Category Archives: Real Estate Law

Real Estate Lawyer Layton Utah

Real Estate Lawyer Layton Utah

Contracts can take a number of forms. The simplest, but least enforceable, contract is the verbal agreement. While verbal agreements can be highly efficient in terms of transaction costs and are frequently used among business managers who have long-standing relationships, the risks for property owners are typically too great to suggest their use to the same degree in construction. Moreover, with the advent of fax machines, there are fewer and fewer occasions when verbal agreements (e.g., to facilitate an emergency purchase) are absolutely necessary to get the work done in a timely manner. “The law has yet to catch up with the routine use of fax machines, making it questionable whether a contract is binding if its documents were sent and received by fax. Most cases have held that fax signatures are binding”. To say that all or nearly all contracts let property owner should be written is not to suggest that these written contracts should take the form of an elaborate document complete with seals and notarization or one that is finalized with a signing ceremony. In cases where the product or service being purchased is fairly standard and where nondelivery will not result in extensive damage to operations or service delivery, contracts can be as simple as a purchase order or a letter of intent or letter of agreement.

Purchase orders are entirely satisfactory if they are used with merchants who are making an offer of goods or services at a certain price. They may be less enforceable when used to purchase services from a consultant who may not be set up as a formal business.

Letters of intent can be used when the property owner is anxious to get to work on a project but has not yet completed the contract negotiations. A letter of intent is written by the property owner. It states the intent to award a contract if the parties can come to agreement on terms, payments, and conditions. It then sets forth a statement of the work that will be done prior to the completion of the contract terms and the payments that will be made for this initial work. Such letters of intent will also tend to formalize the right of the property owner to terminate the letter of intent under certain conditions. With these minimum conditions in place, initial work on a project can proceed with both the property owner and the service provider understanding the limits of the agreement. In essence, a letter of intent is a minicontract that outlines the basis on which a larger contract will be forged. While letters of intent allow a project to get started, they can potentially disadvantage the property owner in the ensuing full contract negotiations. This is particularly the case when the technology or service methods used by the provider are unique to that provider. When this is the case, it becomes much more difficult and costly for the property owner to consider switching to another contractor.

If service providers know this to be the case, they may choose to demand higher payments or other premiums during the contract negotiations. When the particular service technology or method used by the intended contractor is not unique, letter of intent agreements can advantage the property owner, particularly in cases where the property owner is unsure about the quality of work of the selected contractor. In this instance, a letter of intent arrangement can work similarly to an employment probation period. If the quality of the work is not satisfactory during the period when the letter of intent is in force, the property owner may choose to take a more demanding position during the contract negotiations.

Though they may not appear as formal contracts, letters of agreement or letter contracts are complete and enforceable contracts–once the letter has been acknowledged and accepted. The letter is typically initiated by the purchaser and sent to the provider or contractor along with a copy of the letter that has a place for the provider to sign and date a statement of acknowledgment and acceptance. This acceptance copy is then sent back to the property owner. Because the contract is in effect from the time that the acceptance copy is signed and dispatched, one of the responsibilities of the property owner is to follow up on letters of agreement that have been sent out but not returned within a reasonable amount of time. If a letter has been lost in the mail or misplaced in a property owner office, the property owner may nevertheless be constrained by the terms of the contract. With regard to this same issue, property owner should consider including in each letter of agreement that is sent out an expiration date on the offer being made. This provision is particularly important when the service or goods to be provided have a high level of cost or price volatility.

Letters of acceptance are typically used in conjunction with requests for proposals. Each of the proposals the property owner receives is essentially an offer or promise to do work upon notice that the property owner has accepted a particular proposal.

Formal contracts are typically used when the value or complexity of a service or product makes it necessary to build in a higher level of understanding between the property owner and the service provider. What distinguishes formal contracts from letters of agreement is both a higher degree of formality in the design and signing of the document and the presence of a number of legal clauses that tend to place special duties on one or more of the parties to the contract. It is the presence of such clauses that makes it advisable for the property owner to engage the services of an experienced Layton Utah real estate lawyer in the development and review of the contract.

Constructing a Formal Contract

All construction contracts be written and concluded in the form of a contract. One method that has proven successful in this regard is to have prototype or boilerplate contracts that include all the mandatory language, terms, and clauses that an experienced Layton Utah real estate lawyer has advised. Typically, property owners will develop some boilerplate language that will satisfy all conditions

Protective contract language and risk management

While boilerplate contracts can be used successfully in the majority of construction situations, use of protective contract language can also be taken too far. This is particularly the case when predicting and addressing every possible contingency for every possible outsourcing situation than with the efficiency and effectiveness of the outsourcing process. Part of the contract management process is to assess the risk that a contract will be breached and to identify the most cost-effective means of handling this level of risk. The property owner’s use of risk-management mechanisms can differ substantially from the results of an attorney’s desire to create air-tight contracts. This is the case because many of the clauses that an attorney may desire to include in a contract involve both direct and hidden costs. If these costs are not assessed and weighed against the expected benefits, property owners may pay substantially more than would otherwise be necessary to receive the benefits of the contract.

Good contract management requires that the property owners take certain steps.

Determine if the Risk Involved in a Particular Contract Is Substantially above Some Risk Standard

A typical standard might be the risk involved in purchasing a good from a reputable local merchant. Purchasing a good or service from a local merchant who has been in business for years, has numerous local customers, has a good credit record, and who has no outstanding complaints regarding the goods or services provided is generally a low-risk contracting activity. As such, one would probably not require any particular risk-management terms or conditions in the contract over and above the protections provided by standard contracting language and the Uniform Commercial Code.

Determine Whether Particular Risk-Management Clauses Are Appropriate to Particular Contracts

Risks can be grouped into two categories: risks related to inappropriate contract awards or award challenges and risks of the contractor failing to perform as expected.

In assessing a contract, the property owner will also want to review the contract and the contractor’s qualifications to determine the level of risk of a contract breach that the property owner will be taking on in outsourcing with a particular firm. By assessing the contract for specific types of risk, it becomes possible to begin to craft an appropriate set of contract conditions to address the type of risk foreseen.

Contract Provisions for Addressing Risks That the Contractor Will Not Perform as Desired

Warranties extend the time period in which a seller, supplier, or service provider agrees to assume responsibility for what has been provided as part of a contractual exchange. Standard commercial codes will often provide consumers some level of warranty. In many cases, this implied warranty will be sufficient for a property owner, but not always. For example, if the property owner intends to purchase a recycling truck with a loader that has been modified to handle special recycling bins, knowing that the seller must deliver a loader that is fit “for the ordinary purpose for which the goods are used” would not be satisfactory. An additional guarantee that the product or service will perform or provide service in a particular manner or be suited to the intended purpose may be desirable. Such a warranty can be added to the contract, but the contractor may not be willing to have such a clause added without some additional compensation.

Besides extending the implied warranty to intended, rather than ordinary, purposes, warranties can be used to extend the guarantee of serviceability beyond the delivery date, guarantee certain technical specification, or guarantee a replacement or repair in cases where defects are found. Here are some things to look for in warranty clauses:

• Time limits on the warranty.

• The “as is” clause. Be wary of this clause as it can essentially eliminate all warranties–including the implied warranty provided by states that have adopted the Uniform Commercial Code.

• A specification that the defect must be of a certain size or cost before the warranty can be triggered. Used judiciously, these clauses can lower the total cost of contract management. Because the buyer will not constantly be invoking a warranty clause over small defects, the contractor should be able to provide the goods or services for a lower price. This is the case because the contractor will not have to add staff to handle and check on numerous small warranty claims.

• Warranties for only a part of the product or service–such as a warranty of parts but not labor, or the drive train but not the rest of the vehicle.

• Required records. Some warranties will allow the buyer to have the good repaired or the service delivered by another vendor, but will require certain types of records before authorizing warranty payments. More often, record-keeping requirements are left unstated, but will still be necessary to make a claim.

• Repair sites. Some warranties require that the product be repaired only at an authorized site. This requirement can be crucial in cases where the authorized repair site is inconvenient or has a large backlog of work orders.

• Timing of claims. Sometimes warranty clauses require the buyer to notify the contractor within a short period of time after discovery of the defect. If this is the case, property owners need to keep track of this and to make sure that those who are likely to discover a defect will, if a defect is discovered, promptly communicate this fact to the property owner.
Indemnification clauses require the contractor to protect the property owner against losses or damages caused by the contractor. Indemnification can include protection against losses that are caused by the contractor when the contractor is working according to the specifications provided by the buyer. Indemnification basically shifts the burden of accountability to the contractor. The basic consequence of such a shift is that if the property owner is sued as a result of some activity that is covered by an indemnification clause, the vendor or contractor, not the purchaser, will have to pay damages if damages are assessed. Indemnification terms typically will include language related to loss, claims, damages, actions, and liabilities related to the work conducted as part of the contract.

Key phrases to look for in indemnification clauses include:

• Any and all claims –this term obviously tends to expand the scope of the indemnification.

• Bodily injury claims only –this term limits the indemnification claims to personal injury. However, as injury claims are likely to be the most substantial type of claim, the limitation may not be that substantial.

• Sole negligence –indemnification clauses can be triggered by the degree to which negligence is shared by the parties to the contract. For example, if the property owner wanted a very strong indemnification clause–one that would protect it against most claims–it might ask that the contract indemnify or hold harmless the property owner in all cases except for when the property owner was solely negligent. That is, the contractor would essentially take responsibility for damages or losses where there was some shared negligence.

• Expense limits –indemnification clauses will often be limited to a set amount of damages or to the limit of the contractor’s or property owner’s insurance.

• Obligation to defend –sometimes indemnification clauses will place an obligation on the indemnifying party to defend claims made against the party being indemnified.

• Expense deductions clauses –expense deduction clauses allow the indemnified party that has been sued to deduct the expenses for its defense from the payments that would otherwise be due to the other party or contractor.

• Subrogation or waiver of subrogation –subrogation refers to the substitution of one creditor for another. Sometimes indemnification clauses will include a waiver of subrogation which can have the effect of limiting the liability of the party being held harmless by the indemnification. Subrogation typically occurs when an insurance company pays off a claim. That is, in return for paying off the claim the insurance company will (according to the terms of the policy) gain subrogation right or the same rights as the policy holder would have to sue other parties that might have been responsible for the loss.

A good rule of thumb for property owners is consult with an experienced Layton Utah real estate lawyer whenever a complex indemnification clause is proposed by a contractor.

Layton Utah Real Estate Lawyer Free Consultation

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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Do You Still Owe Money After Foreclosure?

Do You Still Owe Money After Foreclosure

Over the years, the most certain question, based on the course of action as it relates to foreclosure is:

• Will I owe the bank money after foreclosure?

The answer is: It depends. To be 100% sure, call Ascent Law and speak with one of the lawyers there. They can help you to know for certain one way or another.

