DEAR BENNY: My elderly parents (dad is 90, mom is 86) had been living in Florida for the past 20 years, but due to bad health, I moved them to California. Do they need to change their wills or do the provisions still apply “as is”? I have power of attorney but would like to leave things as they are, if possible. –Beverly
DEAR BEVERLY: Wills should be updated periodically, even if you live in the same state. But since your parents have moved to California — where the laws may be quite different — I believe it is best that your parents contact a local attorney and have them sign new wills.
In my opinion, everyone over the age of majority should have at least four legal documents: a last will and testament, a durable power of attorney, a power of attorney for health, and a living will (also known as an advanced health care directive). Some people also have a separate power of attorney for financial matters.
Different states have different procedural rules to make sure that a will is valid. For example, in some states, three witnesses are required; in others, only two witnesses need to be present at the will signing. In some states, the witnesses and the personal representative must be residents of state in which the will is signed; in other states, there are no such requirements.
Accordingly, I strongly suggest that you arrange for your parents to meet with a California attorney who can update their legal documents consistent with your local laws.
I also want to point out that while I appreciate your concerns for your parents, it is ultimately their decision — in their sole discretion — as to what they will include in their will.
DEAR BENNY: There is no signed deed on my mother’s home that she has called home for more than 47 years. We hired a lawyer and he hired a private detective to try to learn the facts. My parents bought the house back in the l960’s. We have had absolute no luck resolving this matter. We have all of the papers when they bought the house, as well as the documents proving that she paid off her mortgage.
However, we cannot find the deed. How can a signed deed fall through the cracks. My mother is almost 90 years old. –Jeffrey
DEAR JEFFREY: Your situation is unusual, but not uncommon. Until the advent of computers, many legal documents were often misfiled or lost. Now, many recorder of deeds have computerized all of the legal documents, making retrieval very simple — even from your home personal computer.
Many people believe that when they sell their house, they have to produce the original deed. That is absolutely untrue. So long as the land records in the jurisdiction where the house is located shows that your mother owns the property, that is all you need.
When a person buys a house, the title to that property is searched. Since most buyers do not pay “all cash” but obtain mortgage loans, the lender will insist on getting title insurance coverage. And the settlement attorney (or escrow company) that conducts the settlement will have to assure the lender that title is good and that there are no objections to title (we lawyers call these “clouds”).
And even if you pay all cash, you still want to be assured that you are getting good title, and will want to purchase title insurance. The title company will not issue such a policy unless they are completely satisfied that good and clear title is in the seller’s name.
But if you really want to track down a copy of the original deed, the first thing you should do is obtain a comprehensive title report, and go back as far as possible. You should hire a professional title examiner; don’t do this yourself.
However, if the title report raises problems, there are other avenues to explore.
You said that the house is free and clear and that you have documents showing that your mother paid off her mortgage. Try to get a copy of that old mortgage (called a Deed of Trust in some states). I cannot believe that any legitimate lender would have made a loan to your parents unless they were absolutely satisfied that your parents owned the house.
If all else fails, your mother may have to go to court. She would file what is known as an Action to Quiet Title. Your attorney will be able to give you guidance on this process.
And if for any reason someone else is claiming title to the property, she can also add a count to the lawsuit claiming adverse possession. In most states, if a person “openly, notoriously and hostily” uses someone else’s property for a period of time prescribed by State law, a Judge will issue an Order directing that title is now vested in the Plaintiff. For example, in the State of Maryland, the adverse possession time is 20 years, while in the District of Columbia it is only 15 years.
But the bottom line, you do not need a copy of the original deed in order for your mother to sell her house.
DEAR BENNY: I bought a condo at a foreclosure auction and there were many contract pages. On one of these pages, it says that I had received the condo association legal documents. In fact, I never did. After the auction and when I finally read the contract, I asked the title company to give me those legal documents.
They claim they do not have them, but that I will get them at closing. My intention is to rent out the unit. But right now, the whole building is vacant. I am not even sure that there is a condo association. Can I legally back out of the deal? –David
DEAR DAVID: Your first mistake was to sign documents without reading them. But depending on your state law, and if it really is a condominium, you may be entitled to review the condo documents (it is called a resale package) and cancel the contract within a certain period of time. However, the party foreclosing on the property may not be legally obligated to give you the resale package.
The title company should be able to tell you if it is really a condominium. It either is or it is not. And the fact that no sales have taken place yet (or however the units became vacant) does not mean that it is still not a condo. A condominium is created when the documents are recorded among the land records, and that is why the title company should know its status.
If it is a condominium, you are entitled to receive a complete copy of the legal documents (which generally consist of the Declaration and the Bylaws. There may be restrictions on rentals which will impact on you.
Finally, I suggest that you immediately retain an attorney who understands and practices real estate law. He/she may be able to find a loophole whereby you maybe able to get your money back. Otherwise, I am afraid that you either have to go to settlement or forfeit your deposit.
DEAR BENNY: I just purchased a house in New Jersey. After moving in, I discovered an additional room of the basement that contains an abandoned well. The well was not disclosed and was missed by my home inspector. Can I get the seller to pay for to remove it? The quote I got was for $5,000. –Ernie
DEAR ERNIE: I cannot believe that both you and your home inspector just did not discover that additional room in the basement of your new home. I suspect that if you decide to file suit, that your seller will raise as a defense “contributory negligence”.
I do not know what kind of disclosures are required in New Jersey. You would have to review any disclosure statement which your seller gave you to determine if in fact he was legally obligated to disclose the abandoned well, or if he lied about its existence.
Do you really need to take out the well? Can it just be filled in (or covered) so that you can avoid having to pay a lot of money for its removal?
Have you asked your inspector about this? I do know that New Jersey has good law regarding the negligence of home inspectors. Usually, these inspectors have exculpatory clauses in their contracts. This means that should the inspector be found negligent, the homeowner’s only remedy is to get back the moneys that was paid to the inspector.
However, I recently read a very interesting Court case from New Jersey where the Court held that such clauses will be held unconscionable in home inspection contracts if the cap on liability (i.e. what you paid the inspector) is not sufficient to provide a realistic incentive to act diligently. In your case, if you only paid the inspector $300, a court might consider this too low and may hold the inspector liable for negligence.
Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@sandbox.inman.com.
