapter 13 bankruptcy. If approved, you will have three to five years to get up to date on your payments and will be able to keep your home.

When to Hire a Foreclosure Attorney?

Your lender usually has to wait until you’re at least 120 days late on your payment to initiate either a judicial or nonjudicial foreclosure, depending on state laws. In a judicial foreclosure, you respond to the lender’s lawsuit through the state court system. To fight a nonjudicial foreclosure, which doesn’t require the lender to secure a judge’s approval, you have to file your own lawsuit for the court’s consideration. In either process, you should usually seek out an attorney for some situations in particular, such as when:
• You think you have a valid defense. A foreclosure attorney can determine whether the lender followed proper practices, made any mistakes with your account or has the legal standing to foreclose on you. If an attorney is able to find a valid issue with your foreclosure, it could turn the legal tide in your favor.
• Your legal options are limited, but you want to keep your home. Even if it’s unlikely you’ll be able to mount a legal defense, an attorney can help you keep your home by aiding in negotiations with your lender. If you expect a foreclosure, it’s best to get legal advice as soon as possible.
• You have a government-backed loan. For example, a loan backed by the Federal Housing Administration (FHA) might qualify for additional aid, so you’ll want to ask an attorney for guidance.
• You’ve served in the military. Military members, past and present, can meet with a lawyer to discuss possible protection against foreclosure under the Service members Civil Relief Act (SCRA).
• There are pandemic-related complications. Local and federal governments continue to implement and update foreclosure laws. Depending on the terms of your mortgage and where you live, you may even be subject to a temporary foreclosure moratorium that protects you from losing your home for the time being. You may also have a right to request “forbearance,” meaning a pause in your payments, or other relief options. An attorney will know which current regulations can apply to your situation, and what the best option might be. On the other hand, some foreclosures can be handled with little or no help from a lawyer:
• You don’t want to keep your home. You may already be looking for more affordable housing or requesting a loan modification (more on that later), so an attorney may not be necessary—but you’ll still be in charge of handling any court-required legal documents if you’re facing a judicial foreclosure.
• You don’t have a defense for your case. A lawyer should be able to tell if you have a potential defense during an initial consultation. If you have no grounds to fight the foreclosure, you can likely manage the rest of the process without a lawyer.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Utah Divorce Lawyer

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506


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What To Know Before Selling Your Recently Purchased Home

What To Know Before Selling Your Recently Purchased Home

The home selling process is the same whether it’s for sale by owner or you’re hiring a listing agent. Certain details can vary a little from state to state, but this checklist can serve as a general guide. Just be sure to confer with a local professional for details on specific requirements in your state.

Choose a Listing Agent

A listing agent represents you and has a fiduciary responsibility to look out for your best interests. Interview agents and meet with at least three of them as you make a decision. Try to hire based on experience. Ask questions about your listing agreement, including the length of time the home will be listed and the commission you will pay for the agent’s services. Will you also be paying the buyer’s agent commissions? (Most traditional agreements require it)

Find Out How Much Your Home Is Worth

A seller’s greatest mistake is often overpricing her home. Keep your price in line with sold homes that have been identified in a comparative market analysis report. Consider whether your market is hot, cold, or neutral and price the home accordingly.

Get Your Home Ready for Sale

Prepare your home for sale by cleaning and decluttering it and improving curb appeal. You might want to consider hiring a professional stager to stage your home for showings or ask your real estate agent for help or ideas. You can often use your furniture. Make any necessary repairs and consider a pre-listing, seller’s inspection3 to identify any potential problem areas. If you’re selling a home with pets, you might want to make temporary living arrangements while you show the house. Remember, you only get one chance and sometimes only three seconds or so to make a great first impression. Make it count.

Market Your Home

You or your agent should identify the selling points of your home and choose the best advertising words to convey them. Approve your agent’s marketing campaign or figure out how to advertise your house for sale yourself. Hire a virtual tour company to take quality photographs and put a virtual tour online if possible. You should also confirm that your listing is posted online. You or your agent should saturate the internet and social media with photographs and descriptions of your property.

Show Your Home

You’ll get more showings if you let agents use a lockbox or keypad to show your home rather than force them to make appointments. If you are opting for appointments, try to be flexible. Some buyers will want to see the home on weeknights (after work) and all across the weekend. Be as accommodating as possible. Prepare for an open house, but use this approach sparingly. If you do one, be sure to ask for buyer feedback so you can adjust your price, condition, or marketing campaign accordingly.

Receive Purchase Offers and Negotiate

Be prepared to receive multiple offers if your home is priced right. Don’t ignore any offers, even if it seems too low. Negotiate by making a counteroffer. Consider making a counteroffer that’s contingent on you buying a home if market conditions warrant it. And don’t be afraid to make a full-price counter offer if your price is competitive and it’s backed up by comparable sales. You can also ask for a kick-out clause or right of first refusal if the buyer’s offer is contingent on selling a home. This contingency ensures that you won’t wait around too long if the buyer can’t offload their property.