As a house owner, that would be the main question for me as well. If you are not aware of the legal process in your market, you should learn. It is essential that you can answer this question for the owner when it arises. When the lender or bank foreclosures on the property, and they eventually sell the property for less than what was owed, then a deficiency exists with the loan. The weakness is the difference between what the house owner owed and the amount of property sold.

For example, Mary owes $100, 000, and the lender foreclose and sold the property for $60, 000 at auction. There is a deficiency of $40, 000 for which the lender can sue the house owner. The key phrase is “can sue”. However, this is a practice that rarely happens, but it’s a real concern for the house owner in most cases, the house owner wants nothing else to do with the lender once the property is sold at auction. If the deficiency judgement is granted, it would appear on the house owners’ credit card just as any other decision would appear.

The house owner(s), while they are not savvy to the short sale process, would want to know happens to the difference. Will they be required to pay the difference? During short sale process, house owners can negotiate with the lender, not to seek a judgement against them because they feel they’ve waived their right by accepting a short sale. There is a second issue as it relates to the deficiency, and that’s 1099. The lender will issue 1099 to the house owner for the difference. In Mary’s case, the lender will grant her 1099 for $40, 000. This will be reported as income Mary had received, and therefore she will have to pay taxes. Either way, the deficiency judgement can be of great concern to house owners. There are couples of actions that the house owner has, as it relates to the deficiency judgement. In Mary’s case, she should file bankruptcy to address the report. She could also short sale the deficiency with the lender at a later date. In other words, offer the lender a lesser amount as “payment in full”.

Here is an important note. The lender, if they issue 1099, cannot be sue for a deficiency judgement. The lender can only pursue one or the other. In other words, Mary can’t receive both a deficiency judgement and 1099 from the lender. As you disclose to the house owner this vital information, you must inform them about the consequences of the deficiency and 1099. They will decide to continue working with you or not. Most of them believed in the past that once the sale is completed, they are free and cleared. Collection activity begins almost a year after the purchase and it is relentless. Without the clause in the contract, house owners are liable for the remaining debt, especially to the second mortgage holder. These collection agents can pursue you aggressively, ruin your credit card, and may even take you to court for the amount owed. These collectors, of course, add their collection fees to the debt making the debt more substantial and harder to pay off.

Some states are still considered non-recourse states. What this means is that if a mortgage goes wrong and house is sold, the original borrower is not responsible for any difference in the loan amount. However, this non-recourse rule does not apply to second mortgages in any state. Borrowers must also be aware that many lenders have now resorted to including a promissory note in the contract. This note obligates the borrower to pay for the remaining balance of their debt to the lender after the short sale has gone through. Most lenders’ state will not approve a short sale without this guarantee. However, with proper representation by a real estate attorney, this pitfall can be avoided. House owners that are already facing financial problems do not need this additional grief. It is very important to have a clause in short sale contract relieving you of the responsibility of the balance of the loan(s). Short sale has become a widely practiced form of real estate selling in the previous years due to the market. Most lenders do not like the process and they continually change their guidelines for the procedure. Real estate agents, even those that specialize in short sales, cannot keep up with all the different rules and regulations set forth by the most lenders. For this reasons, it is crucial to have an attorney involved in the process. The charging off from the 2nd lien relates to an accounting entry. Your lender will not charge off the 1st lien, and if you go past due on the 1st lien, it will leads to foreclosure. Remember, the 1st and 2nd lien is very much different as far as the possible outcome for each that will occur if they’re past due.
The 2nd lien will likely stay past due to a certain point, and then if it goes beyond a certain point, the account will be charged off, and sold off for pennies to a collection agency. It will represent a loss or write off for your lender. The collection agency will try to collect the outstanding debt from you. You will get 1099 on the charged-off debt, it is subject to income tax, and therefore there are tax implications at the end of that year. You are still obligated to pay it off, you may or may not choose to do at this point. If you do not pay if off, it will remain on your credit for seven years, and it will affect your credit negatively when seeking future creditors, especially form mortgage companies. Having a charged off 2nd lien is similar to lot of debts, it drags your credit card down, and sits on it until you have paid, or falls as it is supposed to by law, the easiest way to get around 2nd mortgage lien is to make the payments. A 2nd lien will be charged off after going beyond 120 days. If you are strapped for money and can only pay your 1st mortgage, to try to keep the property from going to a foreclosure sale, concentrate on the 2nd lien, but do not neglect your 2nd lien.

Make sure you offer an occasional payment on the 2nd lien, so that it will get beyond 120 days. Use 120 days or less as the safety net to stay within and avoid a charge off. (FYI, a redemption period is a section of time allowed by law for you to pay the lender what you owe them for keeping your house. In some states, this redemption period will fall after the auction.
Here’s a general peak at what can happen after a foreclosure if you still owe, bear in mind that this varies depending on the state you live in.

An eviction

If you’re still in the house after the house has been auctioned, then the new owner (or the bank if there was no bidder) will have to go through a legal process to evict you. The eviction process can take up to 5 to 90 days, depending on your state law. You will not be dumped on the street without notification. The sheriff’s department will serve you notice of eviction and in that notice would be instructions and the time frame to get you out. If you want more details on the eviction process, then you will need to call the claim courts in your local courthouse. Ask the way eviction process works to understand exactly how many days you will have to leave the house after the auction. An eviction will only take place if ownership is transferred out of your name after the auction. Each mortgage can foreclose individually. If it is the second mortgage that goes to auction, then the property owner does not transfer to the highest bidder or the lender.

Redemption period

This is an amount of time that allows the house owner the opportunity to stop the foreclosure by paying the entire loan. Only some states have a redemption period, Wyoming is one of them. This usually starts after the auction, and in Wyoming, it runs for three months. A redemption period is a lifetime in which you can sell your house and get out of foreclosure that has already taken place. During this period, you cannot be evicted and you won’t be making any house payments.

Deficiency Judgement

In some cases, the lender is not able to sell your house for the full amount you owed on the mortgage. When this happens, the lender will seek what is called deficiency judgement to recover the rest of the money owed. This is done through the court system, so you will get notified if this happens and you might be summoned to court. Not all lenders seek a deficiency judgement, even if it is allowed in your state, the lender will not choose to find one after the auction.

Once the court allowed a judgement for the lender to recover the deficient amount, they might attempt to garnish your wages or take your assets to pay for the debt. In the judicial sates, when the initial complaint is filed to initiate the foreclosure process, the lender can also register for an automatic deficiency judgement if the auction doesn’t bring the full amount owed on the mortgage.

Not all states allow a deficiency judgement, again, each state is different and therefore, what happens after foreclosure will vary as well. It is obviously in the best interest of the house owner to be proactive and deal with foreclosure. At least there is a chance that the investor can negotiate away the deficiency before it even becomes an issue.

Free Consultation with a Foreclosure Lawyer

When you need help with a foreclosure in Utah, please call Ascent Law at (801) 676-5506 for your Free Consuultation. 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 Lawyer North Salt Lake Utah

Real Estate Lawyer North Salt Lake Utah

If you are intending to lease a property for business use, consult an experienced North Salt Lake Utah real estate lawyer.

Prior to leasing or purchasing an existing building or facility, a physical security survey should be conducted to assess security needs commensurate with facility use. All door locks should be changed prior to occupying the facility. This could be a problem if inferior hardware has been used in the original construction; however, the expense of converting to a heavy duty system is worth the cost. Consideration must also be given to crash-out doors, windows, roof hatches, outside ladders, utilities, skylights, ventilators, manholes, subterranean ducts, storm drains, lighting, fencing, and parking garages. The security of most of these items should be covered in the lease agreement.

The lessor writes the lease and thus controls the leasing situation. Assuming that you have competent legal counsel, there should be few problems, but some areas require special attention if you are the lessor:

• The increasing use of technology and mobility require that leases address the hours of operation and the cost of substantial electrical and HVAC (heating, ventilation, and air conditioning) systems.

• The lease should specify proper installation and apportioning of costs for supplemental HVAC.

• The lease should certify that the space is free of PCBs, asbestos, lead in the drinking water, and common air pollutants.

• The agreement should be clear about special-purpose space, which varies substantially from common use of the facilities. An example could be file rooms (high floor loads) and computer rooms (high HVAC, fire safety, and electrical loads).

• There must be adequate access and egress for material and debris, particularly for facilities that do not have freight elevators or loading docks.

• The lease must specify the use of tenant material handling devices inside the facilities.

Lacking a standardized lease, anyone entering into a lease should be particularly concerned with the following:

• Escalation clauses

• The building standard or “work letter”

• Tenant allowance and their applicability against extra work

• Signage

• Subleases

• Approval of tenant’s extra work

• Access by lessee’s contractor

• Weekend HVAC

• Appurtenances (parking, toilets, storage space, etc.)

• Rules

• Renewal options

• Division of costs for:

— Operations

— Major building alteration

— Landlord repairs

— Building services

Leasing can be worrisome because it is fraught with legalism and seeming bias toward the landlord.

Homeowners Associations

Homeowners associations (as well as property-owners associations or landowners associations) are a special kind of residential association created by the covenants, conditions, and restrictions of a common interest development. Elected boards oversee the common property, and each home is purchased with the CC&Rs as part of the deed. An extensive set of rules and regulations are mandated by the CC&Rs, and homeowners associations as private entities also can make their own rules. In an overwhelming number of cases, particularly when racial discrimination is not an issue, covenants are treated as private agreements that need not comply with the constitutional standards that apply to the laws adopted by public local governments.

Homeowners association boards make decisions that affect every aspect of community life. These decisions and the functioning of the board are monitored constantly by residents and evaluated in terms of how decisions resonate with the values and preferences of individual households.
The difference between co-ops and condos lies not only in the structure of ownership, but also in the degree of control residents have in selecting prospective tenants. In cooperatives, residents become members of a corporation or limited partnership that collectively owns a building or group of houses. You become a shareholder and purchase shares that entitle you to a long-term “proprietary lease.” Individual shareholders do not actually “own” their units, but own a percentage of shares within the cooperative. Condominiums, on the other hand, are real property, usually with individual ownership of the house or apartment, and common ownership of facilities, land, or buildings. Fees covering maintenance, taxes, and improvements are distributed to all residents in both organizations, but in a condo arrangement, an individual can often sell or rent his or her apartment without the approval of the other residents or the condo board. In the cooperative, however, the co-op board must approve every buyer or renter and has broad powers to grant or withhold approval.

Local government can use zoning ordinances and enact design review standards to regulate the landscape, but to be enforceable the standards must be objective, allow for due process, and serve the public’s health, safety, and welfare needs. Property owners are entitled to a hearing on any government decision to restrict the use of private property, and if the restriction creates a hardship, property owners can apply for a variance. Further, if the zoning ordinance or design standards are deemed excessive, they can be considered a “taking, ” and the property owner must be compensated for any financial loss. These same protections are not available to a property owner living in a private, gated community because “these constitutional and statutory limitations do not apply to private agreements.”

