DEAR BENNY: My sister inherited 75 percent of a home from our paternal uncle years ago and his wife’s niece inherited 25 percent. The niece was also willed the furniture in the home, but she never retrieved her belongings even when a legal document was written for her to remove all furniture by a specific date. The house hasn’t been occupied since my uncle expired, and the niece hasn’t been heard from in many years.
The house is located in my sister’s hometown, while the niece lives in another state and has never been involved in the home’s upkeep. My sister spends her hard-earned money on the house paying real estate taxes, lawn maintenance, etc., and does not want to sell the home or buy out the niece. Currently, the house is in need of a lot of repairs.
Can my sister sue the niece for abandonment of property? Does this have to go to court? If so, do you think Legal Aid can assist, as my sister has a limited amount of funds? If my sister stops paying the real estate taxes, she would lose the house. The niece doesn’t deserve the house due to her neglect and abandonment. –Faye
DEAR FAYE: As for the furniture, I would consider it abandoned, and your sister can do with it as she pleases. She can use it, sell it or donate it to a charity.
But as for the house, unfortunately, the niece owns one quarter of the house. The only way that your sister can resolve the issues is to file suit against the niece. Your sister can ask the court to require that the niece either reimburse your sister for one-quarter of the expenses she has incurred or convey her interest directly to your sister in exchange for not making any payments.
Keep in mind that your sister owns a larger portion of the property and is legally obligated to pay her share of the expenses — including real estate taxes, insurance and maintenance.
I seriously doubt that any Legal Aid program will be able to provide free legal services to your sister. My experience is that when a person has an interest in real estate that has value, Legal Aid programs generally are not permitted to assist. It is different, of course, when a person’s home is about to be foreclosed upon, but your sister’s situation is not that serious.
You state that your sister does not want to sell. While I appreciate this, the fact is that the house has been vacant for many years, and is a financial burden on your sister. I assume it has some value, so why not ask the niece if she will agree to sell the house? Then your sister will be able to recoup — through the sales proceeds — the moneys she has already spent.
But keep in mind that in most states, there are statutes of limitation. This means that if a lawsuit is not brought after a certain number of years (often three or five), your sister would be able to be reimbursed only for expenses incurred within the statutory period, but not for expenses that go beyond the statutory period.
Hopefully, when the niece sees that she might get some money from the sale — or at least will avoid lengthy and costly litigation — she might be finally willing to cooperate.
Otherwise, your sister might be able to find a lawyer willing to take the case on a contingency-fee basis. This means that the lawyer — if successful — would get between one-quarter and one-third of any moneys recovered.
But, while some attorneys may be willing to take a contingency on the sale of the house (since that would generate money), I seriously doubt they would accept such a case only to sue the niece for reimbursement.
I strongly suggest you convince your sister that it makes sense to sell the house.
DEAR BENNY: In July 2009, I notified my credit-card company that I wished to dispute a number of charges posted to my account. In early October, the dispute was resolved in my favor. Unbeknownst to me, that’s when the trouble started.
In early May 2010, I applied to refinance my mortgage. My wife and I have excellent credit, but our application was denied. The reason: When I had earlier disputed the transactions, the credit-card company reported that fact to all three major credit reporting agencies. The report stated "account in dispute." No other explanation was provided. To this date, that comment is still being reported.
I have discussed this with the credit-card company on many occasions. The last time I was told to send them my entire credit report, which I did. Well! My credit reports have still not been corrected. I am at my wit’s end. Is it legal for the credit-card company to do this? They obviously don’t care how much heartache they cause. –Felix
DEAR FELIX: I haven’t fully studied the new credit-card law that took effect Feb. 22, 2010, but I do not believe the law addresses your issues. Although you mentioned the name of the credit-card company in your e-mail to me, it is my policy not to mention any company names in this column.
Have you written the credit agencies your side of the story? Go to your favorite Internet search engine and type in "Fair Credit Reporting Act." Under the act, when a consumer disputes a statement in a credit report, the credit agency can delete the erroneous information. However, if it does not delete the information, the agency is required by that law to conduct an investigation of the disputed items.
According to the Act, the agency must send a notice of the dispute to the party who furnished the information; in your case, this would be the credit-card company. Within five days of receipt from the credit agency, your credit-card company must conduct its own investigation. In your case, you have already been advised that the credit-card company no longer has a dispute with you.
And finally, the credit reporting agency must complete its investigation within 30 days, unless you agree to give them additional time.
For more information, look up the Act on the Federal Trade Commission’s website. In the final analysis, if the credit reporting agency does not resolve your problems, you can file a lawsuit against that company and you can also file a complaint with the FTC as well as with the attorney general in your state.
DEAR BENNY: Recently I heard that the Florida Legislature had changed Florida law to require condominium associations to have hazard insurance to cover all property elements for which they were legally obligated to maintain. If this is so, would that not supersede any preexisting declarations of the condominium? –Ted
DEAR TED: I am not a Florida attorney so I don’t know the answer to your question. I suspect that your association attorney — or your local state legislative representative — will be able to get the answer for you.
However, condominiums are required by their own legal documents — as well as by all mortgage lenders — to make sure that there is adequate insurance coverage. Typically, such an insurance policy is called the "master policy," because it covers common elements, or damage within units caused by common elements such as leaky roofs or broken pipes.
Unit owners should get their own insurance coverage through a policy known in the industry as the HO-6 policy. This policy will cover most — if not all — gaps in the master policy. For example, if your unit is vandalized, the master will not provide coverage; your HO-6 should. If your unit is destroyed, the master may cover the repairs, but will not provide you with alternative lodgings. Your HO-6 policy will cover this, if you specifically include such coverage when you sign up.
You have, however, raised an important issue: Can a state law take priority over your legal association documents? The answer is yes. In community association law, there is what we call the "hierarchy" of laws. First and foremost is your state’s statute that regulates and controls associations. Next, and to the extent that they do not conflict with state law, is the declaration (or CC&Rs in homeowner associations). Next are the bylaws of the association and finally the rules and regulations legally adopted by your board of directors.
So, if Florida (or any other state for that matter) enacts a law, unless that law specifically states that it does not replace or supersede existing association documents, it is superior and preempts the relevant provisions of your association’s legal documents.
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.
