Discovering defects now can avoid a host of legal trouble
Tuesday, July 24, 2007 By Barry StoneInman News
Dear Barry,
I'm getting ready to sell my home and would like to hire a home inspector before I put it on the market. It seems that a pre-marketing inspection would give me a better idea of needed improvements before I sell. Is this wise or not? --
Your approach demonstrates a wisdom not commonly realized by sellers. Buyers typically hire the home inspector after the purchase contract has been signed. The inspector provides a list of defects, and then the buyers ask the sellers to make repairs, to reduce the price, or sometimes to cancel the sale. When you provide a home inspection report prior to signing the contract, you avert this process of renegotiation.
Essentially, there are three benefits for sellers who hire a home inspector prior to marketing a property:
1. The inspection report informs you, in advance, of any significant defects that might need attention and that could adversely affect your chances of selling the property. It affords you the opportunity to make repairs prior to sale.
2. The report enables you to provide a more thorough and complete disclosure of the property's condition. This lessens the likelihood of legal problems after the sale, when undisclosed defects might then be discovered.
3. The report provides the best basis for an as-is sale, if that is what you prefer. You can decline to make repairs while fully informing the buyers of the conditions that need repair.
Sellers would do themselves a great service by taking this proactive approach to the disclosure process.
Tuesday, July 24, 2007
Friday, July 20, 2007
Fence Doesn't Always Show True Lot Line
July 19, 2007
DEAR BOB: I own a commercial property with residential lots in the rear. There is a fence along the rear of my property, about 7 feet within my side of the property line. There is a paved parking lot on my side of my fence. One of the residential houses in back of my lot was recently sold, remodeled and flipped. The flipper landscaped his backyard up to my fence, making it look as though my property is part of his yard. The buyers are using my fence as their backyard boundary. I'm not sure if the buyers of that house understand they don't own the 7-foot strip of my lot on their side of my fence. What should I do? --
: If I understand the situation correctly, the fence is 7 feet on your side of the lot boundary. To protect your interest in that 7-foot strip of your lot -- which the previous adjoining owner landscaped -- you or your attorney should send the new owner a polite letter informing him of the true boundary location, which is 7 feet from the fence.
Purchase Bob Bruss reports online.
With limited exceptions, fences are not automatically lot boundaries (although they often are built on boundary lines).
If the neighbor continues using your 7-foot strip of land without your permission, it may be possible for him to acquire a permanent prescriptive easement to use that land strip forever. One way to prevent this is to grant permissive use.
The reason is acquiring a prescriptive easement requires open, notorious, hostile (without permission) and continuous use for the number of years required by state law.
Another alternative would be for you to erect a new fence along the true boundary, which, if I understand you correctly, would be 7 feet within the neighbor's landscaped area. For full details, please consult a local real estate attorney.
Published by Bob Bruss/Inman News
DEAR BOB: I own a commercial property with residential lots in the rear. There is a fence along the rear of my property, about 7 feet within my side of the property line. There is a paved parking lot on my side of my fence. One of the residential houses in back of my lot was recently sold, remodeled and flipped. The flipper landscaped his backyard up to my fence, making it look as though my property is part of his yard. The buyers are using my fence as their backyard boundary. I'm not sure if the buyers of that house understand they don't own the 7-foot strip of my lot on their side of my fence. What should I do? --
: If I understand the situation correctly, the fence is 7 feet on your side of the lot boundary. To protect your interest in that 7-foot strip of your lot -- which the previous adjoining owner landscaped -- you or your attorney should send the new owner a polite letter informing him of the true boundary location, which is 7 feet from the fence.
Purchase Bob Bruss reports online.
With limited exceptions, fences are not automatically lot boundaries (although they often are built on boundary lines).
If the neighbor continues using your 7-foot strip of land without your permission, it may be possible for him to acquire a permanent prescriptive easement to use that land strip forever. One way to prevent this is to grant permissive use.
The reason is acquiring a prescriptive easement requires open, notorious, hostile (without permission) and continuous use for the number of years required by state law.
Another alternative would be for you to erect a new fence along the true boundary, which, if I understand you correctly, would be 7 feet within the neighbor's landscaped area. For full details, please consult a local real estate attorney.
Published by Bob Bruss/Inman News
Friday, July 13, 2007
Trespasser May Be Granted Legal Use Of Your Property
Have you checked your easements lately?