Private governance enhances the ability of residents to keep inter-personal and neighborhood conflict at a minimum. The complex CC&Rs guarantee that most problems are resolved before they start. Another aspect of private governance is the complexity of setting up the board as well as staffing it to maintain the properties and enforce the rules and regulations.
Upon the purchase of his/her unit, the new owner automatically becomes a member of the residential association. The problem of the legitimacy of imposed rules varies according to whether such rules are explicitly included in the declaration of covenants, conditions and restrictions or in the regulations imposed by the board of the residential association.
Restrictions contained in the declaration: scope and limits of the original contract

From a purely “contractual/consent” point of view the question is fairly simple. The contract that entails the acceptance of the declaration is voluntarily signed by the owners, and accordingly the restrictions contained therein are largely legitimate even if they curtail certain individual rights such as free speech. The original membership in a homeowners association is more voluntary than the original membership in a city; therefore, an association’s (private) constitutive contract should be allowed to include certain substantive restrictions usually not allowed in a city charter.11 Inasmuch as it is an explicit contract, knowingly and voluntarily entered upon, one can reasonably hold that the declaration must be honored by all residents— and actually the US courts tend to ensure that the obligations contained in the declaration are respected.

Restrictions made by the board of the homeowners association

Further problems arise regarding decisions later made by the homeowners association’s board, that is, the elective management body. Owners are under an obligation to abide by the decisions made by the board since the purchase agreement includes membership in the residential association and the obligation to respect the board’s decisions. In this respect, the homeowners association functions like a private government. All the owners are part of it and may stand for election to the board. The board decides, for example, on the use of collective spaces, on certain activities conducted in private spaces, and on the buildings’ architectural features.
If you having problems with your homeowners association, an experienced North Salt Lake Utah real estate lawyer can help you.

Easements

If a man gives an easement on part of his property, he can enter the value of it as a charitable deduction on his income tax. More important is the local property tax. If a man gives an easement, he will not necessarily get a reduction in his present taxes; in all likelihood, the assessor has been valuing the land only at its open-space value. What the easement does is ensure that he will keep on valuing it that way and not raise the assessment on the basis of the development potential. Some states have passed laws to that effect, but in principle they should be unnecessary. In most state constitutions, there are guarantees against assessment at more than fair market value. If a man gives an easement on certain portions of his land, the assessor should recognize this in computing market value. He cannot rightly value it as developable land if there is a binding agreement that it is not developable.

Most easements are for perpetuity. Some people blanch at the thought of such a commitment and would like to see short-term easements. But the sale of the fee simple, or of most anything else, for that matter, is for perpetuity, and there are practical reasons why easements should be too. If they are not, the landowner is likely to have trouble persuading the assessor to overlook the development potential. Nor will the landowner be able to get capital gains treatment. If the payments are for a lesser period they will be taxed as income, just as lease payments are.

Short term easements can also create problems for the purchaser. Public agencies have found that it is as much trouble to renegotiate an easement that is about to expire as to negotiate one in perpetuity and be done with it, and agencies that used to secure short-term easements are now switching to the long term. They find that it costs them no more to do so.

Perpetuity does not last forever. In almost every easement deed there will be a reverter clause to the effect that if the purpose for which the easement was acquired is abandoned, the easement will then automatically be voided and all rights will return to the owner of the fee simple. Many of the old interurban trolley lines were laid down on easements; now that the trolleys have gone, the easements have long since reverted. The people who own the land are often unaware of this, and in many areas these ghostly traces can still be found, weedy and unused.

Easements are worth what the landowner is giving up. Sometimes this is a good bit; sometimes it is very little.

The rule of thumb for estimating the value of an easement is to figure the “before and after” value of the property; the difference between what the property is worth without the restrictions and what it is worth with them is the value of the easement. This depends on time and place. If you want an easement forbidding development on a piece of prime land in an area that is ripe for development, the owner is giving up a major part of the value of his property, or thinks he is, and you could pay through the nose.
People who want to use easements can be similarly imprecise. The most frequent error is a failure to distinguish between a scenic easement and an easement that grants public access. The two rights can be combined in an easement deed for a particular tract, but the two can’t be had for the price of one.

Easements are very binding indeed, and there should be no sugarcoating the fact. This is why they work. The deed forms must be explicit as to what is granted and what is not, and there can be no open-end clause by which the purchaser can make up new conditions for the landowner as time goes by. Such flexibility would appeal to administrators; it would not to the landowner or to the courts. They frown on loosely drawn easements, particularly those so loose that it is difficult to determine how much the landowner is letting himself in for and, thus, how much he is entitled to be paid.

Easements “run with the land,” and their conditions apply to subsequent owners of the property. Unlike covenants, they are held by someone with a truly proprietary interest in seeing that they are enforced.

Speak to an experienced North Salt Lake Utah real estate lawyer if you have any questions regarding easements in your land. You may entitled to an easement. An experienced North Salt Lake Utah real estate lawyer can review your circumstance and advise you if you can seek an easement.

North Salt Lake Utah Real Estate Lawyer Free Consultation

When you need help with an eviction, real estate matter, quiet title issue or partition action, please call Ascent Law LLC 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 Lawyer Bluffdale Utah

Real Estate Lawyer Bluffdale Utah

The golden rule in real estate development is that every agreement concerning real property (land and buildings) must be in writing. This rule had its origins in England, where the Statute of Frauds was enacted in 1677. The Statute of Frauds was founded on these key premises: Each parcel of land is unique, and as long as a seller has agreed in writing to sell the land and the purchaser has agreed in writing to buy it, the purchaser will be able to force the seller to sell that unique parcel to the purchaser. Every state including now have similar laws governing real property. Therefore, you must reduce to writing any agreement relating to the possible purchase of a property. A written document, whether a purchase contract, an option, or any other form of agreement, allows the purchaser to “specifically enforce” the agreement or to force the seller to comply with its terms in a court of law. An experienced Bluffdale Utah real estate lawyer can draft the purchase contract for you.

Purchase contracts are the most common form of written agreement between a seller of property and a potential purchaser. In fact, the vast majority of real estate transactions that take place in the United States—the purchase and sale of single-family homes—utilize purchase contracts. A description of the provisions that purchasers should look for in their purchase contracts is given below. Special mention is made of provisions that may be of particular interest to the purchaser organizations. As with any legal document, the terms of the purchase contract should be as clear and unambiguous as possible. You should consult with an experienced Bluffdale Utah real estate lawyer prior to entering into any written agreement.

Parties

The purchase agreement must clearly state the identities of the purchaser and the seller and include an address where the parties must deliver any written notices required under the agreement. The address provisions may be included in a separate paragraph.

Description of Property

The purchase contract must contain a paragraph that describes in detail the real property to be transferred and addresses how the personal property owned by the seller and located on the property will be disposed of.

Real Property.

The description of the real property (land and whatever else is built on the land) provided in the purchase agreement may be the single most important section of the document. The sponsor will be able to “specifically enforce” or force the sale of the specific parcel of land described in the purchase agreement only if the terms of the written agreement clearly describe the property in question. The sponsor should be certain that the description included in the purchase agreement is the legal description of the property that can be found in the land records of the jurisdiction where the property is situated. Additional means of identifying the property, for example, the lot and square numbers used to identify the property for property tax purposes and the property mailing address, should be used only to supplement the legal property description.

Personal Property

The contract must state how the parties are going to treat any personal property (everything not permanently affixed to the land) that is located on the property on the date of transfer. This personal property usually includes such items as appliances, light fixtures, heating and air-conditioning units, lawn mowers, and so on. As a general rule, these items are transferred to the purchaser. However, the contract should state the transfer (if that is the case) or the limitations on the personal property to be conveyed.

Purchase Price

The purchase contract must contain a paragraph that states a definite purchase price for the property. This paragraph also may contain details on how the purchase will be financed.

The purchase contract must state a definite purchase price for the property. The final purchase price can change during the contract period, perhaps increasing by $1,000 for every day that the purchaser must extend settlement beyond the date specified in the contract. The purchase price can even be based on a formula, such as the outstanding balance on the mortgage as of the date of settlement plus a profit of 10 percent of that mortgage balance. The terms must be objectively discernible; an independent third party should be able to ascertain the sales price of the property at any given time.

Financing.

The purchase contract may contain provisions detailing how the property will be financed. For example, if the seller will be providing the purchaser with a purchase money mortgage for all or part of the purchase price, then the terms of this owner take-back financing will usually be negotiated as part of the purchase contract and included in the contract itself. If no owner financing is being provided, the contract may contain only a provision that states that the purchase must be all cash or that the purchaser will be seeking conventional financing at market rates in order to complete the purchase. Specification of the type and terms of the financing sought by the purchaser generally is relevant only if the contract explicitly states that the purchaser is excused from completing its performance under the contract if it fails to secure financing terms at least as favorable as those set out in the contract. With this clause, the seller holds the purchaser accountable for securing the required amount of cash from whatever sources are necessary in order to complete the purchase.

Deposit and Escrow

Most real estate purchase contracts will require the purchaser to provide an earnest money deposit, which is held in escrow until termination of the contract.

Earnest Money Deposit.

Generally, the deposit:
1. Must be provided at the time the contract is executed.
2. Commonly ranges from 5 percent to 20 percent of the purchase price.
3. Forces the purchaser to show its financial stability by requiring it to produce a significant amount of cash early in the transaction.
4. Forces the purchaser to make a financial commitment to the completion of the sale by putting some or all of this cash at risk of loss, should closing not occur.
5. Provides the seller with a source of funds to compensate itself for lost opportunities, should closing not take place under the contract.
Although these are the most common purposes of an earnest money deposit, the parties are free to negotiate the specific terms surrounding the deposit. For example, the deposit may be less than 5 percent of the purchase price; it may be “paid” with assets other than cash such as a letter of credit or the pledging of securities; and it does not have to be “at risk” of loss, should the purchaser fail to close on the acquisition. All of these terms are negotiable, but the amount and the form of the deposit will be easier to negotiate than the “at risk” nature of the funds. The concept that a deposit will be forfeited by the purchaser should settlement fail to occur is a longstanding tradition in American real estate.

Escrow

The parties to the real estate contract will likely want the deposit to be held by a third party, someone other than the seller or the purchaser, until the contract is terminated. This third party, usually referred to as an escrow agent, may be a disinterested third party, such as a representative of the title company, or may be the attorney for the seller or the purchaser. Regardless of who serves as the escrow agent, both parties should enter into an escrow agreement that clearly states how the moneys will be held, how they can be paid out, and what happens in case of a disagreement between the parties as to the disposition of the escrowed funds. The purchase contract should specify how the deposited funds are to be disbursed upon termination of the contract or settlement on the property. However, if this disbursement is not specified in the contract, it should be stated in the escrow agreement.

Typically, the escrow agent makes no decisions concerning the disposition of funds and only follows identical instructions provided by the buyer and the seller. The escrow agent typically is indemnified by the buyer and the seller.

