DEAR BENNY: A relative with a terminal disease was recently found unresponsive while visiting my home. We called an ambulance but he never recovered. We now have our home for sale and am wondering if we are required by state or federal law to disclose this information to our buyer. The neighbors were certainly aware of the fire department and the ambulance being here. Most people die in the hospital but many die at home, and I don’t know whether there is a law regarding this that I should be aware of. –Delores
DEAR DELORES: You will have to ask an attorney in your state, because there are different disclosure laws throughout the country. But what’s the harm in disclosing this — especially if anyone asks you if there is anything unusual about the house? To die of natural causes in a house is quite different from being murdered.
I believe in full disclosure. I have represented clients over the years who bought a house, only to learn later that there were undisclosed problems — such as leaking roofs, defective heating appliances, etc. Many of these clients did not have an inspection contingency, which was their mistake. Some of their sellers lied when they filled out the disclosure statements.
Regardless of whose fault it is, put yourself in the shoes of a buyer. Wouldn’t you want to know as much about the house as possible? I always appreciate real estate transactions where sellers go out of their way to make the transition as comfortable as possible, even preparing written material about how to operate the equipment, where the local library and supermarkets are, and some basic information about the new neighbors.
DEAR BENNY: Many years ago, my mom and dad bought a house for my sister. She is very bad with money and has always had bad credit. My parents put the house in their name as she could not get a mortgage, with the agreement that she would put the money in a joint bank account monthly to pay for it. She did for many years. My mom has since passed away and over a year ago my sister stopped paying the mortgage.
My father is 80 years old and constantly worries about this situation. It consumes him. He does not want to damage his credit by not paying, but he will not kick her out. He doesn’t stop talking about it. I am afraid it’s going to kill him. My sister refuses to take his calls, won’t respond to letters, etc. My dad lives in Maryland and the house is in Florida. I have told my frugal father to hire a lawyer numerous times.
This has caused a huge burden on our family unit. I want to help my father so he can enjoy his old age and live in peace. Do you have any legal advice? Is there any way we can remove her from the premises legally while giving her time to find somewhere else to live? I am thinking maybe my dad can rent it or take a loss and just sell it. Let me know if you know of any legal avenues my father could take to force her to take over the mortgage. –Victoria
DEAR VICTORIA: While this involves your family, in reality this is a problem between you father and your sister. If he does not want to take legal (or any) action against his daughter, that is his business and, respectfully, not yours.
Your father will have to keep paying the mortgage so as to preserve the house as well as his credit rating.
DEAR BENNY: Do you have to be a U.S. citizen to get a mortgage? Before I go ahead, are there any pointers you might have? –Terry
DEAR TERRY: That’s an interesting question and I am not sure of the answer. To my knowledge, there is no restriction on a noncitizen getting a mortgage. The lender may want to be more careful in examining your financial situation, especially since you probably don’t pay federal income tax.
My suggestion is to talk with a number of lenders and explain your situation. The best advice I can give any potential buyer/borrower: Shop around and compare interest rates and terms and conditions. On Jan. 1, 2010, new federal disclosure rules will take effect, which should make comparison shopping easier. In a future column, I will discuss these new rules. …CONTINUED
DEAR BENNY: I live in a subdivision with 55 homes. Our association dues used to be $100, which collected $5,500 a year. The board decided to double the dues to $200 per year. They said this was "just in case." We now have approximately $61,000 in the bank. The board does not enforce deed restrictions, nor do they have meetings during the year. We are never notified with newsletters or any type of correspondence. The only time we hear from the association is when our dues are due, or we receive notice of the yearly meeting. Otherwise, the money is in the bank, and at the end of the year, they pay a hefty amount for taxes. My question is: Is it legal for an association to raise the dues for no purpose at all? –Helen
DEAR HELEN: You have raised a number of issues with your question. I don’t know whether the $61,000 is considered reserves (which in my opinion all associations should have) — and even if this is a reserve account, I don’t know whether this is sufficient for your association or not. A good board will conduct a reserve analysis study at least every four or five years. A licensed engineer will look at all common element systems and determine how much money will be required to replace items as they fail. For example, if the projection for the elevator replacement 10 years from now is $20,000, then the association should have a reserve requirement of $2,000 a year — just for that one item.
I am also curious as to why the association is paying income tax. Many associations do not have to do this, so I suggest that you contact a certified accountant and ask his or her opinion. Additionally, the association should have a financial review (or a full audit) on a yearly basis.
The specific answer to your question is "yes." Most association documents give the board of directors authority to enact a budget for the next year — although some associations require approval of the membership.
DEAR BENNY: In going through mortgage paperwork for two homes I own, I found just one of the original mortgage papers. I couldn’t locate the original mortgage for the other home I purchased in 1990. The mortgage has been bought by several banks and is currently owned by Well Fargo Home Mortgage. I have been very careful with the mortgage papers, and am beside myself with not being able to locate those documents. Is there anything I can do at this point? I do not know where to start. –Susan
DEAR SUSAN: When you obtain a mortgage loan, you sign two important documents: (1) a promissory note — this is the IOU to the bank; and (2) a deed of trust — the security document that is recorded among the land records in the county where your house is located. Some states use mortgages instead of deeds of trust.
You should be able to retrieve the deed of trust (mortgage) from the recorder of deeds in your county. In fact, many jurisdictions have these documents on line and you may able to get a copy on the Internet.
As for a copy of the original promissory note, that may be a problem. Lenders have sold their mortgages all over the country and often the current holder of the mortgage (i.e., the one to whom you make your payment) does not have the original mortgage. This has been a problem for some lenders trying to foreclose on property; many courts have not allowed a foreclosure to take place (or set aside a sale) because the foreclosing lender did not have the original note.
You should also ask the title company (or title attorney or escrow company) that handled the settlement when you bought the property to see if they have a copy of the documents in their files.
Here’s some advice for everyone who buys a house: Make sure that you get a complete copy of all documents you signed at settlement. You may need them in the future.
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.
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