Friday, June 29, 2007By Robert J. BrussInman News
Editor's note: Robert Bruss is temporarily away and will return next week. The following column from Bruss' "Best of" collection first appeared Sunday, June 25, 2006.
Not too long ago, a neighbor asked if I knew where our sewer and storm drains are located. He apparently wants to adjust the drainage on his property to drain into the public storm sewer drain, which I knew adjoins our lots.
After that brief conversation, I checked the legal description for my property. All it says is the city has a public utility easement along the northerly 5 feet of my property. But the easement description doesn't say what underground utilities are there and exactly where they are located.
Purchase Bob Bruss reports online.
Further research in the public records might reveal exactly what underground public utility easements pass through my property and exactly where they are located.
WHAT IS AN EASEMENT? Virtually every property in an urban area is subject to one or more easements. An easement is the legal right of a public or private entity to use part of a real property owner's land.
The property that is burdened by an easement is called a "servient tenement" because the easement serves another parcel. The property that benefits from the easement is called the adjoining dominant tenement."
There is always a servient tenement. However, there is not always an adjoining dominant tenement, such as for a public utility easement.
Private easement examples include a driveway, path or garden area of a neighbor's property. Public easements include utility easements for water, sewer, storm drain, electric lines, phone lines, gas pipes and cable TV lines.
Most easements are obtained with permission of the original property owner, usually at the time a subdivision is developed. The utility easements are often granted free by the developer in return for the city or private utility bringing public services to the property.
But some easements are hostile, without the specific permission of the property owner. To illustrate, suppose I drive over part of your property to reach my garage because that route is shorter and easier than using my steep driveway to reach the public street. Even if you tell me to stop driving over your land, but I continue to do so for the number of years required by state law, eventually I can obtain a permanent prescriptive easement for that purpose.
To be valid, an easement must be recorded against the title of the property that is subject to the easement, such as a shared driveway between two houses.
A very rare easement is an easement by necessity. Most states have laws allowing creation of an easement by necessity to reach a landlocked parcel, which has no driveway or other access to a public road.
The legal theory is all land should have road access, and when the landlocked parcel was created the owner at that time forgot to include access. A quiet title lawsuit is usually required to create an easement by necessity over an adjoining parcel that has public road access and, at some time in the past, had common ownership with the landlocked parcel.
THREE BASIC TYPES OF EASEMENTS. Virtually every real estate parcel is burdened by some type of easement. To be valid, the easement must either be recorded in the public records affecting a specific parcel, or it must be capable of being perfected into a valid easement.
1. EASEMENTS APPURTENANT BENEFIT AN ADJOINING PARCEL.
Where there is a dominant tenement that benefits from an easement, such as for a driveway, that is an easement appurtenant. Most easements appurtenant were created when a subdivision was developed, or when two adjoining lots were subdivided.
An easement appurtenant is usually recorded against both parcels, describing the details of that easement. To be valid, an easement appurtenant must be recorded against the servient tenement title. It is usually also recorded against the dominant tenement title.
When a parcel is landlocked without public road access, it is up to the owner of that parcel to prove entitlement to an easement by necessity. If the court approves such an easement, it becomes an easement appurtenant with dominant and servient tenements.
2. EASEMENTS IN GROSS AFFECT MOST PROPERTIES.
Virtually every property with electricity, phone, TV cable, public water, sewer, and storm drain utility service is subject to one or more easements in gross. Most such easements are recorded in the public records against each property title affected.
An easement in gross has a servient tenement, but no dominant tenement. Sometimes such easements were not properly recorded. If the easement in gross is obvious, such as for overhead power lines, it is hard for the property owner to deny awareness.
But underground easements in gross, such as for water, sewer and gas pipes, might not be obvious. To avoid unexpected surprises, property buyers should insist on receiving an owner's title insurance policy at the time of purchase. If an underground easement in gross is later discovered, but it was not disclosed in the owner's title insurance policy, the title insurer may be liable to the property owner for damages.
For example, suppose you decide to build a swimming pool in your backyard. As the contractor is digging, he discovers a previously undisclosed city sewer through the middle of your backyard. If the city's sewer easement was properly recorded, but the title insurer failed to discover and disclose it, the title insurer is liable to the property owner for either the cost of moving the sewer pipe or the diminished value of the property.
3. PRESCRIPTIVE EASEMENTS REQUIRE HOSTILITY. When someone uses part of your property without your permission, and without a prior recorded easement, he or she might become entitled to permanent use of that easement.
