Category Archives: Real Estate Law

Utah Law On Eviction

Utah Law On Eviction

The Utаh eviction рrосеѕѕ mirrоrѕ mоѕt оthеr ѕtаtе’ѕ laws аnd regulations and allows аn expedited рrосеѕѕ fоr a lаndlоrd to еxреl a tenant whо fаilѕ tо рау the rеnt or whо brеасhеѕ any оthеr рrоviѕiоn in thе rental аgrееmеnt.

In Utah, a landlord must fоllоw vеrу specific rulеѕ аnd procedures when evicting a tеnаnt. If the lаndlоrd dоеѕ nоt follow thеѕе rules, thе еviсtiоn (also called an unlаwful dеtаinеr lаwѕuit) might not be vаlid. Thiѕ article will еxрlаin thе basic rules аnd рrосеdurеѕ lаndlоrdѕ аnd рrореrtу mаnаgеrѕ muѕt follow whеn еviсting a tеnаnt in Utаh.

Nоtiсе For Tеrminаtiоn With Cause

To еviсt a tеnаnt, a lаndlоrd must hаvе lеgаl cause. Lеgаl саuѕе iѕ dеfinеd by Utah law аnd includes thе tеnаnt’ѕ failure to рау rеnt оr viоlаtiоn of the lеаѕе оr rеntаl аgrееmеnt. If thе landlord hаѕ lеgаl cause to evict thе tеnаnt, thеn thе lаndlоrd can thеn terminate the tenancy. Thе lаndlоrd dоеѕ thiѕ bу giving thе tenant a three-day nоtiсе. Thiѕ nоtiсе will inform the tenant thаt thе tеnаnt muѕt еithеr рау rеnt оr fix thе violation (whiсhеvеr аррliеѕ tо the ѕituаtiоn), or mоvе оut оf the rental unit within three dауѕ оf rесеiving thе notice. If thе tеnаnt dоеѕ nоt comply with thе nоtiсе, thеn thе landlord саn terminate thе tеnаnсу аnd filе аn eviction lаwѕuit аgаinѕt thе tеnаnt

Nо Self-Eviction

Utаh dоеѕ nоt аllоw fоr аnу nоn-judiсiаl mеаnѕ to еviсt a tеnаnt. A lаndlоrd whо tries to expel a tenant bу сhаnging thе locks, padlocking the dооrѕ аnd windows, thrеаtеning thе tеnаnt or removing the tеnаnt’ѕ реrѕоnаl bеlоngingѕ withоut a соurt оrdеr may be liable tо thе tenant for сivil dаmаgеѕ.

Utаh Eviсtiоn Prосеѕѕ

Thе rules rеgаrding evictions are ѕрrеаd thrоughоut the Utаh Code. Lаndlоrdѕ can only еviсt a tenant аftеr filing аn еviсtiоn lawsuit, called аn unlawful dеtаinеr suit, аnd receiving a соurt order. Bеfоrе filing thе lаwѕuit, the landlord muѕt give thе tenant notice аnd аn орроrtunitу tо correct thе viоlаtiоn, if роѕѕiblе.

If thе tenant dоеѕ nоt соmрlу with the thrее-dау nоtiсе, thеn the landlord can proceed to соurt аnd filе an еviсtiоn lаwѕuit. Thе lаndlоrd must filе a ѕummоnѕ аnd соmрlаint with the diѕtriсt соurt оf thе соuntу whеrе the rental unit iѕ lосаtеd. Thе tеnаnt will receive a copy оf the summons and соmрlаint аftеr thе landlord files thе рареrwоrk. Thе ѕummоnѕ will hаvе a timе and date fоr a hеаring before a judgе. If thе tеnаnt wiѕhеѕ to defend аgаinѕt the еviсtiоn, the tеnаnt will have tо file аn answer tо the complaint within the timе frае ѕtаtеd on thе ѕummоnѕ, typically thrее dауѕ. Thе tеnаnt muѕt thеn арреаr аt thе hеаring.

Utаh Eviction Trial

Thе eviction triаl iѕ held bеfоrе a judgе. The landlord must рrоvе by a рrероndеrаnсе of thе еvidеnсе thаt the tеnаnt hаѕ fаilеd to рау the rent оr hаѕ violated a раrtiсulаr provision of the lеаѕе. Thе landlord ѕhоuld рrоduсе сорiеѕ of the nоtiсе аnd lеаѕе аgrееmеnt, proof of service оf the nоtiсе аnd Cоmрlаint, rеntаl rесеiрtѕ, роliсе rероrtѕ, photographs, rераir rесеiрtѕ and witness testimony. Thе tenant muѕt рrоvе аnу dеfеnѕеѕ asserted in thе Anѕwеr and any соuntеrсlаimѕ bу рrоduсing рhоtоgrарhѕ, documentary evidence and tеѕtimоnу from witnesses.

Eviction Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Eviction Law

Utah Eviction Law

In Utah, you can be evicted for a number of different reasons, including not paying rent or violating the lease. However, there may be a few things you can do to postpone the eviction, or perhaps even stop it altogether.

Understanding Your Eviction Notice

If your landlord decides to evict you, you will first receive a written notice that states the reason for the eviction and a time period to either comply with the notice, if possible, or move out of the rental unit. In Utah, you could typically receive one of three types of eviction notices, depending on the reason for the eviction:
• Three-day notice to remedy: You will receive this notice either because you failed to pay rent when it was due or you violated the lease or rental agreement. Under this notice, you will have three days to either pay rent or fix the lease violation.
• Three-day notice to quit: You can receive this notice for a variety of reasons, including committing a crime at the rental unit or running an unlawful business out of the rental unit. Under this notice, you will have three days to move out of the rental unit.
• Fifteen-day notice to quit: You will receive this notice if you have a month-to-month lease or rental agreement that your landlord wants to end. Under this notice, you will have 15 days to move out of the rental unit.

It is important to note that you are not automatically evicted when the time period runs out. An eviction is a legal proceeding. If you did not comply with the eviction notice by the time the notice period ends, your landlord can then go to court and file the necessary paperwork to begin the eviction lawsuit against you. Depending on how busy the courts are, it could take anywhere from a week to months before a sheriff is ordered to evict you on a certain date. You can remain living in the rental unit until the sheriff is ordered to evict you, but remember that you will be required to pay the landlord rent until the day you move out of the unit. Also, keep in mind that there are negative consequences to being evicted, other than losing your home. An eviction will have a negative impact on your credit report, and it could affect your prospects for future housing. Some landlords will not rent to people who have been evicted from a previous location. If you are considering filing for bankruptcy to stop your eviction, you should look at Evictions and the Automatic Stay in Bankruptcy. Filing for bankruptcy may not stop an eviction, and you should carefully consider your options before doing so.

Talk to Your Landlord

If you receive an eviction notice, you should first try talking to your landlord. You may be able to come to an agreement without going to court. An eviction will cost both of you money (as well as time), and your landlord may be willing to stop the eviction if you agree to certain terms, such as paying rent you owe or stopping behavior that violates the lease. If you can’t come to an agreement that prevents you from moving out, perhaps you can agree on a certain date and time for when you will move out of the rental unit. If you and the landlord are able to agree on anything, be sure to get the agreement in writing, signed and dated by both of you.

Comply With the Eviction Notice, If Possible

If you are being evicted for not paying rent or violating the lease, then your eviction notice will state the reason for the eviction. If you comply with the eviction notice by either paying all the rent due and owing or correcting the lease violation, then, in Utah, the landlord must not proceed with the eviction If you are not able to comply with the eviction notice within the time period stated in the notice, then you should talk to your landlord. For example, if you are being evicted for failure to pay rent, you will receive a three-day notice to remedy. If you can’t pay the rent in full within three days but you could by the end of the week, you should talk to your landlord to see if you can arrange to pay later. If your landlord agrees to terms that are different from the eviction notice, then you should get the agreement in writing.

Attend the Eviction Hearing

If you do not comply with the eviction notice and you and your landlord are not able to reach an agreement, then your landlord can file the eviction lawsuit with the court. You will receive a copy of the paperwork after your landlord files, and you will then be required to file an answer in response to your landlord’s complaint. An answer is a document that allows you to state the reasons why you should not be evicted. This is where you need to put any defenses to the eviction, such as the landlord evicting you based on discrimination. In Utah, it is illegal for a landlord to discriminate against a tenant based on source of income, race, or religion, among other things. If your landlord is evicting you based on one of these protected classes, then you can use that as a defense against the eviction. You must file an answer if you wish to postpone or stop the eviction. If you do not file an answer, then the judge will most likely rule in the landlord’s favor, and the eviction will proceed. For more information on the eviction process, see the eviction help website published by the Utah courts. If you do file an answer, then a hearing will be scheduled. You must attend this hearing. At the hearing, the judge will consider both sides of the argument and make a decision regarding the eviction. Even if you don’t have any defenses against the eviction, you should still attend the hearing and talk to the judge. Depending on your circumstances (such as if you have minor children living at home or health issues), the judge might not schedule the eviction right away. The judge might give you a little extra time to prepare and move out of the rental unit before ordering a sheriff to perform the eviction. Keep in mind, though, that you will still owe your landlord rent until you move out of the rental unit.

Utah Eviction Process

In Utah, the legal term for an eviction is an ‘unlawful detainer suit.’ Landlords wishing to evict a tenant must go through a formal process and obtain a court order before they can have a tenant evicted. Any attempts to evict a tenant without a court order are illegal. Actions like turning off utilities or changing the locks without a court order are known as “self-help” evictions, and they could result in a lawsuit being successfully filed against you. Before landlords can file an eviction suit, Utah law requires you to provide 3 days’ notice to tenants to correct a deficiency or leave the premises. Generally, the eviction process in Utah takes just a matter of days or weeks from the time the landlord files the lawsuit to the time the tenant is out of the property. 11 to 28 days is common, provided that the process has been followed correctly. If the tenant contests the eviction, it could take longer. Utah is among the more landlord-friendly states. Courts in Utah normally award triple damages (minus attorney’s fees) to landlords in the event of an eviction especially for past-due rent payments. However, it can be very difficult to actually collect on a judgment from an evicted tenant if they have few assets in their name to collect against.

What are some reasons that I can evict a tenant in Utah?

Common reasons for evictions in Utah include non-payment of rent and material violation of lease terms. Landlords can also file nuisance evictions due to suspected criminal activity on the premises, loud parties, rowdy behavior, gambling, and the like. The landlord must sufficiently demonstrate to the courts that the tenant has been causing a nuisance. You cannot evict unless you have a court order authorizing you to take possession of the property. You can’t evict if you are illegally discriminating against a protected class. The federal Fair Housing Act prohibits housing discrimination on the basis of race, religion, sex, national origin, familial status, and pregnancy. In addition, Utah state law prohibits housing discrimination on the basis of color or source of income. If you evict someone for a lease violation, the tenant may challenge the eviction and present evidence that they were, in fact, in compliance with the lease; or that they corrected the deficiency within 3 days. If you fail to maintain your property in accordance with the Utah Fit Premises Act, the tenant may have a defense to eviction on the basis of non-payment of rent. In some cases, the Fit Premises Act allows tenants to repair a deficiency and deduct the cost of the repair from their rent. The tenant must provide all applicable receipts to the landlord, and the cost of the repair must not exceed two months’ rent. Before you can file for an eviction, you must provide a formal written notice to the tenant to pay rent, correct the lease violation, or vacate the premises. If you’re evicting because of a violation of the lease, then you would present the tenant with a 3-Day Notice to Quit or Perform Covenant. Utah law allows you to present this notice in person to the tenant; to mail it to the tenant’s residence via registered or certified mail; or to leave the notice with a person of suitable age and discretion at the residence. If you cannot find anyone suitable at the residence, then you may post the notice in a conspicuous place on the property. In Utah, if you have a squatter occupying your premises without a lease, you must provide a 5-day notice to quit the property as a tenant-at-will. If the tenant pays their rent during the 3-day period, and the reason for eviction stated in the notice was non-payment of rent, then the process stops there. However, if the 3-day notice does not solve the problem, then you can file your unlawful detainer lawsuit in the district court where the property is located. The court will schedule a hearing within 10 days. Court officials will deliver a summons to the tenant alerting them of the lawsuit, as well as the time and location of the hearing. If the defendant wants to contest the eviction, they can state their case at the hearing. Utah law allows landlords to recover attorney’s fees if they win the lawsuit, provided that a provision stating such is in the lease signed by the tenant.

Once you win your eviction hearing, you can apply for a writ of restitution from the court. The writ of restitution generally directs the tenant to vacate the premises within 3 days (though occasionally the timeline could be shorter—especially where vandalism or property damage is threatened or suspected). You can serve or post this notice on the property, but you must also provide a blank request for a hearing along with the notice to vacate. (You must provide proof of service to the court). If the tenant does not request a hearing, and does not vacate the premises, then the writ of restitution allows a sheriff or constable to enter the property using the least forceful or destructive method necessary.

