DEAR BENNY: In 1995, I bought my house, which had many problems between the former owner and the city. He built the garage for the house without any permit or city codes. The former owner lost the house and before I bought the house I had a meeting with the city staff and I agreed to buy and rebuild it according to the city codes.
When I bought the house, the city told me in the meeting they will let me keep the garage as is without a permit. But just last month the city staff came in and asked me to demolish the garage because it does not have a permit and it’s not built according to the city code. I think they are new staff and are trying to make money for the city; I want to know if they can do that after 12 years, and if I have any rights to fight it. I’m a single woman and I just had a fire in my home, and I’m having a hard time fixing the house after the fire. –Linda.
DEAR LINDA: If it is any consolation, you are unfortunately not alone. Many people have received promises and commitments from government officials (at all levels) only to have those promises revoked by subsequent administrations.
Do you have anything in writing from the city officials who told you that you did not need a permit? Do you know their names? Did you have any witnesses to those conversations?
I suggest that you hire a real estate attorney who has experience with zoning and permit issues, and arrange for a meeting with the current officials. Your attorney should review the law in your jurisdiction to determine if there is any kind of statute of limitations that would bar the city from coming after you after all these years.
There is also a legal concept called "estoppel" and "waiver." A strong argument can be made that by letting so many years go by; the city is prohibited (estopped) from going after you now.
Finally, you might want to apply for a permit retroactively. It may cost you some money to make any necessary repairs, but that may not be as costly as losing your garage.
Final question: Did you comply with your agreement to fix up the house so as to comply with code? That would be evidence that you had the meeting and will show your good faith.
DEAR BENNY: The board president of our condominium association has turned into a dictator. She has ordered the accountant with our management firm to send delinquency reports only to her, and when challenged instructed him to report only numbers — no names and no addresses. Obviously board members cannot do their job of monitoring our financial situation with only a partial report.
I am on the board and have two questions. (1) Does the board president have the legal authority to withhold routine reports from the entire board of directors? Is this an issue that requires a vote of the board or is it a no-brainer?
(2) I have requested an opinion from our legal counsel, but she has not responded. Does she have a legitimate reason not to answer a board member’s question since she works for the board rather than for the president? I suspect the president has instructed counsel to ignore the question, but is that legal? Is it ethical? –Morris
DEAR MORRIS: If you are a member of your association’s board of directors, you have the absolute right to receive the same information — the same documentation — that the president is receiving. It is, as you suggest, a "no-brainer."
You were elected to the board by the members of your association, and you have a fiduciary duty to those members to act in the best interests of the association. Clearly, if you are not getting all of the information, you cannot perform your functions properly.
Do any of the other board members share your concerns — or are they intimidated by the president? Typically, in a condominium association, the unit owners elect the board members and the board elects its own officers. If you can muster support from a majority of the board, you can remove her as president. You cannot, however, remove her from the board, since that usually takes a majority (or super-majority) vote of the owners.
On the other hand, if you do not have board support, you may want to consider mounting a recall campaign with the owners. Circulate a letter outlining your concerns to all unit owners, and invite them over to your apartment to discuss the situation. Read your bylaws to determine how a board member can be recalled and proceed accordingly.
As for the attorney responding to you, once again, you are a board member and have the absolute right to ask her questions. She must be reminded that she represents the association, and not just the president.
But if all fails, you have only three alternatives: (1) stay on the board and keep fighting; (2) resign under protest from the board; and (3) sell your unit and move out.
DEAR BENNY: Can I purchase a share of my mom’s house? She wants to retain some ownership. She owes $80K on the house. Can she add my name to the deed? I would then refinance so we’d be responsible for the mortgage. Or we could both be on the mortgage. We’d own the property jointly with joint rights of survivorship. I would be making the mortgage payments. We would both have the right to live there. –C.
DEAR C.: That sounds like a good idea, so long as you can afford to get the mortgage loan. You have to determine a fair purchase price to pay your mother, and make absolutely sure that she will not have to pay any capital gains tax. Assuming that she has owned and lived in the house for at least two years before she sells you a portion of the property, she should not have to pay any tax if her gain is less than $250,000 (or $500, 000 if she is married and files a joint tax return.
Here’s a suggestion: When you apply for the mortgage loan, tell the lender that at settlement, your mother will sell you a percentage of the house. Find out what the lender will require from both you and your mother by way of documentation.
If you will be making the mortgage payments, you might want to consider taking a greater percentage in the house, so that your tax deductions will be larger.
DEAR BENNY: We recently purchased a home for $214,000 with a $20,000 down payment and a 30-year fixed mortgage of $193,410. We want to sell the property to our son and his wife via a land contract for this same amount. They are unable to get financing for this amount from a commercial lender. The monthly payment we pay on the home consists of $1,303 principal and interest (at 7.125 percent), $227.94 taxes, and $62.25 hazard insurance, for a total of $1,593.23. This would be their payment to us. We’re not looking for a profit.
My wife and I are divided on how to create the needed contract. I feel since so much of a land contract is boilerplate, I can get a suitable legal contract from the Internet for a nominal fee. My wife feels that we have to hire a local attorney to develop the contract to protect our and our son’s interests so there will be no surprises in the future. I feel that the lawyer will just use a boilerplate form to give us the same service we get online and charge us a fee that’s 10 times what we would pay online. –Jim
DEAR JIM: Some people think that asking a lawyer if you should retain legal counsel is an oxymoron. But, yes, I do believe that someone needs legal counsel.
Your wife wants an attorney to protect your interests as well as that of your son’s. That lawyer would have a conflict of interest; he/she cannot represent both parties.
I do not know the laws in your state. But in Maryland where I practice law, the law requires that all land sales contracts must be recorded among the land records within a short period of time after the contract has been signed. In the District of Columbia, for example, there is no such requirement.
You want complete protection. You want to make sure that your lender will not give you a hard time. Even though this is your son, what happens should he not be able to make the mortgage payments? What happens should he get sick or decide to move out?
You need a written agreement between you and your son, spelling out as many contingencies as possible.
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@inman.com.
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