Tag Archives: Realtor

Small Claims – How It Works

17 Oct

It happens often. You’re buying a home but you don’t like the results of the
inspection and you cancel the offer – or at least you try. The seller refuses
to release your deposit.

 You’re a tenant. You paid a security deposit and now you want it back. You’ve asked for it but your requests have been ignored.

Recent changes to small claims procedures make small claims very attractive. The amount that can be sued for in small claims has increased from $2,000 to
$7,000.

You don’t need to hire a lawyer in small claims unless you are a corporation or a
limited liability company. You can do it yourself.

Once the small claims case is filed, notice is sent to the defendant by regular
mail. A date is chosen by the court and the parties must appear or risk being
defaulted.

Hearings are no longer held in front of a judge. Rather, certain court personnel,
designated as Clerk/Magistrates, conduct the hearings.

It’s important to bring with you all the documents that you want considered by the hearing officer. Telling the hearing officer that “it’s at home” will often
lose the case. Be fully prepared to have any witnesses with you, copies of
checks and all your documents. Good luck! 

© 2011 George Warshaw. All rights reserved.

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George Warshaw is a real estate attorney and legal 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 at george.warshaw@warshawlaw.com.

Legal Advice: Laws, and court decisions interpreting them, change frequently and this article is not updated as laws change. The content and information contained in this article is neither intended as legal advice nor shall establish an attorney-client relationship. Before making any legal decision, consult an attorney to see how the foregoing may apply to your circumstances.

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Should You Rent Your Condo?

26 Jul

Metro®Boston, Publication Date: July 20, 2011
Expanded Content

By Attorney George Warshaw

Consider, for a moment, a significant asset that you already own; one that could generate a stream of revenue well into the future – your condo. 

Rather than sell your condo to buy a new home, would you rent it instead? There are numerous possible benefits. 

The key is to get your interest rate as low as possible today while you are still living in the condominium. By doing so, you place yourself in the best position to generate future “positive cash flow”; one that will allow the rent to cover your mortgage, taxes and condo fees.

With interest rates at distress levels, now is the perfect moment to plan for the future. As an owner-occupant your rate will be lower than what would otherwise be available after you move.

Given the vagaries of the stock and bond markets, the prospective lack of a sufficient future social security payment – at an age when you might actually enjoy it, real estate is a reliable extra revenue source.

If you decide to rent your condo rather than sell it, keep one important thing in mind: if you plan to refinance shortly before you move and rent, the standard Fannie Mae mortgage form used with owner-occupied loans requires the homeowner to live in the condo for 12 months after signing.  Make your plans well in advance.

So be a smart condo owner – plan now for the future, and get the benefit of rents paying your mortgage. 

© 2011 George Warshaw. All rights reserved.

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George Warshaw is a real estate attorney and legal 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 at george.warshaw@warshawlaw.com.

Legal Advice: Laws, and court decisions interpreting them, change frequently and this article is not updated as laws change. The content and information contained in this article is neither intended as legal advice nor shall establish an attorney-client relationship. Before making any legal decision, consult an attorney to see how the foregoing may apply to your circumstances.

Getting Older – The New American Dream

30 Jun

Metro®Boston, Publication Date: June 29, 2011

By Attorney George Warshaw

The economy has changed the way older homeowners view their future.

Many are selling their long-time residence and renting rather than buying a
replacement home. No more mowing the lawn, paying a mortgage and maintaining an aging house. Sell the house, bank the money.

The second home market in a prolonged down economy is usually the first to collapse and the first to present opportunities. Among those who rent their primary residence, many are taking advantage of the depressed market to buy a vacation house.

I spoke about this recently with Jennifer Knight, a REMAX buyer’s broker on Martha’s Vineyard (jennifer@jennifersrealestate.com, (508) 221-2615).

“Tastes and needs have changed. Many who have sold their primary homes still need a place where they can entertain; where friends, children and family can be together, especially in an environment where there is a great deal of life, enjoyment and energy.

“But now they’re buying with cash flow in mind. They’re buying and then renting their Vineyard house for a month or two in the summer. The income from the vacation home rental covers the taxes and possibly operating costs, and they still get to host their family and friends.”

What’s happening on Martha’s Vineyard is not unique as people strive to find a balance between the life style they want or need, and the means to support it.

The prolonged so-called “jobless recovery” has caused many to change their approach to getting older and restructure their personal financial game plan. No one any longer believes that social security will be there for you when you retire.

It’s not simply a matter of the continual rise in the age when you are eligible to receive benefits – obviously they hope you are dead before the government has to pay; rather, the government has “borrowed” most of the money for its day-to-day operating expenses.

The recent debt ceiling crisis revealed that the government raided social security as a loan to be repaid in the future. Now the government needs to raise the debt ceiling to be able to borrow more money to pay its bills and repay social security.

Hmmmm! Perhaps they should consult a financial planner or better yet, I’m sure Bernie Madoff could give them some advice. At least he has experience!

© 2011 George Warshaw. All rights reserved.

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George Warshaw is a real estate attorney and legal 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 at george.warshaw@warshawlaw.com.

Legal Advice: Laws, and court decisions interpreting them, change frequently and this article is not updated as laws change. The content and information contained in this article is neither intended as legal advice nor shall establish an attorney-client relationship. Before making any legal decision, consult an attorney to see how the foregoing may apply to your circumstances.

The New Mass. Homestead Law

31 May

Metro®Boston, Publication Date: June 1, 2011 

By Attorney George Warshaw

If you mention “homestead law” to someone in Massachusetts, their eyes usually roll in puzzlement and ask, “What’s that?”

