By Harvey S. Jacobs March 19, 2015
When one hears the word eviction, one might conjure images of a sheriff’s deputy and a moving crew showing up at a rental property and forcibly depositing the tenant’s possessions at the curb.
But there is another, lesser known type of eviction, a constructive eviction, which is used by tenants to avoid the lease terms. Landlords and tenants alike need to be aware of the legal theory behind it.
Constructive eviction occurs when the landlord allows the property to deteriorate to such an extent that it becomes uninhabitable. Constructive eviction can also arise when a property is rendered uninhabitable by a natural disaster – such as a fire or a flood and the landlord cannot promptly repair the damage. Constructive eviction claims most often arise as a defense in a landlord-tenant action.
Generally speaking, if there is a written lease that calls for the tenant to pay rent and the tenant fails to pay, a court will enter a judgment for the landlord. One of the few reasons a court will excuse the tenant’s obligation to pay rent is that the property is rendered uninhabitable.
Minor problems or temporary circumstances that inconvenience the tenant will not rise to the level of a constructive eviction. Broken elevators or clogged toilets, if fixed within a reasonable time, will not support a tenant’s defense of constructive eviction. If repairs are possible but the landlord refuses to make them or delays making them, a court can order an interim remedy short of declaring a constructive eviction.
A court can order the tenant to pay his rent into a court registry, which is not released to the landlord unless and until all necessary repairs are made. If the landlord still fails to make necessary and timely repairs, the court can allow the tenant to use his rent to pay for repairs.
Because of the ramifications of a constructive eviction such as allowing the tenant to cancel the lease and make no rent payments courts will accept this defense only in the most serious circumstances. For example, courts have found a constructive eviction to exist when heat, potable water and sanitary facilities were lacking for a prolonged period.
To successfully assert the constructive eviction defense, the tenant must abandon the property within a reasonable period. What is reasonable is whatever the courts say is reasonable. Courts have found an abandonment occurring within a month of the event allegedly causing a constructive eviction to be reasonable.
Conversely, when a tenant did not abandon the property until a year had elapsed, that was held to be an unreasonable abandonment. Similarly, abandoning the premises after the lease expired was held to be an unreasonable abandonment. In those cases, the courts refused to find that a constructive eviction had occurred.
Constructive eviction can also be used affirmatively by a tenant. This can occur when a tenant sues the landlord for breach of the tenant’s covenant of quiet enjoyment. All leases contain an implied covenant of quiet enjoyment, which does not necessarily have anything to do with the decibel level at the property or whether the tenant is actually enjoying the property.
This poorly named doctrine guarantees the tenant’s right to use the property for the purposes the tenant intended. When prevented from enjoying such use, the tenant may sue the landlord for breaching the covenant. If the court agrees, it will declare the lease breached by the landlord and allow the tenant to terminate the lease without penalty.
Tenants assume a significant risk when using the constructive eviction defense or when suing for breach of the covenant of quiet enjoyment. Because the tenant must abandon the premises to satisfy the requirements for a constructive eviction, if the claim is not accepted by the court, the tenant will have abandoned the property but will still be liable for the payment of all rent for the entire lease term.
In light of this risk, tenants should think very carefully before using these legal theories.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville, Md. He is a real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, firstname.lastname@example.org or email@example.com.
By Harvey S. Jacobs January 23, 2015
Pssst. Want to buy a luxury condo in warm South Florida for just $1? You can buy a luxury two-bedroom, two-bath condominium on a golf course in Boynton Beach, Fla., and many other warm-weather locations for $1.
What’s more, many of these ultra-cheap condos are even furnished soups to nuts and in turnkey condition (although the furnishings in many cases need updating).
There are currently at least 10 luxury condos listed for between $1 and $900 just in Palm Beach County. These deals really exist, and if you are looking for a winter getaway now with the goal of retiring to a warmer climate someday in the future, these deals are well worth your time, said Kathy Pendleton, a real estate agent with Lang Realty in Boca Raton, Fla., who has been selling country club community real estate for 28 years. One of these units comes complete with a new Keurig coffee maker and fully stocked bar.
So what’s the catch? Are the titles riddled with title clouds? Do they have insurmountable environmental contamination? Are the condo fees sky-high? No, these condos have clear titles, are clean and habitable and their condo fees are in line with comparable units.