The legal requirements to acquire a prescriptive easement over someone's land requires (a) open, (b) notorious (obvious), (c) hostile (without permission), and (d) continuous use of part of another's property without permission for the number of years required by state law.
Payment of property taxes is not required, as it is to obtain title by adverse possession.
California has the shortest prescriptive easement period, only five years. But Texas requires 30 years to acquire a prescriptive easement. Other states have varying time tests.
Because prescriptive easements can be shared, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive easement claimants.After meeting the time and use requirements, a prescriptive easement acquirer can perfect the easement by bringing a quiet title lawsuit against the property's legal owner. An experienced real estate attorney is usually needed to prove the prescriptive easement requirements.
SUMMARY: Virtually every property is burdened by or benefits from an easement. Property owners should understand the legal consequences of those easements and where they are located. Unless properly recorded, an easement might not be valid except when it is obvious by long continuous use, such as overhead power lines. For full easement details, please consult a local real estate attorney.
(For more information on Bob Bruss publications, visit his Real Estate Center)
Friday, June 29, 2007By Robert J. BrussInman News
Editor's note: Robert Bruss is temporarily away and will return next week. The following column from Bruss' "Best of" collection first appeared Sunday, June 25, 2006.
Not too long ago, a neighbor asked if I knew where our sewer and storm drains are located. He apparently wants to adjust the drainage on his property to drain into the public storm sewer drain, which I knew adjoins our lots.
After that brief conversation, I checked the legal description for my property. All it says is the city has a public utility easement along the northerly 5 feet of my property. But the easement description doesn't say what underground utilities are there and exactly where they are located.
Purchase Bob Bruss reports online.
Further research in the public records might reveal exactly what underground public utility easements pass through my property and exactly where they are located.
WHAT IS AN EASEMENT? Virtually every property in an urban area is subject to one or more easements. An easement is the legal right of a public or private entity to use part of a real property owner's land.
The property that is burdened by an easement is called a "servient tenement" because the easement serves another parcel. The property that benefits from the easement is called the adjoining dominant tenement."
There is always a servient tenement. However, there is not always an adjoining dominant tenement, such as for a public utility easement.
Private easement examples include a driveway, path or garden area of a neighbor's property. Public easements include utility easements for water, sewer, storm drain, electric lines, phone lines, gas pipes and cable TV lines.
Most easements are obtained with permission of the original property owner, usually at the time a subdivision is developed. The utility easements are often granted free by the developer in return for the city or private utility bringing public services to the property.
But some easements are hostile, without the specific permission of the property owner. To illustrate, suppose I drive over part of your property to reach my garage because that route is shorter and easier than using my steep driveway to reach the public street. Even if you tell me to stop driving over your land, but I continue to do so for the number of years required by state law, eventually I can obtain a permanent prescriptive easement for that purpose.
To be valid, an easement must be recorded against the title of the property that is subject to the easement, such as a shared driveway between two houses.
A very rare easement is an easement by necessity. Most states have laws allowing creation of an easement by necessity to reach a landlocked parcel, which has no driveway or other access to a public road.
The legal theory is all land should have road access, and when the landlocked parcel was created the owner at that time forgot to include access. A quiet title lawsuit is usually required to create an easement by necessity over an adjoining parcel that has public road access and, at some time in the past, had common ownership with the landlocked parcel.
THREE BASIC TYPES OF EASEMENTS. Virtually every real estate parcel is burdened by some type of easement. To be valid, the easement must either be recorded in the public records affecting a specific parcel, or it must be capable of being perfected into a valid easement.
1. EASEMENTS APPURTENANT BENEFIT AN ADJOINING PARCEL.
Where there is a dominant tenement that benefits from an easement, such as for a driveway, that is an easement appurtenant. Most easements appurtenant were created when a subdivision was developed, or when two adjoining lots were subdivided.
An easement appurtenant is usually recorded against both parcels, describing the details of that easement. To be valid, an easement appurtenant must be recorded against the servient tenement title. It is usually also recorded against the dominant tenement title.
When a parcel is landlocked without public road access, it is up to the owner of that parcel to prove entitlement to an easement by necessity. If the court approves such an easement, it becomes an easement appurtenant with dominant and servient tenements.
