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Is Interest Due on Last Month’s Rent?

9 Oct

MetroBoston Publication date October 9, 2013
By Attorney George Warshaw 

Many landlords choose to require a last month’s rent rather than a security deposit under the belief that there is less risk and no liability with a last month’s rent.

That’s very true with one exception: a landlord still has to pay the tenant interest on the amount of the last month’s rent.

Yes, that’s right. It’s a common misconception that interest is only payable on a security deposit and not on the last month’s rent.

The tenancy statute is very clear. A tenant is entitled to interest at the annual rate of 5% on the amount paid as last month’s rent with one exception.

A landlord may avoid paying the 5% rate if the landlord escrows the money in an interest-bearing account bank account. In that case the tenant only receives the interest earned in the account.

In calculating the number of months that interest is due, the landlord doesn’t have to pay interest for the very last month of the tenancy, since that is the month for which the last month’s was taken and presumably used.

If a landlord takes a last month’s rent and a security deposit, the tenant is entitled to interest on both, payable at the end of each year of the tenancy.

© 2013 George Warshaw.  George Warshaw is a well-known attorney and author. He represents buyers and sellers of homes and condos in Massachusetts, litigates real estate matters, and prepares wills, trusts, and estate plans. George welcomes new clients and questions. Contact him at metro@warshawlaw.com.

 

Is Boston’s New Rental Law Enforceable?

20 Sep

MetroBoston publication date September 18, 2013
By Attorney George Warshaw

You’ve probably heard about Boston’s new registration and inspection law.

If you own and rent an apartment or condo in Boston or don’t live in it, you have to register your property with the Inspectional Services Department.

Here are some key details.

  • Registration was due by August 31st. If you haven’t registered you will have to pay a penalty.
  • Every year you will have to renew your registration and pay a small fee.
  • If you, the property owner, don’t live in Massachusetts you have to designate a resident agent.
  • If your children occupy the apartment but you don’t, you still have to register your property.

As part of the registration, the property owner is required to certify that he or she is familiar with a plethora of complex laws and regulations including the State Sanitary Code, Building Code, Student Zoning Code, Lead Paint Standards, Fair Housing Regulations, etc. – and the owner has to certify an intention to comply with them.

Is that possibly legal?

I could not honestly certify familiarity with thousands of pages of regulations and I’ve written a textbook on Massachusetts Landlord-Tenant Law used by lawyers and law schools throughout the state and litigated cases in the Housing Court for 20 years.

Can you be forced to certify what isn’t true? © 2013 George Warshaw.

The Home Inspection Trap

7 Mar

MetroBoston Publication Date February 27, 2013
By Attorney George Warshaw

Professional home inspectors often unearth defects easily overlooked by the untrained eye. Don’t pass on a home inspection before buying a house or condo just because it looks good or is newly built or renovated.

The inspection is usually conducted after the offer is accepted but before the purchase and sale agreement is signed. Nearly all preprinted offers contain “an inspection contingency” giving the buyer the right to cancel the purchase based on the results of the inspection.

Be careful how it’s worded – there may be a trap.

Many of these preprinted forms only give the buyer the right to cancel if there are “serious structural or mechanical defects,” whatever that means, or put a limit on the amount of repairs required that permit you to cancel; i.e., “negotiate.”

That’s not good enough in my view.

Don’t hesitate to cross it out and simply make your offer subject to an inspection that is satisfactory to you. It’s your offer – and your right to control how it’s worded. 

Be a smart buyer. Get an inspection before buying, and make it satisfactory to you – and if you’re selling, consider hiring an inspector to flush out your problems before you put your home on the market. © 2013 George Warshaw.

George Warshaw is a well-known attorney and author. He represents buyers and sellers of homes and condos in Massachusetts, and prepares wills, trusts, and estate plans. George welcomes new clients and questions. Contact him at metro@warshawlaw.com.

 

 

When a Phone Call is Not Enough

7 Mar

MetroBoston Publication Date February 20, 2013
By Attorney George Warshaw

Ms. M, a nice young girl, found an affordable South End Condo. It was her first real estate purchase. Mom even liked it.

Her offer was accepted and she paid a $1,000 deposit. .

The offer contained the usual mortgage clause. She had to submit a written application for a loan by a certain date.  If after making a diligent effort she didn’t get a commitment for financing by a later date she could cancel and get her money back.

Ms. M called a mortgage broker who gave her bad news. The condo didn’t qualify under Fannie Mae guidelines. A minimum percentage of condos had to sold or under agreement to owner-occupants. Since hers was the very first sale in a new development, the building didn’t qualify.

