Real Estate Law Title

The first point at which you become aware of your neighbour’s plans may be when a formal written notice from their representative drops through your door. This should be in the form of a formal written notice and is generally served two months’ prior to commencement of the work or one month in the case of excavation works only.

When you receive such a notice you should seek advice before signing a consent form and possibly waiving your legal rights. The notice should offer you the opportunity to instruct a surveyor to record the condition of your property both before the work commences and again on completion.

If you refused to respond to a notice from a building owner, he will be able to appoint a surveyor on your behalf so that the dispute resolution procedure can proceed without your cooperation. The legislation is statute law and any works to party walls, structures, fences or, in particular circumstances the formation of foundations within 6 metres of an adjoining property may require notice.

If you are the adjoining owner and receive a party wall notice, you may agree to the proposed works if you are entirely happy that there will be no damage or consequences to your property. Otherwise, if you do not agree or if you ignore the notice, then you must agree to a single surveyor being appointed, or appoint your own.

As an adjoining owner, served with a party structures notice, you may issue a counter-notice within one month requiring additional works to be carried out, and you must consent within 14 days or a dispute is deemed to exist.

The notice must include:
1) A clear statement that the notice is being served under The Party Wall etc Act 1996.
2) The date the notice is being served.
3) The address’ of both properties concerned
4) If the notice is for excavation work, then a drawing showing the position and depth of the excavation must be included.
5) If any of the information is missing from a served noticed, it will be invalid in which case, any subsequent award will also be invalid.

Finally what should you do if you receive a Party Wall Notice from your neighbour. You have 14 days from the date of the notice in which to consent. If you do not reply to the notice you are deemed to have dissented under the Act and must appoint a surveyor.

You can also indicate your dissent on the notice’s acknowledgment. If the Building Owner has suggested a surveyor on their notice you may concur in the appointment of that surveyor as ‘Agreed’.

The proposals affecting the Party Wall can not be resisted ultimately, although if you are an adjoining owner, by dissenting from the Notice, appointing a surveyor and the preparation of a Party Wall Award, you will go a long way to protecting your interests.

Despite its name the Act is not only concerned with party walls but also governs excavations near to adjacent buildings and specific types of notice, known as 3 metre and 6 metre, must be served.

If either you or your neighbour have objected to the others notice and the dispute cannot be settled by way of a friendly discussion, then the problem should be resolved by the appointment of surveyor.

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, including attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste -if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the home owner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, including attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste -if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the home owner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, including attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste -if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the home owner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, including attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste -if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the home owner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, including attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste -if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the home owner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

Visualize this scenario: After previewing several houses with your real estate agent, you’ve finally found the perfect house. A real estate contract has been drawn up and signed by you (the buyer) and the seller. But alas! You encountered a problem - your mortgage application was disapproved. Can you still get out of the real estate contract? Worry not. Generally, real estate contracts contain contingency provisions which state under what situations the buyer/seller can terminate the contract.

A real estate contract is a legally binding contract for the purchase/sale of real estate between two parties. It varies depending on the type of property being purchased or sold, its location and on whether the contract is a reprinted form furnished by a realtor or one prepared by a lawyer. While the form may be different, essential information include the names of the parties, legal description of the property, purchase price, down payment, terms of payment if not cash and the closing date. In addition, both parties may insert contingency clauses. A contingency is simply a way in which a buyer/seller can back out of a contract within a set period of time if certain conditions specified are not addressed or met satisfactorily.

Most real estate contracts contain financing/mortgage contingency which stipulates that the purchase is conditional on the buyer’s ability to obtain a mortgage commitment within a prescribed timeframe. Inability to do so gives both parties the legal right to terminate the contract. In this case, the buyer’s deposit is also refunded.

An inspection contingency allows the buyer to conduct thorough inspection of the property. If the seller is unwilling or unable to repair defects or not agreeable to reduce the asking price to help compensate for the cost of the repairs; then both parties can opt to cancel the contract all within the time guidelines set forth in the contract.

A contract can also be contingent on the sale of another property. If the property is not disposed within a specified period of time, the buyer can be relieved of the contract.

A real estate contract usually provides a title and survey review period for the buyer. The buyer gives notice in writing of any fault or flaw noted in the title documents. If the defects cannot be remedied, the buyer has the right to cancel the contract. In the same way, the buyer can also conduct a property survey. If there are structural problems or if there are encroachments on the property, the buyer may also choose to rescind the contract.

Some states require sellers to disclose in writing to buyers any known defects of the property. Any late disclosure gives the buyer the option to terminate the contract within a prescribed period after receipt of the disclosure.

The above mentioned are some of the standard contingencies written into almost all real estate contracts. However, both parties can also add other escape clauses such as a contract contingent on septic tank inspection, home appraisal or the approval of other family members if the property is part of an estate sale.

In a nutshell, buyers and sellers do not enter into real estate contracts with the intention of getting out of them. However, sometimes things do not proceed as expected. Both parties can then turn to the terms and conditions stipulated in the contract to terminate the deal. A word of caution: If a contingency date lapses, either party loses the benefit and protection of the contingency.