Open Escrow and Order Title

Your agent or transaction coordinator will open escrow and order a title policy for you. Write down the contact information for the closing agent, and select a date to close based on when the buyer’s loan will fund.

Schedule an Appraisal

Clean the house the day before the appraiser arrives. If you receive a low appraisal, ask your agent about alternatives. You’re typically not entitled to receive a copy of the appraisal because you didn’t pay for it. If the buyer decides to cancel the contract based on an appraisal, ask your agent or lawyer about your rights. They’ll need an appraisal contingency in the contract to pull out.

Cooperate With the Home Inspection

Now get ready for the home inspector. Ask your agent to provide you with a home inspection checklist, so you’ll know in advance what the inspector will want to see. Prepare the attic and basement for inspection, too. Move stuff away from the walls in the garage, and make sure there’s a clear path for the inspector to get through. If your contract calls for a roof certification, hire a reputable company to conduct the inspection. Keep in mind that states that allow for termite or pest inspections will often make these reports a matter of public record. The buyer may also request a sewer inspection if your home is older.

Deliver Seller Disclosures

If you’re aware of any other material facts or problems with the property, you must disclose them using a seller’s disclosure form. Your title company should provide the buyer with the covenants, conditions and restrictions for your community or the homeowner’s association, if necessary.

Negotiate Requests for Repair

You don’t have to accept a buyer’s request to make repairs, but they may back out of the deal if you don’t (as long as they have an inspection contingency in place). In some cases, a buyer might accept a closing cost credit instead of an actual repair. This credit essentially lowers the sales price, giving them cash to make the repairs on their own once they assume ownership.

Ask the Buyer to Release Contingencies

If the buyer had any contingencies in their contract, ask them to “release” them, meaning affirm that they have been resolved. The buyer isn’t obligated to provide a contingency release if you don’t demand it. In some states, you might have a right to cancel the contract if the buyer will not provide a release.

Sign the Title and Escrow Documents

Depending on where you’re located, you might sign escrow documents shortly after opening escrow, or you’ll sign them nearer to closing. It’s common in some states for everyone to sit around the table buyers and sellers so ask your agent about the norm in your location.

Find A Great Real Estate Agent

Think you can sell your home yourself, and pocket the cash you would otherwise pay a real estate agent? It can be tempting, especially in a hot market, but resist the urge. A “for sale by owner” transaction is almost always a disaster, leading you to sacrifice both money and time. That’s why one of the most important things to do before selling your house is find a great real estate agent. That said, don’t just blindly hire the real estate agent who most recently sent you a flyer or the one your uncle’s friend’s co-worker’s cousin used. Do some research to find a real estate agent who is knowledgeable about your specific market, and then interview her to make sure she’s a good fit. Your real estate agent should be someone you feel comfortable working with, whom you trust to sell your house for top dollar. Don’t be afraid to talk to a few real estate agents before picking one.

Consider Your Curb Appeal

Yes, for better or worse, buyers do tend to judge a book by its cover. You want to make sure potential buyers’ first impression of your home is a good one and inspires them to stop by the open house or schedule a tour so they can see more. By investing some effort in relatively easy fixes, like planting colorful flowers and repainting your front door, the outside of your house can beckon prospective buyers to come on in. If you’re not sure how to improve your home’s curb appeal, ask your real estate agent for advice on how others in your area have improved the exterior before selling their houses.

Declutter Living Areas

Less is definitely more when it comes to getting your house ready to show. Do a clean sweep of counters, windowsills, tables, and all other visible areas, and then tackle behind closed doors: closets, drawers, and cupboards since virtually nothing is off-limits for curious buyers. If the house is overflowing with stuff, buyers might worry that the house won’t have ample space for their own belongings. They won’t sign up to pay a mortgage if they think they’ll also have to rent a storage space. Take your excess stuff and donate it, or pack it up to be stored off-site. Not only will clearing clutter help your house look more appealing to buyers, it will also help you once you’ve accepted an offer and it’s time to move into a new home. Moving out will be easier if some of your stuff is already be packed.

Depersonalize Your Space

Sellers should remove any distractions so the buyers can visualize themselves and their family living in the property. Sellers should remove personal items and family photos, as well as bold artwork and furniture that might make the home less appealing to the general public. The goal is to create a blank canvas on which buyers can project their own visions of living there, and loving it.

Repaint Walls To Neutral Tones

You might love that orange accent wall, but if it’s your potential buyer’s least favorite color, that could be a turnoff. “You’re pretty safe with a neutral color because it’s rare that someone hates it, but the other benefit is that a light color allows [buyers] to envision what the walls would look like with the color of their choice.”It’s the seller’s job to help buyers picture themselves in the house. If they don’t feel at home, they’ll probably look at other real estate options.