The catch with these condos is that they require you to join their country club, pay the annual country club dues and eat and drink a minimum amount each year. Annual total carrying costs run between $20,000 and$30,000, Pendleton said.
Still interested? Do your due diligence.
Before forking over your hard-earned greenback on this or any other too-good-to-be-true real estate investments, you need to ask and receive acceptable answers to many questions.
You must determine the mandatory fees and what you get for them. For example, the $1 condos require you to pay a non-refundable $10,000 country club membership application fee as well as a $40,000 equity buy-in to join the club. When you sell your unit, you may get back as much as 70 percent of your equity buy-in ($28,000). You are also required to pay annual country club dues of approximately $10,000. These dues entitle you to unlimited use of country club facilities and, depending on your membership level, unlimited tennis and golf greens fees. All country clubs have golf cart fees and annual minimum expenditures for food and drink.
In addition to the country-club-related fees, you are required to pay condominium fees, any special assessments, real property taxes and insurance.
You should carefully analyze the country club’s and condominium association’s finances. Specifically, ask if these two associations are solvent. Determine if they have sufficient reserves to pay for major repairs, renovations and capital improvements. Ask about the number of unit owners who are delinquent and how many units have been foreclosed on for delinquent condo fees.
Examine the steps that management is taking to recognize and minimize these adverse conditions. For example, because of an aging population, many condominium associations have begun to offer discounts on application fees and club equity buy-in or even waive first-year club dues to attract a younger membership.
Investigate the covenants, conditions and restrictions (CCRs) and house rules governing your personal and/or rental use of your unit. Many condominiums restrict occupancy to individuals at least 55 years old.
CCRs typically allow only one rental per year. The CCRs will also let you know if owners and renters are allowed to have pets and, if so, if there are restrictions on pet size or the number of animals.
If you intend to rent your unit, you need to explore the tax consequences for such rental income. Though expenses related to generating rental income are generally deductible for federal income tax purposes, the rent you receive is taxable income. Even though the cost of your unit may be as low as $1, the additional mandatory costs of acquisition (but not the cost attributable to the land) generally can be capitalized and depreciated.
Certain states and counties impose a tax for rentals of less than six months. For this reason, many leases are drafted for six months and one day.
If you have $1 in your pocket and can afford the lifestyle, perhaps a country club community is in your future.
Harvey S. Jacobs is a real estate lawyer in the Rockville office of Jacobs & Associates. He is an active real estate investor, real estate agent, developer, landlord, settlement attorney and lender. This column is not legal advice and should not be acted upon without obtaining legal counsel. Jacobs can be reached at (301) 417-4144 via e-mail at Jacobs@Jacobs-Associates.com or firstname.lastname@example.org.
By Harvey S. Jacobs November 14, 2014
If you live in Maryland and your real estate agent refuses to refer you to a mortgage lender, he isn’t being rude. Real estate agents making referrals to service providers in Maryland can now be fined up to $5,000 if they violate a new state Real Estate Commission regulation.
That regulation requires agents to make a referral in writing, to verify that the service provider has a current state license, to provide the date on which the agent last checked the state-licensing database and to provide an electronic link to the licensing record.
Making real estate agents the de facto license police under this unduly burdensome regulation will more than likely prevent licensed real estate agents from making any referrals when providing routine brokerage services.
Previously, experienced real estate agents, familiar with the good and bad service providers, were able to pass along, on an informal basis, the names of service providers they found to perform good work at reasonable prices. The public will no longer be able to readily take advantage of the valuable experience that licensed agents brought to the real estate buying process.
It is safe to assume that when faced with the risk of being fined and reprimanded or even losing their licenses, real estate agents will demur when a client asks for a referral.
This regulation interferes with the professional relationship between the agent and his client, censors the agent’s ability to give meaningful information to their clients, and turns the agent into an agent for the state, said Dennis Melby, former president of the Greater Capital Area Association of Realtors, district vice president of the Maryland Association of Realtors and a real estate agent in Bethesda.
This regulation’s broad scope includes, but is not limited to, referrals to mortgage lenders, mortgage brokers, real estate appraisers, home inspectors, home improvement contractors, plumbers, electricians, heating, ventilation and air-conditioning contractors, and all others who are required to be licensed. The regulation covers referrals provided in connection with the provision of real estate brokerage services.
