DEAR BENNY: Recently, five out of seven of our neighbors in our cul-de-sac had their roofs replaced due to hail damage. The insurance companies involved verified hailstorms in the area. At our request, our insurance company sent someone to inspect our roof who confirmed that it also has hail damage. The problem is that we purchased our house after the hailstorms. Our homeowners insurance will not cover damage that occurred before the policy was in place. The inspector we hired to inspect our house before we purchased did not notice any roof damage. Is it possible to file an insurance claim with the previous owner’s insurance? –D.B.
DEAR D.B.: Insurance is a very complex issue, and I am not well-versed in that area. However, I suspect that since you did not have an insurable interest in the previous owner’s policy, you cannot file that claim.
But all may not be lost. Have you considered contacting your home inspector who missed the damage? That inspector may have insurance coverage.
Furthermore, you may also have a claim against your seller. Some states require sellers to disclose known defects in their house, and perhaps your seller was required to tell you about the hail damage but did not.
I suggest that you contact a real estate attorney in your area and see if you have any remedies. However, litigation is expensive, time-consuming and uncertain. If the amount of the damage is relatively small, I usually advise my clients that they should just pay for the repairs and drop the matter.
DEAR BENNY: Recently my ex-husband of 25 years passed away. We jointly owned a small property. In 1995 he wrote a paper giving it over to me, which was also signed by two of his family members. One has since passed away. I am interested in selling the property and need to know how or whom to contact to get the paperwork in order. –Pat
DEAR PAT: When parties are married, they usually hold title as tenants by the entireties, which means that on the death of one party the survivor automatically gets title to the entire property and no probate is required. However, when the couple gets divorced, the title changes to tenants in common. This title means that each of you has a 50 percent interest in the house.
When your ex died, his half would be distributed by way of his will, or if he did not have one, the law of intestacy in your state would direct how his share would go.
But your ex signed a document giving you the entire house. Have you been paying the mortgage and the real estate taxes by yourself all of these years?
At the present time, because half of the title remains with your ex, his estate may have to be probated. You should consult an attorney in your area who is knowledgeable about real estate and probate, as the laws differ from state to state.
I don’t know what this “paper” was. Is it a deed that was personally given to you? Many states require that such documents be physically handed to you (called “delivery”) in order to be effective. Since one of the persons who signed the paper is still alive, you or your attorney should have him or her provide you with a written statement as to what happened when this paper was signed.
Alternatively, if the document meets the legal requirements in your state to be a valid will, you have a strong case that you should now be the owner of that half of the property.
You should talk with his heirs. They may recognize that you should be the true owner of the property and may not raise any objections.
DEAR BENNY: I recently signed a contract to sell my house. I have changed my mind and do not want to sell. It has been two days. Can I back out? –Holly
DEAR HOLLY: Unless the laws in your state provide for a cooling-off period, you cannot cancel the contract. Contrary to popular opinion, there is no federal law giving potential home sellers the right to terminate a contract after it is signed.
Buyers, on the other hand, often have legal grounds to get out of a signed contract. For example, if the property is in a homeowners association or is a condominium, many state laws allow the contract purchaser to cancel the contract within a set number of days after receiving copies of all the legal and financial documents of that association.
But a seller has no such right.
The first thing I would do is to talk directly to the buyer. Some buyers may be willing to talk and even negotiate some arrangement with you. You may have to give your buyer some money to accomplish your goal.
But the bottom line: Once you sign a contract to sell a house, it is a binding and valid document. You should have thought about the situation before you signed — not after.
DEAR BENNY: A couple married in 1961 and bought a house in 1990. The house is in her name only now. If she dies before him without a will, does the house automatically belong to him? Or if she prepares a will now saying that she wants to leave the house to her two children, would the will be valid? –Gisselle
DEAR GISSELLE: You have to look to your own state law for the specific answers. If the wife dies first, depending on your state law, a probate estate will have to be opened. And most state laws provide some protection for a spouse, even though he or she may not be on title. For example, some laws permit the surviving spouse to even take against the will; since there are two children, the husband may be entitled to one-third of the decedent’s estate.
The wife should consult a lawyer in her state. Assuming that she is competent to make decisions on her own, it would be advisable to get her affairs in order while she is still alive. And it should not have to be said that while you certainly are able to assist this woman, the decision as to how she wants to deal with her estate is hers and hers alone to make.
DEAR BENNY: My wife and are going to remodel our house and had our property surveyed. It turns out that our neighbors built an old wooden fence quite some time ago that, according to the survey, is 8 inches on our property. She is selling her home “as is.” The fence is run down and termite infested. I told her about the situation, but she does not want to do anything or spend any money. Can I tear down the fence and build a new one straight down the property line? –Robert
DEAR ROBERT: There is a legal concept called “adverse possession.” If your neighbor’s fence was on your property for a period of time fixed by state law (for example, in the District of Columbia it is 15 years, and 20 years in Maryland), and you did not give consent to that encroachment, your neighbor can claim that portion of your land as her own. She would have to go to court and get a judge to issue an order granting her title. The burden of proof would be on your neighbor. There are four basic requirements: (1) that the fence was open for everyone to see; (2) that the possession was open and notorious; (3) that it was hostile — without your consent; and (4) that the possession was continuous for the statutory period of time.
You would have to discuss the situation with a real estate attorney.
But here’s a suggestion: Talk to your neighbor and tell her that you will — at no cost to her — replace the fence on the property line. If she does not object, you are free to tear down the fence. If she does not agree, I cannot advise you to take self-help until you talk with your attorney.
DEAR BENNY: In a recent column, you recommended that home-improvement contracts include a bonus-penalty concept. Doesn’t this give the contractor a financial incentive to do a rush job, and possibly penalize him for taking his time to do it right (for example, something needs a day to dry or set)? I think this practice, while clever in some ways, carries risks. It’s better to hire someone you trust and can communicate with. –Paul
DEAR PAUL: You make a good point. But my recommendation of giving a bonus to the contractor for early completion — and a penalty for not meeting deadlines — is premised on the fact that the contractor you hire is someone you not only can trust, but that prior to entering into a contract, you have also personally checked references for and inspected any prior jobs done by that contractor.
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.