Touch Up Any Scuff Marks

Even if you’re not doing a full-on repainting project, pay special attention to scrubbing and then touching up baseboards, walls, and doors to make the house sparkle and look cared-for. Selling almost any home can be tricky, but selling a home with lots of little problems and small repair needs can be downright difficult. When buyers walk into an open house, or go on a home tour, they want to fall in love with the house, not add a bunch of small repairs to their to-do list. In order to impress buyers (and sell your house quickly), fix up your house before putting it on the market. With homes that is fixed up and move-in ready, you will probably see more interest, and may even see multiple offers.

Fix Any Loose Handles

It’s a small thing, sure, but you’d be surprised by the negative effect a loose handle or missing light bulb can have on a buyer. For a buyer, submitting an offer, and later committing to a mortgage, is a big deal. When you’re selling your home, you don’t want to give any buyers doubt that your house will make a great home.

Add Some Plants

When staging your house, remember that green is good: Plants create a bright and more welcoming environment. You might also want to consider a bouquet of flowers or bowl of fruit on the kitchen counter or dining table. Some plants and natural elements will impress buyers by bringing some extra color and life to your decor.

Conduct A Smell Test

Foul odors, even slight ones, can be a deal breaker, and the problem is that you might not even notice them. If the smells are pervasive, prepare to do some deep cleaning as many buyers are on to seller’s “masking techniques” such as candles or plug-in room deodorizers. Plus, covering up odors with a stronger scent might backfire if the buyer doesn’t like the smell of lavender or artificial citrus.

Clean, Clean, Clean

Once you’re done cleaning your house, clean some more. Even if you’re not worried about what buyers will think of your home’s scent, you want your property to look spotless. Think of it this way: You’ll probably have professional photos taken of your house when it looks its best. Naturally, you’ll want your house to always look like it does in those pictures. When selling your home, it’s important to keep everything tidy for buyers, and you never know when a buyer is going to want to schedule a last-minute tour. Remember to take special care with the bathroom, making sure the tile, counters, shower, and floors shine.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What’s Consiia Fixture When Selling A House?

What’s Consiia Fixture When Selling A House?

Should it stay or should it go? Whether you’re moving into a new home or moving out of your old one, you might be wondering which items stay with the home and which ones can go with the previous owner to their new home. The question of fixtures versus personal property can be a contentious topic of debate among the parties involved in a real estate transaction. Sometimes, it can even be a deal killer.

Typically, the purchase agreement will list which fixtures are included. However, problems can still arise, and spelling it out in the contract doesn’t always prevent sellers from getting surprise calls on final walkthrough day letting them know that they weren’t supposed to take that expensive chandelier they’d planned on installing in their new home.

To avoid issues that could potentially sour their home sale or purchase, it’s important that buyers and sellers familiarize themselves with the concept of real estate fixtures and what they are (and aren’t).

Real Estate Fixture

Because determining if something is a fixture or personal property isn’t always obvious or intuitive, it can be a common source of conflict during home purchase transactions. Fortunately, there are a few commonly accepted guidelines that the pros use to settle disputes. The main guiding principle regarding whether something is a fixture or not has to do with its method of attachment. If an object is physically and permanently attached or fastened to the property, it’s considered a fixture. This includes items that have been bolted, screwed, nailed, glued or cemented onto the walls, floors, ceilings or any other part of the home. A classic example of this is a window treatment. Typically, things like blinds and shades are considered fixtures that must stay with the home because they’re physically fastened to the window frame.

On the other hand, drapes and curtains that hang on a rod are usually classified as personal property. However, the rod that those drapes are hanging on would likely be considered a fixture, since it’s attached to the wall. Unless you’ve stipulated otherwise in the contract, if something would reasonably be a fixture, you can’t take it with you when you move. If you have fixtures in your home that you want to take with you when you move out, you may want to consider replacing those items before any prospective buyers see your property.

Are Fixtures Considered Chattel Property Or Real Property?

“Chattel” is another word for personal property, or a movable piece of property, like furniture, certain machinery or something as big as a trailer. Real property is the term often used for anything affixed to the property and the surrounding land. This can include the house itself, sheds, ponds, basketball courts and anything that couldn’t be easily removed from the property. In short, chattels are not fixtures, but real property is, as well as anything permanently attached to it. Whether or not an item would be considered a fixture isn’t always cut and dried, and each state or locality may have its own guidelines for what qualifies as a fixture. The main way to determine if something is a fixture is whether it’s attached to the home. Beyond that, it can get a little fuzzy, though there are still some tests to help determine whether an object is a fixture. The best way to head off disputes is to be very thorough and specific about what stays with the home in your purchase contract.

MARIA and Fixtures

MARIA is an acronym used by some real estate professionals as an easy way to remember the criteria for determining if an item is a fixture or not.