Dealing With An Evicted Tenant’s Property In Utah

You should have a crew of people ready when the sheriff arrives to clear out the former tenant’s property. Have bags, boxes, and tarps on hand. You or the constable/sheriff must store the property and provide reasonable notice to the tenant to pick it up, if the tenant is not present to take possession.
Separate these items:
• Clothing
• Identification
• Financial documents
• Documents about the receipt of public services
• Medical information
• Prescription medications
The tenant can retrieve these items within 5 days without paying anything. Otherwise, the tenant must pay reasonable transportation and storage costs to reclaim any personal property collected from the dwelling. Utah Code Section 78B-6-816 allows the landlord to sell or donate unclaimed property after 15 days if the tenant has made no reasonable effort to reclaim it, and if no hearing about its disposition is scheduled. This time period may be extended another 15 days in the event of hospitalization; domestic violence; or death, where the tenant has passed away and their surviving heirs are attempting to recover the property.

Evictions During The Coronavirus Outbreak

Many states and cities have implemented eviction moratoriums for the duration of the COVID-19 outbreak. Even if there isn’t a ban, most courts across the Utah have postponed hearings on non-essential matters—including hearings on eviction and landlord-tenant matters. However, most courts are still hearing eviction matters that are based on reasons other than nonpayment of rent such as selling drugs on the property or posing a threat to other people or property. No matter if there is an eviction ban in your area, you are still obligated to pay rent. Depending on the language of a ban, your landlord might be able to assess late fees, interest, or other penalties for not paying the rent on time. If you don’t think you can pay your rent due to COVID-19 related hardships, you have options, and you should consider talking with your landlord as soon as possible. Check your local court’s website for more information about the status of eviction lawsuits where you live. Also, consider looking into obtaining assistance from federal, state, local, private, or non-profit sources.

When a Landlord Might Send a Notice of Termination for Cause

Although terminology varies somewhat from state to state, there are basically three types of termination notices that you might receive if you have violated the rental agreement or lease in some way:
• Pay Rent or Quit Notices, which are typically given to someone who has not paid the rent. These notices give you a few days (three to five in most states) to pay the rent or move out (“quit”).
• Cure or Quit Notices, which are typically given to someone who violates a term or condition of the lease or rental agreement, such as a no-pets clause or the promise to refrain from making excessive noise. Usually, you have a set amount of time in which to correct, or “cure,” the violation.
• Unconditional Quit Notices, which are the harshest of all. They order the tenant to vacate the premises with no chance to pay the rent or correct a lease or rental agreement violation. In most states, unconditional quit notices are allowed only if you have:
• repeatedly violated a significant lease or rental agreement clause
• been late with the rent on more than one occasion
• seriously damaged the premises, or
• engaged in serious illegal activity, such as drug dealing on the premises.

When a Landlord Might Send a Notice of Termination Without Cause

Even if you have not violated the rental agreement and have not been late paying rent, a landlord can probably ask you to move out at any time (assuming you don’t have a fixed-term lease) as long as the landlord gives you a long enough notice period. A 30-Day Notice to Vacate or a 60-Day Notice to Vacate to terminate a tenancy can be used in most states when the landlord does not have a reason to end the tenancy. (The length of the required notice might be slightly longer or shorter in some states.)

Rent Control Exceptions

Many rent control cities go beyond state laws and require the landlord to prove a legally recognized reason for termination. These laws are known as “just cause eviction protection.” (Tenants in only a couple of states also enjoy just cause eviction protection.)

When a Landlord Might File an Eviction Lawsuit

Following receipt of a termination notice, if you haven’t moved out or fixed the lease or rental agreement violation, the landlord must properly serve you with a summons and complaint for eviction in order to proceed with the eviction. The court will set a date and time for a hearing or trial before a judge. You must show up to this hearing. If you don’t, the judge will likely rule against you, even if you have a possible defense to the eviction.

Possible Tenant Defenses to Eviction

If you do get hauled into court, you may be able to diminish the landlord’s chances of victory. Perhaps you can point to shoddy paperwork in the preparation of the eviction lawsuit. Or maybe the landlord’s illegal behavior, such as not maintaining the rental property in habitable condition, will serve as a good defense, as would a claim that the eviction lawsuit is in retaliation for your insistence on needed, major repairs.

Sheriff’s Escort During an Eviction

Even if the landlord wins the eviction lawsuit, the landlord can’t just move you and your things out onto the sidewalk. Landlords must give the court judgment to a local law enforcement office, along with a fee. A sheriff or marshal gives you a notice that the officer will be back within a few days to escort you off the property. At that point, it’s best to acknowledge defeat and leave on your own steam.

Eviction Attorney

When you need legal help with an eviction in 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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Title Issues In The Foreclosure Process

Title Issues In The Foreclosure Process

Foreclosure is the legal process that allows a lender or the subsequent loan owner (the “bank”) to sell a property to satisfy a homeowner’s debt. The goal of a foreclosure is to eliminate the owner’s interest in the home, as well as wipe out any junior interests in the property. So, before foreclosing, the bank will order a title search from a title company. The title search will show all of the parties with an interest in the subject property—like lien holders, judgment holders, and others. The foreclosing bank will then name the parties whose interests it wishes to foreclose as defendants in the foreclosure action to clear them off title.

What Is Clear Title?

Title defects—like unreleased judgment liens, mortgages that were paid off but not released, and other encumbrances—are known as “clouds” on title. A cloud on title could potentially invalidate or impair a property’s title, making it difficult or impossible to sell. Title searches are run to look for clouds on title. A property title that doesn’t have any clouds is considered clear.

Purpose of a Foreclosure

Homeowners occasionally face back-to-back foreclosures when the title to the property has problems after the first foreclosure. (Often, a foreclosing bank is able to amend its foreclosure complaint to add parties who were left out of the original complaint; but the bank must amend the document before the foreclosure is complete.) When a subordinate lien holder or other junior interest is omitted from a foreclosure action, its lien or interest isn’t extinguished unlike the lien or interest of a party that’s properly named and served in the lawsuit. The purchaser at the foreclosure sale (usually the foreclosing bank) then takes title to the property subject to the omitted lien or party. Unless the excluded parties agree to release their lien or sign a quitclaim deed, a court’s assistance is required to clear up the title. Without clear title, the bank can’t resell the property to a new owner. So, the bank might then (depending on state law) opt to reforeclose to deal with the parties who were inadvertently left out of the foreclosure action. The reforeclosure action cleans up the property’s title and gives the bank clear ownership. A bank might choose to reforeclose if the foreclosure sale has already taken place and, for instance:
• The title company neglected to include a junior lien on the title report after searching the public records and, as a result, the bank’s attorney didn’t include the junior lien holder in the foreclosure.
• The title company didn’t include a judgment lien in the title report after searching the public records, and, as a result, the bank’s attorney didn’t include the judgment holder in the foreclosure.
• The bank’s attorney didn’t name a particular defendant (like a non-borrowing spouse) or didn’t name the defendant correctly (such as naming a trustee as both an individual and in his or her capacity as a trustee) in the lawsuit.
• The bank’s attorney didn’t properly review the title search and therefore didn’t name all parties who have an interest in the property as defendants in the foreclosure.

How Foreclosure Generally Works

Generally, the right to foreclose passes with the property’s ownership. Because the foreclosing bank is usually the high bidder at the foreclosure sale (and becomes the home’s new owner), it will typically conduct the foreclosure. But if a third party buys the home at the foreclosure sale, that person or entity might foreclose. The foreclosure complaint (lawsuit) will allege that the omitted lien holder or other party’s interest is inferior that is, it has a lower priority than the foreclosed mortgage. The complaint will further state that the lienor or other party was inadvertently left out of the foreclosure action and, if it had it been included, the foreclosure sale would have removed it from title. Assuming the newly named defendant doesn’t answer the suit or redeem the property by paying off the mortgage, the court enters a judgment of foreclosure. The lien or other interest is then extinguished, and another foreclosure sale is held. The purchaser at the foreclosure sale gets title to the property free of the interests of all parties foreclosed in the original lawsuit, as well as those named in the reforeclosure.

Understanding The Foreclosure Process

Most of us understand that when we borrow money to buy real estate we sign a document that requires us to pay back the money over time to the bank. Most borrowers loosely refer to that debt as a “mortgage.” When our most recent market bubble burst many Americans, unfortunately, became intimately familiar with what happens when they don’t make their mortgage payments.
The Foreclosure process is different depending on the state in which you reside and the two different foreclosure processes have very different impacts and time lines.

Title Theory vs. Lien Theory

Simply put the foreclosure process your state follows can depend on whether the state laws subscribe to the idea that a loan is simply a lien against your property “lien theory” or that a loan is a conveyance of title to the lender until the borrower pays back the loan in full “title theory.” English mortage law follows title theory, therefore when our country began, the mortgage laws required title “ownership” of the home be transferred to the lender until the debt was paid off.

Mortgage vs. Trust Deed

Although many Americans call the loan against their property a mortgage, many of them actually agree to a different instrument with their lenders – a Trust Deed. The differences include both the number of parties involved in the transaction, who technically holds title to the property, and ultimately how the foreclosure process will proceed. A mortgage is an actual document that borrowers sign and convey to their lender in order to secure a debt on their home. It involves two parties, the borrower (mortgagor) and the lender (mortgagee), and creates a lien against the property that is normally recorded in public records. This lien prevents the borrower from transferring title or ownership until the debt (mortgage) is paid in full and the lien released.

The title holder during the loan period can be either the borrower or lender depending on which custom is practiced in the state where the property is located – “title theory” or “lien theory.” As discussed above, the borrower conveys title to the lender during the loan term in a “title theory” state and continues to hold title in “lien theory” states. When a mortgage is the security instrument, the lender usually has to go through a court action to foreclose. This is called a judicial foreclosure. Unlike a mortgage, a trust deed (aka deed of trust) involves three parties – the borrower (trustor), the lender (beneficiary), and the trustee. The purpose of the trustee is to act as a neutral third party holding title until the debt is paid in full. Who is eligible to be a trustee varies from state to state although most often trustee services are provided by either a title company or an attorney. Actually, trust deed agreements include two documents, the trust deed which conveys title to the trustee and the promissory note between the lender and the borrower, outlining the terms of the agreed upon loan.

Another significant difference is in the foreclosure process. When a deed of trust is involved, foreclosure is faster, less expensive, and less complicated than when a mortgage is the security instrument. If the loan becomes delinquent, the trustee has the power to sell the home (as conveyed in the trust deed itself). As protection to the borrower, the lender must first provide the trustee with proof of delinquency and request that foreclosure proceedings be initiated, then progress according to law and as dictated by the deed of trust. This type of foreclosure does not have to go through the court system and is commonly referred to as a non-judicial foreclosure.

Judicial vs. Non-Judicial Foreclosure

Perhaps the most vexing position to hold as a lender is to be plaintiff in a lawsuit against the unfortunate family, in financial hardship, facing the prospect of losing their family home. In many states across the country foreclosure proceedings still take place in a court of law, sometimes in front of a jury, to decide whether or not a lender can take back real estate in the foreclosure process. Limited to lien theory states, the timely and arduous process provides defaulted borrowers opportunity to defend their ownership and requires lenders to meticulously follow procedural laws. The judicial foreclosure process begins with the lender filing a complaint and recording a notice of Lis Pendens (it’s important to note both the predure and form will vary by state). The complaint will state what the debt is (amount and the real estate by which it’s secured), and why the default should allow the lender to foreclose and take the property pledged as security for the loan. The homeowner is given a notice of the complaint (NOC) either by mail, direct service, or publication of the notice, and will have the opportunity to be heard before the court. If the court finds the debt valid and in default, it will issue a judgment for the total amount owed, including the costs of the foreclosure process. After the judgment has been entered, a writ will be issued by the court authorizing a sheriff’s sale. The sheriff’s sale is an auction, open to anyone, and is held in a public place, which can range from in front of the courthouse steps, to in front of the property being auctioned. Sheriff’s sales usually require cash to be paid at the time of sale; however they may sometimes allow a substantial deposit with the balance paid later that same day or up to 30 days after the sale. At the end of the auction, the high bidder will be the owner of the property, subject to the court’s confirmation of the sale (another key difference between judicial and non-judicial sales). After the court confirms the sale a sheriff’s deed is prepared and delivered to the highest bidder, when recorded, the high bidder becomes the new owner of the property.

Non-judicial foreclosures, on the other hand, are processed without court intervention, in accordance to the foreclosure procedures established by state statutes. When a loan default occurs, the homeowner will be mailed a default letter, accompanied by the filing of a Notice of Default (NOD). If the homeowner does not cure the default within the time-lines specified by the state where the property is located a Notice of Trustee Sale (NOTS) will be mailed to the homeowner, posted in public places, recorded at the county recorder’s office, and published in area legal publications. After the legally required time period has expired (21 days), a public auction called a Trustee Sale will be held the highest bidder becomes the owner of the property, subject to their receipt and recordation of the deed. Auctions of non-judicial foreclosures will generally require cash or a cash equivalent either at the sale, or very shortly thereafter. Although each state dictates their own foreclosure procedures, all foreclosure actions follow either a judicial or non-judicial method. Which method typically depends on the legal theory (lien or title) practiced in the state and which instrument (mortgage or trust deed) is used to secure the debt. The implications of these actions can determine other key factors in the foreclosure process such as deficiency judgments or rights of redemption.
Do I Need Title Insurance on a Bank-Owned Foreclosed Property?
When banks and other lenders foreclose homes, they repossess and usually attempt to sell them at foreclosure auction. However, many properties end up on the books of their foreclosing lenders after they’re repossessed and become what are commonly called bank-owned, or real estate owned properties. Generally, the titles of bank-owned properties sold to buyers are free of liens or other encumbrances. However, bank-owned foreclosures can sometimes be risky and foreclosing lenders may not catch all potential title problems, making obtaining title insurance important. Bank Foreclosures and Title Insurance Title insurance is designed to protect property buyers from title issues, such as old, unnoticed liens or potential competing ownership claims. Before selling a bank-owned foreclosure, the lender typically has the property’s title searched for liens and other encumbrances and will eliminate them. As the buyer of a bank-owned foreclosure property, you’ll also generally receive a title insurance policy paid for by the seller. You should never assume, however, that the title to any bank-owned property has been fully searched and then cleared by the lender.

