Category Archives: Leases

faucet-426775_640 Unfortunately, disputes regarding fixtures and accessories are common, and tend to muddy up an otherwise smooth transaction. If a buyer has any question as to a seller’s intent to remove or leave an item that may or may not be considered permanently attached to the structure of the home, the future ownership of such item should be specifically negotiated and provided for in the final contract.

Porch Swings. Play Sets. Basketball Goals. Bathroom mirrors. Shelving. These are the things that tend to give rise to heated bickering immediately before or after a closing, as moving trucks are backed up into the driveway and the transfer of possession ensues. No matter how inclusive the list of equipment and fixtures in Par. 2 of the TREC contract may seem, there is no way for a generic form to address all the specifics of today’s residential real transactions.

Traditionally, the test as to whether an item is considered part of the real estate itself, and therefore automatically transferred as part of the contract, is whether the item is permanently attached to the structure. If so, it is legally considered a fixture and part of the real estate itself. If not, it is considered personal property, not covered by the contract to convey real estate, and freely removable by the seller after closing. But the way modern families furnish and decorate a home, whether an item is permanently built-in and attached is not always easily determined. In such cases, several questions should be asked: is the shelf/cabinet hung by brackets, or screwed into the wall/ceiling? Is the appliance plugged in or hard-wired? Can the item be cleanly removed without causing damage to the structure? Often the correct answer is subject to debate (like those pesky porch swings).

And just because an item is specifically listed in Par. 2B. or C. doesn’t mean the item automatically stays with the property. The listed item must be permanently installed and built-in to stay. For example, even though outdoor cooking equipment is listed under 2.B. as a fixture staying with the property, a free standing outdoor grill cabinet may not be built-in, and therefore may be removed by the Seller.

For these reasons, if there is any question as to the future of the play set, basketball goal, antique medicine chest or framed mirror, as examples, the issue should be discussed medication vytorin. If the seller wants to retain the item, he or she should exclude it from sale by listing it under Par. 2D. If the buyer wants to ensure that it stays with the property, it should be included in a Non-Realty Items Addendum. The best advice is to not assume anything; if it is desired, name it in the contract.

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Jeffrey A. Rattikin is an AV Pre-eminent rated attorney, Board -Certified in Residential Real Estate Law by the Texas Board of Legal Specialization. Mr. Rattikin has provided transactional legal services to clients across the State of Texas for over 28 years, emphasizing real estate, business and title law. Mr. Rattikin continues to define new legal frontiers through his incorporation of technology to enhance the attorney-client experience, as evidenced by his firm’s innovative websites www.rattikinlaw.com and www.texaslegaldocs.com.

Contracts, Leases, Legal Documents, Mortgage/Finance, Title Insurance

Title Objections

January 27, 2016 Jeff Rattikin

savings-440782_640 A prudent Buyer should understand the importance of reviewing title commitments, as well as the procedures for objecting to unacceptable title issues, in order to protect their investment in such a valuable asset.

Let’s face it. Most buyers view the closing and title process as nothing more than a necessary step to finalize their loan, sign the papers, and get the key to their new home. Behind the scenes, however, the title search and resulting title commitment provide a buyer with extremely important information needed to protect their investment. Restrictive covenants, easements, and other agreements filed against the title to the property may severely impact how a buyer may use and enjoy his or her property; therefore, it is imperative that these potential issues are studied and considered by a buyer before they finalize the transaction.

Paragraph 6D of the TREC Contract outlines the procedures and deadlines for a Buyer to object to adverse title issues that appear in the title commitment issued in advance of closing. It is important to note that if title objections are warranted, a Buyer must identify those objections in writing by the deadline reflected in Par. 6D, and ensure that the written objection is sent to the Seller in strict conformance with the notice provisions in Par about his. 21. If a Buyer fails to make proper objection by the deadline, or fails to send the objection as required by Par. 21, then the Buyer has waived their right to object to adverse title issues, and must complete the purchase of the Property subject to the pre-existing issues.

Realtors often ask what, if anything, should be filled in the lengthy blanks in Par. 6D. Because the TREC Contract does not allow a Buyer to object to common restrictive covenants filed against a residential subdivision (See 6A (1)), if a Buyer has a specific use that they want to ensure is acceptable in the neighborhood, they should list it in the 6D blanks. Examples would be the installation of a high powered communication antenna, wind turbine, boarding or breeding of multiple animals, or repair of others’ automobiles out of the garage. If Buyer has a special use outside of the norm, they should protect themselves by preserving the right to object in 6D if the restrictive covenants would otherwise disallow such use.

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Contracts, Leases, Mortgage/Finance, Real Estate

Tie Up Loose Ends Before a Real Estate Closing

January 18, 2016 Jeff Rattikin

abode-987096_640 Especially with the advent of new CFPB regulations on the horizon, it is critical that all deal points and loose ends be completed to the satisfaction of all parties before any closing documents are signed. Post-closing walk-throughs and other contingencies placed on final funding are not allowed by lenders, and certainly lead to conflicts between the parties, agents and title companies vytorin 10 40 generic.

A disturbing trend has developed recently, where buyers show up at closing and sign all closing documents, but attempt to delay final funding until they have a chance to conduct a final inspection of the property. Such a practice leads to much uncertainty, as the title company may be in possession of all documents, funds, and authorizations to close, but lacks any control over the timing of buyer’s confirmation.

A title company, as a neutral third party, may only act in accordance with the joint instructions of both parties, and cannot ignore instructions by either party. If the parties’ instructions conflict with each other, then the title company cannot move forward until they reach agreement. If a buyer makes a request at the closing table that the title company hold off on final funding until an inspection occurs, the title company cannot move forward until the buyer provides the title company with a written confirmation to proceed. However, a buyer should know that without a tri-party escrow agreement to the contrary, the buyer does not have the right to make such a demand, and may be liable to the seller for damages if closing is delayed. Typically, the buyer signs a closing affidavit at closing, providing that all contingencies are met, that the title company may close and fund upon receipt of all documents and monies, and that the buyer accepts the property in its present condition. Once all the documents are signed, a buyer may not have the legal right to hold off funding; as a result, it is critical that all inspections, repairs and other issues be dealt with completely before the buyer ever sits down at the closing table.