What Types Of Things Must I Disclose When I’m Selling My House?
Video Summary
What types of things must I disclose whenever I’m selling my home? Well this emanates from a case that’s probably twenty-five-years-old called Johnson versus Davis. The Supreme Court came down on selling your home, or your residential property, that says that a seller must disclose to a buyer any matters that may materially affect the value of the property that are not readily observable. This provision has also been carried over into the present contract that has been approved by The Board of Realtors in the Florida Bar. It provides precisely what I have said.
What falls into that category? Well certainly if you have a leaky roof, you can’t very well not tell them about it. If you have a fire or a flood and then you’ve taken care of it, you need to disclose that the property has previously flooded. Things such as that. It gets into a more grey area whenever, let’s say, that someone has died in the home. Certainly if it’s coming out of an estate, well that’s fairly apparent. I don’t know that that’s a matter that may materially affect the value of a property.
Well take it one step further. What happens if someone was murdered in the home, or some crime was committed, or is was a grow house? Well those matters maybe something that could materially affect the value of a property. Another matter is what if you know that your neighbor had sinkhole? Now are you required to disclose that your neighbor had a sinkhole on his property although you haven’t experienced any sinkholes? There’s any number of grey areas that come into being or of what you need to disclose.
The realtors have a fairly comprehensive sheet that they go through for each component of your home, such as the plumbing, the electrical, all of the disclosure sheet, and so that should be a pretty good guide as far as completing that as to whenever you sell your home. Go through that disclosure to let them know how long it’s been since you’ve redone the roof, whether you’ve experienced leaks, things such as that.
The best thing to do however, if you’re going to buy a home, is to have your own inspection done. But that’s not the question you wanted to know. From a seller’s perspective, what you needed to disclose. I always recommend the sellers to air on the side of more disclosure rather than less so that you don’t have to worry about it coming back to haunt you later on. When in doubt, I’d go ahead and disclose the matter to the buyer. If they like your home, and it’s in good shape, and there’s no really other problems, it’s not going to keep them from buying the house. If they wind up buying the house and later on have seller’s remorse, or some other reason that they wanted to get out of the house, or bring a lawsuit against you, that you’ve made the disclosure and you’ve taken away that reason for them to try and come after you for failure to disclose.
The buyer’s remedies for a seller failure to disclose is if they can bring an action within one year it’s called “rescission,” which means that you turn around and you offer to convey the property back to the seller, and in turn you receive your money. This is a difficult remedy; sometimes you’ve paid off mortgages, that the seller doesn’t have the money, that you have a mortgage that you have to pay off, or you’ve made substantial improvements, so there’s any number of problems.
The other aspect of it, if that remedy is not feasible, is to sue for whatever the cost to repair is or to correct the problem. That is your other remedy. Of course, before you have a good lawsuit with that, you need to make sure that whoever you’re suing has the money to pay. That’s another aspect of looking at it. This obligation to disclose not only extends to a seller, but also to realtors that if they know of any information they must disclose it to the buyer or make the disclosure.
There is another problem as far as buyers are concerned if they wish to bring an action against the seller: they have show they the seller knew of the problem. Many times you see whenever you’re buying bank-owned property, there’s a big disclosure saying they’ve never occupied the property and therefore do not know if there are any problems with it. That’s a discussion as far was what needs to be disclosed, and certainly a grey area.
If you have any questions, well give me a call at 727-847-2288.
Thank you.
- Published in Real Estate – Selling, Videos
How Often Should I Update My Estate Planning?
Video Summary
How often should I update my estate planning? I have a pad answer on that is is that whenever you’re circumstances change or the law changes. I suggest that once you do your estate planning, that you put it someplace where you look at it approximately once a year just to look to see if that’s still what you want. Whether there’s been some change or circumstance such as losing a loved one or beneficiary that you’ve named in your will. You may want to make some changes far as that’s concerned.
Certainly if you have… You’re married and you lose your spouse, it is very important to come in and do your estate planning. Look at your estate planning to revise or to simplify your estate plan. With estate plans, folks usually want to know two things from the very beginning. One is are there any estate taxes, which unless you have a lot of money, there aren’t any estate taxes. If your estates less than five million dollars and that’s as far as the federal governments concern. The state of Florida’s done away with estate taxes so you have… You don’t have any estate taxes in Florida or with the federal government. However, if you have estate property outside the state of Florida, then there may be estate tax whatever state that that property is situated in.
The other issue is trying to avoid probate, which is really a… Something you can do particularly if you’re married on how to title your assets to try and avoid going through probate. Some circumstances if you’re by yourself then a trust is appropriate or if you’re married possibly 2 trusts are in order. However, most simple estates can be handled without that, but that’s another objective.
Also we need to, or I try to, keep my clients up to date as the changes in the law and the other estate planning documents beside will and a trust are your living will, which says that you don’t want your life to be prolonged unofficially or a healthcare power of attorney called a healthcare surrogate designation. That was changed just recently in the last couple of years and so I would suggest that you might wanna to contact your attorney or call me to see about getting your healthcare surrogate updated to comply with the new law. Not that the old one wouldn’t work, but this new one would be… Works a lot better.