The new regulation is intended to protect the public, said Kathie Connelly, executive director of the Real Estate Commission.
If the public uses a non-licensed contractor and is harmed, the consumer will not have access to the Maryland Home Improvement Commission’s Guaranty Fund, Connelly added. That fund can reimburse the aggrieved consumer up to $20,000 per claim. A consumer harmed by the unlicensed contractor can still resort to the courts for a remedy.
Insurance companies that provide errors and omissions insurance for Maryland real estate agents certainly see the potential for increased claims against agents. This regulation will add to the huge number of frivolous claims being filed against agents. As a result, insurance premiums may have to be reevaluated.
The District and Virginia maintain similar real estate transaction-guaranty and education funds to assist consumers who have been harmed by their licensees. Neither has or contemplates a similar regulation governing referrals. Nor are any other licensees in the region required to vouch for other licensees’ bona fides.
For example, a Maryland licensed plumber may freely refer a consumer to an electrician without having to check on that electrician’s license and without fear of jeopardizing his plumbing license.
It is a simple matter to verify licensing in Virginia by visiting the Virginia Department of Professional and Occupational Licensing site, www.dpor.virginia.gov/LicenseLookup. In the District, go to www.pearsonvue.com/dc/realestate for licensing data.
It took me three hours to locate a licensed inspector with the necessary credentials, said Anne Brown, a real estate agent with Prudential PenFed Realty in Olney, Md. She added, I am almost to the point of not making any more referrals.
The Maryland Division of Occupational and Professional Licensing is responsible for licensing and regulating the activities of more than 210,000 individuals, corporations and partnerships. There are 23 licensing boards, commissions and programs appointed by the governor regulating 24 different licensed occupations.
Most but not all of these licenses can be verified at www.dllr.state.md.us/pq . Mortgage lender, broker and originator licenses can be verified at www.dllr.state.md.us/finance/industry/licsearch.shtml.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, email@example.com or firstname.lastname@example.org.
By Harvey S. Jacobs September 26, 2014
Homeowners who have been discharged in bankruptcy and who have lost their home to a foreclosure can now get back in the home-buying game in as little as two years, thanks to new Fannie Mae waiting period guidelines.
Before suffering through major derogatory credit events like bankruptcy, foreclosure, short sale or deed in lieu of foreclosure, you should know how long those events will adversely impact your ability to get back into the mortgage market. Fannie Mae and Freddie Mac have established waiting periods. For example, previous Fannie Mae and Freddie Mac guidelines required a borrower to wait four years after a Chapter 7 or 11 bankruptcy and seven years after a foreclosure to become eligible to borrow money on Fannie Mae/Freddie Mac conforming loan terms.
But problems arose with those guidelines, said William Rozek, a loan officer with Embrace Home Loans in Rockville, when a borrower had his loan debt discharged in bankruptcy but, nevertheless, also had his property foreclosed upon in a zombie foreclosure.
Zombie foreclosures occur when a lender goes through all the motions of foreclosing on a property, but fails to take the final step of recording the foreclosure trustee’s deed that transfers legal title from the borrower to the foreclosing lender. These zombie foreclosures severely disadvantage a borrower because his seven-year waiting period never starts.
The new guidelines allow a lender to apply the bankruptcy waiting period even when a zombie foreclosure exists. Borrowers can now get back in the home-buying game in as little as two years, Rozek said, so long as I can document their extenuating circumstances that their loan debt was discharged in the bankruptcy, that the bankruptcy and foreclosure are disclosed on their new loan application and appear on their credit report.
Current waiting periods without extenuating circumstances are as follows:
- Bankruptcy Chapter 7 or 11: four years.
- Bankruptcy Chapter 13: two years from discharge date or four years from last dismissal date.
- Multiple bankruptcy filings: five years if more than one filing in past seven years.
- Foreclosure: seven years.
- Deed in lieu, short sale, charge-off: four years.
The waiting periods also vary depending upon whether there are extenuating circumstances. Fannie Mae defines extenuating circumstances as nonrecurring events that are beyond the borrower’s control that result in a sudden, significant and prolonged reduction in income or a catastrophic increase in financial obligations.
Borrowers should be prepared to provide their loan officer with an extenuating circumstances letter explaining why they had no reasonable alternatives other than to default on their financial obligations. The letter should reference and attach supporting documentation. Examples of acceptable documentation include: divorce decrees, medical reports or bills, notice of job layoff, job severance papers, and documents that explain why the borrowers were unable to resolve their financial problems.