Title

Most purchase contracts have a provision concerning the seller’s ability to give the purchaser clear title to the property. Under the terms of such a provision, the purchaser usually will be given an opportunity, at its own cost, to have a title search of the property conducted by a title company of the purchaser’s choice. If the title is not good and marketable—if it is subject to claims against the seller, other than reasonable covenants, rights of way, and easements and tenancies, that cannot be cured in a reasonable period of time and/or by the payment of a reasonable amount of money—then the purchaser should have the right to the return of the earnest money deposit. Under those circumstances, the seller should pay the purchaser’s cost of examining the title. The purchase contract should provide the purchaser with a reasonable amount of time to order (5 to 7 days after contract execution) and review the title report and to file written objections (7 to 14 days after issuance of the title report) with the seller concerning any claims against the title stated in the title report. The parties should negotiate and the contract should state how long the seller would have to cure these defects and how much money the seller will be required to spend to cure title defects. Liens that can be cured at settlement from funds paid by the purchaser to the seller do not make a title unmarketable. Issuance of a title insurance commitment by a title insurance company usually will be conclusive evidence that the title is good and marketable.

Deed

The purchase contract should state the type of deed that the purchaser will want the seller to provide at settlement.

Adjustments

The purchase contract should have a provision that requires the parties to purchase an existing rental property to make adjustments on the date of settlement for items such as rents received, taxes, water and sewer charges, insurance, interest on existing encumbrances, the cost of fuel in storage tanks, salaries and accrued benefits of employees, and other operating charges. For example, if settlement takes place on the 15th day of a 30-day month and the seller has received $10,000 in rents by that date, a provision requiring an adjustment for rents received would mean that the seller is allowed to keep rents applicable to the first 15 days of the month ($5,000) but must give the purchaser credit for the rents applicable to the second half of the month ($5,000). Similarly, if the seller paid $12,000 in insurance for the entire year in January and sold the property on March 1, the purchaser would owe the seller an additional $10,000 as an adjustment for prepaid insurance.

A “security deposits” provision commonly is stated in real estate purchase contracts for tenanted properties in the “adjustments” paragraph. Generally, the purchaser should require the seller to transfer all security deposits plus interest to the purchaser at settlement or to credit the full amount of the deposits plus interest against the amount due from the purchaser at settlement.

Closing and Recording Costs

A provision should be included that specifies the responsibility of each party to pay for closing and recording costs such as title examination, tax certificates, recording fees and taxes, transfer fees and taxes, and other miscellaneous charges incurred in order to complete settlement. If no provision is included in the contract, whatever local convention is followed (e.g., seller pays transfer charges and purchaser pays recordation charges) might be imposed on the parties.

Hire the services of an expert

A real estate purchase agreement is a complex document. Yet it is vital for the transaction. Each real estate purchase agreement must be customized for the specific transaction. Don’t use a fill in the blanks form. Hire the services of an experienced Bluffdale Utah real estate lawyer.

Bluffdale Utah Real Estate Attorney Free Consultation

When you need help with a real estate matter in Bluffdale Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you. We can help with quiet title actions, probates, estate, trusts, evictions, partion actions, and anything related to real estate law.

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 Lawyer Bountiful Utah

Real Estate Lawyer Bountiful Utah

Real estate law in Utah can be complex and difficult depending on your situation. At Ascent Law LLC, we help people in Bountiful Utah with Quiet Title Actions, Foreclosures, Forbearances, Abatements, Evictions for Landlord or Owners, litigation and trial work, sudivision issues, entitlements, land development, commercial and residential, along with trust work, business entity structuring, reversionary interest clauses in deeds, adverse possesion, notices of interest, and partition actions to name a few. If you need real estate help, consult an experienced Bountiful Utah real estate lawyer.

Zoning in the US is essentially a local matter. Even the decision on whether to operate a zoning system is usually a local one. Some localities have highly sophisticated zoning systems; some have none at all. But however complex a zoning system may be, it typically remains what it always has been: ‘a process by which the residents of a local community examine what people propose to do with their land, and decide whether or not they will permit it’.

The distinction between the ideal of planning and the reality of zoning is an important one. Planning is concerned with the long-term development (or preservation) of an area and the relationship between local objectives and overall community and regional goals. Zoning represents a major instrument of this; but it is more. Indeed, it has taken the place of the function to which it is supposedly subservient. One of the reasons for this is that responsibility for land use controls has been delegated to the lowest level of local government. These local authorities have traditionally been concerned with attracting development to their areas but, since the 1970s, there has been increasing pressure from electors for their communities to be preserved as they are (or at least safeguarded from unwelcome uses such as industry, apartments and low income housing). The powers of zoning provide a very effective tool for this-a tool that can be wielded with a skill that thwarts judicial action. The contrast with planning is a sharp one: a comprehensive plan would deal not only with the needs of the existing inhabitants of an area, but also with its role in meeting the needs for housing newcomers.

Local governments carry out their zoning and planning powers within the framework of powers conferred on them by the individual states, either by constitutional home rule authority or by a specific enabling Act. What has to be said, however, is that though some states exercise varying degrees of control over local governments, most do not.

Both the federal and state constitutions include provisions which are binding on municipalities. One of the most important of these is the protection of property rights. The Fifth Amendment to the Constitution provides: ‘nor shall private property be taken for public use without just compensation’. The ‘taking issue’ (alternatively known as the ‘just compensation issue’) is at the heart of the major problem facing zoning: when does the exercise of the police power over land use constitute such an infringement of the property right as to become a ‘taking’? The crucial matter, of course, is the definition of a ‘taking’.

The Fifth Amendment also includes what is termed ‘the public use doctrine’: that property can be ‘taken’ only for a public use. The interpretation of this doctrine has changed significantly in recent decades (illustrating the changes that can take place in the constitutional framework). Until the early 1950s, it was conservatively interpreted as meaning that property which was taken had to be literally used by a public body. Later cases have further extended ‘the public purpose’.

Subdivision controls

While zoning is concerned with the use of land, subdivision regulations relate to the division of land for sale. Originally designed to keep track of the legal ownership of land and to facilitate the establishment of clear titles (thus simplifying transactions), it has grown into a formidable tool of land use planning. Published in 1928 by the US Department of Commerce, the Standard City Planning Enabling Act defines subdivision as ‘the division of a lot, tract, or parcel of land into two or more lots, plats, sites, or other divisions of land for the purpose, whether immediate or future, of sale or of building development.’

Though subdivision and zoning are quite distinct in origin, they have come to share some important control features. With zoning, these are built into the zoning ordinance or imposed in the administration of the ordinance. Subdivision has acquired similar features (though it is usually applied only to residential development). The first controls were restricted to matters relating to roads. These ensured, for instance, that any streets built in a subdivision would be aligned with existing streets. These controls were extended to deal with the width of streets and sidewalks, setbacks and such like. This enabled local governments to prevent the creation of lots that were unacceptably small or badly configured. But it also gave them the scope to impose conditions relating to ‘improvements’. It was not a big step, politically, to move from requiring that roads be a certain width to making the actual provision of the roads a condition of subdivision.

Large lot zoning has the ostensible purpose of safeguarding the public welfare, for example by ensuring that there is good access for fire engines, that roads do not become unbearably congested, or that there is adequate open space. These and similar worthy objectives appear frequently in zoning cases, as does an alternative formulation: to keep out undesirable (that is different) people, and to maintain the social and economic exclusiveness of an area.

The Floor Area Ratio (FAR) regulates building bulk while providing the developer some latitude in determining the height of a building and its placement on the lot. It can be expressed as the total floor area divided by the total lot area. Another way to view it would be to take the FAR and multiply it by the lot area. This would equal the total amount of allowable floor space. It simply represents the maximum amount of floor space that can be built on a given lot. The FAR is usually expressed as a decimal fraction.

Conditional Use

There are some uses which, though permissible (and necessary), require review to ensure that they do not have an undesirable impact on an area. Hospitals, schools, day-care centers, and clubs, for example, are needed in a community, but their specific location may give rise to traffic congestion and dangers, or to severe parking difficulties. Similarly with gas stations in commercial districts, and multifamily dwellings in a single-family district. Zoning ordinances typically make specific provision for such developments which require special restrictions. Though terminology varies among municipalities, these are appropriately termed ‘conditional uses’.

In order to obtain a conditional use permit, applicants must follow the procedures dictated by the community. First, they must file an application for the conditional use permit. The permit would contain information on such items as a legal description of the land, a parcel map outlining the land in question and all adjoining properties, a deed showing ownership of the land, a plan showing what you want to do to the property, a signature by the owner of the property, and the necessary application fee. The application is then processed by the appropriate governing body.
Notices are placed in various locations to alert other individuals and entities that a conditional use permit is being sought by a property owner.

Variances

While a conditional use is one which is permissible under the conditions of the zoning ordinance, a variance involves a relaxation of the provisions of the ordinance. The Standard State Zoning Enabling Act confers on the board of adjustment the power ‘to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. Variances are of two types: ‘area’ (or ‘bulk’) and ‘use’. The former involves a departure from the requirements of the ordinance in relation to such matters as lot width, lot area, setback and the like. It recognizes that not all property is created alike. It allows unique circumstances to be considered by the regulatory body. By contrast, a use variance allows the establishment (or continuation) of a use which is prohibited by the ordinance. Allowing a house to be built closer to the lot line laid down in the variance would be an area variance; allowing a multifamily house in a single-family district would be a use variance. The hardship theoretically has to be one which applies to a particular property, not to the personal circumstances of the owner. The rationale for this is that the matter for consideration is the relationship between the particular plot and the wider area. Any effect which a variance has on this wider area will persist after a change of ownership, or even if the hardship ceases. In fact, many variances are given precisely because of personal hardship.

Contract zoning and site plan review

Zoning theoretically requires uniform conditions within districts. Uniformity, however can lead to undesirable rigidity, and it may be to the benefit of both the owner and the community to depart from a uniform regulation. It is here that contract zoning can be useful.

Essentially, contract zoning is, as the term suggests, the rezoning of a property subject to the terms of a contract. The process appears to be one in which the city informs a property owner that it does not have to rezone the property in question. The next step would be for the city to say it might rezone the property if the property owner agrees to do something in return. Typically, the terms of any agreement are negotiated between the owner and the local government following a specific proposal by the owner.
Many of the conditions that have been imposed are now normally included in ‘site plan review’. This is the preparation of a site plan for approval by the planning board. Such a review can be a normal zoning requirement, or a special requirement for particular types of development such as cluster zones and planned unit developments.

Site plan reviews are needed to make sure the proposed development is in compliance with local zoning and other municipal ordinances. Plans to be reviewed generally take the form of a preliminary plan and a final plan. However, it is possible in some areas that a developer might choose to submit a final plan for review. It is a process ripe for negotiation between developer and public officials. The items to be reviewed might include a dimensional site plan, consistency with applicable zoning ordinance, landscaping, drainage, and compatibility with neighboring structures and the surrounding environment. Among the personnel that might review the plan are planners, zoning administrators, public works officials, building officials, street officials, etc. These individuals will determine whether the proposed site plan is in accordance with municipal zoning and the general plan, creates any public facility or traffic problems, complies with all other municipal requirements, and contributes to the protection of public health, safety, and welfare.