Ordering a Title Search

At minimum, when purchasing a bank-owned property, you should conduct a search of public records that contain information about liens and outstanding property taxes. You can also order a title search on the property from a title company, although no title company will ever deliver a 100 percent guarantee that a property’s title is free defects. However, title companies conduct thorough title searches and provide a fairly reliable abstract of title, or recitation of a property’s ownership history.

Mortgage Lender Title Insurance

There are two types of title insurance, one for owners and one for lenders. A lender’s title insurance policy protects only the mortgage lender, not the property owner. If you’re using a mortgage to purchase a bank-owned property, the lender may require you to purchase lender’s title insurance on its behalf. Lender’s title insurance covers the amount of the mortgage loan, and the premium price is based on the loan’s initial amount.

Lender’s Title Insurance Costs

Title insurance policy costs vary by location and other factors, such as a mortgage loan’s amount. If you’re using a mortgage to purchase a bank-owned property and the seller provides owner’s title insurance, you’ll only need to pay for a lender’s policy. Other title-related fees such as deed recording and closing services may also be part of your closing costs when buying bank-owned property.

Lien Survivability

Seniority rankings on property titles give property liens their ability to survive foreclosures. Except for property tax liens, which are superior to all other liens, first mortgage liens occupy superior positions on property titles. When a mortgage lender forecloses after its borrower defaults. it’s doing so to satisfy its mortgage lien only. Subordinate liens on property titles frequently aren’t paid off during first mortgage foreclosure and could remain attached to a foreclosed property’s title.

Clearing Liens

Surviving foreclosed property title liens could be paid off from the property’s sale proceeds. Of course, the simplest way to eliminate foreclosed property liens that you’ve become responsible for is to pay them yourself, though the cost might be significant. Another common method for eliminating liens on property titles is through use of ‘quiet title’ lawsuits. If lien holders don’t object or if they lose in court, a quiet title lawsuit can effectively eliminate existing liens on a property’s title.

Foreclosure Lawyer

When you need legal help for a foreclosure in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you with real estate law, foreclosures, quiet title actions, real estate opinion letters and more.

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 Does A Private Placement Program Work?

How Does A Private Placement Program Work

Clients who possess $100 million or more parked in any top commercial bank with AAA rating, might qualify to place funds into a Private Placement Program (PPP). Although you must be invited to join any PPP, these lucrative programs offer a safe and secure means of multiplying your wealth. This opportunity has the potential for wealth creation and life quality enhancement. You might soon be enjoying the benefit and profit from this yielding investments. Applicants are expected to be experienced investors who are familiar with how these investments are done. The returns will be indicated to the fund owner by the trader in a Deed of Agreement. Normally, DOA is issued after the due diligence process is complete. It is worth noting for the skeptical investors that their money is never transferred to another account. Investments of 100 million and above are blocked at fund owner’s bank through a standard MT 760 or MT 799. Smaller investments of one million and less than 20 million are often desired to be transferred into a pool of investments located at a specific bank. But at different times of the year, Small Cap Programs for 1M to 10M are also available. It is up to the fund owner to decide if he is ready, willing and able to transfer his money to the designated bank account of the trader. Sometimes a SBLC from a top bank with a minimum face value of US$/Euro 20 million might be accepted to be put in trade program.

Private Placement Program Details and Procedure

• Bank instruments (CD, MTN, BG, SBLCs, etc.) or liquid funds as CASH in any top bank are accepted by most PPP operatives
• Standard PPP begins with 100 million or more. Small Cap Programs accept one million and up – no top limit USD or Euros (cash or acceptable AA – AAA Rated collaterals)
• Minimum requirement is 1 million and no top limit USD or Euro (cash or acceptable AA – AAA Rated bank instruments might be used as collateral) Small Cap Programs between 1M to 10M are rarely available.
• Bank should preferably have swift capability. Any top Bank must issue Swift MT760 in favour of trader’s designated bank account
• After completion of due diligence, the client’s bank holding the Cash funds or issuing the bank instrument must send a free message [Swift MT 199] to the trader’s designated bank confirming its readiness to either block funds or to issue a bank instrument.
• Trader’s Bank will then reply to the client’s bank that it is ready, willing and able to receive the bank instrument [by Swift MT 199].
• Deed of Agreement [DOA] is issued by the trader after both Banks had confirmed issuance and acceptance of the bank instrument.
• Trading occurs for a 40-Week program or as Agreed by the Trader
• Historical returns can be discussed directly with the Trader. For bank instruments with face value 100M or more, returns might be as high as 100 per cent a month shared 50:50 with the trader. But returns are never guaranteed. These are indicative historic figures. Actual returns might be lower or higher.
• Face-to-face contract signing is very rare. All Signed documents are Emailed in PDF Format. This PPP opportunity is available to legitimate investors meeting the basic criteria as listed.

Once all documentation is delivered to the program manager the compliance process begins. At that point any and all due diligence will be completed for every applicant within a week. A week after the successful verification of cash funds or the respective bank instrument, the trade might begin. Profits might be paid to the investors weekly or monthly via wire transfers Swift MT103 into their designated Bank account.

Private Placement Programs/Trade Platforms

We are often contacted by project developers, investors, entrepreneurs and brokers who are looking to raise capital, or who are looking for investment opportunities that provide higher returns for themselves or their clients. This initial inquiry often leads to a discussion of private placement programs and trade platforms.

How Private Placement Programs Work

Many private placement programs and trade platforms are legitimate investment vehicles that are accessible to a wide variety of investors. An excellent white paper on private placement programs and trade platforms was written by MB Assets of Memphis, TN–a copy of which is available for download above. It should be noted that we have no relationship with MB Assets or its principals—their white paper is provided for educational purposes only and should not be construed as an endorsement of the firm. Part of the confusion regarding private placement programs in particular is the term, “private placement”. Private placements are used by companies to raise capital from private investors often via a set of investment documents known as a Private Placement Memorandum (PPM).

Prime Bank Programs

More often than not, when people refer to PPPs they are referring to what are more properly known as Prime Bank Programs. Prime Bank Programs, also known as Prime Bank Investments, High Yield Investment Programs (HYIPs), Buy-Sell Programs or Roll Programs, are clearly and universally fraudulent. They purport to involve the purchase and sale of medium-term notes (MTNs), Standby Letters of Credit (SBLCs), Bank Guarantees (BGs), or some similar instrument. As the name implies, it is usually alleged that only the largest top-50 prime banks in the world are involved in this program and participation is by invitation only. There is usually a great deal of secrecy involved and the minimum investment is typically in excess of $100 million or more. Interestingly enough, prime bank programs in the US often state that only overseas banks are involved while overseas programs often state that only US banks are involved. They are most often described as “risk-free” investments where one prime bank issues discounted instruments to a purchaser at another prime bank who has committed to purchase the notes at an agreed-upon price. If this is simply a bank-to-bank transaction one might wonder where the scam comes in. Supposedly, the purchasing bank needs a large deposit from a new client to create the line of credit that will be used for the purchase. This deposit will be placed in a “blocked” account and held untouched by the bank until the transaction has been completed. Prime bank programs have been universally condemned by the FBI, SEC and US Treasury Department as being fraudulent. In recent years, fraudsters have attempted to circumvent these governmental warnings with a clever ruse. They state that these agencies know that the programs are real, but that they are obligated to publicly deny their existence lest investors transfer large amounts of capital from deposit accounts into prime bank programs. Supposedly, this mass exodus of capital would cause the banking system to collapse, hence the official denials. This, of course, is complete nonsense.

Medium Term Notes (MTNs), Standby Letters of Credit (SBLCs) and Bank Guarantees (BGs)

Part of the reasons such frauds have been successful is that Medium Term Notes, Bank Guarantees and Standby Letters of Credit are real financial instruments. A Medium Term Note is the general name given to a debt instrument that matures in the medium term, typically 5-10 years. Bank Guarantees, as they are known outside of the US, or their US counterpart, Standby Letters of Credit, are most often used in international commerce where a seller might be unsure about a buyer’s ability to pay for goods once received. One way of overcoming this impasse is to utilize a bank guarantee or standby letter of credit. A SBLC or BG is simply a promise to pay on the part of the bank involved in the transaction. Trading partners often have greater confidence in a transaction if the payment is backed by a commercial bank rather than a trading partner with whom they might be unfamiliar. Banks are not in the business of losing depositors’ money, so in order for them to issue a SBLC or BG in the first place, they would underwrite the SBLC/BG similar to an unsecured loan–meaning obtaining an SBLC/BG is a difficult endeavour to begin with. Moreover, banks will often charge 1%-8% of the face value of the instrument, meaning a $100 million SBLC could cost the bank’s client as much as $8 million to obtain, and is usually only valid for a period of one year. Which, of course, begs the question: if the borrower has sufficient standing with the bank to be approved for an SBLC/BG and sufficient funds to cover the cost of issuing it, why are they contacting us? The answer is, if this were a legitimate transaction, they wouldn’t be. Over the years many people have approached us looking for SBLCs/BGs. Most are actually looking to LEASE an SBLC/BG and use the instrument as collateral for a loan or cash investment. This is somewhat akin to leasing a new car and then trying to use the car as collateral for a loan from another lender. No automobile, SBLC, BG or any other leased asset can be used as collateral in a legitimate financial transaction, which is why these transactions never work.

Steps for Applying to a Private Placement Program

• The client provides a proof of funds and passport copy along with their compliance package. Most of the assets that people try to apply with CAN’T be used for any REAL private placement program. These include ITR’s (Irrevocable Trust Receipt), SKR’s (Safe Keeping Receipt), T Strips (Treasury Strips), junk bonds, asset backed bonds, hard assets, real estate, and more. As you can expect, most of the applications at this stage are unacceptable, and fraudulent.

• Trade group submits application to the compliance department for review. Within hours, most real traders will know if the asset and owner are legitimate. Also at this time, the criminal background and origin of the funds are explored to ensure they are dealing with a clean applicant. In addition, if the client has over 100M, real trade groups typically either know of the applicant, or have seen the person try to apply before. There is a very small circle of real traders, so when someone applies with large assets, the word gets around rather fast.

• Client passes due diligence, speaks with the trader, and receives the contract.Most clients have NEVER been involved with a legitimate private placement before. With that being said, many will show the contract to their attorneys, who have never been through this as well, and they may advise against proceeding due to a lack of familiarity. Needless to say, this can kill the deal, or may make the PPP investor feel uncomfortable. The problem you will run into over and over at this stage is transparency, and gaining trust from the client. due to the private nature of the private placement business, there is only so much information the trader can reveal, and this is a common obstacle.

• Client signs the contract, and then the trader countersigns it to make it official. Once the client signs the contract, there are still a number of potential obstacles before you can “close the deal”. If a client signs the contract and does not complete the transaction, they may be reported to the authorities, and by doing so, they will be permanently prevented from participating in any private placement program in the future. As we said before, there is a small circle of real traders, and if they label a potential client as a non-performer, it is rare that any other REAL trader will spend their time to work with them.

• Client contacts their bank to complete the private placement transaction. Banks are in the business of making money, and customer requests are secondary to the profit of the bank. When a client asks to block, conditionally assign, or transfer their funds, they are cutting into the pockets of the bank, which we know they don’t stand for. If the bank loses that asset off their books, they actually lose over 25x that amount in potential loans from their country’s central bank (FED/ECB). With this in mind, most banks stall with excuses, since that will frustrate most customers enough to kill the transaction. Even though this may be an obstacle, this should never be a deal killer since it is the client’s money, not the banks. To complete a deal, you either need a bull personality or a great relationship with the bank, otherwise you may encounter problems with the final steps.

• Client’s funds are blocked, conditionally assigned, or transferred to the trade group in accordance with the contract. Very few trade groups request that the client transfers ownership of their assets. If they do request this, be very cautious, and expect something is not as it seems. Most private placement traders ONLY need a conditional assignment of assets, temporary beneficiary access, or the blocking of the assets in their favor for the period of the trade. This allows them to access a line of credit which they trade for the client, specific to their contract agreement. Also, so you know, PING programs are 99.9% fake, since they do not allow the trader to access the line of credit they need to start trading. No bank will loan without collateral, and since “PINGING” the account is not sufficient assurance to the bank that is has collateral in place, it never works. It is just another ignorant broker creation and is most often part of a bait and switch strategy.