• “M” stands for “method of attachment.” When determining if an item is a fixture, look at how it’s attached to the home. Things that are screwed, glued or otherwise permanently affixed to the property are fixtures.
• “A” is for “adaptability.” This test refers to whether an item has become an intrinsic part of the property, even if it is easily removed. A common example would be floating flooring. This type of flooring isn’t nailed down to the subfloor and instead “floats” on top of it, but it’s still considered to be an integral part of the home and, thus, a fixture.
• “R” is for the “relationship of the parties.” If all else fails and a judgment must be made, who’s who in a complaint can make a difference. In seller/buyer disputes over fixtures, buyers tend to have the upper hand. This is because it’s generally assumed that if a seller installs something in their home or makes some sort of alteration, their intent is for it to be a permanent addition to the property. This is contrasted with tenant/landlord fixture disputes, where it can be assumed that the tenant had the intention of taking any fixtures they installed themselves with them when they moved out.
• “I” stands for “intention.” Similar to the previous criterion, this test tries to determine whether the homeowner could have reasonably intended the item to become a permanent part of the real property.
• “A,” finally, is for “agreement.” This refers to what’s written in your contract. When in doubt, your purchase agreement is your best guide to what is and isn’t included in the sale.

Fixtures

The following items are commonly left in the home after it’s sold:
• Washers and dryers
• Ceiling fans
• Chandeliers
• Curtain rods
• Towel racks
• Blinds and window coverings
• Built-in shelving and cabinets
• Smoke and carbon monoxide detectors
• Landscaping (anything planted in the ground)

Non-Fixtures

These items will typically go with their owners to their new home:
• Furniture
• Refrigerators
• Rugs
• Detached bookshelves
• Curtains and drapes
• Yard decorations

Gray Areas For House Fixtures

Even with all this guidance to help us determine whether an item is, in fact, a fixture, disputes still happen – especially when it isn’t immediately clear whether an item is personal property or a fixture. Say you planted a beautiful garden in your front yard that you’ve lovingly tended to for many years. When you move out, you plan to dig it up to transplant to your new home. Can you do that? Some may say you can, but others may argue that it’s a part of the property, not your personal property. What if you’re a buyer who fell in love with a home for its beautiful front yard landscaping, complete with a gorgeous row of lush, colorful flower beds but come move-in day, the yard is all torn up from digging out the landscaping and the flower beds are nowhere to be seen?

Who is right in this scenario? Often, it comes down to what was in the purchase agreement. The best way to avoid conflicts like this is to clearly communicate what each party wants and make sure the agreed-upon terms are included in the contract.

Fixtures And Final Walkthroughs

Buyers shouldn’t assume that something is going to be included with the home, especially if it’s something they are particularly interested in. If you had your eye on the built-in bookshelf since the first showing, make sure to ask about it during contract negotiations. If the seller takes with them an item that you had planned on remaining in the home, you can save yourself a lot of headache ahead of time by having in writing what stays and what doesn’t before the final walkthrough.

When they’re first listing their home, sellers should work with their real estate agent to clarify what objects in their home qualify as fixtures. When working with prospective buyers, be clear about what’s included in the sale. Both parties should be clear and communicative during negotiations to prevent confusion and ensure a smooth and successful purchase.

How Personal Property And Fixtures Can Become Confused

It is not hard to imagine how the line between a fixture and personal property could become muddled. If a home had an alcove above the stove that contained a high-end microwave, the buyer might imagine that the appliance comes with the house, especially if the microwave looked to be a part of the style of all the appliances in the kitchen. But the seller might have just bought the microwave to replace an old one. It’s not physically attached to the house, just sitting in its alcove. All he has to do is unplug it and take it when he leaves. When there is a specific item or items that could cause confusion, it is smart to address them upfront. A real estate agent can list exclusion in the multiple listing service and then make sure the items make their way into the real estate contract. Real Estate attorneys should be made aware of any exclusions to be addressed in the contract of sale.

Make Sure You And Your Realtor Are On The Same Page

If you are going to sell your house, you want to ensure that you and your Realtor are always on the same page. A good real estate agent should be checking in with you, particularly at the beginning of the sale, to make sure you understand what is going on and that your wishes are being honored in the sales process. What is included and excluded should be discussed before the home is ever listed and it makes its way to the public.

When you talk to your Realtor about the listing, it is a good idea to clarify what you consider personal property and what you think are fixtures. The Realtor can include all this information in the listing. After the listing is up, the real estate agent can also keep in mind any areas where the confusion arises and address them with the buyer’s agent. during the sales process. The last thing you want to be involved in is a situation where the buyer intends to back out of the home sale. This is stress that can be easily avoided!

One of the other bones of contention that often comes up in a home sale is extraneous things that the seller decides they should leave behind for the prospective buyer to have. Sometimes the customer loves the fact that these things are left behind, and other times they want them gone. What kind of items am I talking about?

• Paint – some buyers want all the paint left behind to do touch-ups while others have no use for it and want it removed.
• Extra tile – again, sometimes people want extra tiles to stay, and other times they plan on removing what is there.
• Gardening items, pesticides, etc. – some buyers love to have these things, while others don’t.
• Wood – Some sellers see leaving wood for burning in the fireplace or wood stove as a significant plus.
• Miscellaneous items – anything that can be used around the house like garden hoses, garbage cans, household cleaners, etc.