Quite simply, it’s a law designed to help homeowners keep their homes when in debt or faced with a judgment they cannot pay. The law does not protect against divorce, taxes, or mortgage foreclosure, but it is very helpful in many other situations.

The law prevents a plaintiff, claimant or creditor from selling your principal residence to satisfy a debt, as long the equity in your home is not more than $125,000 or $500,000.

By filing a Declaration of Homestead in the registry of deeds, you protect up to $500,000 of the equity in your home against liens imposed after the time and date of your filing.

If you choose not to file, you still receive $125,000 in protection – but only if you bought your home on or after March 16, 2011. Otherwise, you must file a written declaration to gain any protection.

Filing a declaration is cheap and easy to do. While it is better to have a lawyer guide you, you can download the form on most registries of deeds websites.

Homesteads filed under the old law are valid with, perhaps, one exception:  recent decisions from the bankruptcy court have led many to question whether the “release of homestead” language in the standard Fannie Mae mortgage inadvertently terminated a homestead filed before March 16th (i.e. under the former version of the law).

Many commentators are suggesting that homeowners file a new homestead declaration to be safe.

How the new law works. Here’s an example:

Husband and wife (H&W) purchase a home for $500,000 and borrow $100,000 from the bank, giving the bank a mortgage for the amount borrowed. It will be their principal residence.

They thought about filing a formal homestead declaration to obtain the maximum protection but did not. Fortunately, the new law gives them an automatic $125,000 protection in the equity in their new house or condominium from liens and lawsuits.

They hire a home improvement contractor and get into a dispute. The contractor files a mechanic’s lien and later obtains a judgment for $25,000. The judgment cannot be enforced against the marital home. Thus, the contractor cannot force the sale of the house or condo to pay the judgment. Their home is safe under the homestead law – at least for now.

A few years pass and the husband and wife sell their home for the same price they paid. The contractor cannot stop the sale or require they pay the $25,000 judgment as a condition of the sale. The husband and wife take the proceeds from the sale, a little less than $100,000, and put it into their bank account. That money is safe for one year under the new law.

If the husband and wife use the proceeds from their sale to buy a new home within one year of their sale, the proceeds and their new home will be protected against the contractor’s judgment.

The new Massachusetts Homestead Law is very complicated, but it works to the benefit of all homeowners. It provides special protections for persons of age 62 or more or who are disabled and permits beneficiaries of a trust to protect their principal residence if the real estate is in the trust.

It will take a few years before the courts provide guidance and clarity on the details of the law. © 2011 George Warshaw. All rights reserved.

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George Warshaw is a real estate 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 at george.warshaw@warshawlaw.com.

Legal Advice: Laws, and court decisions interpreting them, change frequently and this article is not updated as laws change. The content and information contained in this article is neither intended as legal advice nor shall establish an attorney-client relationship. Before making any legal decision, consult an attorney to see how the foregoing may apply to your circumstances.

Discounting Brokerage Fees

30 Apr

Metro® Boston, Publication Date: March 16, 2011

By Attorney George Warshaw 

A recent advertisement offered to give a buyer a “$5,000 rebate certificate” if the buyer attends one of the broker’s “open houses” and then uses that broker as the buyer’s agent in the sale of any property. 

Hmmm! Sounds interesting. Go to an open house, see a particular house or condo, sign up right then with the broker to buy that or any other property, and get $5,000 back at the time of purchase. 

This could be a good deal for a buyer, but it also might not. 

A broker that lists a house or condo for sale receives the entire sales commission where there is no other broker involved. That’s good for the broker: it doesn’t have to split the commission with a buyer’s agent. 

Where the listing broker gives a buyer a cash incentive to use no other broker, how does a buyer know the lowest possible price at which the property could be purchased where the buyer is not getting independent advice? 

There’s no substitute for being a knowledgeable buyer. Consider assembling your own team of realtor, lender and lawyer before you start shopping for a new home. You’ll be assured that way of getting the best possible advice. © 2011 George Warshaw.

The foregoing is not intended as legal advice. Consult an attorney to see how or if the foregoing applies to you.

Attorney George Warshaw represents buyers and sellers of homes, condos and investment properties, prepares wills and trusts for inheriting real estate, and trusts that protect your children and pets. George welcomes new clients and questions at  george.warshaw@warshawlaw.com.

The Broker as Escrow Agent

30 Apr

Metro® Boston, Publication Date: January 26, 2011

By Attorney George Warshaw

It wasn’t a bad idea.

The buyer saw a condo at a Coldwell Banker open house. He made an offer. It was revised and rejected several times. THEN he hired a broker to help him. His offer was finally accepted by the seller.

The buyer made an unusual deal with his new broker. “I’ll pay you an hourly fee, but no less than $3,000; just refund me your share of the broker’s commission.”

Coldwell claimed that the buyer’s broker was too late to the dance and had done nothing, or very little, to earn a commission. Since Coldwell was holding the deposit in escrow from which commissions were to be paid, it refused to pay the buyer’s agents any portion after closing. 

The purchase agreement, however, stated that the commission was to be split evenly between Coldwell and the buyer’s agent, but Coldwell never signed the agreement (brokers rarely do). 

The court nonetheless found Coldwell liable and awarded the buyer triple damages. An escrow agent is required to follow the escrow terms of the purchase and sale agreement. In the event of a conflict, it should have declined to hold the money, negotiated different terms of escrow, or sought immediate guidance from a court. See Zang v. NRT NewEngland,77 Mass. App. Ct.665 (2010). 

The foregoing is not intended as legal advice. Consult an attorney to see how or if the foregoing applies to you.

Attorney George Warshaw represents buyers and sellers of homes, condos and investment properties and prepares wills and trusts for inheriting real estate. George welcomes new clients and questions at  george.warshaw@warshawlaw.com.