Posts Tagged ‘real estate’

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The attorneys at Widerman Malek, PL are experienced in the areas of Insurance Defense/Subrogation and the rules, regulations and statutes that govern causes of actions in these areas, specifically claims of negligence and breach of contract. We can help your company recover monies paid out for genuine claims and defend you against claims of negligence and breach of contract

You are a Florida Insurance company who provides policyholders with financial protection against certain types of loss, including automobile accidents, property damage to residential or commercial properties and certain types of personal injuries. You pay out millions of dollars each year on these types of claims, even though you or your insured is not at fault.

Under Florida law, there are instances wherein you can recover what you have paid out to your insured’s from the actual individual or individuals who caused the damage or the personal injury in the first place. Or, if your insured has filed a claim for damage to a residential or commercial property and that damage is not covered under the policy, you will need to be protected from public adjusters and Plaintiff’s firms whose only interest is to collect their fees.

We practice in both state court, federal court, and courts of appeal. Our clients know that they can contact us at any time and depend on us to be there to answer their legal questions, prosecute claims for them or defend actions against them.

WM Attorneys Who Practice Insurance Law

1. What questions should I ask when looking at homes?
2. What is a purchase offer?
3. What is a title examination?
4. What is title insurance and why do I need it?
5. What good is title insurance?
6. Why is a deed required?
7. What is the difference between a General Warranty Deed, Special (Limited) Warranty Deed, and Quit Claim Deed?
8. How should my name appear on the deed?
9. What is a survey and why should I pay for one?
10. What is an easement?
11. If I have an easement over someone else’s property why do I need it?
12. If someone else has a properly recorded easement over my property, what are my obligations and rights with respect to that easement?
13. What is an escrow agent?

 

 

 

 


1. What questions should I ask when looking at homes?

Many of your questions should focus on potential problems and maintenance issues. Does anything need to be replaced? What things require ongoing maintenance (e.g., paint, roof, HVAC, appliances, carpet)? Also ask about the house and neighborhood, focusing on quality of life issues. Be sure the seller’s or real estate agent’s answers are clear and complete. Ask questions until you understand all of the information they’ve given. Making a list of questions ahead of time will help you organize your thoughts and arrange all of the information you receive. The HUD Home Scorecard can help you develop your question list.

2. What is a purchase offer?

A purchase offer or agreement contains all the details of the offer to purchase a piece of property. An agreement is binding only once the document has been agreed to and signed by the buyer and seller. Often in the purchase of real estate, there are a number of offers and counter offers until an agreement is reached.

Items and conditions that are often included in the purchase offer include:

  • Description, legal and common, of the property.
  • Purchase price.
  • Earnest money.
  • Features and fixtures which are to remain.
  • Home inspection results.
  • Anticipated financing.
  • Closing date.
  • Final inspection and move-in condition.
  • Penalties for breaking the offer.
  • Response time to accept the offer.
  • Obtaining clear title to the property.
  • Clean inspection report.

3. What is a title examination?

A title examination is a study of the records related to the ownership history of a piece of property and sometimes of other matters related to ownership interests in the property. An abstract of title is a collection of public records relating to the ownership of a parcel of real estate. During the examination, the applicable title information is examined to determine who owns the lands, whether there are any defects in or claims against the ownership and whether any action is needed to make sure the purchaser obtains good record title to the property at closing.

4. What is title insurance and why do I need it?

A title insurance policy, simply put, insures the status of title in the name of the owner of the policy. Title insurance policies are issued by title insurance companies. The title company contracts with the insured person named in the policy to protect the title as insured against financial loss, as well as the cost of defending the title in court. The title company searches and examines documents related to the ownership of and items affecting the property. It provides a source of indemnification to the named insured if he or she is damaged by a negligent or bad title search or examination and also from hidden defects that would not be discovered in a title search. For instance, a title defect resulting from a forgery would not be revealed in a search or examination of the public records but would be covered by the title insurance policy.

5. What good is title insurance?

A title search and the issuance of title insurance means the ownership of the property can be cleanly conveyed to the new owners. During the search, the history of the property is researched verifying that all previous claims or liens have been satisfied, allowing a clear title to be issued. If any claim is overlooked, the title insurance protects the owner from the claim.

6. Why is a deed required?

A deed transfers ownership of property from one owner to the next. Deeds are recorded in the county where the property is owned. There are three types of deeds:

  • Full covenant and warranty deed – which guarantees no other person owns or has claims against the property.
  • Bargain and sale deed – used in some states but does not guarantee that the property is free and clear of any claims.
  • Quit claim deed – transfers interest in a piece of property from one owner to the next. A quit claim deed provides no guarantee from other interests or claims.

7. What is the difference between a General Warranty Deed, Special (Limited) Warranty Deed, and Quit Claim Deed?

Title will generally be transferred by a general warranty deed. A general warranty deed guarantees the grantor’s good title before and after the conveyance and contains covenants concerning the quality of title. The usual guarantees or warranties by the seller are: good title, freedom from encumbrance other than as specifically identified, and right of possession to the buyer as against all others. The warranty includes any claims arising prior to the grantor’s ownership.