Zoning amendments

A zoning amendment (or ‘rezoning’, or ‘map amendment’) is similar to a use variance in that it permits a use which is not allowed by the provisions of the zoning ordinance. However, while a use variance grants the owner an exemption (and leaves the ordinance intact), an amendment changes the ordinance itself. An amendment should be of greater consequence than a variance but practice does not always conform to theory, or even legality.

Before you proceed, be sure to consult with an experienced Bountiful Utah real estate lawyer. The lawyer will review your documents and also advise you on the zoning rules applicable to your property. Zoning rules are very important. Never assume that the property you are purchasing for a specific purpose can be used for that purpose. Sometimes zoning rules may not permit the use of a property for a specific purpose. Utah zoning laws are complex. You need the services of an expert to guide you. So before you buy a property, talk to an experienced Bountiful Utah real estate lawyer.

Bountiful Utah Real Estate Attorney Free Consultation

When you need legal help with a real estate matter in Bountiful Utah, please call Ascent Law LLC 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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How Can I Stop My Home From Foreclosure?

Hоw Саn I Ѕtор My Hоmе Frоm Foreclosure

Although foreclosure can be of the most lucrative opportunities that investors, as well as first time house buyers, it can be a problem for an average house owner. I’ve written about stopping foreclosure before here and in other places. Most often, foreclosed house can be very depressing to owners as their homes have become a big part of their lives and families. On the other hand, you can avoid foreclosure of your house if you try to work things out with your lender in terms of your budget and financial capabilities we understand that being in foreclosure is a scary thing. You are probably wondering how you can stop your house from going into foreclosure.

There are many options available when facing foreclosure. This may include reinstating the loan, forbearance, loan modification, mortgage refinancing, sale of the property, deed instead of foreclosure, or bankruptcy filing. There are also many services that will work you to help with your situation. These companies can tailor a plan specific to your needs. It is most important to know that time is the worst enemy when facing foreclosure. Even if you are just one payment behind, you should do something rather than wait until you are left behind. This may sound like common sense, but many people fail to do something and pretend like nothing is wrong. Now, more than ever, people facing foreclosure need to be able to fin legal help to stop foreclosure and they need to do it immediately. Many lawyers and companies are offering assistance, but your guess is as good as mine, as to whether it’s a scam or not. No one has list of good companies and bad companies, so how are people facing foreclosure supposed to know who to turn to for assistance? Unfortunately, many families are in extremely worried about being unable to make their monthly mortgage payments, which can lead to foreclosure. None of us want to think that we will ever have to deal with foreclosure, but unfortunately, it can happen to anybody when they least expect. It is terrifying to think that your home could be at risk, so it is extremely important as a house owner to understand just how important this is and do everything important you can do to make sure it doesn’t happen to you. If you search the internet, you will find many websites that give you the information you need to make sure that you and your family never have to go through this.

If you ever feel as though you could be at risk of losing your house to foreclosure, then you absolutely must do everything you can to avoid it. Try talking to your loan company or somebody else that could help so that you can evaluate your options. The last thing you should do is start avoiding their phone calls and ignoring them as this will increase the chances of your home being foreclosed.

Unique features of Home foreclosure

Low asking price – the primary reason behind the popularity of home foreclosures are their low asking price. Foreclosed house are usually available at great discounts ranging from 20-50% lower than prevailing market prices, which make homes in foreclosure a great business.
Public auctions – as most of these foreclosure house are the bank and government owned properties, they are put on general sales which are a great platform to buy a house in foreclosure at an affordable cost for residential as well as investment purposes.

Diverse foreclosure houses for sale

With large number of home foreclosure flooding the real estate market, the buyer has a wide range of cost efficient house in foreclosure to consider ranging from small family houses to large properties in prime locations.

Short sales

To avoid the added costs of the house foreclosure process, bank sell the seized properties in pre-foreclosure though short sales at a significant discount. Foreclosure rates are rising quickly because of the slow economy and the financial problems people are having. They didn’t think they would ever find themselves trying to stop foreclosure on their property. People are forced to figure out which bills to pay and which to ignore. House foreclosure problems occur when people start missing mortgage payments and their lender starts calling. You need to know that you can stop it. You do not have to lose your house. Taking steps necessary to prevent foreclosure is not that hard.

Following the steps listed below will make your experience of searching for foreclosure homes relatively easy while ensuring you are safe and satisfactory purchase through foreclosure house:

Assess

The number one mistake many owners make when facing foreclosure is denial. Most owners do not stop house foreclosure simply because they are too embarrassed or upset to look at foreclosure directly. They would prefer to ignore collection calls and letters rather than face the real deal. If you avoid this one issue, you can often stop house foreclosure quite merely. As soon as you realize you may have problems paying your loan for a month or two, contact your lender and work out a payment schedule or solution. Depending on your situation, the lender may give you more time to pay, might work out a payment schedule so you can stop foreclosure, or buy it from you in exchange for forgiving the loan. The fact is, the lender only wants to get the money owed to them. Keeping the lines of communication open between you and the lender can help ensure that you stop the foreclosure process, simply because the lender will be reassured that you are responsible for your financial problems. If you stay in foreclosure by working out a solution with your lender, you will get peace of mind as well as a decent credit rating.

Alternate Financing

Most house owners face foreclosure simply because they cannot afford their home loan. In some cases, this is because the house loan is too large for their income. In other cases, it is merely because of an event, sudden illness or loss of job for example, have left them unable to pay. Fortunately, if your house loan bills are too high, there are several things you can do to stop home foreclosure.

Refinance with your lender – Your lender might be willing to refinance your current loan, giving you a long term and smaller monthly payments so that you can afford your payments.

Find a passive income – Renting part of your house of finding another way to make money over your regular income can help you make your mortgage payments on time and stop foreclosure.

Liquidate assets – Selling your property or other assets can help you pay off your debts and arrears, stop foreclosure, and get back on track financially.

Find refinancing from different lenders – There are many lenders out there competing for your business. Some may be willing to offer you refinancing. Even though you will pay by stretching out your loan, you can stop foreclosure by making your payments affordable again.

Find alternate ways

If you face a difficult situation in which you’re unable to pay your mortgage in the long term, either refinancing or talking to a lender might help. In such situation, you may need to bring in third party investors to stop. By offering your house for sale, you can likely make some money, preserve your credit card rating, keep your home equity and stop foreclosure as well. In some cases, you can even keep your house. If you cannot pay your mortgage, then letting go of the house as early as possible might be the best solution.

You might be able to get out of the financial situation you’re in by selling the house for enough money to pay the mortgage company and still have some money left to start over again. This is an excellent way to stop foreclosure and better your financial situation. Another way is to cut your spending down to the minimum. If you can cut back your spending, you will be able to avoid selling the house you love. If you are self—employed, one way to save money is stop renting an office and make an office in your house. You can also consider selling the cars and having just one. You can certainly take several actions aimed at preventing foreclosure. It may surprise you to learn that merely contacting your mortgage company and speaking to them about your current situation can help. Most times they will be willing to work out a way forward for you, such as agreeing with a payment arrangement or even allowing you to skip a month or two to give you some breathing space. This will enable you to catch up on the monthly payments that has been causing you so much stress.

On the other hand, you can avoid foreclosure if you try to work out things with your lender in terms of your budget and financial capabilities. Do not bury your head by keep missing payments and avoiding phone calls. Just give them a call today and try to work some things out and make sure you speak with an expert.

Foreclosure Lawyer Free Consultation

When you need legal help to stop a foreclosure in Utah, please 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 Lawyer Orem Utah

Real Estate Lawyer Orem Utah

In any construction activity, delay can play an important role. This has to be factored in when you are preparing the construction contract. Always hire an experienced Orem Utah real estate lawyer to prepare your construction contract. At Ascent Law, we can help you with quiet title actions, boundary disputes, adverse possession, evictions, and more.

In a construction contract, there should be a clause on excusable delay. Delays in contract performance can be caused by a wide variety of factors, both excusable and unexcusable, resulting in either late completion or increased costs, or both. The Excusable Delays clause provides that, except for defaults of subcontractors at any tier, the contractor shall not be in default for any failure to perform the contract if the failure arises from causes beyond the control and without the fault or negligence of the contractor. Examples of such causes include acts of God or of the public enemy, acts of the government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. As to performance failures of subcontractors at any tier, the contractor shall not be in default if the cause of the failure was beyond the control and without the fault or negligence of either the prime contractor or the subcontractors. The delay is not excusable as to the prime contractor if the contracted supplies or services were obtainable from another source, or if the Contracting Officer ordered the contractor to obtain the supplies or services from another source and the contractor failed to comply reasonably with that order.

If the completion date was delayed by the inability of the contractor or his subcontractor to procure necessary materials, through a failure either to obtain timely commitments or to ascertain the availability of such materials prior to the submission of the bid, that is a matter for which relief cannot be granted even in equity. A prime contractor is excused from nonperformance or delays, to the extent that they render performance impossible, caused by defaults of subcontractors or suppliers if such defaults cannot be charged to the fault or negligence of the prime contractor, and it is immaterial whether or not the default of the subcontractor can be placed under one of the enumerated causes of excusability because such causes are illustrative and not exclusive.
The purpose of the article is to remove uncertainty and needless litigation by defining with more particularity the otherwise hazy area of unforeseeable events that might excuse nonperformance within the contract period and to protect the contractor from the unforeseeable. Contractors thus know they are not to be penalized for unexpected impediments to prompt performance, and since their bids can be based on the foreseeable and probable, rather than possible, hindrances.

A prudent contractor, in preparing bids for the commencement of work within a specified period and for the completion of the same within certain stipulated days thereafter, normally considers the weather conditions that ordinarily prevail during such season of the year at the site of the work. Inasmuch as weather conditions could adversely impact on the ability of a contractor, particularly a construction contractor, to perform, contractors are expected to include time in their bids or offers for foreseeable weather delays. However, notice of lost time due to adverse weather conditions is not the same as notice of an excusable delay due to unusually severe weather because the property owner has no information as to what was foreseeable by the contractor.

The term “unusually severe weather” does not include any and all weather that prevents work under the contract, but only means weather surpassing in severity the weather usually encountered or reasonably to be expected in the particular locality and during the same time of year involved in the contract. It must be weather that could not have been reasonably anticipated and that impeded performance over and above the amount that work would been impeded in a normal year. But the mere fact that the weather was cold enough to make performance of the work substantially more expensive than at other seasons of the year is not sufficient to substantiate an excusable delay, unless the contractor demonstrates that the weather was unusual.

ACTS OF GOD

Though rarely invoked as an excusable cause of delay, an act of God may occasion performance failures.