Also your power of attorney form and that law changed three or four years ago and its been enhanced. The power of attorney would be a good idea to review and to update it and that you can have some other called superpowers. One of the things that just passed in legislature where you might want to update all your estate planning documents is your digital assets. When you pass away, you may have something of value such as owning domains, any sort of an accounts, but if you don’t… If your personal representative doesn’t have your passwords and then Google and these other folks, they’re not gonna give you access or give anybody access unless you have specific authority to be able to access their accounts. That act has just passed and so all your estate planning documents need to be revised to include the authority to access your digital assets. We saw that problem with the FBI trying to get into a cellphone and the Google, or whoever it was, would not let them in. You know because of privacy.
This has been addressed in legislation however, you do need to put that specific power in your estate planning documents. Give me a call if you’d like to update your estate planning documents and I’ll be happy to help you. My phone numbers 727-847-2288.
- Published in Estate Planning, Videos
What Are My Options If A Neighbor Plants A Garden Or Erects A Fence On My Property?
Video Summary
What are my options if my neighbor plants a garden or erects a fence on my property? Well, I get this question asked any number of times primarily as it relates to fences. The first thing that you would need to be very sure of is obtaining a survey, so you know precisely where your boundary line is, so there’s no question about that. Particularly as it relates to fences that shows that the fence or whatever, or garden for that matter, is in fact on your property. Once you know that it’s on your property, then I suggest that you contact your neighbor by written notice, or a nice letter, and say, “Enclosed is a copy of a survey, which shows that you have your fence on my property or your garden, and I would give you permission to relocate your fence onto your property, and to remove your garden from my property. I’d appreciate hearing from you in the next ten days.”
Sometimes I am engaged to send that letter out, particularly if there is a little bad blood between you and the neighbor, but it’s something that certainly you can do. You first try and do it by getting the neighbor to understand what the boundary line is. Now if the neighbor does not remove the fence or relocate the fence or remove the garden, then I would send the next letter is is saying that, “I haven’t heard from you about relocating the fence or relocating your garden. If it is not relocated in the next ten days, or whatever period of time you wish to give them, I am going to remove your fence from my property and lay it onto your property, and also remove your garden from my property.” You send them that letter. If that doesn’t … They don’t do anything, you can then proceed to remove any encroachments from your property.
Fences are particularly a hot point, as long as there’s no breach the peace. If someone comes out there and the neighbor starts shooting at you or comes out and confronts you or wants to fight or whatever, then probably the best thing to do is to call the police. Show the police your survey, and say, “I’ve asked this … My neighbor to relocate his fence a couple of times. He’s refused. I told him I want to relocate it. I’m not going on his property, and he’s out here giving me a bad time.” The officer will usually say, “Send everybody home.” Say, “Well, it’s a civil matter.” If it escalates to the point where you’re unable to remove the encroachment from your property, and you have to hire a Lawyer to do that, of course, it starts getting very expensive at that point. Then we could file what they call an Ejectment Action. That’s wherein you state that this is your boundary line. You own the property, and that you’re asking the neighbor, asking the Court to direct the neighbor to remove these encroachments from your property.
The answer to your question is you have a self-help remedy for these encroachments, and as long as there’s no breach the peace. Then if that doesn’t work and you do need to hire a Lawyer, well then he can file what they call an Ejectment Action. Unfortunately, those get a little bit expensive. If you have any problems, hopefully you can get it worked out with your neighbor, but the first thing to do is get you a survey. Yes, that does cost you some money that shows where these encroachments are on your property, and then see if you can’t get it worked out with your neighbor, as far as removing those encroachments without having a confrontation or having to spend a lot of money with an Attorney.
If you have any problems or questions about that, give me a call at 727-847-2288.
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- Published in Real Estate, Videos
Will You Avoid Probate With A Trust?
Video Summary
Will you avoid probate with a trust? The answer is if it is properly executed and all of your assets are titled in the name of the trustee, then there will not need to be a probate proceeding and therefore you’ll be avoiding probate. If however you do not transfer or title all of the assets in the name of the trustee of the trust, then your assets would then have to be probated, which is usually under a will that says I leave everything to the trustee. That’s called a pour-over will. Then you have to probate those assets to put them into the trust.
The trust then has to be administered. Depending on the complexity of the trust or whether it’s an outright distribution or you hold the assets for a period of time and pay out income or if it’s a special needs trust, you may need to have an attorney assist you as far as the administration of the trust. Some of the things that a successor trustee would need to do would file a notice of trust with the clerk of the court.
Also there are certain tax ramifications and a that a successor trustee, meaning after the person who set up the trust dies, that’s usually a revocable trust, they need to apply for what they call a Federal Identification number so that the taxes would be reported in their fiduciary or as a trustee rather than under their individual Social Security number. They may need some guidance so it won’t have to go through probate. The biggest problem with probate is having to pay the attorneys a fee. You may need to engage the services of an attorney in order to assist you as far as the administration of a trust.
An answer to your question is is if the trust has all the assets of the decedent and the trustee can distribute everything out and there’s no income, then you can avoid probate by setting up a trust. You can also look at various alternatives doing estate planning on how to retitle assets and possibly avoid the necessity of spending quite a bit of money to establish a trust.
If you wish to do some estate planning and try and figure out how to avoid probate the most economical way, give me a call at 727-847-2288.