• Trader accesses the line of credit from the trading bank. The trader is the only one who can access a line of credit against blocked assets. No one who is trying to complete a scam will ever be able to draw a huge line of credit on blocked assets. The bank completes thorough due diligence on anyone it loans to, and when that loan involves millions of dollars, it is far more diligent. In short, no bank will offer a line of credit for millions to someone who they do not thoroughly trust, so there is not a lot of worry about when blocking assets in someone’s favour.

• Trader uses line of credit to have discounted bank instruments issued from bank. First, the issuing bank sells the instrument directly to the trader for a significant discount (ex. 60% of face value). After the trader buys the instrument, they then sell it to the commitment holder/exit buyer (ex. 66% of face), who then sells it to their commitment holder for a higher price (72% of face). This continues until someone purchases it with the intent to hold the note to collect the coupon/interest, and the difference between the discounted note and its value at maturity. This is the basic idea of how profit is generated in Private Placement Programs that use bank instruments.

• Client receives payment of profits weekly or according to the contract. Once everything it set up with the banking, it is a very smooth process to get continual profits into your account. Typically, the first payment is made within 10-15 banking days after trading has started so they can ramp up the account to purchase larger notes. After the first payment, the client will receive disbursements on a weekly basis, or whatever their contract specifies. Most clients and brokers would be best served in setting up international bank accounts, or better yet, they can have an account at the bank where the trading is occurring. This will prevent the need to send external wires through different countries and banking systems. All profits would be internally transferred “ledger to ledger”, and would not attract as much attention.

• Client uses profits to fund projects and retains the rest for personal use. Most real private placement programs are intended to fund humanitarian projects in underdeveloped nations. Typically, 60-70% of the program’s profits must go to projects, while the remaining 30-40% is for “administrative use”. In essence, the 30-40% can be used at the client’s discretion, but you must make sure you are funding projects as well. The platform does not regulate this, but the FEB oversees all of the companies who have applied and received money in these types of programs.
Once the client completes this 40 week trading process, they can re-enter, but they must have projects funnel the profits into. Most private placement contracts are for 2 years, and are renewed upon expiration if both parties choose.

Free Initial Consultation with Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Notice Of Foreclosure

Notice Of Foreclosure

Essentially, when a homeowner fails to make his or her agreed upon mortgage loan payments, the mortgage servicer will try to avoid any additional loss by taking possession of the home, which is the collateral that had secured the loan. Foreclosure is a legal process and varies from state to state. Below is a general description of the foreclosure process. Please Note: Foreclosure laws and timelines differ from state to state. Please contact your state Attorneys General office to determine your specific states foreclosure laws.

STEP ONE: NOTICE OF DEFAULT

The first step in the foreclosure process is the issuance of a Notice of Default by the lender, which typically occurs after the homeowner is 30-45 days past due on their mortgage. It will usually be sent to the homeowner by certified mail. The lender will set a period of time for the homeowner to pay the lender the required amount past due and return the loan to good standing.

STEP TWO: LEGAL FILING

If the homeowner does not pay off the amount past due by the stated deadline, the lender may elect to proceed with foreclosure. There are generally two types of foreclosures: judicial and non-judicial. In judicial foreclosures, the lender may file a lawsuit in order to obtain a court order to sell the property. This usually happens after 90 days of delinquency. In a non-judicial foreclosure, the process follows the procedures spelled out in the mortgage (or deed of trust) that allows a trustee—the bank or mortgage company—to foreclose on and sell the property.

STEP THREE: NOTICE OF FORECLOSURE SALE

After the required time has elapsed, typically after 120 days without making a payment, the homeowner will be sent a notice of foreclosure sale, which will provide notice of the date by which the premises must be vacated and may include the total amount in arrears as well. At any point during these proceedings, you may be able to keep your home if you pay off the loan and all foreclosure proceeding costs accrued.

STEP FOUR: PUBLIC SALE

The sale of a foreclosed home could involve a public sale held by an auction, where the highest bidder can buy the property. If there are no buyers, the lender may buy the property by submitting a credit bid based on the amount owed on the mortgage. If the lender takes the property, it could be sold in a private sale at a later date. If the homeowner has not vacated the property by the time of the foreclosure sale, an unlawful detainer lawsuit could be filed to evict the homeowner. You may ask for time to move out of the property; however the bank does not have to grant the request and may request that you evacuate the property immediately.

Phases of A Foreclosure

Many Americans have been through the process of foreclosure, or know someone who has gone through it. Foreclosure is the process that allows a lender to recover the amount owed on a defaulted loan by selling or taking ownership of the property. If you (or a loved one) are facing foreclosure, make sure you understand the process. While the process does vary from state to state, there are normally six phases of a foreclosure procedure.

Phase 1: Payment Default

A payment default occurs when a borrower has missed at least one mortgage payment. The lender will send a missed payment notice indicating that they have not yet received that month’s payment. Typically, mortgage payments are due on the first day of each month, and many lenders offer a grace period until the 15th of the month. After that, the lender may charge a late payment fee and send the missed payment notice. After two payments are missed, the lender may send a demand letter. This is more serious than a missed payment notice; however, at this point, the lender may be still willing to work with the borrower to make arrangements for catching up on payments.

Phase 2: Notice of Default (NOD)

A notice of default is sent after 90 days of missed payments. In some states, the notice is placed prominently on the home. At this point, the loan will be handed over to the lender’s foreclosure department in the same county where the property is located. The borrower is informed that the notice will be recorded. The lender will typically give the borrower another 90 days to settle the payments and reinstate the loan. This is referred to as the reinstatement period.

Phase 3: Notice of Trustee’s Sale

If the loan has not been made up to date within the 90 days following the notice of default, then a notice of trustee’s sale will be recorded in the county where the property is located. The lender must also publish a notice in the local newspaper for three weeks indicating that the property will be available at public auction. All owners’ names will be printed in the notice and in the newspaper, along with a legal description of the property, the property address, and when and where the sale will take place.

Phase 4: Trustee’s Sale

The property is placed for public auction and will be awarded to the highest bidder who meets all of the necessary requirements. The lender (or firm representing the lender) will calculate an opening bid based on the value of the outstanding loan, any liens, any unpaid taxes, and any costs associated with the sale. When a foreclosed property is purchased it is up to the buyer how long the previous owners may stay in their former home. Once the highest bidder has been confirmed and the sale is completed, a trustee’s deed upon sale will be provided to the winning bidder. The property is then owned by the purchaser, who is entitled to immediate possession.

Phase 5: Real Estate Owned (REO)

If the property is not sold during the public auction, the lender will become the owner and will attempt to sell the property on their own, through a broker or with the assistance of a real estate owned asset manager. These properties are often referred to as “bank-owned” and the lender may remove some of the liens and other expenses in an attempt to make the property more attractive.

Phase 6: Eviction

The borrower can often stay in the home until it has sold either through a public auction or later as REO property. At this point, an eviction notice is sent demanding that any persons vacate the premises immediately. Several days may be provided to allow the occupants sufficient time to remove any personal belongings, and then typically the local sheriff will visit the property and remove the people, and any remaining belongings. Any belongings may be placed in storage and can be retrieved at a later date for a fee. Throughout the foreclosure process, many lenders will attempt to make arrangements for the borrower to get caught up on the loan and avoid foreclosure. The obvious problem is that when a borrower cannot meet one payment, it becomes increasingly difficult to catch up on multiple payments.

Foreclosure Timeline: After You Receive a Formal Notice of Foreclosure
Judicial Foreclosures

In around half of the states, the bank has to file a lawsuit in court to foreclose. This process is called a judicial foreclosure. If you live in a state where foreclosures go through the court system, you might get 30 days’ notice of the bank’s intent to file a foreclosure action in the form of a “breach letter” (if the terms of your mortgage or deed of trust require it). You will definitely get a summons and complaint telling you when a foreclosure action has been filed in the appropriate court. Once you receive notice about the lawsuit, most people have 20 to 30 days to respond to the suit. If you file a response contesting the foreclosure action, it might take a few months—or even longer—before judge rules on whether to grant the foreclosure. Even if you don’t contest the foreclosure action, the sale usually won’t take place until at least a month after the judge issues the foreclosure order. So you’ll have at least a couple of months from the first notice of the case to the date the court orders the sale to take place. You’ll probably have at least double that amount of time if you decide to oppose the foreclosure in court. If the judge orders the foreclosure sale, you’ll probably get a notice telling you when and where the sale will take place.

Non-judicial Foreclosures

In the remaining states, the foreclosing bank can opt to use an out-of-court (non-judicial) process to foreclose. With a non-judicial foreclosure, the bank has to carefully follow a series of steps described in the state statutes to complete the process. Again, depending on the terms of your loan contract, you might get a breach letter. Also, depending on which state you live in, you might get a pre-foreclosure notice stating the bank’s intent to file a foreclosure action. How much time you have from the first formal notice that foreclosure proceedings have started to the date your property will be sold and the procedures in between varies from state to state.
State law might require:
• a notice of default giving you a certain amount of time to get current on the loan by making up all the back payments and then a notice of sale (if you haven’t brought the loan current by the deadline)
• a combined notice of sale and right to cure telling you that your home will be sold on a certain date unless you make up the missed payments
• a notice of sale, or
• in a couple of states, notice through publication in a newspaper and/or posting on the property or somewhere public.
Why do people default on their mortgages?
Often, the borrower doesn’t have the money to continue making mortgage payments. This can happen for a variety of reasons, including recent unemployment, divorce or separation, or insurmountable debt such as mounting medical bills. Interest rate increases can also be the culprit. If the borrower has an adjustable-rate mortgage and interest rates rise, the monthly mortgage payment goes up, too. What was once an affordable payment can turn into an overwhelming financial burden. When that happens, the borrower may have no choice but to default. Weak housing prices also come into play. As a last-ditch effort, a borrower may try to avert foreclosure by selling his or her home. However, in a weak housing market, that can be difficult or next to impossible. And if the borrower is underwater (owes more than the house is worth) the sale proceeds may not be enough to pay off the mortgage. In many cases, a borrower who is stretched too thin can keep up the payments when the economy is good. But it’s easy to fall into default as soon as there’s an economic downturn.

What do words used in a foreclosure mean?

Understanding the legal terms used with foreclosure can help you help yourself. Some definitions are:
• DEFAULT – A mortgage or contract is in default and foreclosure proceedings can begin as soon as you are late on one payment. Depending on the language in your loan documents, the lender may have to give notice before beginning a foreclosure.
• DELINQUENT PAYMENT – A mortgage payment is delinquent when it is not made on the day that it is due or within any “grace period” allowed by the lender.
• FORBEARANCE – An agreement where the lender agrees not to foreclose if you catch up your past due payments over a period of time. These payments will loan current.
• FORECLOSURE SALE – The forced sale by which your lender sells your property to pay your loan. A foreclosure sale has a bad affect your credit rating and future loans. The foreclosure sale takes place at the county courthouse.
• DEED IN LIEU OF FORECLOSURE – To avoid foreclosure when you know you will be unable to make your payments, you may consider handing over your deed to the lender. This is also called voluntary repossession. It means you are giving your house back to the lender. This may still affect your credit rating, but you may be able to avoid the cost of the foreclosure process.
• JUDGMENT – This is an order saying you owe money to the lender. The lender is then able to get the money through a foreclosure sale. In a non-judicial foreclosure your lender is not required to obtain a judgment before holding a foreclosure sale.
• DEFICIENCY JUDGMENT – A lender may be able to obtain additional money from you to recover their losses if the house sells for less than loan and cost to recover the money.
How can I avoid foreclosure?
To avoid foreclosure, pay your monthly mortgage. The lender does not want to foreclose on your property because it takes time and money to go through the process.
What if I can’t make a house payment?
If you cannot make a payment, it is important to contact your mortgage company to agree to make payments. Be sure to get any payment plan in writing. Discuss with your lender how much you owe and how long it will take to catch up on any missed payments. Be prepared to answer
• why you fell behind on your payment,
• what your current financial resources are, and
• if you have a realistic plan for repaying the money you owe.
If you go to your lender with a good attitude and are honest, your problems will likely be easier to solve. You may also ask your lender about modifying the loan. That might reduce your monthly payments to an affordable level.
Mortgage Foreclosure
When a trust deed or mortgage goes into default, the lender has the right to declare the entire balance of the loan due and file a lawsuit to collect the debt. To foreclose on the property in this manner, the mortgage holder must file a summons and complaint and serve them on you. You must file a response to these papers in court. It is not a defense that you cannot afford the payments. Once the mortgage holder has a judgment against you, a sheriff can serve an order called a writ of execution that allows your house to be sold to satisfy what you owe on the mortgage. Once the property sells, you have six months to redeem the property. To redeem the property, you must pay the amount the property was purchased for at the foreclosure sale plus any costs incurred by the mortgage holder, plus a 6% redemption fee. If you do not redeem the property, the purchaser will get a deed after six months. You will have to move out. You do not have to pay rent during the six month redemption period. The mortgage holder is entitled to a deficiency judgment if the foreclosure sale price is less than the full amount owed. Unlike the trust deed foreclosure, the mortgage holder is entitled to judgment based on the price of the property at the foreclosure sale rather than the fair market value of the property at the time of the sale.