The point here is you should never take anything for granted when it comes to leaving items behind. A buyer should always be asked if they want anything left behind that is considered personal property. None of these things are considered house fixtures, so they need to be removed if the buyer does not want them. Only if something is part of real property does it stay.

Do a Final Walk-Through

When you are buying a home, it is always advisable to do a final walk-through. One of the primary purposes of doing so is to make sure that everything in the house is the same as when you signed your contract with the seller. While most buyers are looking for issues like a mover dinging a wall or other potential structural or mechanical problems, looking over what was supposed to be included is essential as well.

The buyer, of course, wanted them and would not settle for what the seller put in their place. It took some wrangling, of course, with the attorneys, but a holdback agreement was made whereby the seller would not get a couple of thousand dollars of their proceeds until the lights were returned to the buyers. This is just another reason that a final walk-through should never be skipped! Hopefully, you now have a much better understanding of what is a fixture in home sales. Learning what is assumed to stay in a home and what is considered personal property is essential to have a smooth sale.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Why Selling Your Home Could Be The Key To Happy Retirement

Why Selling Your Home Could Be The Key To Happy Retirement

Retirement means major changes to your life. When you give up work, you’ll have a lot more free time and flexibility. But there may be another big change as well. For many retirees, it may make sense to sell the home they lived in while working and to move to a new place instead. Of course, this isn’t necessarily the best choice for every senior.

But here are some reasons why selling your home after leaving the working world could be the best choice for you.

• You Could Downsize To A Property Without A Mortgage: If you are still making a monthly mortgage payment on your current home that would mean you’d need more retirement income to cover your housing costs. That could drain your investment account sooner or cause you to skip out on things you might enjoy doing in retirement, such as traveling. If you can afford to sell your current home for enough money to pay off your loan and purchase a smaller, mortgage-free property, that added flexibility that can come from this move could potentially make your retirement a lot more enjoyable.
• You Could Relocate To An Area With A Lower Cost Of Living: If you had to live in an expensive location as a result of your job, then retirement could present a golden opportunity to move to an affordable area with a low cost of living. If you don’t have to pay as much for housing or other necessities, this can make your money go further and open up the door to spending your cash on other fun things in retirement.
• You Could Reduce Your Ongoing Maintenance Obligations: In retirement, chances are good you may not want to be bothered with a lot of the expenses of home ownership, including cleaning and outdoor upkeep. If your current home requires you to spend a lot of time or money maintaining it, then you may decide it makes sense to sell it and switch to a different space. A smaller home could require less energy and effort to care for. And if you’d lived in your home a while, then switching to a newer one could mean you avoid the need for a lot of expensive upgrades or fixes that old houses tend to require. And for more options beyond a smaller home, check out our guide on alternatives to single-family homes.
• You Could Find A Home Where You Can Age In Place: As you age, your needs for your home may change dramatically. For example, you may eventually need a property that is all on one story if you become unable to easily do stairs. Or you may need wider hallways for a wheelchair or grab bars in the bathroom. You could wait until you reach an age where you are unable to manage your current property. But that often means moving in a crisis. If you’d rather take the time to find a perfect new home that will accommodate your needs as you age, then it can make sense to make a change early in retirement. As a bonus, you can become entrenched in your new community while you’re still relatively young and mobile so you’ll be more comfortable living there as you age and potentially develop health issues. Whether any of these scenarios applies to you or not is an open question, as everyone’s situation is different. But as you can see, there are often plenty of great reasons to relocate in retirement. So be sure to give the idea serious consideration as you think about what life will look like after you’ve left the workforce for good.
• Buying A Retirement Home: Should You Wait: Even if retirement is far off in the future for you, there’s no better time than the present to arrange your retirement housing. This is especially true if you plan to take out a mortgage to finance your purchase. Buying a retirement home early, rather than after you retire, brings about a myriad of benefits. First, applicants generally have an easier time getting approved for a mortgage while they’re still fully employed. Taking out a mortgage now allows you to lock in a low interest rate and get a head start on paying off your mortgage. Going through the process of buying a retirement home early also gives you plenty of time to save up for any renovations or updates that you might need in the future.
• Talk To Your Significant Other: If you have a significant other, it’s important to have a conversation about your desires. Don’t assume that you’re both on the same page. Have several talks about what kind of home and lifestyle you desire. This may require some compromise, but make sure to reach an agreement where you can both be happy.
• Test It Out: Whether you plan to move across the country or into a retirement community, make sure to test out your vision. Someone who likes the idea of living in a community might find that they don’t enjoy abiding by rules. Subsequently, someone who wants to move to Utah may discover they don’t enjoy hot weather. Spend time visiting different retirement communities or vacationing in various destinations to find out what environment suits you best.
• Take Mobility Into Consideration: Make sure to factor in mobility when picking out a place to live. Assuming that you’ll always be able to drive is a mistake. Instead, be sure to measure walk ability and the availability of public transportation. Ensure that you’ll be able to get to important places, such as the hospital or the grocery store, even without a car.
• Pay Attention To Accessibility: In addition to mobility, be sure to pay attention to accessibility when looking at properties. Single-story properties are a popular choice amongst retirees, as they cut out the need for stairs. Other features to look for include wide entryways and hallways, step-in showers, and rooms that provide enough space to move around in a walker or wheelchair. Even if accessibility is not a current concern, keep in mind that retrofitting a property to become wheelchair accessible can be very expensive.
• Remember Your Friends And Family: Many people dream of retiring to a faraway destination, such as a beach town or even abroad. However, before you leave your old life behind, be sure to consider how big of an impact leaving your support network can have.
• Work Out A Post-Retirement Budget: Sit down with a financial advisor and work out a realistic post-retirement budget. Getting an idea of your monthly retirement income and expenses now can help you identify areas that need more preparation. This can also be a great time to look into passive income opportunities to help boost your post-retirement income.
• Buy Based On Your Future Income: For those buying a retirement home early, be sure to calculate how much house you can afford based on your post-retirement budget and not on your current income. Even if your monthly income were to stay roughly the same, the amount you can afford to spend on home-related expenses might change significantly.
• Assess The Impact On Your Taxes: Be sure to take a look at the possible financial implications when planning to move to a new state or country. Some states have high property taxes, making your investment that much more expensive. Also, look into how your retirement income taxes and exemptions will be impacted based on your move.
• Be Realistic About Home-Related Expenses: Be sure to factor in home-related expenses when calculating your home-buying budget. Costs may increase or decrease based on the age and condition of the property, severity of the weather, or whether or not your future home is part of an HOA or retirement community.
• Make A Down Payment Wisely: Some individuals are tempted to put their life savings toward a down payment to lower their monthly mortgage payments. However, this strategy can lead you to be house rich and cash poor, leaving little wiggle room for unexpected expenses or emergencies. Sit down with your lender and financial advisor to choose the right mortgage option and debt structure that best suit your needs.