2. EASEMENTS IN GROSS AFFECT MOST PROPERTIES.
Virtually every property with electricity, phone, TV cable, public water, sewer, and storm drain utility service is subject to one or more easements in gross. Most such easements are recorded in the public records against each property title affected.
An easement in gross has a servient tenement, but no dominant tenement. Sometimes such easements were not properly recorded. If the easement in gross is obvious, such as for overhead power lines, it is hard for the property owner to deny awareness.
But underground easements in gross, such as for water, sewer and gas pipes, might not be obvious. To avoid unexpected surprises, property buyers should insist on receiving an owner's title insurance policy at the time of purchase. If an underground easement in gross is later discovered, but it was not disclosed in the owner's title insurance policy, the title insurer may be liable to the property owner for damages.
For example, suppose you decide to build a swimming pool in your backyard. As the contractor is digging, he discovers a previously undisclosed city sewer through the middle of your backyard. If the city's sewer easement was properly recorded, but the title insurer failed to discover and disclose it, the title insurer is liable to the property owner for either the cost of moving the sewer pipe or the diminished value of the property.
3. PRESCRIPTIVE EASEMENTS REQUIRE HOSTILITY. When someone uses part of your property without your permission, and without a prior recorded easement, he or she might become entitled to permanent use of that easement.
The legal requirements to acquire a prescriptive easement over someone's land requires (a) open, (b) notorious (obvious), (c) hostile (without permission), and (d) continuous use of part of another's property without permission for the number of years required by state law.
Payment of property taxes is not required, as it is to obtain title by adverse possession.
California has the shortest prescriptive easement period, only five years. But Texas requires 30 years to acquire a prescriptive easement. Other states have varying time tests.
Because prescriptive easements can be shared, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive easement claimants.After meeting the time and use requirements, a prescriptive easement acquirer can perfect the easement by bringing a quiet title lawsuit against the property's legal owner. An experienced real estate attorney is usually needed to prove the prescriptive easement requirements.
SUMMARY: Virtually every property is burdened by or benefits from an easement. Property owners should understand the legal consequences of those easements and where they are located. Unless properly recorded, an easement might not be valid except when it is obvious by long continuous use, such as overhead power lines. For full easement details, please consult a local real estate attorney.
(For more information on Bob Bruss publications, visit his Real Estate Center)
Thursday, July 5, 2007
Future Homeowners Pay For Poor Paint Job!
How to ensure a long-lasting coat on stucco
Thursday, July 05, 2007By Bill & Kevin BurnettInman News
Q: I own a stucco home that was built in the late 1940s. It was last painted about 10 years ago and is flaking.
When I lift the flakes off with a putty knife, the underside is white and chalky. The more I lift off, the farther it goes. Although some areas appear tight, some show lifting a day later. There are also some hairline cracks.
What is the best way to prep for painting? Should I rent a pressure washer, and if so, will that remove the chalkiness, or will that take wire brushing? Should the hairline cracks be widened and filled, or will the undercoat provide enough filler? Should the cracks be dealt with before washing? How powerful should the pressure washer be?
Also, I was planning to use Zinsser oil base undercoat, followed by Kelly-Moore Acry Velvet exterior paint.
A: A stucco paint job should last more than 10 years, especially if the paint was of reasonably good quality. We're afraid you've fallen victim to poor preparation.
As we always say, an exterior paint job is only as good as the prep -- and this was a crummy job. The fact the paint is peeling off the chalky surface underneath tells us that the previous "painter" -- and we use the term loosely -- just slapped on a coat of paint to make the place look good. The result is that he wasted a fair amount of time and money and didn't get the longevity he could have gotten with a little more time and effort.
Our compliments to you for doing it right this time. All of the questions you pose are good ones. You're definitely on the right track. Follow these steps to get a long-lasting "Cadillac" paint job.
1. Clean the surface. As far as we're concerned, using a pressure washer is the only way to go. A pressure washer rated at about 1,700 psi will do the job, but if you're renting, go for the larger model. You can always dial it down a bit.
Use a wider spray pattern and go at the wall at about a 45-degree angle so you don't blow a hole in the stucco. Use drop cloths at the base of the wall to catch the paint chips you'll invariably dislodge. We suspect the old paint will come off in sheets.
2. After the surface is dry give any cracks a quick swipe with a wire brush to eliminate any leftover debris. Also check for and remove any paint chips that may have escaped the pressure washer.