STRIKES

A contractor will not be automatically excused from performance merely because he establishes the existence of a strike. It must also be shown that the delay caused by the strike was beyond the control and without the fault or negligence of the contractor. He will not be excused where the strike resulted from his own unfair labor practices. Even if a contractor bears no initial fault for a particular cause of excusable delay, he must mitigate the effect of that delay. He cannot allow a possible cause of delay to develop, but must take such action as is reasonably available to him to prevent the delay. Therefore, if the strike involved a subcontractor or supplier, and if the contractor could have obtained the required supplies or materials from another source, but elected not to do so because of higher prices, he will normally not be excused. Similarly, the contractor will not be excused if he could not obtain the supplies delayed by the strike because he failed to place the order in a timely manner.

LACK OF ADEQUATE FINANCING

It is well settled that the contractor has the responsibility of either having adequate capital or having a reasonably established arrangement for obtaining the necessary capital required for contract performance at the time of contract execution. This does not mean that the contractor must have on hand the cash reserves to finance the entire cost of performance. Rather, the contractor must have available reasonable financial resources in the light of business customs and practices to finance the expected cost of production or performance.

Where the cause of the contractor’s inability to perform lies solely in a conspicuous undercapitalization of the corporation with relation to the obligation it undertakes under the contract, rather than deriving from a contingency beyond its control, such undercapitalization is not a circumstance beyond the contractor’s control as to be within the purview of any force majeure clause.

If the contractor’s financial condition was such that attempted performance of the contract would have rendered him hopelessly insolvent, or even an adjudicated bankrupt, he is not excused from the default in contract performance as a matter of law. Actual bankruptcy, or threat of the same, is no excuse for nonperformance under the Default article and does not relieve the contractor from liability for excess costs of reprocurement. Bankruptcy, insolvency, or undercapitalization cannot be considered as a cause for nonperformance beyond the control and without the fault of the contractor.

Constructive Change

By definition, a constructive change arises from either the conduct or the fault of the property owner. Conduct, circumstances that compel the contractor to accomplish work not called for by the contract, instructions (oral and written), and acts or omissions by the property owner that are of such a nature that they are inferred as having the same effect as the issuance of a formal change order are construed as constructive changes. The doctrine is based on equitable tenets and recognizes that an informal requirement (i.e., one not formalized by the issuance of a change order) for the performance of additional work under a contract is substantially equivalent to a formal requirement and must therefore be governed by similar principles. Stated differently, any conduct by the property owner that is not a formal change order, but that has the effect of requiring performance different from that prescribed by the original terms of the contract is a constructive change.

When a property owner, by his conduct, causes a contractor to perform changed work, such conduct may form the basis for a claim by the contractor. If the property owner compels the contractor to perform work not required by the contract, his order to perform, even if oral, constitutes an authorized, but unilateral change in the work and entitles the contractor to an equitable adjustment in accordance with the Changes provision of the contract.

ELEMENTS OF A CONSTRUCTIVE CHANGE

The constructive change doctrine is made up of two elements: the “change” element and the ‘order’ element. To find the change element, actual performance must be examined to determine whether it went beyond the minimum standards demanded by the terms of the contract. The order element is also a necessary ingredient in the constructive change concept. To be compensable under the Changes clause, the change must be one that the property owner ordered the contractor to make. The property owner, by his words or deeds, must require the contractor to perform work that is not a necessary part of his contract. This is something that differs from the advice, comments, suggestions, and opinions that property owner frequently offers to a contractor’s employees. And this is especially so where the contract standards are broad prescriptions of the performance specification type that give the contractor a wide measure of discretion in designing and manufacturing the end item.

DEFECTIVE SPECIFICATIONS

The cornerstone of the construction contract is the specification, with its applicable descriptive material, on which the basic issues of pricing, performance, and contract terms and conditions are founded. The objective of the specification is to establish (1) a description, or specification, of the supplies or services being acquired; (2) criteria for inspection and acceptance of the work; and (3) a base line for performance on which initial pricing and schedule are predicated. Obviously, the adequacy and clarity of the specification are of paramount importance to both parties.
A contractor is obligated to do what the plans and specifications direct him to do, and when he has done so in a good and workmanlike manner, he has discharged his responsibility under the contract. If the plans and specifications are deficient, or if they are inadequate or structurally wrong, it is the fault of the party preparing them and not of the contractor attempting to follow them. Where the contracts for supplies or services in accordance with specifications it has prepared, there is an implied warranty that if the specifications are followed, a satisfactory product will result. Accordingly, a contractor attempting to perform to defective specifications may be entitled to costs incurred in attempting to meet the requirements of the original specifications, as well as to costs resulting from mistakes in the plans.

It is a basic tenet of contract law that a contract must be read as a whole and in its entirety. It is equally elementary that meaning must, if at all possible, be given to the language employed in the contract and that the proper interpretation of a provision is a question of law. Technical words and words of art are given their technical meaning, unless the context or a usage that is applicable indicates a different meaning. One primary purpose of interpreting a contract in this manner is to ensure that no word is rejected, treated as a redundancy, or assumed to be meaningless if any meaning that is reasonable and consistent with the other parts of the contract can possibly be given to it. Moreover, an interpretation that gives a reasonable meaning to all parts of an instrument will be preferred to one that leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, or superfluous; nor should any provision be construed as being in conflict with another, unless no reasonable interpretation is possible.

If some substantial provision of a property owner-drawn agreement is fairly susceptible of a certain construction and the contractor actually and reasonably so construes it in the course of bidding or performance, that is the interpretation that will be adopted–unless the parties’ intention is otherwise affirmatively revealed. This rule is fair to both the drafters and those who are required to accept or reject the contract so proffered without haggling. Although the potential contractor may have some duty to inquire about a major patent discrepancy, or an obvious omission, or a drastic conflict in provisions, he is not normally required (absent a clear warning in the contract) to seek clarification on any and all ambiguities, doubts, or possible differences in interpretation. The property owner, as the author, has to shoulder the major task of seeing that within the zone of reasonableness the words of the agreement communicate the proper notions–as well as the main risk of a failure to carry that responsibility. Always ensure that your construct contract is prepared by an experienced Orem Utah real estate lawyer.

Orem Utah Real Estate Attorney Free Consultation

When you need help with real property in Orem Utah, please 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 Lawyer Grantsville Utah

Real Estate Lawyer Grantsville Utah

An experienced Grantsville Utah real estate lawyer can assist you in many ways. Don’t be under the impression that only home buyers need the assistance of an experienced Grantsville Utah real estate lawyer.

If you own a piece of land and you want to construct a house or an apartment block on that land, you will need the services of an experienced Grantsville Utah real estate lawyer. Generally you will be hiring a contractor to complete the construction.

A Real Estate Attorney can also help you with Quiet Title Actions, Boundary Disputes, evictions, partition actions, tenants in common issues, and anything related to real estate.

When you select a contractor, you have to sign the construction contract. The construction contract should require the contractor to indemnify and hold you harmless against any claims resulting from the performance of the contractor’s work. The legal and insurance aspects of this clause will vary from site to site. You should take all necessary steps to limit your exposure to circumstances and conditions over which you have direct control. Shifting additional liability to the contractor by modification of this clause may be problematic because these standard provisions are widely accepted and understood.

The time finally comes when the job is complete and the newly developed property purportedly ready to be occupied. However, the hallways are strewn with rubbish, the units are littered with the debris of construction, and four spaces of the parking lot are occupied with a dumpster filled to overflowing with old appliances, mattresses, furniture, and debris. The contractor is gone, and the final payment due the contractor is not enough to pay the carting expenses.

This scenario is more common than might be imagined. There is little you can do in this situation, and it is best avoided. The contractor is responsible for keeping the premises “free from accumulation of waste materials or rubbish caused by the contractor’s operations.” This responsibility should be strictly enforced throughout the construction process. Failure by the contractor to maintain a clean project site can cause fires, accidents, and delays to the project schedule. The cleaning-up provision of the standard contract allows the owner to clean the site and charge the contractor. The prudent owner will not wait until the final contract payment to exercise this option.

When you are looking for a loan to develop land, seek the assistance of an experienced Grantsville Utah real estate lawyer. Your lawyer will assist you negotiate with the lender and ensure that your rights as a borrower are protected. The lawyer can review the lenders documents before you sign them and advise you if any changes or modifications need to be made to those documents. The lenders documents will be prepared by the lender’s lawyer. For the lender’s lawyer, the lenders rights are important and he will draft the documents keeping in mind the lender’s rights. He will not be worried about your rights. More often than not, the lender’s documents are tilted in favour of the lender. Never sign any document that the lender has asked you to sign without showing them to your Grantsville Utah real estate lawyer.

Loans to buy your home

If you are applying for a loan to buy your home consult with an experienced Grantsville Utah real estate lawyer. Underwriting loans to people to buy their own homes is simple. All the lender has to do is (1) check the applicant’s credit with a credit agency which maintains a file on just about everybody’s prior defaults, bankruptcies, etc., (2) check the applicant’s earnings, (3) make sure that a percentage of the earnings (typically 25 percent to 33 percent) will cover the interest and principal on the loan, and (4) get an appraisal of the property. The appraiser will compare the house with similar recently sold homes in the area and will determine a value based on those comparisons. The lender will make the loan only up to a specified percentage of appraised value. Servicing the single-family mortgage loan is a mechanical task of making sure that the payments are made every month. If a loan gets into arrears, foreclosure actions are fairly routine. It’s important that you review the loan documents before you sign them. These documents are prepared by the lenders lawyer and will be biased towards the lender. Having an experienced Grantsville Utah real estate lawyer review the documents before signing ensures that you are aware of the documents and you will know how to protect yourself.

Single-Family Construction Loans

Making loans for the purpose of constructing single-family homes is a bit more complicated. Most homes are built by tract developers who buy a large parcel of raw land, obtain subdivision approvals, put in roads, water mains, and sewers, then build homes they hope to sell to individuals. If the lender finances the land before governmental approvals, the lender is taking additional risks: governmental risks, environmental risks, longer-term cost and market risks. Administration of construction loans must be assiduous. Construction draws are based on estimated percentages of completion, which often are a source of disagreement between the bank and the builder. The builder claims to be 50 percent complete; the bank says “no, you’re only 40 percent complete.” If 40 percent of the money has already been advanced, the developer doesn’t get more money. Having an experienced Grantsville Utah real estate lawyer assist you when you are negotiating with the bank will ensure that you do not face such problems.

Occupied Apartment and Commercial Property Lending

Making loans on occupied apartment buildings or occupied commercial properties is again an entirely different business. The key to lending on occupied commercial structures is the cash flow that comes from rent paid by tenants. The lender wants to make sure that this cash flow is sufficient to cover the payments on the mortgage as well as taxes, insurance, and operating expenses. In addition, because income property loans usually are not completely self-amortizing — that is, the payments of principal during the term of the loan are not sufficient to pay it off — the lender wants to make sure that at the end of the loan term there will be enough cash flow to refinance the remaining principal even if interest rates are somewhat higher.

