DEAR BENNY: We live in a condo and during a recent heavy rainstorm one of the windows leaked with water rushing in around the frame. The water damaged our wood floor in front of the window. I contacted the association’s management company and was told either to repair the window or replace it.
Another resident in the building — who happens to be on the board of directors — has a similar leak. He told me that was not right and that he would speak with the management company.
Who is right in this matter? We want to get this window fixed so it does not happen again. –Judith
DEAR JUDITH: Your neighbor who is on the board of directors should have the association’s attorney provide you with a legal opinion.
The legal documents of your association — declaration and bylaws — should provide the answer to your questions. I suspect, however, that it will be the association’s responsibility to repair all of the damage.
The master insurance policy carrier should be notified of the problem, although nowadays associations are reluctant to file such claims for fear that the carrier will either increase the yearly premium or cancel the policy.
As for replacing the windows, once again you should review your declaration. Sometimes windows are part of the common elements, which means the association is responsible. Other times, the windows are part of the unit, which means that you would have to pay to replace them.
DEAR BENNY: Can two people who purchase a house together but are not spouses each claim the $250,000 capital gains tax exemption? Do we have to reinvest the sales proceeds within two years? –Allison
DEAR ALLISON: Yes to the first question and no to the second.
So long as the two people own and have used the house as their principal residence for two out of the five years before it is sold and they file individual income tax returns, each can exclude up to $250,000 of any gain that is made.
And there aren’t any restrictions on how the sales proceeds are to be used.
You made a good profit, so enjoy the money.
DEAR BENNY: I have friends who purchased their house 11 months prior to their marriage in 2002. Only the husband’s name is on the deed and mortgage. The wife works full time and pays other bills. There are no children and will be no future children. They have no will. The closest living relatives to the husband are his mother and sister. Because they bought their house 11 months prior marrying and the wife’s name is not on any deeds, wills, etc., will the wife automatically inherit the house when the husband dies or inherit half if they divorce? –Kathy
DEAR KATHY: You should strongly suggest that your friends (1) both prepare a last will and testament and (2) consider putting the wife on title to the house.
Should the couple divorce, unless they can reach an amicable settlement, the divorce laws in their state will control whether the wife will be entitled to any portion of the house.
Since the husband has no will, on his death — because he is the only one on title — his estate will have to be probated. The laws of intestacy in your state will control the distribution of his estate, including the house.
Depending on your state law, the wife may be able to claim a percentage of that estate.
However, although you cannot control what your friends do, I strongly suggest that you advise them to get their "house in order."
DEAR BENNY: I am in the early stages of buying my first home (condo) and have already put down a refundable deposit with the developer. Friends and family say that I should get a real estate agent before committing to the purchase. I have another friend that says because I already found my home, I should get a good loan officer and real estate attorney instead. I’m not sure how to proceed mainly because I’m not sure what a real estate agent does other than find a home. In your opinion, which option will benefit me the most: a real estate agent, loan officer or real estate attorney? –Nicole
DEAR NICOLE: Most real estate agents do a good job helping potential buyers to find a home, but in your case, you have already signed a contract. So I don’t think you need an agent at this time.
You definitely need to find a loan officer since you will be financing the house. However, mortgages (also called deeds of trust) are complex, and can be quite confusing, especially for the first-time home buyer. You have to shop and compare, and understand such terms as amortization, points, interest rates and loan-to-value. Accordingly, I suggest that you retain legal counsel as soon as possible.
After you get a loan commitment, you will go to settlement (called escrow in some states). This can be a daunting process, and many buyers — even experienced ones — are often intimidated when they get all of the legal papers that have to be signed. Here, the attorney you have retained will be able to assist you.
DEAR BENNY: My husband and I recently bought a 6-year-old vacation cabin up in the mountains in snow country. Our real estate agent arranged for a house inspection. The inspector’s report says very clearly that the water pipes are copper. Once we took possession, we went under the house and learned that they are PVC pipe (something that was definitely not in code at the time the house was built). PVC is easily broken in freezing weather. Once the pipes go up into the house, they are copper. We hired a plumber to look at them. He did not think that a plumber had put the pipe in — that it was a home-made job — and he said that it definitely would not have passed any building inspection.
Does the inspector have any liability in this case? If we had been informed of this, we definitely would not have bought the house unless the sellers agreed to replace them. The locksmith who came to change locks the day we took ownership pointed out the PVC pipes to us, so it wasn’t something that should have been difficult for the home inspector to see.
We wished that we had crawled around under the house earlier, but we thought that is what we were paying the inspector $300 to do.
What should we do? The plumber told us it will be about $2,000 to replace the pipes. Should we just bite the bullet and pay the money — and never rely on a home inspector again? –Caroline
DEAR CAROLINE: Most home inspectors are competent, but once in a while you run across problems such as yours.
You should immediately contact the home inspector and have him come back to the house. Many inspectors have insurance coverage, and may prefer to pay you something rather than be sued.
Look at the inspection report. It probably contains language that if the inspector makes mistakes, his liability is limited to the amount you paid him — i.e. $300. This is known as an "exculpation clause," which the courts throughout the country have upheld. However, in recent years, some courts have suggested that if you can prove negligence, the inspector may be liable to pay for the repairs.
What about your seller? Does your state require that seller’s disclose any defects when a potential buyer is interested in the house? If so, you may also have a claim against the seller.
The amount of your claim is relatively small. You could sue the inspector (and possibly the seller) in the small claims court in the county where your house is located. Although you do not need a lawyer, it still is advisable to talk with counsel to learn how the court process works.
But litigation is time-consuming and always uncertain. My suggestion: If you cannot get any relief after you talk with the inspector (and the seller) you should, as you stated, bite the bullet.
DEAR BENNY: Would you clarify the exact wording needed on a deed for joint survivor (meaning when one person dies, the other receives title through the presentation of a death certificate). I want to be sure our house is titled properly. Originally I wanted to put our title in a revocable trust; however, there was a case where the insurance company would not pay for damages, because the house was in trust. Another case challenged the homeowner’s Homestead exemption. Please help clarify the legalities of the way a title is worded. –Barbara
DEAR BARBARA: Are you married? If so, you should consider taking title as (or changing it to) "tenancy by the entireties." This is reserved for married couples, and provides the best protection for both of you.
If there is a lawsuit and someone gets a judgment against one of you, the property cannot be sold to satisfy that judgment.
If one of you dies, the survivor automatically will own the property. This is referred to a transfer "by operation of law." Probate will not be necessary. All you need to do is present the death certificate to the local recorder of deeds, pay any appropriate fees, and title will be resolved.
If you want to keep title in the name of a joint tenancy, then the deed should read: "X and Y hold title as joint tenants with rights of survivorship." Some states do not require the last four words, but to be on the safe side, add that to your deed.
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.
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