QUESTIONS RELATIVE TO PRESENTATION ON RANDOM LEGAL QUESTIONS # 16-17

CONTINUATION OF QUESTIONS 13-15.

QUESTION #16
Is there a statute of limitations on real estate disclosures for a new buyer to have to pass along to another buyer years down the road?

ANSWER TO QUESTION #16

Once again, question 16- would be State specific. Although the author does not have the Business and Professions Code of California in front of him, (Those are the primary governing rules of Real Estate Brokerage Businesses) there are a number of items under various differing numbers of forms that require disclosures to be made at the outset of an offer and acceptance of a residential purchase contract, for example.

Additionally, disclosures of ‘material items’ vis a real estate transactions pertaining to transactions in residential and commercial proceedings arise separate and apart from many of the standard forms accompanying any sales agreement. Generally any material misrepresentation of facts pertaining to the deal or omission of material facts pertaining to the deal are actionable within three years of the date a reasonable prudent person should have discovered the same.
Suffice to say representation by a Sales agent and or broker, as well as possibly an attorney, depending upon the depth of the transaction is always a prudent idea.

So, the answer is yes- the dogma of Real Estate Transactions/ residential and Commercial both carry with it many, many rules and statutes of limitations which are fact/ and rule driven depending upon each State’s own real estate rules and regulations.

We have within this Article simply shared a couple of the those statute of limitations; that sharing is by no way extensive and so one should be represented by competent brokers and or lawyers when entering into in real estate transactions, residential or commercial, as they all have their very own set of quagmires.

QUESTION #17
When buying out spouse, is the equity in the home based on appraisal, or simply divided in half and owed to spouse?
Buying out husband, refinancing to keep house as my sole property. Is the amount owed to my husband for the house, simply based on what equity is in the home based on appraisal?

What if any deductions are made from the $$$ amount I would owe him? I am not selling the house but taking over the loan and increasing it so I can pay him but would real estate fees not come off the top before it is determined what I have to pay him?

After all should I sell the house I would have to pay fees, this reducing my equity in the home?

Also, just because the home appraises at a certain amount, that does not necessarily mean it would sell at that amount right?
An appraiser does not look for water damage or other issues that would make a buyer want to reduce the price of the home?
Just trying to reduce what I owe him.

ANSWER TO QUESTION #17

Ok, wow, this is a Family Law lawyer’s dream question—somewhat out of my area of expertise but will give it my best judgment advice and direction (before following the same you would have to get input from a certified Family Law Specialist in order to affirm the advice herein or possibly take a different approach).

Answer one- divided in half or based upon an appraisal;
In theory, the parties can agree to a figure which is an established fair market value and simply buy out the other party for the same. This is all voluntary however.

The aforementioned approach is probably not the best approach; Use of a certificated appraiser for establishing the fair market value of residential/commercial properties would be the best bet.

Second part of the posed question; amount owed would be one half of the appraised value;

Offhand would not say there would be any deductions;
If you want to refi the place to buy out his equity, he might agree to use the net figure for division, i.e. the fair market value less your costs of additional financing to buy him out; but, if I were his lawyer I would not recommend he agree to that approach as you are the one who wants to keep the property;

On the other hand, if the property had to be sold, then the division really should be simply one half of the net proceeds distributable from escrow.

Separate issue, what home appraises at vs what it would actually sell for etc.? What is the real fair market value?
Which comes first the chicken or the egg?

If you are keeping the house, a price based upon ½ of the appraised value would seem to be very fair.

If on the other than you had to sell the property then again, it would be fair for the amount to be one half of the net proceeds being distributed from escrow.

As to the issue on water damage or any other type of damage, those are items that the appraiser should factor into the equation on the fair market value; but, the appraisers opinion as to value might not necessarily deduct dollar for dollar on which you received a bid to do the subject repairs etc. So, I would not count on the repairs being taken into consideration unless they are ‘material items’ vis a vis the overall value of the house.

So, again, you should seek the advice of a Certified Family Law Specialist as there could be many other variables that have to be considered when deciding exactly how the proceeds from either a re-fi of the house or an outright sale take place, during the process of dissolving your marriage.

Respectfully submitted,

Steven H. Wilhelm

By | 2016-02-29T11:59:59+00:00 February 29th, 2016|