The underwriting process begins by finding out how much rent is being paid and how much it costs to run the building. By subtracting the cost from the rent, the underwriter can figure out how much net operating income (NOI) the property generates. Of course the property may generate a given level of NOI today but not tomorrow; tenants may move out or they may be unable to pay; or rents in the area may decrease or expenses may increase. The underwriter therefore will evaluate factors such as market rental rates and trends in the area, lease terms compared with the loan term, credit quality of tenants, and environmental and structural factors affecting the building. If the results of these investigations are satisfactory, the lender usually will apply a standard of “debt service coverage,” that is, the ratio of the amount of fairly certain NOI (as determined after investigation) to the payments called for under the loan. Administering income property loans usually is not extremely complex, but it is very different from administering single-family loans. Income property loans can lose value quickly if, due to inadequate rents or high vacancy levels, owners allow properties to fall into disrepair.

Construction Loans

Most lenders won’t make construction loans with just the borrower’s assurances about costs, approvals, and markets. They not only will investigate those matters for themselves, but they also will structure the loans so that they do not fund anything until approvals have been obtained, acceptable contractors have been hired (often at a fixed cost for the entire job and sometimes bonded), and some level of preleasing or guarantee of debt service coverage during a lease-up period or a committed takeout* by a permanent lender has been arranged. These all are hotly negotiated issues between the lender and the borrower — and as the lender gets more security, the amount that the borrower will be willing to pay decreases. Always ensure that you are assisted by an experienced Grantsville Utah real estate lawyer during the negotiations. Construction loan administration needs to be far more intensive than permanent financing administration. Whereas in a permanent loan the money is advanced on day one and then paid off over time, in a construction loan the money is advanced in stages as the construction goes along, and the lender expects to be paid back in a lump sum when another lender makes a permanent loan on the property. Intensive administration is required at every “draw” of funds under the loan, including an engineering report, so that the lender can satisfy itself that after advancing the money, there will be enough left in the loan budget to finish the project. If the projected cost to complete is higher than the amount in the budget, then the loan is said to be “out of balance” and the lender is not obligated to fund.

Mortgages

Before you apply for a mortgage, speak to an experienced Grantsville Utah real estate lawyer. There are different types of mortgages. The lawyer will help you chose the right one. Traditionally, a term is fixed by agreement, at the end of which the whole loan falls due; accrued interest is payable at stated intervals during the term or in toto at the end. A mortgage containing these provisions is called a “straight-term” or a “straight” mortgage and is well adapted for a debtor who expects to pay the debt on or before its due date and for a lender who wishes to lend for a period approximately equal to the term agreed upon and to recover the whole sum at the end of that period.

Yet the straight-term mortgage is frequently used in transactions in which both the borrower and the lender recognize that the borrower is not likely to be able to pay the debt at the end of the term. Sometimes an agreement to extend the mortgage is part of such a straight-term mortgage. This agreement, however, is commonly tacit or verbal and is not enforceable at law. Thus, its use leaves some uncertainty or creates an advantage for one of the parties. Notwithstanding its inappropriateness, the use of the straight-term mortgage persists.

Partial-Payment Mortgages

The partial-payment mortgage, which is a variation of the straight term mortgage, provides that at specified intervals during the term a partial payment shall be made to reduce the debt. These payments usually fall due on annual, semi-annual, or quarterly dates, when interest is also due. Under the partial payment play, the sum of the payments on principal is less than the original debt, and a balance, called a “balloon payment,” becomes due at the end of the term.

This arrangement is appropriate when the borrower anticipates receipt of income corresponding to payments scheduled during the term and of a sum sufficient to meet the balloon payment at the end of the term, and where the lender, instead of keeping the original amount of funds outstanding for the entire term, prefers to recover a portion of them at stated intervals and the remainder at the end of the term. In practice, these conditions are seldom found. The balloon payment is usually considered by both parties to represent a sum which the borrower will not have provided and which the lender will not demand, or does not expect to receive, when the term expires. Both parties usually anticipate that this sum will be “refinanced.”

Fully Amortized Mortgages

Another type of agreement, the amortized mortgage, is used more and more frequently in mortgage loans on homes. The most common terms embodied in this type of home mortgage provide for full reduction of the debt at maturity by fixed monthly payments. Payments are credited first to interest accumulated for the month at the agreed rate and the balance toward reduction of principal

“Past Due” Mortgages

There is one other arrangement frequently entered into in connection with home mortgages, namely, where the mortgage is payable on demand or after a very short term. After execution of the agreement or upon expiration of the term, the obligation is carried as an “open” or “past due” mortgage. In some instances the borrower keeps his obligation in good standing merely by paying interest at agreed intervals; in others he also pays something toward amortization. In both cases both parties assume that the loan will not be called and it seldom is. During periods of stress, however, it may be necessary for the lender to request payment; in other circumstances, he may wish to insist upon curtails, that is, on reduction of principal.

Grantsville Utah Real Estate Lawyer Free Consultation

When you need legal help with a real estate matter in Grantsville Utah, please 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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How Can I Get My House Back After Foreclosure?

How Can I Get My House Back After Foreclosure

You can’t get your house back if it’s been foreclosed on. It’s too late. So before that happens, call a competent attorney to help you.

The common belief of most house owners facing foreclosure due to the inability to pay the balance of their outstanding debt on time is that they only have a limited time to be able to save their homes. Once the property has been seized by the creditor or the financial institution, they would not be able to get their homes back since this would then be sold for the creditor to liquidate the property and thereby use the money to pay off the existing debt with them. Several people have gone through foreclosure and have been able to get their homes after it has been seized by the creditor or financial institution.

Reclaiming your house after foreclosure is not a walk in the park, but it does provide some hope yet for many house owners who have lost their homes this way. If you’re one of the thousands who have lost their homes as a result of foreclosure, here are just some of the necessary steps you would need to take.

The first thing that you would need to do is to know exactly what your options are and the requirements each option may entail. Recently, Congress has passed legislation to help you with this process. Based on this newly passed legislation, creditors and other financial institutions are now required by law to be more lenient and generous in terms of the options that they can provide to repay your outstanding loan and get your house back. A copy of this legislation has been uploaded over the internet, so it is accessible to anyone who would like to know more about it. Try to negotiate with the lender for a payment to make up for the missed payments. It is imperative that you act quickly to prevent sale of your house because once the foreclosure process begins, you only have 120 to 140 days before your house is sold. Contact the lender to explain your situation and work out a way for you to keep your house. By acting quickly, you have the most time and the best chance of being able to negotiate a solution before the trustee files the notice of default. If foreclosure has already begin, you must contact the lender during the 90 days before the announcement of trustee sale is posted and archived. One of the most common causes of failure to communicate is that many house owners facing foreclosure avoid contacting their lenders because they are upset or embarrassed. Most times they believe their lender will not help them because they feel that the lender prefers to foreclose. In reality, the opposite is exact. Banks and other lenders are primarily in the business of earning money by collecting interest on loans that they have made. Their net income is derived by having a specific process in place to invest and receive payments.

They find it awkward to go through the foreclosure process, and usually are not well equipped to manage foreclosure properties. Because of this, most lenders are willing to work with house owners because foreclosure is much more costly for them in the long work with house owners because foreclosure is much more costly for them in the long run. It forces them to allocate time and resources to an unprofitable activity. Contact your lender immediately. Do not ignore phone calls and letters from your lender. If you do not inform your lender of your situation, they will assume that you do not intend to pay and the legal process will go forward. It is essential to prepare well before you contact your lender. You must gather all documents supporting your income and expenses, as well as loan account information. When you call, ask to speak to someone in the customer service department. Be upfront and honest about your circumstances and be prepared to discuss your financial situation in detail. Your lender needs to know your financial situation to determine whether they can offer a solution.

There are some options that you can discuss with your creditor or financial institution to get your home back. Here are just a few of these options:

Forbearance

This type of arrangement would allow you to begin repaying your outstanding debt after an agreed period. By asking for forbearance from your financial or creditor, you can save up just enough funds which you can then solely allocate to repay your outstanding loan.

Full payment

While this is the most preferred option of creditors and financial institution, it is also the most difficult one to be met by the borrower. However, if you would be able to allocate the necessary funds through the help of friends or family members along with your savings, you would be able to provide a specific date when you can be able to pay the outstanding debt in full and get back your foreclosed home.

Repayment plan

Another option that you can discuss with your creditor or financial institution for you to get your loan back is to make some adjustments on the existing schedule of payments that you have initially agreed to. Providing a hardship letter to your creditor or financial institution can increase the likelihood for your creditor or financial institution to give you a second chance. Some websites can help you draft a letter of hardship which you can present to your creditor or financial institution. A repayment plan may be suited for you if you have recently recovered from a short-term financial problem and are now able to resume making your regular monthly payments but need time to catch up on the unpaid fees.

Borrow money from family or friends

Many people tend to shy away from this as their first option. One would think this option would be the most common place to start. Most eliminate this as a means to gather the funds necessary to bring the loan current simply because they are embarrassed to ask. They do not want family or friends to know that they encountered financial difficulties, so they look elsewhere. Family or friends most times are the one that are likely to be very willing to help out.

Often because of a house owner’s embarrassment, they are not approached until is too late in the foreclosure process and are unable to obtain funds quickly enough to help out. There are situations where the house owner’s family members of friends are not approached because there are already strained relations, or they want to avoid causing any discomfort to their inner circle of friends or family. One of the best things that I can recommend to you is that you should approach the request for assistance in a very business-like manner. By that I mean, you should look to secure their interest just as you would expect if you were the one providing the funds to someone else in trouble. The higher the degree of security that you can offer them in protecting their funds, the higher the probability of successful obtaining the funds necessary to stop the foreclosure.

Borrow from the institutional lenders

A third option is to borrow from institutional lenders to bring up back payment. This can be done by refinancing or only by borrowing against the equity in the house. These lenders will primarily consider investment when determining the approval of a loan. Equity is define as the difference between the fair market value of the house and what is owed on the mortgage. Refinancing is when you take out another loan to pay off the existing mortgage. When refinancing to avoid foreclosure, you might be able to obtain a lower interest rate, a more extended payment period, or a lower monthly payment which would make your mortgage payments more affordable. Usually, lenders that become aware that you have fallen behind in the mortgage payments will shy away from lending to you, so if you expect to borrow from an institution, you must act very quickly before your credit report reflects any late payments. If the lender is aware that you are in default, they will probably refuse to lend, or offer a loan with much higher interest rate to account for the borrower’s inability to meet their financial obligations.

