DEAR BOB: I purchased a new home to be completed next April or May. The price and terms are locked in. But my plans have changed and I will be moving away from the area. When I asked the developer about assigning my purchase contract to a friend who wants to take over, the developer pointed to a clause that says the home cannot be sold within 12 months of completion. Is this legally enforceable? – Robb C.

DEAR ROBB: Many developers and home builders include such resale prohibition clauses to prevent buyer speculation, especially in the first phase of a new subdivision. Let’s put it this way: I am not aware such clauses are illegal.

Purchase Bob Bruss reports online.

However, I am not aware of any appellate court decisions allowing enforcement of such clauses in court. After your new home is completed and the home builder or developer has his money, he probably could care less if you resell to your friend within a year at a profit.

But it appears you now want to assign your purchase contract at a profit and move on. Please read the contract very carefully to see if it prohibits assignment (as many contracts do). If your purchase contract prohibits assignment, such a clause is usually enforceable in court. For full details, please consult a local real estate attorney.

VERBAL REAL ESTATE PROMISES ARE USUALLY UNENFORCEABLE

DEAR BOB: About 12 years ago, I bought a five-acre “ranchette” from a nice old gentleman who retained the adjoining property, which I estimate is about 40 acres. He said I could ride my horse over his property along a specific path to reach a small country store. We had a very cordial relationship. But about year ago, he died. His “city slicker” son inherited the property and soon blocked off my access to the path. I am afraid to ride my horse along the side of the public road because of the traffic. Recently I read your article about prescriptive easements. Do you think I qualify for a prescriptive easement over my neighbor’s land? – Herman W.

DEAR HERMAN: No. Your use of the now-deceased neighbor’s land was permissive. Unfortunately, verbal real estate promises are usually unenforceable in court. There are a few exceptions, such as detrimental reliance, but none seems to apply to your situation.

The primary reason your circumstance doesn’t qualify for a prescriptive easement is such use must be open, notorious, hostile and continuous. Since you had the neighbor’s permission to ride your horse over his land, your use does not meet the hostile requirement. For full details, please consult a local real estate attorney.

INSIST MORTGAGE LENDER EXPLAIN ESCROW ACCOUNT BALANCE

DEAR BOB: I recently received a new mortgage payment coupon booklet from my mortgage lender. It says my payment will be increased by $76.08 due to increases in my property taxes. That’s understandable. However, it appears to me the balance in my mortgage escrow account for property taxes and insurance will be more than enough at the old payment rate due to over-collection. But whenever I phone the mortgage company, I get put on endless hold. I’ve tried writing several times and never receive any response. What can I do? – Everett R.

DEAR EVERETT: Your problem is frequently encountered and there is no easy solution. Federal law requires mortgage lenders to provide annual escrow fund accountings and respond within 30 days to borrower letters and inquiries.

But there is no enforcement or effective legal remedy for borrowers who are abused by their mortgage lenders.

If you have the time available, you might want to write one more letter to your mortgage company, outlining why you believe you are being overcharged on your escrow account, giving a 30 day deadline to straighten the situation out.

If you don’t receive a satisfactory reply, then sue the lender in local Small Claims Court for the disputed amount each month. When the lender is served with a summons and complaint, the dispute will probably be promptly resolved.

If not, then you will get a default judgment if the lender doesn’t show up to explain their arrogance. Do this for a few months and I can almost guarantee the lender will resolve this problem when you attempt to collect your judgments.

The new Robert Bruss special report, “Everything Homeowners Need to Know About the New $250,000 and $500,000 Home Sale Tax Exemption Rules,” is now available for $4 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant Internet download at www.bobbruss.com. Questions for this column are welcome at either address.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

What’s your opinion? Send your Letter to the Editor to opinion@inman.com.

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