Current waiting periods with extenuating circumstances are as follows:
- Bankruptcy Chapter 7 or 11: two years.
- Bankruptcy Chapter 13: two years from discharge date or two years from last dismissal date.
- Multiple bankruptcy filings: three years from most recent dismissal.
- Foreclosure: three years.
- Deed in lieu, short sale, charge-off: two years.
But why would a lender not want to get title to the property as soon as possible? There are several reasons. Once a lender is in title, it becomes liable for taxes, insurance, utilities, condo and HOA fees, and assessments. It also can become legally responsible for any damages that arise from the vacant property.
The lender must also assume the obligations of an owner, such as snow removal, lawn cutting and keeping the property from becoming blighted or a neighborhood nuisance. Often lenders record their trustee’s deed only after they have procured a new buyer for the property and then they record their trustee’s deed immediately before deeding the property to the new buyer.
But that can take months or even years. This tawdry practice not only leaves the original owner in limbo (and personally responsible for mounting condo or HOA fees) but also causes the official land and court records to be less than accurate.
There is no legal requirement that the lender record its deeds after it has foreclosed. Local jurisdictions surcharge deeds that are not recorded within 30 days of the date they are notarized, but these minor charges are apparently not enough of a disincentive.
It would appear that legislative action requiring the prompt recordation of a trustee’s deed, after auction, within a reasonable period, would alleviate the uncertainty that these zombie foreclosures inject into an already shaky system.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys At Law, in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Harvey at (301) 417-4144 Jacobs@Jacobs-Associates.com or Ask@thehouselawyer.com.
By Harvey S. Jacobs August 29, 2014
I recently read your column regarding title insurance and would like your perspective on a request recently made of me by the title insurance company that the buyer of my condo has selected.
I have a condo on the market that is under contract. Apparently, the title company has done a preliminary search and there are four judgments against someone with my name. The title insurance company has asked for my Social Security number. I do not like to give out my Social Security number, and as far as I know, there are no judgments against me. Should I give the title company my Social Security number? Is there a way for me to check on this without giving it to the title company?
I live in Maryland. The condo is an investment property in Alexandria.
I would appreciate your advice.
Thank you for reading my column. Unfortunately, with a common name like Jones, it is inevitable that there will be others with the same name who have judgments recorded against them. A judgment against a home buyer or home seller automatically attaches as a lien against their real property. The title insurance company will always run all buyers’ and sellers’ names through a judgment search to see if there are outstanding judgments against any party. If there are judgments, they will have priority over the buyer’s and buyer’s mortgage company’s interest. Those judgments will have to be paid off, or provided for, at settlement before the transaction can settle. This is why the title company is asking for your Social Security number to try to determine that the judgments that showed up in the records are not against you.
Even with your Social Security number, they may not be able to determine that the judgments are not against you. For example, many years ago it became illegal to list anyone’s Social Security number in a public record. Although this was a great boon to privacy, it made it much more difficult to dismiss a recorded judgment matching your name. In order to make certain that the judgment is not against you, the title company will attempt to contact the party holding the judgment to see if their Ms. Jones’s Social Security number is different from your Social Security number. Having at least the last four digits may allow there to be a positive hit meaning the judgment is against you. Or they can conclude it’s NOP not our party. Because so many banks and credit card companies have gone out of business over the years, it is frequently impossible to locate the judgment creditor.
As for privacy, title companies must adhere to the Dodd-Frank Act’s provisions. They are not allowed to publicly disclose confidential information, such as your Social Security number. Since you say you are selling your investment property, they will need to have your Social Security number anyway, as they are obligated to provide you with an IRS Form 1099 gross sales proceeds report.
If you want to conduct your own investigation, you can certainly ask the title company to provide you with the four judgments that showed up under your name. You can then examine them to see who the creditors are and look at the dates and circumstances to see if it’s possible they are against you. You can contact the creditors directly if you wish, to confirm that you are not their judgment debtor. If they are willing, ask them to confirm to you and your title company in writing that you are not the person they have a judgment against.
Finally, if you are unable to positively determine that the judgments are against someone else to the title company’s satisfaction, you will be asked to sign a judgment affidavit. This affidavit will require you to swear, under penalty of perjury, that you are not the party named on those four judgments (attach copies).
