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Title Office: We have a Problem

June 28, 2007

By Robert J. Bruss


Inman News

DEAR BOB: Recently you had an item about how husband and wife should hold title to their home and other real estate. It motivated me to go to our safe deposit box to check our home title deed. It says we own our home in the name of "Mark or Victoria Lastname." No method of holding title, such as joint tenancy or tenancy in common, is specified. Do we have a problem? --Victoria W.

DEAR VICTORIA: Yes. As a real estate attorney, I can see many potential problems with the way you hold title to your home. The very troublesome word is "or."

Also, the deed fails to specify how you hold title, such as tenants in common, joint tenancy with right of survivorship, or another method. Whoever prepared that deed obviously wasn't looking out for your best interests.

While you are in "good standing" with each other and the marriage is going well, today is the ideal time to consult a local real estate or family law attorney to discuss your title choices. Then, you can execute a joint quitclaim deed to hold title with the method you select.

NO NEED TO DISCLOSE DEFECTS IN NEARBY HOMES

DEAR BOB: For the last 22 years we have owned and enjoyed our home in a subdivision where all the homes were built by the same builder with the same materials. In the last few years, several homes have encountered basement wall leaks. However, our home has no such problem. We enjoy our basement family room, laundry room and storage area with no evidence of any water leaks. When we sell in the next few months so we can move to a retirement community, do we have to disclose to our buyer that a few other homes in our subdivision have encountered basement water leaks? --Steve Y.

DEAR STEVE: No. Home-sale disclosure laws only apply to the residence being sold at the time of the sale. They do not require disclosure that nearby homes down the street built by the same builder have encountered construction defect problems. For full details, please consult a local real estate attorney.

IS LOT SELLER LIABLE FOR UNDERGROUND STORM-SEWER EASEMENT?

DEAR BOB: Three years ago, we sold the vacant lot adjacent to our home. The buyer told us he planned to build a house there. That was fine with us. But when he recently applied for a city building permit, he discovered there is a city storm sewer pipe easement beneath the property, which will bar him from building anything but a very small house. We had no idea there was such a pipe easement. However, his title insurance report clearly revealed that easement. Do we have any liability to him as he threatens to sue us for damages? --Helene P.

DEAR HELENE: From your description of the situation, it appears you have no liability since you didn't know about the underground city storm sewer pipe easement and it was fully disclosed to the buyer in his owner's title insurance policy. I find it amazing how many property owners (and their real estate agents) fail to read and understand their title insurance reports.

The lot buyer has nobody to blame but himself for failure to read his owner's title insurance policy, which described that storm sewer pipe easement. If the buyer sues you, of course you should hire an attorney to answer the complaint.

Your attorney should politely remind the buyer's attorney you didn't know about the easement and the buyer had written evidence of it in his title insurance policy, which he failed to read. After you win such a "no brainer" lawsuit, you can then sue the buyer for damages, primarily your attorney fees, for malicious prosecution.

The new Robert Bruss special report, "Probate Property Profit Secrets Revealed," is now available for $5 from Robert Bruss, 251 Park Road, Burlingame, Calif., 94010, or by credit card at 1-800-736-1736 or instant Internet delivery at www.BobBruss.com. Questions for this column are welcome at either address.

(For more information on Bob Bruss publications, visit his Real Estate Center).

Copyright 2007 Inman News



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