Notice of Foreclosure Lawyer

When you need a lawyer for a Notice Of Foreclosure, 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

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Utah Code 57-1-4

Utah Code 57-1-4

Utah Real Estate Code 57-1-4: Attempted Conveyance Of More Than Grantor Owns — Effect.

A conveyance made by an owner of an estate for life or years, purporting to convey a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer.
In legal terms, conveyance refers to transferring the title of real property from one person to another. A conveyance occurs when the owner of real estate transfers the ownership of that property to another party. This could be a home, or some other property such as commercial real estate. A conveyance can occur in full, or the owner may choose to transfer only a portion of the ownership interest.

Conveyances may occur in many different ways, including but not limited to:
• Through a sale of the land or property;
• Through transfer as a gift; or
• By inheritance, such as through succession laws.
In general, statute of frauds laws require that any type of real estate sale is to be recorded in a written contract. Thus, a conveyance of title to real estate must be in writing if it involves a sale. This is to help avoid any disputes or breaches of contract in the future, as well as to establish the legal owner of the property for other purposes, such as taxes. The owner of the property, or the “grantor,” must utilize words of conveyance in order to transfer an interest in property to the person receiving the property, or the “grantee.” Words of conveyance show the intent to transfer the title of a parcel of real property and are typically required by law, although the exact words required may vary by jurisdiction. Transfer of the actual, physical deed does not need to happen, so long as the person clearly expresses their intention to make the conveyance. The deed itself must be written, signed, dated, and should contain a description of the land being transferred. Additionally, in order for a valid conveyance to occur, there should be no title defects, such as an improperly recorded title. In general, there are four main types of real property conveyances. Variations do occur within the four main types of conveyances. However, courts will not typically recognize the transfer if the language of the conveyance does not fit within one of the four main categories.
• Fee Tail: Fee tails are intended to preserve the estate in the bloodline of the person receiving the property. Thus, only the children of a fee tail holder will benefit from the fee tail. Once the holder of a fee tail dies without leaving behind any children, both the bloodline and the fee tail end, and the property returns to the original grantor. Fee tails are a type of conveyance that transfers an interest in real property to another, but restricts any further sale or transfer of the property. Fee tails are also referred to as restraint on alienation, and are abolished in nearly every state.

• Fee Simple Absolute: A fee simple absolute is a conveyance of real property that gives absolute ownership in the property. The holder of a fee simple has both the present and future interest in the property. The duration is indefinite, and the interest is not subject to any specific conditions. At any time, the holder may sell all or part of the property, or distribute the property at their death through a will. These rights are commonly thought of as simply ownership of the real property, and is the most broad category of property interest;
• Life Estate: Life estate refers to an interest in property that is measured by the duration of someone’s life, typically the person who is to receive the property. Once the life tenant dies, the property is transferred to the person who holds future interest. A life tenant is generally entitled to all uses and profits from the property; however, the life tenant does not maintain any rights to transfer the property when they die. As such, they do not have the right to commit waste (acting in any way that would cause the property to lose value, neglecting the premises, etc); and
• Fee Simple Defeasible: A fee simple defeasible conveyance may have certain conditions or limitations placed on the transfer of property. If these conditions are violated, or are not met, the property either goes back to the original grantor, or a specified third party. There are three different types of fee simple defeasible:
 Fee Simple Determinable: The interest in the property is automatically ended when a condition is violated or unmet;
 Fee Simple Subject to Condition Subsequent: Transfer where the violation of the condition would give the original owner of the property the option to take back the property; and
 Fee Simple Subject to Executory Limitation: This conveyance confers a future property interest to a third party, not the original owner.
Conveyances of property may be disputed. Disputes over real property and the conveyance of real property occur frequently, especially when the grantor fails to provide clear and legal words of conveyance. Some examples of common conveyance disputes include:
 Attempts to convey property that the grantor does not actually, legally own;
 Will or trust disputes;
 Issues with defective or improperly recorded titles, as previously mentioned; or
 Conveyances based on fraud or deceit.
If a conveyance, or failure to convey, results in a measurable loss, legal action may be taken. Examples of remedies include damages awards and court injunction, such as an order that requires the defendant to transfer the title to the property’s buyer.

Things To Know About Conveyance Deed And Why It Is Important

In the wake of the rising number of instances of fraud and bogus selling of properties, it’s the conveyance deed or the sale deed that gives legal protection to the ownership of your property. By understanding the basics of a conveyance deed, you can guard yourself against getting duped.
 There is a little difference between the sale deed and the conveyance deed. All sale deeds are conveyance deeds but not vice-versa. Gift, mortgage, exchange and lease deeds are also types of conveyance deed.
 Governed under the Registration Act, a conveyance deed is an important document for a buyer as well as the seller because a purchase is not legally complete until it is signed by both the parties.
 A conveyance deed is made on a non-judicial stamp paper keeping the agreement to sell as the blueprint.

 The document has all the details needed to carry out for the transfer of the property title. This includes the full names of the buyer and the seller, their addresses, etc. The actual demarcation of the property in question, chain of the title of the owners, and the method of the delivery of the property are also stated.
 In the deed, the seller is also required to certify that the property is free from any legal encumbrance.
 If some loan is taken against the property, the mortgage should be cleared before proceeding, if it’s a sale deed. It’s always better to personally check with the local sub-registrar’s office.
 In case of sale deed, it would also mention the money received towards the sale transaction.
 The document would also state the exact date on which the property would be physically handed over to the new owner.
 Within a period of four months of the execution of the deed, all the original documents related to the sale of the property should be produced before the registrar for registration.
 The conveyance deed is also required to be signed by at least two witnesses with all their details included.
 After the conveyance deed is signed, it has to be registered at the local sub-registrar’s office by paying the registration fee.
Although states vary in indicators of fraud which are recognized the following factors, among others, may be used to infer fraudulent conveyance:
 An inadequate or fictitious consideration or a false recital as to consideration;
 The fact that property is transferred by a debtor in anticipation of or during a pending suit;
 Transactions which are not in the usual course or method of doing business;
 The giving of an absolute conveyance which is intended only as security;
 The failure to record the conveyance or an unusual delay in recording the payment;
 Secrecy and haste are ordinarily regarded as badges of fraud but are not in themselves conclusive of fraud;
 Insolvency or substantial indebtedness of the grantor;
 The transfer of all the Debtor’s property, especially when she is insolvent or greatly financially embarrassed;
 An excessive effort to clothe a transition with the appearance of fairness;
 The failure of parties charged with fraudulent conveyance to produce available evidence or to testify with sufficient preciseness as to the pertinent details, at least in cases where the circumstances under which the fraud, transfer took place are suspicious;
 The unexplained retention of possession of property transferred by Grantor after conveyance;
 The buyer’s employment of the seller to manage the business as before, selling the goods which were the subject of the transfer;
 The failure to examine or to take an inventory of the goods bought or the presence of looseness or incorrectness in determining the value of property;
 The reservations of a trust for the benefit of the grantor and the property conveyed;
 The existence of a blood or other close relationship between the parties to the transfer.
Conveyance Deed mean
One should first understand the meaning of ‘Deed’. It is a written document that is sealed and signed by all parties involved in property transaction (buyer and seller). It is a contractual document that includes legally valid terms, and is enforceable in a court of law. It is mandatory that a deed should be in writing. When each party agrees and all the liabilities has been fulfilled as per the agreement of sale of any property, a final document is signed by the seller in favor of the purchaser. This documents that all rights of seller over a property henceforth has been transferred to the purchaser. This is the deed of conveyance.
“Conveyance Deed records the transfer of interest in immovable property. The conveyance in the immovable property may take place by way of sale deed, gift deed, exchange deed etc,”
What is the difference between sales and Conveyance Deed?
It has also been observed that buyers are usually confused about the two terminologies sales deed and Conveyance Deed.
Sale Deed
A Sale Deed acts as the main legal document for evidencing sale and transfer of ownership of property in favors of the buyer, from the seller. Further, it also acts as the main document for further sale by the buyer as it establishes his proof of ownership of the property. The Sale Deed is executed subsequent to the execution of the sale agreement, and after compliance of various terms and conditions detailed in the sale agreement as agreed upon between the buyer and the seller. The Sale Deed is the main document by which a seller transfers his right on the property to the purchaser, who then acquires absolute ownership of the property.
“Conveyance and Sale Deed essentially have no difference as in both the documents, the right, interest and title of the previous owner is transferred to the purchaser. Conveyance Deed includes Sale Deed i.e. Sale Deed is one of the mode of conveyance i.e. transfer of interest. All deeds transferring the property-rights are Conveyance Deeds. Sale Deed is one of them,” But what is to be taken into the account that all Sale Deeds are deeds of conveyance but all Conveyance Deeds are not sale deeds. So, Conveyance Deed is a broader concept including the Sale Deed in it. On signing a Conveyance Deed, the original owner transfers all legal rights on the property to the buyer, against a certain consideration which is usually money. However, this consideration is non-significant in the case of Gift Deeds, as they are based on familial bonds.

Conveyance Deed is required to contain the following:
 Complete identification and demarcation of the boundaries of the property
 Information of all the parties who are involved, such as name, age addresses and signature of both the parties involved – buyer and seller
 Mention of any other rights (if applicable) annexed to the property and its use
 The chain of title, that is, all legal rights to the present seller
 The method of delivery of the given property to the buyer
 The sale agreement, which is the main requirement of the drafting of the valid sale deed and both the parties, must mutually settle the terms and conditions of the agreement. A sale deed always precedes agreement to sell
 The sale consideration clause, which is the memo of the consideration, stating how it has been received
 Any other terms and conditions that are applicable as far as the transfer of ownership rights are concerned
The Conveyance Deed procedure
The Conveyance (or sale) Deed is required to be executed on non-judicial stamp paper. Once that is done it needs to be registered by presenting it at the Registrar’s office, and remittance of the registration fee. After the registration is done, the transfer of the property moves into the public domain. Stamp Duty and Registration Fees is obtained by the government as revenue. When this happens, the process of Conveyance Deed is officially over. If the builder is not alive, it can be done by the legal heirs/representative of the builder. You need to draft a Conveyance Deed and apply before registration. Engage any local counsel who is dealing in these matters.
Should I Hire an Attorney for Help with Conveyance Issues?
A skilled and knowledgeable estate attorney may prove to be an invaluable asset when conveying property to another person. An experienced estate attorney will be knowledgeable about your state’s specific property laws, and will be able to assist you in drafting any necessary real estate contracts. Additionally, they will be able to represent you in court, should any disputes arise.

Real Estate Attorney

When you need real estate legal help, call the Real Estate Attorneys at 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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Utah Code 57-1-3

Utah Code 57-1-3

Utah Real Estate Code 57-1-3: Grant Of Fee Simple Presumed.

A fee simple title is presumed to be intended to pass by a conveyance of real estate, unless it appears from the conveyance that a lesser estate was intended.

A fee simple defeasible is a conveyance of property that has conditions placed on it. The holder of a fee simple defeasible possesses the property as a fee simple subject to that condition. If the condition is violated or not met, then the property will either go back to the original grantor or a specified third party.
Types of Fee Simple Defeasible
There are three types of fee simple defeasible. The first two confer future property interests in the person granting the property. The other type has the future interest going to a specified third party.
• Fee Simple Determinable: A fee simple determinable automatically ends the interest in the property when a condition is violated or not met. The person granting the property interest retains a “possibility of reverter,” meaning that if the condition is violated, the property will automatically shift back to the grantor without having to take any further action. In order to create a fee simple determinable, the words of conveyance must be durational (e.g., as long as, so long as, during, while, or until). An example of a fee simple determinable would be: A to B so long as the property is used as a school. B would have a fee simple interest in the property so long as the property is used as a school. If, however, the property is no longer used as a school, then the property will automatically go back to A.
• Fee Simple Subject To Condition Subsequent: A fee simple subject to a condition subsequent is very similar to the fee simple determinable except that the violation of the condition would give the original owner the option to take back the property. Thus, the property does not automatically shift to the original owner. Instead, upon violation of the condition, the original owner has the option to reassert a right to the property. This option is called a “right of reentry.” In order to convey a fee simple subject to condition subsequent, the words of conveyance must state that the original owner can retake the property if the condition is violated. An example of a fee simple subject to condition subsequent would be: A to B, but if the property is used for commercial purposes, then A has a right of reentry. Again, B has a fee simple interest in the property so long as the property is not used for commercial purposes. If, however, the property is used for commercial purposes, then A can retake the property.
• Fee Simple Subject To Executory Limitation: A fee simple subject to executory limitation is basically the same as a fee simple defeasible, except that it confers a future property interest in a third party, and not the original owner. In order to create a fee simple subject to executory limitation, the original owner would use either durational or conditional words that establish a condition and a third party to whom the property would go to if the condition is not met or is violated. Like a fee simple determinable, the property shifts automatically and does not require the third party to take any action. The third party interest is called a “remainder.” An example of a fee simple subject to executory limitation would be: A to B only if the property is used as a place of residence; if not used as a place of residence, then to C. Thus, B has a fee simple interest in the property. If, however, the property is used as something other than a place of residence, then the property will automatically shift to C. It is important to note that A, the grantor, no longer has an interest in the property

