DEAR BENNY: My stepfather bought a piece of property many years ago, and he and my mother have been using a road that goes through a big field to exit their property for the last 15 years. My stepfather’s first wife got a right-of-way, but it was never filed in the courthouse. Now my mother and stepfather need to sell the property (which is landlocked without this right-of-way) and the neighbors won’t agree. My parents live on Social Security and barely have money to buy food and pay insurance costs. I want to help them out but don’t know what would be the easiest, least expensive way to get a right-of-way recorded legally so they can sell their property and move closer to town, as they are also quite ill. The neighbors have been difficult as they want the property for way less than it is worth and don’t want to pay what my parents could possibly sell it for. –Evelyn
DEAR EVELYN: I do not practice law in your state so I can provide you only general information.
I can think of two possible remedies. First, if you actually have a legal document entitled "right of way" and it complies with the recording requirements of your state, I would take that document to the recorder of deeds in the county where the property is located and try to record it.
If that does not work, I would talk with a local attorney about adverse possession and easements by necessity.
These are legal doctrines that may be of assistance. Adverse possession means that your parents (and their predecessors) have used the right-of-way for a period of time (prescribed by your state law) "openly and hostile." If you can prove such usage, a court will grant the right of way.
An easement by necessity means that because your parent’s property is landlocked, they must have access to the road. Again, state law differs. Some states require strict necessity, while others require reasonable necessity. However, in order to obtain this kind of easement, your parents would have to prove that both properties were originally joined together legally with one owner, who then created the two property lots.
This requires legal assistance. If you cannot afford to retain local counsel, I suggest that your parents contact the local AARP office for assistance.
DEAR BENNY: One of our family members has a very good job. We are close to this person and his family, and consider him to be very dependable. He would like to buy a home and from our point of view, 2009 should be a very good year to do so. We would like to help him by fronting the money for a down payment. We got such a loan twice from a Realtor; he called it a holdback. We know that money can cause families to breakup and would like to know exactly what kind of contract is needed to be responsible to ourselves and him in this matter. –Terrance
DEAR TERRANCE: You are absolutely correct. The old adage "money is the root of all evil" is especially true when families are involved.
You have to decide whether the money you lend will be secured or unsecured. To secure the loan, the borrowers will have to sign a promissory note and a deed of trust (the mortgage document), and that trust deed must be recorded in the land records where the property in located. Because the prime lender wants security, its mortgage will be first and yours will be a second deed of trust.
If there is no deed of trust, your money is unsecured — and there is a greater risk that you may never get it back.
However, the family member must confirm with his lender that he will allow another trust on the property. I do not know what kind of transaction you entered into with your real estate agents, and I hope there was full disclosure to your lenders. Otherwise, the "holdback" could be considered what is known as a "silent second," which is illegal. Many private lenders have gone to jail in the past because they lent money to a homebuyer in order to assist in the purchase, but did not advise the prime lender of this fact.
From your facts, it appears that your family member is in a different state than where you live. I suggest you contact a local attorney in the state where the property will be located, and have that lawyer assist you in the preparation of all paperwork — including the promissory note and the trust deed (assuming that’s the route you want to take).
DEAR BENNY: We have relatives who live in an adjoining state. They have two houses and want to give us one of them. All they require is that we take care of all the paperwork to put the house in our name. What do we need to do in order to get this done? The house is paid for and there are no liens. –M.H.
DEAR M.H.: Run — don’t walk — to a financial tax advisor to discuss this before you take any action. While it sounds attractive to get a house free and clear, there are potential serious tax implications.
There’s a basic rule to remember: The tax basis of the person giving a gift becomes the tax basis of the receiver of the gift. Let’s take this example: Your relative bought the house back in 1980 for $20,000 and now it is worth $200,000. The house is transferred to you. For tax purposes, your basis is $20,000. Should you sell it today, you will have made $180,000 (excluding sales commissions and other selling costs that decrease your profit), and will have to pay the IRS $27,000. You may also have to pay a capital gains tax to the state where the property is located.
If you decide to move into the house and live there for at least two out of the five years before it is sold, you can exclude up to $250,000 of this profit (or up to $500,000 if you are married and file a joint tax return).
So, never look that gift horse in the mouth; it may bite you.
If after you research the matter you still want to accept the gift, you will need to prepare a deed to the property in the form required by your state law. The deed will then be recorded among the land records in that state.
But, please do not rely on statements that the house is lien-free. I strongly suggest that you arrange to have a title search to make absolutely sure there are no outstanding mortgages, taxes or other liens on the property,
DEAR BENNY: Our condominium association requires that all owners provide management with a key to access our home. They indicate that it is for emergencies, and I believe this is appropriate under our state law. However, we find them accessing our home when we are not here and there is no emergency. Our neighbors tell us about doors being left open or electricity being turned on for appliances. We are told that they access our home to check on things like the sprinkler system, or our local power company will request access to check the electricity. We don’t have a big problem with all this although we don’t like finding our front door left open and unlocked. The association never informs us when they will enter or why.
Are there any laws that require the association to provide timely notice, including the purpose of their entry? –Jim
DEAR JIM: The problem of providing keys to management is a thorny issue in community associations. Homeowners want privacy and security, while associations need access in the event of emergencies.
You should read your association legal documents, including any rules and regulations, to determine what rights management and your board of directors have regarding keys. I suspect that there is a provision in those documents which requires all owners to provide a key to the property, but I also suspect that there is a provision indicating that such access can only be obtained in emergency situations, or after proper advance notice.
I would also inquire of management as to how they secure the keys and who has access to them. I have been involved in situations where the board president consistently took keys just to look inside other units for curiosity purposes. When we threatened to file suit, she stopped the practice.
I would also advise management and your board of directors that should you discover that your front door has been left open — or that your lights have not been turned off — you will take all appropriate legal action. It is one thing to have access, but there is an obligation on the part of the key holder to act responsibly.
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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