A special warranty deed (sometimes referred to as a limited warranty deed) provides less extensive warranties than the grantee receives from a general warranty deed. Under a special warranty deed, the grantor warrants only against claims arising during the period in which the grantor held title, while under a general warranty deed the grantor warrants against all claims whenever arising, even if prior to the date the grantor himself or herself took title.

A quit-claim deed contains no warranties of any kind and conveys only the interest, if any, held by the grantor (for example, if the grantee actually had no interest to convey, the quitclaim deed would not vest any ownership in the grantee). The quit-claim deed does not convey after-acquired title and is not typically used for residential real estate transactions, except to correct errors.

8. How should my name appear on the deed?

Make sure you carefully identify all parties taking title, and how title is to be held. The following are examples of common manners in which title is held:

Sole Owner. Under this approach, title is taken in the name of only one individual grantee and is freely transferable or subject to encumbrance by that grantee.

Joint Ownership with Right of Survivorship. Title can be taken in multiple names under this approach. Any joint tenant can freely transfer his or her fractional interest in the property during his or her lifetime, and any such transfer will terminate the joint tenancy to the extent of the interest transferred. A joint tenant cannot transfer his or her interest by will since a joint/survivorship interest passes by law automatically to the surviving joint tenants on a joint tenant’s death. A joint tenant can only encumber his or her proportionate interest in the property. Also, note that equal ownership shares is presumed unless the deed states otherwise (for example, if there are two grantees, each grantee will own a one-half interest).

A joint tenancy is created and exists only if four essential characteristics exist: (1) unity of joint ownership and control; (2) the interests held must be the same; (3) the interests must originate in the same instrument; and (4) the interests must commence at the same time. If all or any of these characteristics do not exist, the owners will own the property as tenants in common.

Tenants by the Entireties. Title can be taken as tenants by the entireties only by a validly married husband and wife. If a transfer of this type is attempted but the grantees are not validly married, or if they become divorced, the title reverts to tenants in common. Neither tenant can transfer his or her interest to a third party or encumber the property without both parties joining in the deed or mortgage. Upon death of one party, the property automatically becomes the sole property of the survivor. This is a common form of ownership among married couples, except in community property states.

Tenants in Common. Estates held as tenants in common are freely transferable or subject to encumbrance (as to the transferring tenant’s own interest) by each tenant. There is no right of survivorship in the surviving tenants upon one tenant’s death. Also, note that equal percentage ownership is presumed unless the deed specifically states otherwise (for example, unless the deed states otherwise, if there are three grantees, each grantee will own a one-third interest). It is always best to state each co-owner’s percentage ownership interest in the deed to avoid any uncertainty or misunderstandings.

9. What is a survey and why should I pay for one?

A survey is a drawing of the property which should show any improvements to the property (such as buildings, driveways and the like), the boundary lines of the property, and any encroachments affecting the property (whether items encroaching on the property by third parties or encroachments by the property against a neighboring property). The surveyor may certify to many things, such as : (i) the improvements are all located within the boundary lines; (ii) which flood zone in which the property is located; (iii) whether the structures are in compliance with applicable laws; or (iv) whether the property has access to a public right or way. Encroachments on the property may include: (i) utilities (such as water, cable, electricity, and telephone lines); (ii) another party’s right to enter upon your property (such as a common drive way that the property may share with a neighboring property); or (iii) structures not being conveyed with the purchase of the property that are on the property and should not be (such as the fence of a neighboring property).

If you are financing any portion of the purchase of the property, your lender will most likely require that a survey be obtained prior to closing. In some instances, if the current owner of the property has a recent survey of the property the lender will accept such survey (or perhaps a current recertification of the prior survey) and new survey costs may be avoided or at least minimized.

10. What is an easement?

An easement is an interest in land owned by another person, such as the right to use or control the other person’s land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road or to share a common drive with a neighboring property). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever, but it usually does not give the holder the right to exclusively possess, take from, improve, or sell the land. Some common easements may include: (i) a right-of-way; (ii) a right of entry; (iii) a right to the support of land and buildings; (iv) a right of light and air; or (v) a right to water. The owner of the servient estate is normally free to use his/her property as he/she chooses, provided that use does not impair the rights of the holder of the dominant estate.

11. If I have an easement over someone else’s property why do I need it?

You may have an easement over someone else’s property for several reasons. One of the most common reasons may be for access to a public right of way for a property which otherwise might be landlocked. Check your survey or ask your title company if you are unsure what any identified easement is for. Also, make sure that every easement benefiting your property over someone else’s property is reflected on Exhibit A to Schedule A of your title insurance policy. One of the items insured by an owner’s policy of title insurance is legal access to the insured property.