Understanding Fee Simple Vs Leasehold Ownership

• Fee simple ownership: Fee simple ownership is probably the form of ownership most residential real estate buyers are familiar with. Depending on where you are from, you may not know of any other way to own real estate. Fee simple is sometimes called fee simple absolute because it is the most complete form of ownership. A fee simple buyer is given title (ownership) of the property, which includes the land and any improvements to the land in perpetuity. Aside from a few exceptions, no one can legally take that real estate from an owner with fee simple title. The fee simple owner has the right to possess, use the land and dispose of the land as he wishes — sell it, give it away, trade it for other things, lease it to others, or passes it to others upon death.
• Leasehold ownership: A leasehold interest is created when a fee simple land-owner (Lessor) enters into an agreement or contract called a ground lease with a person or entity (Lessee). A Lessee gives compensation to the Lessor for the rights of use and enjoyment of the land much as one buys fee simple rights; however, the leasehold interest differs from the fee simple interest in several important respects. First, the buyer of leasehold real estate does not own the land; they only have a right to use the land for a pre-determined amount of time. Second, if leasehold real estate is transferred to a new owner, use of the land is limited to the remaining years covered by the original lease. At the end of the pre-determined period, the land reverts back to the Lessor, and is called reversion. Depending on the provisions of any surrender clause in the lease, the buildings and other improvements on the land may also revert to the lessor. Finally, the use, maintenance, and alteration of the leased premises are subject to any restrictions contained in the lease.
Important leasehold terms to know:
• Lease Term – The length of the lease period (usually 55 years or more)
• Lease Rent – The amount of rent paid to the Lessor for use of the land
• Fixed Period – The period in which the lease rent amount is fixed
• Renegotiation Date – Date after the fixed period that the lease rent is renegotiated
• Expiration Date – The date that the lease ends
• Reversion – The act of giving back the property to the Lessor
• Surrender – Terms of the reversion
• Leased Fee Interest – An amount a Lessor will accept to convey fee simple ownership
Fee simple is absolute title to land, free of any conditions, limitations, restrictions, or other claims against the title, which one can sell or pass to another by will or inheritance. A fee simple title has a virtually indefinite duration. It is also called fee simple absolute. Today, the law presumes an intention to grant an estate in fee simple unless an indication to impose conditions or limitations is clearly stated. It is most common way real estate is owned in common law countries, and is the most complete ownership interest one can have in real property. Other estates in land include the fee simple conditional, the fee simple defeasible, the fee simple determinable, the fee simple subject to a condition subsequent, the fee simple subject to an executory limitation, and the life estate.

What Is Fee Simple Ownership?

When a property deed states that the owner has fee simple ownership, he owns the property above the surface of the land and the mineral properties below the surface of the land. The mineral properties may include oil, gas, mineral rocks or coal. Many deeds do not include fee simple ownership, and thus, there may be several ownership interests connected to the mineral estate of a tract of land. Having fee simple ownership indicates the property owner owns both what’s above and under the surface of the land.
Property Deed Description
A property deed includes language that names the grantor and grantee as well as wordings that describe the grantor or seller’s intent to transfer his ownership interest in a property to the grantee or buyer. The deed also includes a description of the property, such as the address and other identifying information, the property lot and the subdivision.
Transferring the Title
With a warranty deed, the grantor warrants that the property is free and clear of liens and encumbrances and that he has the ownership rights to transfer title to the grantee. The grantee does not make any guarantees with a quit claim deed; the grantee simply receives any ownership interest the grantor has in the property. Typically, if the seller has fee simple ownership in the land, he owns the entire estate to the land. If the grantor transfers his entire ownership interest in the land, the buyer becomes the new fee simple owner. The deed may include words, such as fee simple ownership or fee simple absolute, which indicates that the grantor has absolute ownership interest in the land.
Absolute Ownership Interest
Fee simple ownership is the highest type of property ownership, whereas with a life estate ownership interest, for example, the owner only has lifetime ownership rights to the land. Fee simple owners may use and dispose of the entire land as permitted by law, and they are granted absolute ownership to the land. The property passes to the fee simple owner’s heirs upon death unless the owner has transferred title to the property during his lifetime or by way of a will.
Performing a Title Search
With many land purchase agreements, sellers are not required to disclose who owns the mineral properties connected to the property. Many property owners do not know who actually owns the mineral estate, anyway – the subsurface rights may have been stripped from the deed many generations in the past, or may never have been included with the surface deed. The Recorder’s Office in the county where the property is located is generally the best place to perform a search and discover the chain of title to a particular tract of land. Many counties maintain a record of deeds that trace back to the 1800s.

A concurrent estate describes the various ways in which property can be owned by more than one person at a given time. Three types of concurrent estates are:
• Tenancy in common: Tenancy in common is the most common type of ownership. Ownership is assumed to be a tenancy in common unless stated otherwise. A tenancy in common is a form of ownership of title to real estate by two or more persons. Although they have a unity of possession, they each have separate and distinct titles. In the event that one of the tenants in common dies, his or her title passes not to the other tenant in common, but to his or her estate or heirs.
• Joint tenancy: is a form of ownership in which the tenants own a property equally. If one dies, the other automatically inherits the entire property. This is known as the right of survivorship. Thus somebody cannot will a joint tenancy, and probate is not necessary under a joint tenancy. A person could not take a property as a joint tenant with a corporation, because a corporation cannot die. It would be taken as a tenant in common. If a joint tenant dies owing debts, the surviving joint tenants are free of the unsecured debts. Joint tenants cannot be created by law; therefore the parties who wish to be joint tenants must make it clear in the conveyance document. A joint tenant has the right to sell, mortgage, or transfer their interest without the consent of the other joint tenants. To create joint tenancy there has to be unity of time, title, interest, and possession. That is the most important thing to remember. You may want to say it again: time, title, interest, and possession. You can also remember the acronym TTIP. It is not much of a word, but it worked for me, so hopefully it will work for you too! Joint tenancy would be terminated if any one of those four unities is destroyed. Therefore a person who buys interest of a joint tenant would be a tenant in common with the other joint owners
• Community property: is property acquired by the spouses during marriage. Community property laws vary from state to state. Community property is owned by both regardless of whose name is on the title.
• Separate property is sole ownership, and is property acquired before marriage or property received by gift or inheritance. Separate property can be transferred without the non-owning spouse’s consent or signature.
• A partition is a court action to divide ownership interest if the owners cannot reach an agreement. Partitions can be used by tenants in common or joint tenants to dissolve ownership interest.

Real Estate Lawyer

When you need a lawyer who focuses on real estate law in 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

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4.9 stars – based on 67 reviews


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Utah Code 57-1-2

Utah Code 57-1-2

Utah Code 57-1-2: Words Of Inheritance Not Required To Pass Fee.

The term “heirs,” or other technical words of inheritance or succession, are not requisite to transfer a fee in real estate.

The Rights of Heirs under a Trust or Will

Sooner or later many people find that they are going to inherit money or assets from a relative or friend’s trust or estate and that is usually a bittersweet discovery. They have lost a loved one or a good friend but are also going to receive an asset, usually tax free that can make a huge difference in one’s life. It is a gift of love from someone who often was an important part of life and that gift is often a very emotional event. And then the weeks, then months pass, and the asset somehow is not transferred and seems mired in various court or tax issues that delay the actual transfer. What was a gift from a friend or loved one becomes a matter requiring complex documentation, many meetings, letters or discussions, costs for attorneys and accountants, executors, trustees and even filing fees for courts. It may seem that the executor or trustee or legal and accounting professionals are grasping what they can from this gift of love. For many heirs, frustration and often anger mounts. We hear it all the time. What began as a gift ends up as a complicated and, at times, an apparent expensive exercise of bureaucratic inefficiency. Often the heirs have goals and plans for the inheritance that are delayed or made impossible as the probate process slogs along. The executor or trustee seems disinclined to move it along with efficiency yet seems to want his or her fees promptly. Tensions rise.

Probate versus Trust Administration

Probate: This is the public legal process by which a decedent’s property is distributed to the specified heirs under court supervision. An executor (if there is a Will) or administrator (if they die without a Will) is appointed by the court and that executor/administrator has the obligation to account for all assets, pay all creditors, pay all taxes, and, with court approval, make a formal accounting and then pay the remainder to the specified heirs. If there is a Will, the Will will specify the heirs. If there is no Will, the law will specify who inherits what. The executor or administrator receives a fee for his or her services, usually specified in a schedule published by the court and is allowed extraordinary fees if particular services are required, such as commencing litigation or selling real property. The executor or administer has a fiduciary duty to the heirs and is personally liable for failure to perform. The process is a public one with documents filed with the court and available in the court records. Normally, an accounting is filed within a year and the probate is closed with the court approving the final accounting and distribution one to two years after the probate begins.

If taxes are due the probate will remain open for at least a year since there are tax advantages in that approach. Estate taxes are only due of the assets are substantial (over five million if a single person, over eleven million for a couple) but income tax returns may have to be filed for the estate. Attorneys are usually hired by the executor or administrator to handle the various legal filings and an accountant as well to help with the accounting and tax returns. The attorney’s fees are also set by court schedules with extraordinary fees available if there is litigation or complex business aspects to the estate.

Accountants are usually paid their normal hourly fees.

Trust Administration: If one has a trust, normally there is no public probate process and the terms of the trust appoints the trustee or trustees, describes their duties, describes what fees they are entitled to, and provides for distribution of assets either outright or in trust both during the life of the creator of the Trust (the “Settlor”) and after the death of the Settlor. Trust administration is often faster than probate, but taxes still must be paid, and attorneys and accountants are usually retained by the trustee. Trustees have fiduciary duties to the beneficiaries of the trust and while there is no probate filed, the court is available to enforce the terms of the trust.

Basic Rights of Heirs

An heir is commonly thought of as someone who receives money or property from a person who has died. In legal terms, heirs are the next of kin and are the people who would normally benefit if the person died without leaving a will (died “intestate.”) The succession of intestate heirs is based on direct descendants, such as children or grandchildren. Other relatives, such as sisters and brothers, or aunts, uncles, nieces, nephews, and cousins, are called collateral heirs. If there is a written will, it specifies who will inherit and it often is not the people that would normally inherit intestate. A trust has “beneficiaries” rather than heirs, but they are treated the same as heirs in a will with their rights and inheritance being spelled out in the trust instrument. A person who receives property or a share of an estate under a will or trust has certain rights as soon as the will is probated, or the Settlor dies. Probate is designed to protect the rights of will beneficiaries. A trust beneficiary has the right to receive the share entitled in a timely manner and to receive written notice of the all substantive trust proceedings. A wise executor or trustee will provide ongoing reports to heirs and beneficiaries and, if the estate will take years to settle, will ask the court to allow preliminary distributions to the heirs. The fiduciary should promptly answer questions from the heirs as to status and the assets in the estate. Once the probate process has completed payment to creditors and taxes due as well as the accounting, distributions to heirs should promptly follow. While the trust document normally describes the process required of the trustee, the beneficiaries are also entitled to information as to assets, state of administration, and prompt payment of sums due them under the trusts.

Accounting

A beneficiary may ask the executor for an account of what actions the executor has performed for the estate. Any such report should be in writing, and the executor or trustee should be expected to provide supporting papers, such as receipts or canceled checks for payments, proof of asset transfers and statements from any estate bank accounts. The supporting papers must conform to the information the executor or trustee provides.

Executor or Trustee Compensation Approval

Beneficiaries have the right to object to the level of compensation an executor or trustee requests for services but assuming those requests are within the guidelines set by the court or trust instrument, such objections are unlikely to be approved by the court. Note that many executors do not wish to be paid since often it is a relative who acts as executor and they may waive compensation either due to family connections or because such compensation is taxable, and they may rather just inherit their share. In trusts, the compensation is normally set in the terms of the trust but if the terms are generic “reasonable” or “appropriate,” then the court is available to review and, again, conforming to the court schedule is usually required.

Fairness to Beneficiaries and Heirs

The will or trust beneficiaries are entitled to an executor or trustee who performs duties fully and honestly and without favoritism. An executor must not act in a way that harms the estate or favors one beneficiary over another, behave in a dishonest or illegal manner or fail to abide by the legal obligations. An heir may petition the court if he or she believes the executor or trustee has failed to perform duties properly but note that the burden of proof is on the petitioner. Courts give executors and trustees discretion as to many decisions and will not normally replace business judgment of the executor or trustee with the court’s own. But self-dealing or using trust resources for improper purposes is something courts will not allow. Remedies can be extreme, including personal liability of the fiduciary, removal of the fiduciary, etc.

Relief Available

Heirs can seek relief from the court via use of a petition during the pendency of the estate, or later, a complaint for breach of fiduciary duty if the wrongdoing is discovered after the estate is closed. Such a process can be expensive and prior to filing a petition or suit, careful analysis of the potential causes of action should be conducted by competent legal counsel in the venue of the estate. A trustee is subject to court review if a beneficiary claims wrongdoing and that can occur during the time of the trust or thereafter, subject to the statute of limitations. Each heir is owed a fiduciary duty by the executor or trustee. Each heir is owed an accounting and information as to actions occurring in the estate or trust and each heir is owed prompt distribution of his or her inheritance. But the heir must act to protect his or her interest and that may mean filing a petition in a court of law seeking relief.