Ms. M asked for her deposit back. The seller refused claiming “a phone call was not enough.”

The offer required she submit a written application for a mortgage and make a diligent effort to obtain a loan. She never submitted a written application and never called any banks that might possibly give her a loan.

Is Ms. M entitled to her money back?

No, the court ruled. A phone call is not a written application and a diligent effort requires more than a phone call. © 2013 George Warshaw.

George Warshaw is a well-known attorney and author. He represents buyers and sellers of homes and condos in Massachusetts, and prepares wills, trusts, and estate plans. George welcomes new clients and questions. Contact him at metro@warshawlaw.com.

Marriage and Real Estate

5 Feb

MetroBoston Publication Date February 5, 2013
By Attorney George Warshaw

State law provides married couples a special form of home ownership protection. It’s referred to as a “tenancy by the entirety.” It’s like a joint tenancy but for married couples.

It’s created by simply stating in the deed, “I grant to Dick and Jane, husband and wife (or being a married couple), as tenants by the entirety, the following property . . . .”

What’s special about it?

Real estate acquired under the heading “tenants by the entirety” is similar to a joint tenancy in one sense: if one person dies the other inherits it automatically. A probate court is not required to pass title to the survivor.

Marital property held this way has two special features: first, a creditor of only one spouse cannot seize and sell the marital home so long as it is the principal residence of the other spouse; and second, neither spouse can eliminate the right of the other to inherit the property by merely giving a deed to a child or an outsider.  

There are several exceptions that may make a visit to a lawyer worthwhile. If you acquired your martial home before February 11, 1980 or were originally deeded your home as joint tenants or tenants in common, consult a real estate lawyer to upgrade your ownership. © 2013 George Warshaw.

George Warshaw is a well-known attorney and author. He represents buyers and sellers of homes and condos in Massachusetts, and prepares wills, trusts, and estate plans. George welcomes new clients and questions. Contact him at metro@warshawlaw.com.

 

 

Owing Real Estate as Joint Tenants

31 Jan

MetroBoston Publication Date January 31, 2013
By Attorney George Warshaw

Two or more people can own real estate together in several ways. One of the most common is as “joint tenants with rights of survivorship.”

A joint tenancy is a form of ownership by which a person’s ownership rights in property pass to one’s co-owners upon death.

Ordinarily, when a person dies the heirs must go through the probate court to obtain certification of an inheritance of real estate. Property owned or held as “joint tenants” avoids probate because the property transfer is automatic upon death.

Simply file the death certificate with the Registry of Deeds and the transfer of legal ownership become complete and noted in the official records. Nothing more is necessary to effectuate the transfer of title ownership.

A joint tenancy in real property is established by the initial words of transfer used in the deed. “I grant to Fred and Wilma Flintstone the following property as joint tenants with the right of survivorship . . . .” is how it is typically phrased.

Can one joint tenant deed his or her interest without the consent of the others? Yes. One joint tenant always has the right to transfer his or her ownership interest without the permission of the other – but the automatic inheritance right is usually lost upon the transfer. © 2013 George Warshaw.

George Warshaw is a well-known attorney and author. He represents buyers and sellers of homes and condos in Massachusetts, and prepares wills, trusts, and estate plans. George welcomes new clients and questions. Contact him at metro@warshawlaw.com.

 

 

Should You Add Your Name to Mom or Dad’s Deed?

25 Jan

MetroBoston Publication Date January 24, 2013
By Attorney George Warshaw

Last week we briefly discussed the tax benefits and perils of gifting real estate. One thing that most people do not consider as a gift is when a child’s name is added to a parent’s deed.

Usually a child is added to a deed to make inheritance easier or to help manage the parent’s property.  Adding one’s name to a deed can have unintended tax consequences. It is often considered a gift under the tax code!

If it is considered a gift, then the person receiving the gift receives along with it the same tax basis that the parent had in the property.

If a house is worth $500,000 and a child is added to a parent’s deed as a joint tenant with rights of survivorship, the child usually receives a gift of a portion of the parent’s ownership interest – typically a half-interest.

Keep in mind this basic estate planning rule when transferring any interest in property: a person inherits property at its fair market value; a person receives a gift of property at the same tax basis (i.e. cost + improvements) as the giver has in the property.

Check with your tax accountant, adviser or lawyer before adding someone onto a deed. The foregoing may not apply to you. © 2013 George Warshaw.

George Warshaw is a well-known attorney and author. He represents buyers and sellers of homes and condos in Massachusetts, and prepares wills, trusts, and estate plans. George welcomes new clients and questions. Contact him at metro@warshawlaw.com.