Advantages of Buying a Second Home In Retirement

Even if you were convinced of the advantages of buying a retirement home early, by now you might be wondering how exactly you can afford two mortgages at once. Although it may seem counterintuitive, buying a second home now can actually boost your income and help you save up for retirement sooner. The key here is to think of your retirement home as an investment property. You can use the rental income toward your mortgage payments by leasing out your second property until you are ready to retire. The further in advance you make your acquisition, the more time you have for someone else to pay down your second mortgage. Any rental income not used to pay for expenses can be used to bolster your retirement savings plan. During this time, you will have enjoyed property appreciation on two properties instead of just one.

Once you retire and move into your second home, you can rent out your primary residence instead of selling it. In doing so, you will maintain the additional income stream in your retirement years and can also open up the opportunity to continue expanding your rental portfolio if so desired. Your debt to income ratio will be lower while you are still employed, which makes securing a mortgage loan easier. Of course, locking in a mortgage rate while interest rates are low is a smart long-term investment. If you buy your retirement home now, you can save yourself money in the long run. The income you make before you retire is also useful when making renovations or upgrades to your future retirement home. You may want to add accessibility features to the home that you may not necessarily need now. Plan ahead and use the money you’re making now to make changes to your house to save time and stress in the future.

Common Mistakes To Avoid

Buying a retirement home will require you to think about your future and anticipate life changes. It can be hard to know exactly what to expect as you get older, but there are a few common mistakes to avoid as you consider your next move:
• Don’t Blow Your Budget: While there are several upgrades you can make when purchasing a retirement home, be careful not to exceed your target price range. Think about unexpected costs, such as medical bills or home repairs that you may encounter in the future. Remember, your income may not always be as high as it is now, so plan accordingly.
• Don’t Move On a Whim: Buying a retirement home can be the perfect opportunity to move to a new place. That being said, you need to think through what it means to live in an area before buying property. Let’s say living at the beach is a dream of yours. What will you do during hurricane evacuations or floods? Research the areas you want to move to and make plans accordingly so you are not caught off guard by new places, especially as you get older.
• Don’t Forget About Family and Friends: Another factor to keep in mind as you search for your dream retirement home is family and friends. It takes time to become part of a new community, and it can be difficult to meet people after moving to a new place. Think about how close you will be to those you like spending time with and factor that into your search for the perfect home.
• Don’t Use All Your Cash At Once: While it may be tempting to want to pay for a retirement home in cash, it may be smarter to pay for a large down payment and take out a mortgage on the property. Instead of paying for the property in full, a mortgage may protect your cash in case property values drop. In addition, this strategy also allows you to have extra funds to spend in retirement instead of using all your cash on a retirement property.
You most likely understand by now how important it is to start planning for retirement as soon as possible. You’ve also learned how buying a retirement home now, rather than waiting until after you’ve retired, can boost your retirement savings. Remember, buying a second home early allows you to use it as a rental property and increase your cash flow opportunities. Also, establishing a rental portfolio is a great way to secure additional revenue streams in your retirement years. Utilize these strategies when planning for your future retirement to ensure that you will live out your golden years in a property and location that will make you happy. Don’t also forget to always seek an attorney opinion before you embark on anything.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Your Guide To Selling Your House Under PCS Pressure

Your Guide To Selling Your House Under PCS Pressure

When you show your home, you’re trying to present it in the best-possible light so buyers will be able to imagine themselves living there and be eager to buy it. Since buying a home can be a decision based more on feeling than on logic, try to make your home appealing to potential buyers by engaging all five senses. In many markets, it is customary for the buyer’s agent to tour a listing without the listing agent present, and they’ll expect the seller to leave the house. If you are selling your home as a For Sale by Owner transaction, though, you will need to show the home yourself.