Inheritance Law and Your Rights

Inheritance law governs the rights of a decedent’s survivors to inherit property. Depending on the type of inheritance law your state has, a surviving spouse may be able to claim an inheritance despite what you may have written into your will. This statutory right of a surviving spouse hinges on whether a state follows the community property or common law approach to spousal inheritance. Children, and sometimes grandchildren, also have a right to claim an inheritance when a parent or grandparent dies.

Inheritance Law in Community Property States

Community property is generally property acquired by either spouse during the marriage. This includes income received from work, property bought during the marriage with income from employment, and separate property that a spouse gives to the community. A spouse retains a separate interest in property acquired through the following methods:
• Inheritance or a gift
• Acquisition of the property prior to the marriage
• An agreement between the spouses to keep the property separate from the marriage community.

In a community property state, each spouse owns a one-half interest of the marital property. Spouses have the right to dispose of their share of the community property in whatever way desired. A deceased spouse, for instance, can elect to give his or her half of the community property to someone other than the surviving spouse. Spouses cannot give away the other spouse’s share of the community property, however. A provision in a prenuptial agreement may also change a spouse’s right to distribute the property. A spouse has the sole right to dispose of their separate property. A deceased spouse can distribute both their separate property and their share of the community property in a will.

Inheritance Law in Common Law States

Unlike a surviving spouse in a community property state, a spouse is not entitled to a one-half interest in all property acquired during the marriage. In a common law state, both spouses do not necessarily own the property acquired during marriage. Ownership is determined by the name on the title or by ascertaining which spouses’ income purchased the property if a title is irrelevant. If, for example, only one spouse takes the title to a property, the spouse with the name on the deed owns the house even if the other spouse actually paid for it. A surviving spouse in a common law state has protection from complete disinheritance, however. Every common law state has different guidelines, but most common law states’ inheritance law allows the surviving spouse to claim one-third of the deceased spouse’s property. A deceased spouse can choose to leave less than a state’s mandated inheritance right, but the surviving spouse may make a claim with the court to inherit the predetermined amount. The will is carried out according to the decedent’s wishes if the surviving spouse agreed in writing to accept less than the statutory amount or the surviving spouse never goes to court to claim the legal share.

Inheritance Rights of a Spouse after Divorce

Once a divorce becomes final, many states automatically revoke gifts made in the will to the ex-spouse. In other states, a divorce has no effect on gifts to the ex-spouse. It is best to create a new will after a divorce becomes final to prevent an unintentional gift to a former spouse.

Inheritance Rights of Children

Unlike a spouse, a child generally has no legally protected right to inherit a deceased parent’s property. The law does protect children when an unintentional omission in a will occurs, however. The law presumes that such omissions are accidental — especially when the birth of the child occurred after the creation of the will. Depending on whether a spouse survives the decedent, the omitted child may inherit some portion of the deceased parent’s estate. If the omission was intentional, though, the will should expressly state this.

Rights and Liabilities of Heirs

No one is an heir to a living person. Before the death of the ancestor, an expectant heir or distributee has no vested interest but only a mere expectancy or possibility of inheritance. Such an individual cannot on the basis of his or her prospective right maintain an action during the life of the ancestor to cancel a transfer of property made by the ancestor.

Gifts and Conveyances in Fraud of Heirs

A person ordinarily has the right to dispose of his or her property as he or she sees fit, so that heirs and distributees cannot attack transfers or distributions made during the decedent’s lifetime as being without consideration or in fraud of their rights. For example, a parent during his or her life can distribute property among his or her children any way he or she wants with or without reason, and those adversely affected have no standing to challenge the distribution. One spouse can deprive the other of rights of inheritance given by statute through absolute transfers of property during his or her life. In some jurisdictions, however, transfers made by a spouse for the mere purpose of depriving the other of a distributive share are invalid. Whether a transfer made by a spouse was real or made merely to deprive the other spouse of the statutory share is determined by whether the person actually surrenders complete ownership and possession of the property. For example, a husband’s transfer of all his property to a trustee is void and illusory as to the rights of his surviving wife if he reserves to himself the income of the property for life, the power to revoke and modify the trust, and a significant amount of control over the management of the trust. There is no intent to part with ownership of his property until his death. Such a trust is a device created to deprive the wife of her distributive share. Advancements or gifts to children, including children by a former marriage, which are reasonable in relation to the amount of property owned and are made in Good Faith without any intent to defraud a spouse, afford that spouse no grounds of complaint. Good faith is shown where the other spouse knew of the advancements. If a spouse gives all or most of his or her property to the children without the other spouse’s knowledge, a rebuttable presumption of fraud arises that might be explained by the children.

Debts of Intestate Estate

Heirs and distributees generally receive property of their ancestor subject to his or her debts. The obligation of an heir or distributee to pay an ancestor’s debt is based upon his or her possession of the ancestor’s property. All property of an intestate ordinarily can be applied to pay his or her debts, but, generally, the personal property must be exhausted first before realty can be used.

Rights and Remedies of Creditors, Heirs, and Distributees

The interest of an heir or distributee in the estate of an ancestor can be taken by his or her creditors for the payment of debts, depending upon the applicable law. Advancements received by an heir or distributee must be deducted first from his or her share before the rights of creditors of the heir or distributee can be enforced against the share.

Utah Real Estate Lawyer

When you need a real estate lawyer in 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

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What Are Short Sales In Real Estate?

What Are Short Sales In Real Estate?

A short sale occurs when a home is sold but the amount of the sale is not enough to cover what is owed on the seller’s mortgage loan, as well as closing costs, taxes and the commission owed to the real estate agent. In a short sale, the seller is not willing to make up the difference. Oftentimes, a short sale is happening because the owners are behind on their mortgage payments and are heading down the trail to foreclosure. Other reasons for a short sale could be because the home was bought at the peak of the market and has decreased in value, the homeowners used a large amount of their home equity toward a refinance, the owners are being relocated or they are getting a divorce.

If you are interested in purchasing a short sale, you will need to ask the seller how much is still owed on their debt. Then you can figure out the additional costs associated with the short sale. Many lenders will have their own forms to help calculate these costs. The lender and the title company will have exact figures that will be due at closing. You will also be able to find out if there are any other inspections that should be completed. When a seller decides that a short sale might be the best option, he or she will need to get the lender’s approval. Included in the approval request submission is the borrower’s W-2 forms from any employers, or if he or she is unemployed, a letter outlining the unemployment. It will also include bank statements, two years of tax returns and any other financial documents that show the amount of income and debt obligations. It is also a good idea to include a “hardship letter,” which explains the reasons why you are not able to pay the full amount of the loan. What kind of impact does a short sale have on credit reports? It is not unheard of for the lender to ask the seller to sign a promissory note. It can be for all or part of the difference between the short sale amount and the amount still owed on the debt. Overall, short sales show as negative activity on credit reports and can therefore lower credit scores tremendously. When looking to purchase a short sale property, it is important that you understand exactly what you are getting into and know that the process is a long one. Have your real estate agent walk you through each step of the short sale process.

How a Short Sale Works

In a real world, short-sale scenario, a home seller puts his or her property on the market, while formally designating the home for-sale as a potential “short sale/subject lender” deal to any potential buyers. Once a buyer agrees to make a short sale offer, the homeowner contacts his or her bank, and completes an application asking for short sale status on the home. There is no guarantee the bank will green light the application, but a short sale does eliminate many hassles associated with the mortgage loan, such as closing the books on the homeowner loan, and the bank or lender gets a portion of their loan repaid. Home sellers involved in short sales can expect to file several firms and documents to their mortgage lender. Those include a hardship letter stating why you can’t fully repay your mortgage loan, along with the filing of records like pay stubs and tax returns that back your case as being unable to repay the home loan. The bank will then review your application, send out an appraiser to estimate the full value of the property against the short sale offer, and then either approve or reject the short sale request.

Benefits of a Short Sale to a Home Seller

If the property seller is presented with a short sale opportunity, it’s a good idea to thoroughly vet all the options on the table, and calculate the risks and opportunities and look at other relative personal financial options, before making a decision. Nobody is saying a short sale is a perfect solution to a home seller who has suffered a financial setback and owns a home with where the mortgage exceeds the property’s value – but it might be the best option.

Benefits of a short sale

Credit score advantages
A short sale is highly preferable from a personal credit score point of view, especially when weighed against any potential home foreclosure. Credit scoring firms take a dim view of a foreclosure, and will issue a credit score much lower than when a home seller turns to a short sale instead. That not only protects the seller’s score, it keeps them “in the game” and better able to buy another home down the road, without the burden of a significant foreclosure-induced credit score decline.

Emotional advantages

In many instances, a home mortgage is the biggest financial event of a person’s life at least before retirement. The seller avoids a “worst case scenario” of foreclosure and can honestly say they sold their home and moved on with their life.
Saving on home sale fees
With a traditional home sale, the seller bears the burden of fees and charges, including real estate agent commissions, which can be 3%-to-6% of the total home sale. In a short sale, those fees and commission are paid by the bank.
Negatives of Short Sales to a Home Seller
Short sales can create issues for sellers such as:
• No cash-out: A short sale means they won’t earn any profit from the sale of the house the bank or mortgage lender gets all the sales proceeds.
• Dependence on the lender: Home sellers also need a green light from their lender on a short sale they can’t make that decision on their own.
• Less cash for a future home purchase: Since the seller earns no profit on a home short sale, they won’t be able to steer home sale assets toward the purchase of a new home. Instead, they’ll be starting from scratch.
Benefits of a Short Sale to a Home Buyer
Home buyers can take good advantage of a short sale, as well, with several advantages:
• Reduced price: Primarily, the big benefit is the increased odds of getting the home for a reduced price, knowing that the house is in short sale mode, and that the owners, and likely even the bank or lender in many cases, will want to sell the home and get out from under the home loan. As any real estate agent will say, a motivated seller is a seller who wants to cut a deal, so a low-ball offer has a better chance of being accepted in a short sale than in a traditional home sale negotiation.
• Less competition: Many home buyers, especially first-time buyers not used to the complexities of the process, may not want to get involved with a short sale. That opens up the field for home buyers with more patience for a short sale, and who’ll face less competition for the home.
Negatives of Short Sales to a Home Buyer
Short sales can have negative repercussions for buyers such as:
• A longer home-purchase timetable: For buyers, the paperwork process is significantly longer in a short sale (usually up to 120 days) than in a traditional home sale (usually up to 45 days) and that may be a deal-breaker for home buyers.

• Lender interference: Lenders may also get directly involved in the home price negotiations, often asking for a higher sales price than the home seller (including the insistence that the buyer make all or most of the closing fees), in order to recoup more money on the home loan.
• The property may be in disrepair: It’s also highly advisable for a short sale buyer to work with a real estate agent well-experienced in the short sale process. It’s also strongly advised that a short sale buyer hire a home inspection professional to thoroughly examine the property, as short sellers may not have the financial resources to keep up with home maintenance and repairs.
Disadvantages of Buying a Short Sale
Buying a short sale can be a great opportunity to get a property at a reduced price, but it can also have its disadvantages. Purchasing a short sale is a more complicated process than a typical home sale, so there are some unique risks involved when investing in this type of investment property.
Long Process
Short sales may not be the best choice for those wanting or needing to purchase a property quickly. Getting a short sale approved can be a long process. They can be completed in as little as a month or could take up to a year to be finalized. Many factors can influence this time table including a lender’s experience dealing with short sales, whether the seller has already been approved for a short sale and the number of lenders involved.

Subject to the Mortgage Lender’s Approval

In a typical property sale, the only one who has to approve the sale is the person who owns the property. In a short sale, this is not the case. The current owner is not the only one who must accept the offer. Since the owner is trying to get their mortgage lender to accept less than they are owed for the property, the lender must approve the sale. Lenders are not necessarily too eager to take a loss on their loan. This process is further complicated if there are multiple liens on the property, meaning you would have to get multiple lenders to agree to the short sale.
Lender Could Counter, Reject or Not Respond
Even if a seller has already been approved by their lender for a short sale, there is no guarantee that the lender will accept your offer. They may believe your offer is too low. If this is the case, the lender may counter your offer, flat out reject your offer or they may not even respond to it. This is a significant and real risk considering you could have already been waiting months to even get to this point. Even if the lender does counter, there is no guarantee that the price is a price you would be willing to pay based on your perceived value of the property. In addition, if there are multiple liens on the property, you will have to get the acceptance of all the lien holders. The first lien holder may accept the offer, but the second or third lien holder may reject it, so there will be more hurdles to getting the short sale approved.
Opportunity Cost
Short sales present another risk because the lengthy short sale process could cause you to miss out on other potential purchases. With all your time and resources tied up in short sale negotiations for months, you could miss out on an even better investment opportunity.

