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Real Estate

PURCHASING

For most individuals the purchase of a home or investment property represents the largest financial commitment of their life, and a process that is fraught with landmines and pitfalls.  An important first step in the process is entering into a fair binding legal agreement between the parties detailing the purchase price, conditions of financing, inspection contingencies, and closing terms.  An important consideration in any agreement should provide for the eventuality that during the process either you or the seller no longer wishes to conclude the transaction.   It is important to engage an attorney to ensure that your concerns and considerations are fairly and adequately represented.

FINANCING

The majority of all purchases and sales involve the buyer utilizing institutional financing to complete the transaction.  Typically, the prospective buyer applies to a bank or credit union for a loan to finance a portion of the purchase price.  The bank will typically require that you provide information verifying your income and assets in order to determine whether you have the resources to pay back the loan.  This process is called underwriting.  Once all of the information is provide to the Lender, the Lender may either approve your application for financing or decline your application.  In the event that your application is approved the Lender may issue a written commitment letter with conditions upon which they will eventually provide financing.  You must then be able to satisfy those conditions within the time frames given to you by the Lender and those negotiated by you in your contract in order for you to close on the purchase.  In the event your application is declined, you must provide the Seller with notice in a timely manner in order to preserve and protect your ability to have your deposit returned following your failure to obtain financing.

CLOSING

At closing, the Buyer is required to pay over to the Seller the full purchase price less any applicable deposits previously given to the Seller.  In exchange for payment of the full purchase price, the Seller will transfer title of the property to you and give you full possession.  Also at the closing, all the documents which the Lender requires to be executed in order to memorialize its financing and collateral must be signed by the Buyers with the guidance of an Attorney. 

REAL ESTATE DEVELOPMENT

Real estate development can be a complicated but potentially financially rewarding experience.  Usually the first step in any real estate development is the development of a concept or vision for turning a property or vacant land into something new or different.  In order for the concept or vision to become a reality, many changes and involvement with many governmental agencies and stakeholders are required.  Development entails obtaining in some instances permits to use the property in a different manner or expanded manner than the current use.  If roads are to be created, approvals from both the local town and the State Department of Transportation may be required.  Whether the proposed development impacts on the environment, or changes the surrounding character of a neighborhood or town are issue that may require environmental protection agency approvals and or local planning and zoning board.  At some point during the development project, a project architect and contractor may be required, and you will want to ensure that you have contract protections to ensure that the work you require will be competently performed.  Once the necessary approvals and plans are obtained you will need to have financing in place to ensure that the project can be built.  These are just a few of the issues that may arise during the course of a major development project.  It is therefore essential to consult with an attorney who has the experience, creativity and talent to assist you throughout the process.

Q.       I want to buy a house which the Seller has represented to me has no liens or encumbrances. I have the money necessary to make the purchase without needing bank financing.  Can I rely on the Seller’s representations and purchase the property without making any further inquiries, and without requiring a written contract?

A.        It is always advisable even in the simplest and apparently straight forward transactions to have an Attorney prepare a written contract memorializing the terms and conditions which would include any such representations.  In addition, it is prudent to have a title search and title examination conducted in order to confirm the legal owner, and to identify the existence or non-existence of any third party liens.   

 

Q.       I recently signed a contract to purchase real estate.  I paid for an inspection which revealed several major defects with the property.  I am considering pulling out of the deal.  Is this my only option?

 

A.        In most instances, you should present the results of the inspection to the seller with a request to either require the seller to fix the problems or provide you with a credit equal to the cost to you to cure the defects.  In the event that the seller refuses to either fix the defects or provide an agreeable credit to you to cure the defects, you may give notice that you intend to cancel the contract and recover any deposit that you have made.

 

Q.        I applied for a mortgage with my local bank.  At the time that I applied the Lender told me that they could finance the transaction at a interest rate of 5%. I recently received a commitment letter indicating my loan has been approved but at an interest rate of 10%.  I no longer wish to proceed with the transaction, and I have notified the Seller that I no longer wish to proceed, and I have requested the release of my deposit.  The Seller has advised me that they understand the interest rate is high, but will not release my deposit.  What can I do.

A.        Most financing provisions contained in purchase and sales agreements provide for a specific date and time by which the Buyer will obtain financing and at what terms, amount of loan and rate of interest.  In the event that your purchase and sales agreement contained a provision outlining an interest rate not to exceed 5%, and you have applied to the Lender with due diligence and you are notifying the Seller of your inability to obtain financing at the terms outlined, you should be able to obtain the return of your deposit.

