DEAR BENNY: I have a neighbor who has boasted to me that he has a felony background. I went online and found that he indeed has a felony for "aggravated theft."
The record also showed he was arrested for driving under the influence, speeding, giving false information, resisting arrest, failure to stop for a stop light, and failure to comply with direction of police.
Then I learned that he paid for training and received a real estate license in my state. Every real estate agent I have dealt with has full access to the keys to hundreds of customers’ property and could access property and possessions very easily, usually when the property owner is not home during a "showing." Agents also have access to bank account numbers, finances, Social Security numbers, and other personal information of hundreds of customers when filling out contracts and applying for mortgages.
My question is: How/why would a person with such a serious criminal background be granted a real estate license in any state? (This is assuming this person filled out the application truthfully.) I have asked this question to various real estate agents that I know and every one of them was in disbelief and said the real estate profession is held to high standards for the very reasons mentioned above and one should not be granted a license if he/she indeed has a criminal background.
This incident gives me the perception that real estate licenses can be "bought" without the real estate commission/boards verifying the integrity of the applicants. With identity theft growing out of control and dangers associated with convicted felons, I have serious concerns with this situation. –Bonnie
DEAR BONNIE: I did not believe it appropriate to mention the state in which you live, as I try to be objective and relatively impartial in my column. However, I was curious as to the license requirements in the District of Columbia, where I practice law.
In order to be a licensed real estate agent or broker in Washington, D.C., you cannot have "been convicted of an offense which bears directly on the fitness of the person to be licensed …" So failure to stop at a red light or arrest for speeding would not, in my opinion, be grounds to deny the license. However, convicted of aggravated theft, or even driving under the influence would, in my opinion, give the real estate commission the right to deny (or revoke) a license.
I appreciate your concerns and your uneasiness. Obviously, you want to expose this person but are concerned about your safety.
I suggest that you contact the executive director of your state’s real estate commission and — without giving your name — explain the situation. Ask if the commission will investigate this matter based on confidential information submitted by an anonymous citizen.
If the commission is willing to do this, then provide the information you have. On the other hand, if the commission requires that complaints be verified by the complainant, I suggest you contact an attorney who can act as your intermediary.
Alternatively, you may be able to get your local newspaper to dig into this matter and write a story about it.
I am also curious to learn how much investigation real estate commissions throughout the country really do when reviewing license applications.
DEAR BENNY: My brother, sister and I have inherited a condo through the court probate process from our father. The condo has negative equity due to an equity line drawn on the condo prior to my father’s death. Because the probate process passed the condo to the three of us, how do we remove ourselves from legal responsibility to the condo considering that we do not want to assume the liability of the loan? Do we need to do anything assuming the loan is in our father’s name only? What can we do so that we are not associated with the eventual foreclosure? –Brandon
DEAR BRANDON: Did your father’s estate have other assets? If so, those assets should have been used to pay off (or at least pay down) the existing mortgages on the condominium. Normally, to satisfy creditors of your father’s estate, the condominium would have been sold and the sales proceeds used to pay off the creditors. I have to assume, however, that the property could not be sold because there was no equity there.
The banks holding the mortgages can be paid only out of the sales proceeds or any other available assets of the estate. You all — as heirs — are not personally liable for those obligations.
If the property is the only asset of the estate, you all could possibly execute disclaimers (depending on your state law) and walk away from the property and let the bank deal with it. The bank would probably need to open an estate in order to foreclose, but this would not impact in any way on your credit.
A disclaimer is a legal concept whereby you make it clear that although you have the right to inherit the property, you have no interest in doing this. However, state laws are different and you will have to discuss this with your probate attorney. There are often time limitations in which you have the right to disclaim, and it may already be too late to go that route.
Another possibility: Have you considered trying to sell as a "short sale." This is a procedure whereby you (or your real estate agent) find a buyer who wants the condo, but is only prepared to pay an amount which is less than the existing mortgages. Although banks often take an incredibly long time to process and approve such sales, it is something you may want to consider.
Finally, talk to your mortgage lenders about a deed-in-lieu of foreclosure. This means that instead of foreclosing on the property, the three of you will deed the property back to the bank, and you will be released of any further financial or legal obligations. If there is only one mortgage (deed of trust), or if both mortgages are held by the same bank, then this may be a possibility. However, if the first and second trusts are held by separate lenders, you will have problems getting anyone to accept the deed-in-lieu.
DEAR BENNY: I live in a development where all the homeowners belong to a homeowners association. The developer built the subdivision around a common pond. He has left green areas around the pond and throughout the development. Recently the developer has started procedures to turn the homeowners association board of directors over to the homeowners.
My concern is the use of the green areas by the homeowners adjacent to some of the green areas. They are placing play equipment and tree houses on this public land. Also, some are putting underground dog control wires onto the green areas. I am all for using this land, but I fear there is potential liability for all the homeowners if someone is hurt using the equipment or by the dogs.
Is it possible for someone getting hurt on the green areas to sue not only the owner of the dog or equipment, but also the homeowners association? –Tom
DEAR TOM: Unfortunately, in today’s world, anyone can sue anyone for anything. And they often get away with large verdicts.
Lawyers who specialize in litigation look for the deep pockets. And I suspect that your homeowners association has deeper pockets — or at least more insurance coverage — than most of your fellow homeowners.
If homeowners in your association are installing playground equipment or dog control wires on their own property, then I doubt that the association would have liability — unless such activities are prohibited (or require board approval) in your legal documents.
On the other hand, if these activities are being installed on community property, then if someone were injured, the entire association could have potential liability.
Have you discussed this with your board of directors? They should ask their legal counsel for an opinion as to whether the association would be liable for these situations. They should also ask their counsel what steps they can take to require that all homeowners remove anything they have installed on the common areas.
Are you alone on these matters or are there other homeowners who have the same complaints? It always helps to have a large group of homeowners sign a protest petition. Boards usually respond faster when they see that a number of owners are complaining.
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 firstname.lastname@example.org.
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