Real estate laws and customs, transferring real property, and closing practices can be confusing. Sometimes the right questions are not asked by the consumer; many times even if the right questions are asked, the other person does not know the answers. That is the purpose of this forum. To have real estate questions answered by experienced and knowledgeable real estate professionals.
As a service to our customers and potential customers, your questions will be directed to one or more real estate professionals (real estate brokers, mortgage lenders, surveyors, attorneys, etc.) who will, after compilation by ARTA's attorney Michael J. Guju, e-mail your answer back to you within a day or so. Frequently asked questions and their answers will be edited and placed here (anonymously, of course) for others to see.
Recent Questions and Answers
Q. How can I add a second person to the title of my home?
A. The simplest way is to give the second person a quit claim deed for an undivided one half interest. The grantor would retain the other half not conveyed. Grantor and grantee would each own an undivided one half interest in the property and would be tenants in common. There may be other questions you may also want to consider: liability for any existing mortgages; consideration; what happens on death of one owner; what happens if the business, if any, is dissolved. The basic cost of preparing a quit claim deed is approximately $50 plus recording fee.
Q. Can a married minor child convey or receive real estate?
A. Yes. Florida follows the general rule that deeds by minors are voidable by the minor before or at majority. However, all disabilities of minors relating to the holding or transferring of real property are removed on marriage. This removal of disabilities applies to both male and female children and is not affected by a subsequent divorce or death of the spouse.
Q. I am relocating to the Tampa Bay area and must sell my house up north. I am 52. I've found a couple of properties I'm interested in but they are selling for $10,000-$20,000 less than my current home's selling price. Do I lose the capital gain deferral because I'm not buying a home of equal or greater value?
A. No, you should not lose the entire deferral. You can still defer the gain to the extent of the amount you "roll over" into your new residence. However, you will have to declare and pay capital gain tax on the excess. You will have to determine your basis in your current residence to calculate your gain. You can defer the amount used to acquire the new residence and pay tax on the amount you keep (excess). An accountant or tax professional can assist you with the calculations and the allocations.
Q. Can one owner of a property change a deed to "right of survivorship" without the consent of the other owner?
A. The simple answer is no. It may be the intent of the other owner to pass his interest to his heirs and not to the joint owner(s) of the property.
Q. I own a home in Ohio that was my primary residence until I rented a home in Florida in January of this year. Is the mortgage interest still deductible? I'm currently renting but may buy in Florida next year. Will that affect the deduction? Thanks.
A. Mortgage interest on a primary or secondary residence is deductible, subject to certain upper income limitations. If a primary residence is purchased in Ohio and the Florida condo is retained as a second home (vacation home) the interest on both mortgages would still be deductible.
Q. Recently my brother and girlfriend broke up. Prior to the break up they had purchased a home together. My brother had supplied the down payment, both of their names are on the title and mortgage loan papers. She has since put a restraining order on him so he cannot access the home. My question is how can he remove his name from the title and also from the mortgage loan papers? Also can he receive back any of the money that he has put towards the property?
A. Based upon the brief fact pattern presented, it appears that the two parties did not have a written agreement between them which would provide the respective rights and obligations of the parties in the event of a "break up". If both names appear on the original title/deed, they are "tenants in common" and both own an undivided one half (1/2) interest in the property. Assuming there is no domestic relations court involved in the allocation and distribution of assets, the following options are available:
1. He can sell his interest in the real estate to her for an agreed price and transfer his title to her by quit claim deed;
2. He can file a formal action for partition of the property by sale pursuant to court order and distribution of the net proceeds after payment of the mortgage to the respective owners as their interest are determined by the Court.
He cannot be released from the mortgage unless the bank agrees or the loan is paid off or refinanced by her individually. He should consult an attorney at to his rights and remedies.
