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Troubling Real Estate Questions

January 26th, 2009 by Temple City Tribune

It is important that I constantly make readers aware that I am not an attorney, and cannot answer legal questions. I do research questions that may require assistance from an attorney, but since I do not always have the complete information it is important that you may wish to confirm my answers with your personal attorney.

Q) We have been living in our home for nearly 20 years, and our adjoining neighbors have been there just as long. We participated fifty-percent in the cost of enclosing our yards with a brick type wall. Our neighbor planted a tree next to the wall and over the years the tree roots began to force the wall to be pushed in. Our neighbor cut down the tree and then said that they want us to pay half of the cost to repair the wall. Are we required to do so?

A) This question of damage caused by trees does come up more often than one would think. I hope you have pictures of the tree, if not, then take photos of the tree stump if one remains. The responsibility of repairing the wall is your neighbors. After so many years as neighbors, it would first be best to have a conversation with them and explain that the tree that they planted caused the damage. After having that conversation, it wouldn’t hurt for you to put it in writing, keeping a copy for yourself. Should they claim otherwise, your next step would be to take them to small claims court.
Over the years I have received other complaints about leaves of a neighbor’s leaves falling into a neighbor’s pool. Complaints about tree limbs brushing against a roof causing damage, and then there are cases where a tree falls on the next-door neighbors property. Proper maintenance and open conversation with the neighbor with the tree could prevent a lot of unhappiness.

Q) Our home is in Canada, and while in California we saw a condominium that we felt would make a great vacation home for our entire family. My wife returned to Canada, but before doing so said that I should make an offer. Would there be any complications doing so without my wife being present?

A) No, but understand that there are many forms that need to be signed and notarized by the US Embassy in Canada, and you may have to be present with her when doing so. If you need to obtain a loan, that too should be no problem, but again it may take a little longer to complete all of the paperwork, and may require a larger down payment (normally 25 to 30 percent). It would be best to set up a bank account with the lender that is providing the loan so that arrangements for payment of taxes, homeowners association dues, etc. If you decide to take title under your name only, then your wife would have to sign a document agreeing to that manner of taking title. A lot to know, and a good lender with experience in making loans to those living outside of the US is extremely important.

Q) We are considering purchasing a bank owned property, but the agent says that we must be pre-qualified by a lender specified by the owner of the property. We absolutely do not want to use this lender. Can we be forced to proceed with this lender?

A) You may be required to be pre-approved by the lender, but you don’t have to use that lender for your loan. The bank wants the property sold and by being approved by their own organization, they may be able to offer you some special services, like no appraisal fee or closing costs. Those conditions can also be negotiated with the lender of your choice. Frankly, I would prefer that banks do away with this practice as it only delays things, yet they still set time lines for escrow to close, and delays could be caused by them.

Q) We had a fixed loan for the first 5 years and it then adjusted to a much higher rate. We never realized that the new payments would be beyond our ability to pay. Our bother-in-law suggested that we due a short sale, he would buy it, and we could then still live in the property. It sounds like a great idea, but wonder if we would be responsible for paying the bank the shortage?

A) You must have a great brother-in-law that is willing to help you, but what he is suggesting is illegal and could be considered as fraud. If your real estate agent is aware of what he is willing to do for you, the agent could be considered as a willing participant in the transaction and can lose his license, be fined and possibly look at some jail time. Your loan is insured and what you would be doing is mortgage fraud. A new law went in effect on September 8, 2008 that requires a lender to contact a property owner 30-days prior to proceeding with a foreclosure notice.

The plan is for the lender to attempt to work out some program for the property owner to keep the property. It is a very strict law that the lender is participating in, so it might be a better idea, for you, to contact your lender now and not to wait for the property to go into foreclosure. If you would like a copy of this law, simply drop me a note and it will be mailed to you.

Louis Perlin CRS, GRI is a Syndicated Writer and author. Lou is also a Professional Real Estate Witness and Mediator. Lou is available for book signings and real estate office meetings and can be reached at Marilyn Perlin Realtors, Inc. (760) 327-8401 or by e-mail: mprltr@aol.com

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