Property ‘As Is’

Sellers attempting to negotiate a short sale are usually experiencing some sort of financial hardship. Therefore, they may not have the money to do upkeep on their property. This inability to keep up with maintenance may be obvious, or it may lie deeper in structural, electrical or plumbing issues. When you buy a short sale, you are usually buying the property ‘as is.’ The bank is already losing money on the property, so they will not usually make concessions for these maintenance issues. It is therefore extremely important to get a home inspection so you can uncover any major issues the property may have.

Is the Seller Approved?

Just because someone advertises a property as a short sale does not mean they have been approved for one. They may think they qualify for a short sale, but unless they are actually approved by the bank or mortgage lender, this classification means nothing. Before getting involved in a short sale, you should always verify that the seller has been approved by their lender for one. If they have not, you could be wasting your time or could become involved in a process that will draw on for months or even a year.
Lenders Prefer All Cash or Large Down Payments
Another risk of a short sale is losing out on the property to an all-cash buyer or a buyer who is able to put down a large down payment. When agreeing to a short sale, banks and other lenders prefer to deal with these types of buyers. They see them as less risky than a buyer who needs to get a large mortgage in order to purchase the property.

Pros and Cons of Buying a Short Sale

Any buyer considering participating in a short sale should be aware of these issues:
 Short sales can take a long time.: The term “short sale” is a bit misleading. The bank or lender holding the mortgage must approve the offer, instead of just the seller. The property can end up in escrow for months and months. In the meantime, a better property could come on the market and the hopeful buyer is tied up in red tape on the short sale. For that reason, it pays to have an experienced real estate agent on board.
 They are sold as-is.: Unlike a traditional home purchase, the buyer of a short sale is unable to negotiate on price in exchange for needed improvements, repairs, or updates.
 Make sure the lower price is really worth it: Many buyers are willing to ignore these points because they feel getting a home for a much lower price makes it worth it. However, they will need to factor in the local market conditions, such as inventory, home prices, appreciation rates and how fast homes are selling, aka “DOM” or days on market.
 The good deal factor can be influenced by the market conditions: When properties are being sold well above the list prices and market value, those looking for short sale opportunities could end up on top. If short sale homes can only be purchased for prices in line with the current market value, then it may be better to focus on traditional listings.
 Less competition: A definite plus with short sale listings is that there is not nearly as much competition. Because so many prospective buyers are also first timers, they tend to shy away from anything that’s not a standard transaction.
 Don’t overlook needed repairs: Anyone thinking about a short sale should be aware that all too often; the disgruntled former homeowners have taken their frustrations out on the home. There have been numerous horror stories about sabotaged appliances and hidden damages left by angry parties. Another concern is that because of the owner’s financial problems, these types of homes are often in sad states of disrepair. Are you handy or have the extra funds to make things right?
 Home inspections are a must: Banks are not required to reveal disclosure information like a seller in a traditional property sale would have to do. This includes legal and insurance information. Even though short sellers must complete a disclosure form, as already mentioned, they may not be up to speed on routine maintenance. It may not always be obvious that something costly to replace, such as a roof or furnace, is on its last legs. That’s why in a short sale, a home inspection should always be done. Anxious buyers should never skip this step even if they are experienced with the ins and outs of home ownership. A home inspection can reveal a lot of hidden problems such as, mold, mildew, termites, or electrical issues.
 Research the community, get neighbors’ opinions if possible: It might be a good idea to chat with a few of the neighbors in order to cover all the bases towards finding out what type of situation you are getting into. They may have some extra insight or knowledge of the home’s condition, the neighborhood’s best/worst features, and so on.

Free Initial Consultation with Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews


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Difference Between Real And Personal Property

Difference Between Real And Personal Property

There are two types of property. In legal terms, all property will be classified as either personal property or real property. This distinction between types of property comes from English common law, but our modern laws continue to distinguish between the two.

Each type of property is treated differently under the law. There are many different types of laws that specifically pertain to personal property, and many other types of laws that pertain specifically to real property.
Personal property is movable property. It’s anything that can be subject to ownership, except land. Real property is immovable property – it’s land and anything attached to the land.

Normally, a piece of property can be easily classified as either personal property or real property. The difference between the two is usually fairly straightforward. However, sometimes it’s a little harder to categorize property.

Let’s say that I buy lumber and other building supplies, such as a saw, a hammer, and some nails. These supplies are personal property. They’re moveable and they belong to me.

Next, I use these items to build a shed on my land. Is this shed personal property? No. The shed is real property because it’s attached to, and now part of, my land. Any leftover building supplies are still personal property, like my saw and hammer. But anything that’s actually part of the shed is now real property.

Personal Property

Let’s take a closer look at why this is. Let’s look at the types of items that are classified as personal property.

Personal property includes possessions, of really any kind, as long as those possessions are movable and owned by someone. Personal property isn’t affixed to or associated with land. These moveable items are sometimes known as chattels. The law regarding chattels includes those laws covering possession, gifts, lost property, abandoned property, and stolen property.
Having understood what real property is, what then is personal property? Well, think of it as any movable property. Personal property, unlike real property, is not fixed or associated with land. Therefore, if real property is described as land and any property attached to land, then personal property is everything else apart from that.

Personal property, therefore, includes belongings of any kind, as long as they are movable and are owned by someone. Personal property is usually viewed as assets and can be used in defining the net worth of a person. Some examples of personal property include bank accounts, insurance policies, furniture and fixtures in the homes, stocks, vehicles, boats, collectibles, antiques, books and pensions. Adding on the example about farm structures above, farm animals would be personal and not real property. They can be moved from one place or farm to another.
It is important to note that personal property is further divided chattel and intangible property.

It’s helpful to note that personal property includes both tangible and intangible items. A tangible item is an item that can be felt or touched. For a business, tangible personal property includes items the business owns such as:
• Office furniture
• Business equipment
• Business vehicles
• Business goods
An intangible item is simply an item that can’t be felt or touched. For a business, intangible personal property includes items the business owns such as:
• Stocks
• Bonds
• Intellectual property
• Money

Personal property: Chattels

The term chattel sometimes refers to all kinds of personal property, but often it refers only to tangible personal property (such as nose flutes and toenail clippers) as opposed to intangible property.

A chattel, such as a furnace, can be affixed to land and become part of the real property. Such chattels are called fixtures.

However, fixtures may retain their quality as separate personal property for certain purposes. For example, at the end of a lease term, the tenant generally has the right to remove fixtures she installed even though she doesn’t have any more right to the real property when the lease ends.
About personal property, the term chattel refers to all kinds of tangible personal properties. Tangible personal property is a property that can be touched or felt. A furnace is a fixture that you can feel and touch. At the end of a lease period, a tenant usually has the right to remove fixtures that he/she installed even when there is no more right to the real property.

Another example let us say that a person buys lumber and other building supplies including a hammer, saw, and some nails. These materials are personal property. They are chattels since they are tangible and are moveable. In a business setting, chattels or tangible personal property can include business equipment, office furniture, business vehicles, business goods and more.

Extending this example, let us also say that this same person uses these tangible items to construct a shed on their land. Can we say that the shed personal property? No. The shed is real property. Because it is attached to and is now part this person’s land. Well, what about the building materials saw, hammer and leftover nails? Those are tangible personal property – they are movable, unlike the shed.

Personal property: Intangibles

Intangibles are all kinds of personal property that aren’t tangible, that can’t be seen or touched. So, you can say this kind of property doesn’t involve a “thing” at all; it involves only a legal right. The mere existence of such a category of property is a reminder that, in the law, property most accurately refers to legal rights, not to things.
A person can own all sorts of intangible “things,” including the following:
• Bank accounts
• Franchises and licenses
• Insurance policies
• Intellectual property such as patents, copyrights, and trademarks
• Stocks, bonds, promissory notes, and similar documents that aren’t themselves valuable but merely represent intangible rights; currency is sometimes treated as an intangible
• Intangibles personal property is the opposite of tangible property – cannot be seen or touched. It only involves a legal right. The fact that such kind of property exists is a reminder that, as far as the law is concerned, property mostly refers to legal rights and not physical things.
• Intangible properties include bank accounts, insurance policies, franchises and licenses, intellectual property such as copyrights, patents, and trademarks. Bonds, stocks, promissory notes, and other similar documents merely represent intangible rights. Money is also treated as an intangible

Property rights: Things that can’t be owned

Some things can’t be owned at all and therefore can’t be private property. Some of these things, such as light, air, and the high seas, can’t be owned because they naturally seem communal. Other things, such as rivers and coastal waters, can’t be owned because they belong to the public. And some things can’t be owned because they’re illegal, like heroin.

Real property: Land and buildings

Real property describes land and things that are attached to the land, which is why land is sometimes called real estate or realty. Even though wood, steel, and other building materials aren’t land themselves, when they’re built into structures attached to the land, they become real property, too.

Trees and other plants naturally growing on the land are also part of the real property. But plants that require regular human cultivation and labor, such as grains and vegetables, sometimes aren’t treated as part of the real property.

Real property is immovable property. It describes land and things, such as buildings, that are attached to that land, which is the reason why land is sometimes called real estate. Although steel, wood and other building materials are not land in themselves, when constructed into structures attached to land, they become real property. Trees, as well as other plants that are naturally growing on the land in question, are also part of the real property. However, plants requiring consistent human labor such as vegetables and grains are not treated as part of the real property.
Therefore, when someone remarks real property, what they are talking about is land, a home, building, as well as mineral interests. All the materials used to construct any structure that is attached to a piece of land are also considered real property like mentioned above. Hence, the critical thing to remember is that real property is land and anything else attached to that land. Real property is referred to like real estate and is also fixed property – meaning it cannot be moved. For instance, farm structures in a farm are real property because they are attached to the land.

Differences between Personal and Real Property

Now that we have understood the two types of properties, the next thing is to outline the differences between them. Although in trying to explain the meanings of the two types of property many differences have come up, we are going to outline those differences below. How many have you picked from the discussion above? Here are the major differences between personal and real property.

1. Real property is immovable and is permanently attached to the land including a house, walls, blinds, windows, fixtures, doors, and more. On the other hand, personal property can be moved or taken from a home or business including furniture, artwork, light fixtures and more. It is not affixed in any way.
2. Real property is mostly tangible while personal property is both tangible and intangible
3. Real property is long lasting and durable while personal property is not necessarily durable
4. Personal property is easy to understand – If a piece of property is not real property, then it is personal property.
5. In legal considerations, both real and personal property follow different legal procedures.
6. Real property cannot be hidden, but personal property can be hidden

Real Property Lawyer

Real property is not only what is on your land, but it also consists of what is below and above it. If you have oil in your backyard, by all means you have the right to dig and acquire that oil.
On the other hand, if your neighbor has that oil, you cannot dig through your yard downward, and then sideways towards the neighbors. With solar heating and cooler units, airspace becomes more demanding because of the sun needed to shine down on the property in order for the heating/cooling to take place.

Personal property deals primarily with movable things, even if they weigh a ton, as long as they are not attached to the land. You might ask yourself, what’s the purpose behind these two classifications? Well, the classifications enable the law to draw a line between the two.
For example, if you are purchasing a house with a swing and slide set in the backyard, if the swing set is not bolted, the seller of the land has all rights to take it with him or her, unless it was highlighted within the contract of sale. If the swing set was bolted, the only way the seller could take that with him or her is if it has been stated on the contract, if not, then the swing set is staying on that land since it is permanently attached.
Looking at the above example comes to display the advantages of being able to decipher between real and personal property. Same thing goes for a shed, regardless of its price, if it is portable and has wheels, it’ll be labeled as personal property, but if it is bolted or cemented, it is clearly labeled real property.
When it comes to purchasing land, some people tend to concentrate more on what is beneath the land, why? Because the minerals below the ground, whether oil, gas or even coal may be worth more than the property itself. With these kinds of minerals below your house, you are the sole owner. That means you can sell or contract those minerals to companies who have a known interest within those minerals.
All in all, Real property can never be taken from you without your permission, unless done so by a governmental agency. A governmental agency can use your property without asking, instead they’ll tell you, this occurs only when the land may be used for the benefit of the state or federal government.

Property can be categorized as real or personal.

Real property comprises of anything that is attached permanently to land such a home, a garage, shed or even a rose flower. Conversely, if it were movable, then it would be personal property. A rose bush is a real property unless if it is pulled out of its garden, which would make it personal property. That said anything that is movable represents personal property, while the immovable is real property.
Additionally, real property not only includes things that are permanent on your land but also includes whatever that is above or below it. If you have oil in your land, it is real property. You can dig up your land to extract and acquire the oil. Even if it weighs tones, personal property mostly deals with movable things, long as they are not attached to the land.
These rankings enable smooth legal procedures. For instance, if you are looking to buy a home with a swing and slide set in the backyard, the seller of the house has every right to take it if it was not bolted permanently unless it is indicated in the contract as part of the house.
In addition, when buying land, many people have a habit of concentrating more on what is beneath the land. Because the land could be having minerals such as oil, gas, coal or any other below the ground and such minerals could make the land worth more than the property itself. In such a situation, the selling price and the buying prices of that land must change and will be affected. Even the legal policies such as contract agreements will also change.

Real Estate Lawyer

When you need legal help with real property law or personal property law, 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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