Q.        I had a home inspection conducted of the house that I wish to purchase and it revealed that the heating system does not work.  I advised the Seller of this fact, and the Seller has offered to split the cost of putting in a new heating system 50%/50% and should I refuse, the Seller will not go forward with the transaction.

A.        Most contracts contain a provision outlining the Seller’s obligation to provide that all major systems providing heating, cooling, water, electrical and roofing to the home are in good working order.  In the event that such a provision exists and does not limit the Seller’s obligation to repair or replace, the Seller will be required to bear 100% of the cost of the repair or replacement.

Q.        I have entered into a contract to sell my house to a Buyer.  A day prior to closing the Buyer has advised me that they do not intend to purchase the home because they have found another home, which is more to their liking.  The Buyer has requested the return of their deposit.  What can I do.

A.        In the event that you have provided the Buyer’s with notice that you are ready and willing to close on the purchase, and they refuse to do so, you will be under no obligation to return their deposit.  You may be required however to institute legal proceedings in order to obtain the deposit.

LEASING

A lease grants to a tenant the right to occupy property for residential or commercial purposes for a specific period of time upon terms and conditions negotiated between the tenant/lessee and the owner/landlord.  Under most leases, the tenant has an obligation to pay the rent on a timely basis, usually month to month, and the owner has an obligation to provide the tenant with unfettered access to the property being leased.

Prospective commercial Landlords will want to ensure that the use for which the premises is to be leased is suitable for the location and that the tenant will acquire the necessary permits or licenses required to legally operate from the location.  In addition, the Landlord will want to spell out its obligations to the Tenant and the Tenant’s obligations to the Landlord during the lease term. 

Prospective Residential Landlord will want to ensure that the apartment that they are renting is habitable and meets all local housing codes.  A pre-lease inspection is recommended during which the tenant and landlord document and confirm the conditions of the apartment prior to entering into a lease and providing occupancy.  The lease should also spell out clearly the number of occupants, the amount of any security deposit and any other important terms and conditions. 

LANDLORD/TENANT

EVICTION

Eviction is a judicial process in which you as the landlord owner seeks to regain possession of your rental unit from a tenant who either refuses to voluntarily leave following the end of the lease or whom you wish to remove because they have stopped paying or have engaged in other conduct that voids the lease.

In all jurisdictions, tenants have rights which means that before you can regain the unit, you may be required to obtain an order from the court giving you the legal right to remove the tenant.  In all jurisdictions, you cannot simply lock-out the tenant or call the police to have them removed before obtaining an order from a court.

In most jurisdictions, the process commences with the service of a notice to the tenant requiring them to leave within a specific time period, to pay or to correct certain violations within a specific time period.  Following the expiration of the time period, and in the event that the tenant has not vacated, paid or corrected the offending violations, you may then file an application with the court to have the tenant come to court and answer why their tenancy should not be terminated.

During the court process the tenant may assert defenses to the action based on either defective conditions in the unit, failure of the landlord to live up to their obligations or defenses based on payment.  Should defenses be asserted, a judge may be required to hold a hearing to determine whether the landlord or tenant is to prevail.

While the housing eviction process is intended to be brief, delays by the Landlord in moving to evict, as well as the imposition of defenses to the action by the tenant may delay the process.  It is important to consult with an Attorney to ensure that should you need to evict a tenant that the process will work to your advantage. 

Q.       I leased an apartment to two people.  Both pay to me ½ of the monthly rent for the apartment. One of the occupants has stopped paying rent.  Can I evict the non-paying person only. 

A.        No.  The tenancy is for the entire apartment and therefore you must evict both persons in order to recover possession of the apartment.

Q.       I moved form my apartment before the end of the lease.  I have a security deposit.  Will I be able to get my security deposit.

A.        Your security deposit is subject to any claims that the landlord may have against you.  Those claims could include damages for breaking the lease and any damages you may have caused to the apartment.

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Notice: Attorney Patrick G. Lyle is admitted to Practice Law in the Commonwealth of Massachusetts and the State of Connecticut and is responsible for the contents of this website. This website is designed for general information purposes only. The information presented at this site should not be construed to be either formal legal advice or the formation of a lawyer/client relationship.

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