12. If someone else has a properly recorded easement over my property, what are my obligations and rights with respect to that easement?

Your obligations to the party benefiting from the easement over the property you are purchasing depend on the written agreement creating the easement.

If the survey of the property reflects a path labeled “easement” but no document is of record creating the easement you will want to inquire as to where the surveyor obtained the information about this easement. If the unrecorded easement is shown on the survey the title company will likely list this unrecorded easement on your title policy as an exception to coverage, which means that if someone was to claim the right to use this easement your title insurance would not pay to resolve this issue.

13. What is an escrow agent?

An escrow agent is typically a third party designated to hold an item (usually funds, but sometimes certain documents, such as a deed and/or mortgages) for a certain time or until the occurrence of a condition, at which time the escrow agent is to hand over the item to another party. Typically the escrow agent will be your title company, and the funds and documents that they are holding include any deposits you made under the contract to purchase the property, as well as the deed and their mortgage instruments.


 

 

Click a link below to view one of our other FAQ category’s:

LITIGATION FAQ

PATENTS FAQ

TRADEMARKS FAQ

COPYRIGHTS FAQ

CORPORATE & BUSINESS LAW FAQ

ESTATE PLANNING & PROBATE FAQ

REAL ESTATE & LAND USE FAQ

 

 

The answer to that question is “yes”. However it is a lot more complicated than moving in and staying there.

With the massive number of houses in foreclosure, many of them are sitting empty for long periods. There have been cases where people have gone into these homes and stayed in them for a few months and when the bank comes to kick them out, they claim to ve “in adverse possession” of the home.

In other words, they claim to be the owner because they set up residency there and nobody told them to get out, so now they own the place. Unfortunately it is not quite that simple.

Adverse possession laws state that the squatter must live there uninterrupted for seven years. In addition, he must be living there either without the owner’s permission and it be so obvious that the owner should have known he was there. So hiding out there is not good enough.

Also, the use must be in adverse to the owner’s use and be so that the owner can take an action to stop it, such as an eviction or trespass warrant.

So basically, you would have to move in, get the utilities switched into your name, pay the property taxes and stay there in plain sight of all the neighbors for seven consecutive years to even have a good case.

Even if you are able to meet all those requirements, if there is any doubt as to the squatter’s claim that the owner knew he was there and did nothing, the court must award the property to the owner. The “burden of proof” in this case is on the squatter.

The food news is, if you do meet all those requirements, the police are powerless to evict you. But id you just show up, change the locks on the door and move in without paying taxes and switching the utilities over, you are basically a trespasser and could face criminal charges.

So if you see an abandoned house, do yourself a favor and talk to an attorney before you move into the home.

 

 

 

We’ve all heard the horror stories from friends who are now unable to make their mortgage payments. Some have tried to negotiate with their lenders. Some have dealt with banks that were not willing to do much to help them out. Others had better luck with their banks. But, just like we said before when discussing foreclosures, these banks took bailout money that was taken out of yours and my paychecks. So do whatever you can and don’t feel guilty about it.

Many people feel like trying to renegotiate the loan is like reneging on their promise. So what? Do it anyway? Would you have made that promise then if you knew what you know now about Fannie Mae and Freddie Mac and the damage it would cause? The bank doesn’t want your house. They have plenty of them already. What they would really like is for you to keep it and pay for it. So you do have some leverage there.

When filing for a modification, be diligent. Document everything. Call the bank and bug them often. You will likely get excuses. You will get the run around. Don’t let that bother you. Filing for a modification and bugging the back about it can be a great way of stalling the foreclosure. I have heard cases where people have lived in their homes for two or three years without making a payment while in negotiations with the banks. These people are backed up. Use that to your advantage.

Get a good attorney who deals in foreclosures and knows what to do for you. Many times a good lawyer can get you into mediation with the bank and get something worked out. If not, at least he can stall while you stay in your home as long as you can. This is kind of like baseball. As long as you are still in your home, you are still at bat. And as long as you still have at bats, you still have a chance. A good will know what to do if the bank fails to mediate in good faith. Many times the bank will not show up or claim you did not fill out the papers and get them in on time, etc. This is where your attorney will earn his money. Many times attorneys can get the judges to sanction banks and put you in a better negotiating position.

Remember, doing nothing is the worst thing you can do. If it looks like you don’t care enough to do something to stay in your home, the judge will take it from you and give it back to the bank. You don’t really have anything to lose. The worst that can happen is you lose your home, which you will anyway if you do nothing. If you have any questions, feel free to contact us.

 

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The attorneys at Widerman Malek, PL assist clients with a wide range of real estate services. We review and prepare real estate and construction contracts, issue title insurance as an agent for Fidelity National Title Insurance Company, act as an escrow agent and conduct real estate closings, litigate and defend real estate litigation claims, represent homeowners’ and condominium associations, and represent property owners in a wide variety of real estate, land use, zoning, building, permitting, use, and compliance matters.