3. Prime the surface. The Zinsser product you mention should be OK. Doublecheck to make sure it's suitable for stucco and compatible with the Kelly-Moore finish coat you're planning.
Another option is to use a low-viscosity penetrating sealer. These sealers penetrate any chalking paint that might remain after washing and bond it to the surface. Since you're using a Kelly-Moore finish, take a look at their 98 Stucco Seal. A description and specifications can be found on the Web at www.kellymoore.com.
4. Patch the stucco. For patching hairline cracks, we've had good luck with Bondex Ready-Mixed Stucco Patch by Zinsser. This product has the consistency of a heavy paste, dries to a bright white and cleans up with warm water.
Application is with a putty knife, a broad knife or a heavy paintbrush. Work the material into the cracks and allow it to dry. If there are wide cracks several coats may be required. Because of its thickness this material can be "tooled" to match the existing stucco.
For more information check out the product data sheet at www.zinsser.com.
5. Apply the finish. The hard part's done, now it's time to reap the rewards. Paint your house the color of your choice and rest assured you've done everything you can to ensure a long-lasting job. Hopefully you won't tire of the color. But if you do, the next go-round of preparation will be a whole lot easier.
***
Copyright 2007 Bill and Kevin Burnett
Thursday, July 05, 2007By Bill & Kevin BurnettInman News
Q: I own a stucco home that was built in the late 1940s. It was last painted about 10 years ago and is flaking.
When I lift the flakes off with a putty knife, the underside is white and chalky. The more I lift off, the farther it goes. Although some areas appear tight, some show lifting a day later. There are also some hairline cracks.
What is the best way to prep for painting? Should I rent a pressure washer, and if so, will that remove the chalkiness, or will that take wire brushing? Should the hairline cracks be widened and filled, or will the undercoat provide enough filler? Should the cracks be dealt with before washing? How powerful should the pressure washer be?
Also, I was planning to use Zinsser oil base undercoat, followed by Kelly-Moore Acry Velvet exterior paint.
A: A stucco paint job should last more than 10 years, especially if the paint was of reasonably good quality. We're afraid you've fallen victim to poor preparation.
As we always say, an exterior paint job is only as good as the prep -- and this was a crummy job. The fact the paint is peeling off the chalky surface underneath tells us that the previous "painter" -- and we use the term loosely -- just slapped on a coat of paint to make the place look good. The result is that he wasted a fair amount of time and money and didn't get the longevity he could have gotten with a little more time and effort.
Our compliments to you for doing it right this time. All of the questions you pose are good ones. You're definitely on the right track. Follow these steps to get a long-lasting "Cadillac" paint job.
1. Clean the surface. As far as we're concerned, using a pressure washer is the only way to go. A pressure washer rated at about 1,700 psi will do the job, but if you're renting, go for the larger model. You can always dial it down a bit.
Use a wider spray pattern and go at the wall at about a 45-degree angle so you don't blow a hole in the stucco. Use drop cloths at the base of the wall to catch the paint chips you'll invariably dislodge. We suspect the old paint will come off in sheets.
2. After the surface is dry give any cracks a quick swipe with a wire brush to eliminate any leftover debris. Also check for and remove any paint chips that may have escaped the pressure washer.
3. Prime the surface. The Zinsser product you mention should be OK. Doublecheck to make sure it's suitable for stucco and compatible with the Kelly-Moore finish coat you're planning.
Another option is to use a low-viscosity penetrating sealer. These sealers penetrate any chalking paint that might remain after washing and bond it to the surface. Since you're using a Kelly-Moore finish, take a look at their 98 Stucco Seal. A description and specifications can be found on the Web at www.kellymoore.com.
4. Patch the stucco. For patching hairline cracks, we've had good luck with Bondex Ready-Mixed Stucco Patch by Zinsser. This product has the consistency of a heavy paste, dries to a bright white and cleans up with warm water.
Application is with a putty knife, a broad knife or a heavy paintbrush. Work the material into the cracks and allow it to dry. If there are wide cracks several coats may be required. Because of its thickness this material can be "tooled" to match the existing stucco.
For more information check out the product data sheet at www.zinsser.com.
5. Apply the finish. The hard part's done, now it's time to reap the rewards. Paint your house the color of your choice and rest assured you've done everything you can to ensure a long-lasting job. Hopefully you won't tire of the color. But if you do, the next go-round of preparation will be a whole lot easier.
***
Copyright 2007 Bill and Kevin Burnett
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