Borrow from private party lenders

Some individuals have funds to invest and are looking for a higher return on their investment that can be obtained by depositing their moneys with saving institutions. These individual are expecting a high rate of return on their cash investments, and understand that the loan that they are funding is a high risk loan or is often referred to as “hard money” loan.
Usually, once the house owner falls behind in their mortgage payments. It is increasingly difficult to borrow money. These private lenders typically consider the equity in the property when making the loan. Because the borrower is behind the payments, the lender cannot look upon the borrower’s ability to repay promptly as the ability to recover it based on the property’s market value and what is owed by the borrower on the property. Almost without exception, these loans carry much higher interest rate (usually beginning around 14%) than the traditional home loans obtainable at banks or other lending institutions. They are, however, the only option left to a house owner in foreclosure. So once you’ve looked at what got you where you’re today, think about what you need to change about your spending habits. You may not have a house payment anymore, but you’ll need to pay for a roof over your head, and you probably still have other bills- credit cards, auto loans etc. you might be able to lower your credit card payments at least temporarily if you talk to your credit card companies and let them know what you’re going through and that you’re serious about getting your bills paid. If you work through a debt counselor, you might be able to get a lower discount rate, but that usually mean having to close your accounts, and you probably want to keep them open to pay on time and improve your credit score. Be wary of debt counselors, though some of them have outrageous charges and you don’t want to work with one that charges you more than $25 a month.

Now it’s time to make a realistic budget and stick to it. Make sure it includes money for a savings account. Saving cash is a good idea for those unexpected costs and shows that you have the self-discipline not to spend every dime you make. How much should you save? It seems many financial advisers suggest around 00, if you still have debt you’re trying to pay off. It is essential to have that money there for emergencies, but paying down your debt is what will help you get ahead the most. Pay all your bills on time. It’s so easy to fall back into old spending habits, so keep that budget on track. You already know how the bills can snowball. If you don’t pay the required amount when you’re supposed to, it will cost you a lot more in the end.

Foreclosure Lawyer Free Consultation

When you need legal help with a foreclosure in Utah, please 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 Lawyer South Jordan Utah

Real Estate Lawyer South Jordan Utah

Real Estate Lawyer South Jordan Utah

When you are buying land for development, you should seek the assistance of an experienced South Jordan Utah real estate lawyer. Whether you have a boundary dispute, need to quiet title, or resolve title issues to real estate, Ascent Law LLC can help you. We help both residential and commercial real estate owners in Utah.

Finding a suitable site involves establishing a set of criteria by which alternative locations can be identified and assessed. These would broadly relate to market, physical, legal and administrative conditions and constraints. Once a shortlist of say three or four options has been drawn up, a preliminary appraisal will be conducted in order to determine the most suitable choice. This is the proverbial “back of the envelope” analysis, which combines an objective assessment of likely cost against value with a more subjective judgement based upon experience and feel for the market. Ideally, of course, the right site looking for the right use meets the right use looking for the right site. But there is no magic formula.

Site appraisal and feasibility study

Undertake a more refined appraisal of the viability of the proposed project, taking into account market trends and physical constraints
Decide to what extent will further enquiries, searches, surveys and tests have to be conducted, by whom and at what cost, so that there is sufficient information available in order to analyze the financial feasibility of a development proposal. This will normally entail a more detailed assessment of market demand and supply; a close examination of the changing character of the sector; projections of rents, values and yields; and estimations of costs and time. An initial consideration of the structural engineering design foundations and subsoil will also be undertaken. Having assembled all the data, a check should be conducted to ensure that the basic concept achieves the optimum use of the site or buildings and maximizes the amount of letting or operation space.

Consult with the planning authority and other statutory agencies with regard to the proposed development

Apart from making sure that all the usual inquiries are made in respect of preparing and submitting applications for planning approval and building regulation consent, it is also essential for the developer to create a positive climate within which the development can progress. This means that the right people in all the various authorities and agencies concerned with accrediting the proposal must be carefully identified, and approaches to them properly planned and presented. It is vital for the developer to galvanize the professional team in such a way that everyone involved generates an enthusiasm for the scheme and conveys that interest to those responsible for assessing it. First impressions are always important, and simple precautions can be taken, such as consulting with all the contributors to the project to compile all the preliminary inquiries together, to avoid duplication and dispatching them to the authorities and agencies in sufficient time to allow proper consideration and formulation of response. Among the principal factors the developer will seek to establish are the prospects of being expected to provide elements of planning gain by way of legal agreements and the likelihood of obtaining a consent, the possibility of having to go to appeal, the chances of success, and the consequent probable timescales and costs resulting.

Identify the likely response from other interested parties to the proposed development

The developer needs to have heightened understanding of how a particular scheme of development will be received by those likely to be affected by it, or have a voice in how, and if, it proceeds. This implies a knowledge of the distribution consequences of development and a comprehension of, say, urban renewal policy. They must, therefore, be able to predict who will oppose, why, how they might organize their opposition, what influence they exert, and how best to negotiate with them and reduce potential conflict.

Establish the availability of finance and the terms on which it might be provided

Because the parameters set by a fund can influence and even determine the design and construction of a building, great care must be taken in selecting a suitable source of finance and in tailoring the terms to meet the aims of both parties to the agreement. This will involve an evaluation of alternative arrangements for financing the project in question, including an assessment of the financial, legal and managerial consequences of different ways of structuring the deal. In doing so, it will be necessary to determine very closely the absolute limits of financial maneuverability within the framework of the development plan and program, for, during the heat of negotiation, points may be conceded or matters overlooked, which could ultimately prejudice the success of the scheme. Different sources of finance will dictate different forms of control by the fund. The major financial institutions, for example, increasingly insist that some kind of development monitoring be undertaken by project management professionals on their behalf, whereas a construction firm might provide finance for development but demand more influence in the management of the building operation. The developer must be wary. Presentation of a case for funding is also a task deserving special attention, and any message should be designed to provoke a positive response. Sub-sequent to a loan being agreed in principle, it will be necessary for the developer, in conjunction with their experienced South Jordan Utah real estate lawyer and other relevant members of the professional team, to agree the various drawings and specification documents to be included in the finance agreement. These will normally comprise drawings showing floor layouts and cross sections of the entire project, together with drainage, site and floor-related levels, and outline heating and air conditioning proposals, as well as a performance specification clearly setting out the design, constructional and services standards to be met. The financial dimension to project management is critical, for a comparatively small change in the agreed take-out yield can completely outweigh a relatively large change in the building cost.

Detailed design and evaluation

Decide the appointment of the professional team and determine the basis of appointment. It is essential that the developer, or an appointed overall project manager, has a good grasp of building technology and construction methods, together with an appreciation of their effect upon the development process. To this must be added a perception of the decisions that have to be taken and an ability to devise appropriate management structures necessary to carry them out. In deciding such questions as whether to appoint a small or large firm, appoint on the basis of an individual or a firm, select professionals for the various disciplines from the same or from different firms, choose professionals who have worked together previously or who are new to each other, or opt for existing project teams or assemble one especially for the job in hand—the respective advantages and disadvantages must be explored and weighed most carefully. The chemistry is all important, but the opportunity to take such a deliberate approach towards the assembly and integration of the professional team is one of the great advantages of property project management. In this context, however, it is essential that the contractor is seen to be a central member of the team, playing a full part in the design process and not somehow placed in a competitive position. Increasingly, moreover, a choice has to be made between different methods of producing building services, such as package deal, design and build, selective competitive tender, two-stage tender, serial tender, negotiated tender, management fee contract or separate trades contract. However, a true project management approach might be said to be superior to all other methods. The members of the team, once appointed, will usually be required to enter into collateral warranties as to their professional obligations and be prepared to produce reasonable evidence of the adequacy of their professional indemnity insurance. It may also be that the fund as well as the developer will expect similar undertakings and will insist that the conditions of engagement reflect this part of the financial agreement. Prepare a brief that outlines the basic proposals for design, budgeting, taxation, planning, marketing and disposal and sets out all the management and technical functions, together with the various boundaries of responsibility.

There are many issues involved in buying a piece of land and developing it into a residential or commercial real estate project. This involves dealing with various authorities and also entering into contracts with professionals. An experienced South Jordan Utah real estate lawyer can assist you with the entire process.

Construction Stage

Construction loans for real estate projects are secured by the future value of the completed property. Before a bank will make a loan, the developer must demonstrate this value by obtaining a specified number of purchase agreements or leases at or above projected prices to give the bank confidence that the project will sell out or lease up. The developer may turn to a bank with which she has a good relationship or she may shop around for the best loan terms.

As soon as the developer has settled on terms with a bank and closed on the loan, she will acquire or “take down” the land and break ground, with the goal of completing construction as quickly as possible. Throughout the construction stage, the developer will be involved in a million little decisions from materials selections to construction details to the review of monthly construction payment applications. Until the building is finished she will be constantly rebalancing the project’s design, materials, systems, and costs.

Closing dates with tenants or buyers will drive the schedule. For large projects the developer may complete and sell or lease up a part of the project while the rest of the building is still under construction. High-rise residential and office towers are often completed and occupied from the top down, while horizontal developments like townhomes and office parks lend themselves more easily to phasing that matches market demand and absorption. Whether the first condo unit or an entire building, the completion of construction signals the beginning of sales.

Sales Stage

Once construction is complete and the building is ready for occupancy, the developer’s objective is to sell or lease it up for the highest prices possible as quickly as possible. The developer must repay the construction loan with proceeds from sales. The longer it takes to sell out or lease up, the higher the interest costs on that borrowed money—the carrying costs—and the lower the developer’s profit. During this stage the developer’s attention will be focused on ensuring that buyers or tenants who have signed purchase agreements or leases remain satisfied and show up to close on those contracts.

The developer’s involvement will not end until the building is completely sold out or, in the case of a rental property, leased up and then refinanced or sold. Some developers build to “hold” over a longer time frame and they will have ongoing responsibility for property ownership from maintenance to periodic capital improvements. When the developer does finally sell or “dispose of the asset,” whether it is as soon as it has been leased up to a “stabilized” level of occupancy (for example 90 percent) or decades later, she will return all funds to lenders and make distributions of equity and profits to investors.

It sometimes helps to view development this way—as a series of stages and as a list of tasks—but it can also be viewed as a process that is punctuated by a small number of important milestones. These include property acquisition, preliminary approvals, final approvals, achieving a predetermined percentage of presales or signing a lease with an anchor tenant, closing on financing, completion of construction, stabilized occupancy, and sale. Each of these is a required step on the way to a completed project and each requires the careful management of myriad tasks through multiple stages. While these lists of stages and tasks are easy enough to comprehend in the abstract, they are more fluid and messier in practice. Because no two development projects unfold in the same way, managing uncertainty and the “unknown unknowns” is just one more part of the business. Real estate development is a complex type of product development with high stakes. Minor mistakes or omissions in any of the stages, tasks, or milestones can derail or stop a project and cost the developer most if not all of his or her financial resources. And just one bad project can wipe a developer out.

South Jordan Real Estate Attorney Free Consultation

When you need legal help with a real estate matter, quiet title action, foreclosure or property dispute, please 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

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