Clean (and Clear) the House

Before you open your doors for an open house or a showing, be sure to clean your home from top to bottom. It’s cheaper to do the work yourself, especially since you’ll want to keep the house in tip-top shape for as long as you have it on the market, but hiring a cleaning company can take the load off if there’s too much on your plate.

• Clear the clutter: The first thing your buyers should see when they walk in the front door should not be piles of papers or possessions. Leave tabletops, counters, and other flat surfaces clear or tastefully styled (with a vase of flowers, perhaps).
• Ceilings and cobwebs: It’s all too easy to let cobwebs and dust collect on ceiling fan blades or in disused corners. Be sure to check light fixtures for dead bugs, too.
• Walls: While you might skip washing the walls during a busy phase, your buyers will notice dirt and handprints.
• Floors: Take care to leave your floors sparkling, especially if they haven’t been replaced in a while or if there are pets in the home. Steam-clean the carpets to take care of lingering dirt or odors. If you have carpeting, vacuum it in one direction, and don’t walk on it again—vacuum lines in the plush will signal good care without trying. Once your home is clean and clear of clutter, it’s time to throw open the doors and invite buyers to take a look. Although the buyers are guests in your home, you want them to imagine owning it. Don’t make them feel like intruders do everything you can to make your property a welcoming one.
• First impressions: Begin with your curb appeal. Pay special care to your front porch or stoop as well as the landscaping leading to your front door. Make sure that the walk is swept neatly, the porch is inviting, and there are no toys or yard tools littered about. Be sure that any potted flowers or plants show regular care and maintenance. A wreath on the door or tidy furniture on a porch or balcony can set the scene.
• Shoes stay on: Don’t expect the buyer to remove their shoes, unless you are selling to a buyer for whom religious or cultural reasons mandate it. The buyer is not a visitor; they are a potential sale.
• Don’t pressure: Don’t hurry the buyers. Let them know they can take all the time they need. It may take some extra flexibility on your part, but it will be worthwhile if you can get an offer.
• Leave a note: Set a bowl of wrapped candy or other treats near the front door with a small note thanking the buyer for coming to see your home.
• Leave the house: You will be tempted to follow the buyers and explain upgrades, amenities, or features. Don’t do it. The buyer won’t talk about the house in front of you, or open doors with you standing there. You and your family should go for a drive, get a coffee, visit the park—just get out of the house so your potential buyer can relax and evaluate.

Set a Comfortable Temperature

Your goal is to create a welcoming atmosphere, so pay attention to your climate systems. A cold house on a cold day, or a stuffy house on a hot day, won’t paint the picture you want buyers to see—it’ll leave them uncomfortable, not to mention wondering whether your heating or cooling systems are in disrepair.

• Pay attention to the weather: Showing your home is not the time to worry about your utility bill. If it’s cold enough to wear a sweater to stay warm, turn on the heat. If you’re known for leaving your thermostat at sub-Arctic temperatures, this is one time when you’ll want to dial it up a few degrees. You can always turn it back down again when buyers leave.
• Crank the AC: On a similar note, if it’s warm outside, turn up the air conditioning. You want the temperature inside the home to be cool and comfortable, and give the buyer more of a reason to linger. They’ll feel refreshed after coming in from the hot or humid outdoors. But don’t overshoot the mark and make it too cold, or you’ll have the opposite effect.

Turn the Lights Up

Brighten up your home inside and out so buyers can clearly see your house’s features.

• Turn on every light: Overhead lights, lamps, even appliance lights and closet lights. Be sure the porch light is on, especially after dark; solar lights along your walkway are a nice touch as well.
• Let the sunshine in: Open all the curtains, and raise all the blinds, to let as much light in as possible if your showing is during the day. Make the house look inviting from the street if the showing is after dark.
• Brighten dark rooms: Strategic lamp placement can make the room feel brighter and more welcoming. Add another lamp (or two!) if necessary.
• Turn off the TV: The moving pictures (not to mention sound) are too distracting. If you’re playing music on a computer, turn off the monitor.
• Open doors: Leave closet doors slightly ajar, too, so a buyer can peek and check out the storage space.

Create a Mood

Staging your home for buyers’ means setting a tone, creating an atmosphere they want to be a part of. Play up your home’s best features by setting the mood, whether it’s romantic, relaxing, or exciting. Help your potential buyers envision themselves living their ideal life in your house.