If you sign a judgment affidavit at settlement, you should keep a copy handy, because it’s probable that these judgments will come up again if you decide to buy other property or even apply for credit. Judgments generally last for 12 years and can be renewed by the creditor for additional 12 year periods until paid off, at which time a judgment satisfaction document should be recorded in the judgment records where the judgment exists.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Harvey at (301) 417-4144, email@example.com or firstname.lastname@example.org.
By Harvey S. Jacobs August 15, 2014
I recently read an article in the Real Estate section about what buyers should know before closing. The article, however, did not deal with the question of title insurance for the buyer, as opposed to the lender. Does it make sense for the buyer to pay for owner’s title insurance even though the lender is requiring its own title policy?
The short answer is yes – buy title insurance. Perhaps the best way to illustrate why you need owner’s title insurance is to share a real-life situation involving a recent graduate who had just landed his first well-paying job and decided to buy his first home in the District. Because he had student loans, his cash available for closing was limited. Mr. Buyer learned that the title company was going to conduct a full 60-year search of the land records, the court records and the bankruptcy courts. So he figured he could save a few hundred dollars by not buying an owner’s policy. What he did not appreciate was that the lender’s policies only cover lenders, not owners.
At settlement, Mr. Buyer met the Sellers a nice, middle-aged couple who had bought the home 20 years earlier. About a month after the settlement, Mr. Buyer was surprised by a knock on his door. What are you doing in my home asked the woman on the doorstep. The woman produced her Nevada driver’s license, which identified her as Mrs. Seller. Unfortunately, this was not the Mrs. Seller who attended the settlement and signed the deed.
Twenty years ago, she said, she and Mr. Seller were newlyweds and bought that home as tenants by the entirety. Shortly after moving in, the marriage soured, and Mrs. Seller moved to Nevada to start her new life. She eventually filed for and obtained a Nevada divorce.
The Sellers agreed at that time that Mr. Seller would remain in the home and pay all expenses, including the mortgage. But in the event the home was to be sold, both parties would split the proceeds. When a marriage ends in divorce, a tenancy by the entirety is automatically converted into a tenancy in common. Nothing was ever recorded in the Recorder of Deeds Office in the District, and because the divorce was in Nevada, nothing showed up when the title company searched the D.C. court records.
The real Mrs. Seller discovered that her ex-husband had sold the home to Mr. Buyer when she received a copy of the certificate of satisfaction from the mortgage company. Some checking revealed that her ex-husband apparently had his girlfriend pose as his ex-wife when signing the listing agreement and again at settlement when forging the deed. She learned from the settlement agent that her ex had the net sales proceeds wired to an offshore bank account and had apparently moved out of the country and vanished. All forwarding addresses and contact information provided at settlement turned out to be false and dead ends.
So where does this leave Mr. Buyer, his lender and the real Mrs. Seller? Under D.C. law, a forged deed cannot convey good title to a purchaser. When Mr. Seller signed the deed, at best he conveyed his 50 percent tenant-in-common interest. When his girlfriend forged the real Mrs. Seller’s name to the deed, it conveyed nothing. Consequently, Mr. Buyer does not have good title to 100 percent of his home. The real Mrs. Seller, never having signed the deed, still owns her half of the home. Because the lender’s first lien position was granted by Mr. Buyer, who did not own the entire property, its first lien position in the entire property is also not valid. However, because it has a lender’s title insurance policy, the title insurance company might have to cover the lender’s losses up to the full loan amount as a result of this forgery.
When the dust settles, Mr. Buyer is legally the 50-percent tenant in common with the real Mrs. Seller. This is obviously an unsatisfactory situation. Had Mr. Buyer purchased owner’s title insurance, he could have simply filed a title claim, and the title insurance company would hire attorneys, at their expense, to sort out the mess. The title company probably would have bought the real Mrs. Seller’s interest for Mr. Buyer’s benefit.
However, without title insurance, Mr. Buyer must either deal directly with the real Mrs. Seller or hire attorneys at his own expense to try to track down Mr. Seller and the sales proceeds. This is an arduous and expensive undertaking. Protracted negotiations and/or litigation likely would ensue. All the while, Mr. Buyer’s quiet enjoyment of his new home is in jeopardy.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, email@example.com or firstname.lastname@example.org.