Q. We are buying a house in North Tampa, Ohio. We are relocating from New Jersey so we are unfamiliar with the "customs". Our New Jersey real estate agent told us to use a certain title company. We notified our mortgage company of the company's name, who was then notified and began the paperwork. We then found out that the Seller's real estate agent started the title work through another title company and they told us that the seller has the right to chose the title company, which is fine with us. However, we are now concerned that the first title company will charge us for the preliminary work they did. Will they charge us? Our real estate agent won't return calls, and I am concerned about this issue, I left a message on our real estate agents machine to cancel the work with his recommended title company, but don't know if he did. Should we contact the first title company ourselves to explain the situation and find out the status? We are still out of state so it is difficult to find out what will happen.
A.1. If you were utilizing the standard FAR/BAR (Florida Association of Realtors/Florida Bar Association) form, which is commonly used in purchasing Florida real estate, it is the seller's responsibility to provide title insurance at seller's expense. Accordingly, the seller has the right to select the title insurance company that will issue the title policy. In addition, under Federal Law governing real estate settlement practices, a seller cannot be required to use a title company other than that selected by the seller.
2. As a matter of convenience and to save expense, the purchaser obtaining a mortgage title policy for protection of the purchaser's lender will typically utilize the same title insurance company used by the seller's title insurance company. However, the purchaser is not required to use the same title insurance company and can select their own title insurance company to issue the lender's policy; the cost for that would be substantially more because it involves purchasing a "rider" to the seller's policy vs. purchasing a full title loan policy.
3. The Realtor who suggested using a certain title company "jumped the gun". It is unlikely that the first title company will charge you for the preliminary work and you should direct that your real estate agent cancel any title order. The mortgage company should be notified of the change. If the first title company insists upon a cancellation fee, you should decline to pay it and insist that your real estate agent handle it.
Q. I have had a disagreement with a salesperson for a local home builder about the service provided. My wife and I left after we had picked our colors and such. We left a little angry, but decided the argument was just something that happens sometimes. We had a question we needed the salesperson to answer, so we called and left a voice mail message for him to call when he got a chance. That was Saturday, he's yet to call, even after he spoke to the sales manager of the builder. The fact that we had a disagreement does not bother me, but not returning my call has made me feel this is the way it is going to be for the next 6 mos. I have given the company a $500 lot hold, been approved for the mortgage, and am waiting on credit figures for doing by own finish work. Do I have any way of getting my deposit back, because I am ready to go to a different builder.
A.1.You have not indicated whether or not you have signed a formal purchase agreement for either the construction of or the purchase of a new home. Paying $500 to hold a lot may not amount to a contract to purchase a new home. The terms of your "hold agreement" may dictate whether or not you are entitled to a refund of the $500 if you change you mind about proceeding with this particular builder.
2. You do not indicate whether you have attempted to contact the builder directly to express your dissatisfaction with the sales person. If you are unable to work with the particular sales person but want to continue with the builder, you might be able to have a different sales person assigned to you.
3. Without reviewing the documents signed and the commitments made in writing, it is impossible to answer your question specifically. I suggest you contact an attorney to review the documents signed to advise you as to the rights and obligations arising from the formal documents.
4. If you are extremely unhappy with the particular builder as a result of the treatment received from the sales person, and the only potential liability resulting to you from the cancellation of the project is the loss of your $500 deposit, the forfeiture of the $500 could be the price for "gaining some piece of mind", and the cooperation level that you expect. However, investigate the new builder before signing any documents or posting any deposit.
We hope the above information was interesting and perhaps useful. We will be posting other interesting questions we receive so stop by regularly. Of course, no guarantees are made as to its accuracy and it should not be construed to be legal advice. Please e-mail your comments and suggestions to Attorney Michael J. Guju.
Finally, an ARTA TIDBIT - You will want to read this!!
The following article was reported in March in The Times of London (quoting Tampa's Weekly Planet, May 1 issue):
After "an employee of the James Beauchamp law firm in Edgbaston, England, recently killed himself, the firm billed his mother about $20,000 for the expense of settling his office work. Included was a bill for about $2,300 to go to his home to find out why he didn't show up at work (thus finding his body), plus about $500 for identifying the body for the coroner, plus about $250 to go to his mother's home, knock on her door and tell her that her son was dead. (After unfavorable publicity, the firm withdrew the bill.)"
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