• Put the fireplace to good use: Light a fire, even if it’s the middle of summer.
• Make it romantic: Place two (clean) champagne glasses on a nearby table with a bottle of champagne.
• Turn on soft music: Just as stores use gentle music to create a cozy shopping experience, you can, too. Keep the tunes unobtrusive and suitable for a general audience.
• Power up the water features: Fountains are especially useful for drowning out traffic noise or loud next-door neighbors.
• Encourage touch: Touch can be a powerful emotional trigger. Drape sensuous fabrics such as velvet wraps, chunky knit blankets, or silk throws over chair arms and sofa backs.

Use Scent Sparingly

A thorough scrubbing should be all you need to ensure a fresh fragrance in your home.
• Put away the spray: Many people are sensitive, or even allergic, to artificial scents and deodorizers, so don’t use room sprays or plug-in air fresheners. Don’t burn candles or perfume, for the same reason.
• Use fresh air: If weather permits, open the windows to let in a breeze and keep your house from smelling stale. Just be alert for distracting noises from outside, such as heavy traffic.
• Real is better: If you’re going to simmer spices in water on the stove (an old home-selling trick), at least put out munchies so buyers aren’t disappointed when they reach the kitchen. And don’t forget to turn off the heat! The last thing you want is a burnt pot when all the water has boiled away. If instead you decide that the scent of freshly baked cookies is going to entice a buyer, be sure to actually leave some cookies.

Provide Additional Information

You have so little time to make an impression. If there’s extra information that a buyer might miss or be unaware of, you can provide nicely printed cards or notes to let them know.
• Historical details: For example, if you have an antique chandelier in your dining room, put a card out that discloses its age and other important details.
• Safety precautions: If your basement stairs are steep, attach a card to the railing that cautions buyers to watch their step.
• Excluded from sale: Take care when placing a card that says, “Not included in the sale.” Such a note will make a buyer want whatever it is you’re excluding. However, you may be able to play that to your advantage later, during negotiations.

Top It Off With Food

The best way to entice buyers to linger and notice even more details about your home is to offer them food. You don’t need to cater a lunch, but finger sandwiches, cookies, soft drinks, and bottled water are all welcome. Buyers who are nibbling on snacks are not that eager to leave and might notice more of what your home has to offer.
• Self-serve: Set out serving utensils if needed. Provide plates, cups, and napkins; paper products are fine.
• Easy cleanup: In plain sight, provide a waste receptacle so discarded plates and napkins don’t clutter the counter for the next showing.

Encourage Buyer Feedback

Feedback from visitors can be extremely helpful when trying to sell a home, especially if they let you know something that would be an easy change before the next buyer stops by. Ensure that buyers can leave prompt, anonymous feedback it will be invaluable as you tailor your offering going forward, and anonymity makes it more likely that a potential buyer will offer their thoughts.
• Provide writing utensils: Near the snacks, leave pens and a stack of pre-printed questionnaire cards or a guest book to sign. Buyers may very likely feel obligated to respond to your request after being fed.
• Ask questions: You may inquire as to their overall impressions, how your home compares with others, even their impression of the price. Don’t take their answers too personally. Instead, use them as important data points as you refine the way you stage and sell the home.

Negotiating a Buyout

The owner who wants to sell can try to buy out the other owners and take full possession of the property. Alternatively, the co-owner who wants to sell can negotiate with the other co-owner(s) to buy them out instead. This tends to be the most desirable option as it allows the seller to sell their share and it allows the co-owner who didn’t want to sell to keep the property.

Note that buyouts are only possible if one co-owner is able to secure the funds necessary for the transaction.

Selling A Property Share to a Non-Owner

As with any asset that is co-owned, each owner has a share of co-owned property. Shares of a home can be sold even if owners disagree about selling. Yes, this means shares of a home can be sold to strangers. However, most strangers don’t want to co-own a home together. So selling property shares like this isn’t a feasible option unless the co-owner knows and likes the new co-owner. However, in some cases– such as within a marriage –the right to sell co-owned shares of property is suspended.

Getting the Court to Force a Sale

You can obtain a court order to sell a co-owned property if the court finds you have a compelling reason to sell. This is called a partition action. Actual acreage of a property is easy for a court to divide up to co-owners– like with farmland. But when it’s more complicated when it comes to dividing up houses. The court can’t divide a house in half, so instead, it can force owners to sell, even if they’re unwilling. Profit or loss from the sale is divided among the owners based on their stake. But again, in the case of a married couple, the laws are different.

Be Sure to Address the Mortgage

It’s important to note the legal difference between property deeds and mortgages. Just because a homeowner transfers property ownership to another owner– thus removing themselves from the deed –doesn’t mean the mortgage transfers over too. After forcing a home sale, it’s necessary to also address the mortgage. A home seller can use the proceeds from the sale to pay off the mortgage. Otherwise, one in this position must ensure that the new owners who are being transferred ownership are able to refinance the loan without you. If the new owners can’t finance it, you might be on the hook to pay for a home you don’t own anymore.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Real Estate Salt Lake City

Real Estate Salt Lake City

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Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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