Category Archives: Real Estate Law

Can I force a sheriff sale from the 2nd lien position on a residential property?

Q: Borrower is current on first mortgage, but over 120 days delinquent on the second mortgage. Borrower has refused a loan modification and does not wish to sell the home. There is approximately $70,000-$90,000 in home equity. (Pittsburgh, PA)

A: You cannot go right to Sheriff’s Sale. You must file a foreclosure proceeding first. Moreover, your mortgage will be second to the first mortgage holder so the first mortgage holder will need to be paid first.

Can she quit claim houses with a HELOC?

Q: My aunt wants to quit claim deed me her residence that she still owes around $50,000 on HELOC. My question is what will happen to that HELOC once the residence is in my name? Will HELOC be her financial responsibility or will it stay attached to the residence that is now deeded to me? If it is still attached to the residence, can I just continue picking up her payments? Or will she have to make her payments on her own? (Pittsburgh, PA)

Q: I will assume that this is a home equity line of credit which is secured by the home through a loan agreement and by a mortgage or lien filed with the Department of Court Records. As such, this lien will follow the residence and never be removed until the balance is paid or it is otherwise removed with the consent of the lien holder/lender or court order. When you take title to this property, you will assume the debt through the lien. If you would default on the payments, the home could be foreclosed upon and seized. As your aunt is obligated on the loan agreement, whether she or her estate would have any personal liability above and beyond the value of the seized home, would require a reading of the lien documents. Be aware that some mortgage and lien documents contain a “due on sale” clause which prohibits a transfer of ownership prior to satisfaction of the lien without lender approval. If such language is present, the entire note could be due immediately upon transfer and lead to foreclosure. If you want to assume payments for your aunt, I would talk to the lender. They may require refinancing in your name or perhaps a less involved assumption of mortgage agreement.

How do I take action against a neighbor for dangerous trees?

Q: My neighbor has 3-4 very large trees overhanging my rooftop and backyard as well as the neighbors on the opposite side. Last June (2016) a 30-40 foot, branch has broken and is now hung up over her and my property. After 11 months and 5 iterations of her “looking into it” she has stated she will do nothing. The branch as well as other branches if knocked down will cause direct harm to my property, dogs, and even my children. At this point I feel like legal action may be necessary to have her properly maintain this tree as well as the other trees in bad shape. All the details have been photographed, 4-5 neighbors have also commented on the trees, and my home owner’s insurance has noted on file in case of damage. Anyone have advice on what to do? (Pittsburgh, PA)

A: Normally, the municipality that you reside in, whether it is Pittsburgh or a suburb, will have an ordinance on in their code which addresses the excessive growth of trees which trespass on to a neighboring property. Call your local zoning enforcement officer. It should result at a minimum in them coming out to assess the situation to determine if your neighbor should be cited.

How do you stop a group mental home from moving to your street?

Q: There is a government subsidized group home for people that are mentally challenged that is planning to buy the lot that is across the street from my house, which is in an area zoned R-1. My concerns are that I have a fifteen-year old daughter. I learned from a police officer that’s one of the residents on the street that the group home was renting in a different location, and there have been problems. One of the residents of the home has walked around the neighborhood and been caught looking-into houses. They could also be violent or sex offenders. I would like to stop them from buying across the street. What would it take to stop them from moving in? Can a group home move into an area zoned R-1? (Baldwin, PA)

A:  If they are mentally challenged, you can probably outsmart them. If what they propose is not a permissible use under the zoning code, they may have to seek a variance, which puts a very high burden on them. The question is all about whether the proposed plan meets the criteria of your local zoning ordinance. You can do many things. Go to the borough building and get a copy of the most recent zoning code and read it. You can contact the zoning code enforcement officer and tell him your concerns and ask him why the proposed use does or does not meet the zoning code. Find out from the borough secretary when borough council meets and ask the procedure for citizens to appear and address council. Also, as mentioned, join in with your neighbors and unite to oppose the proposed use. Circulate petitions against. You can also hire a lawyer to advocate for you. Do not wait until it is too late to start your legal opposition. Lastly, which I do not advise, you can arm yourself legally and take advantage of the Commonwealth’s nifty expanded deadly force laws.

What are my options and next steps?

Q: I am writing on behalf of my mother. She purchased a house in Georgia with her daughter approximately 8 years ago. Due to her daughter neglecting her health and well- being she came to live with me about 2-3 years ago in Pittsburgh. My mother has a trust that includes her share of the house and I am the trustee. Her daughter was able to refinance the house without my mother’s signature. The mortgage company has sent a notice to the trust, my mother and her daughter for the money. The notice from the attorneys for the mortgage company say the money was distributed in error. My mother nor the trust received any money, but I believe her daughter did and may have purchased a new home with the money. Your guidance on this matter would be greatly appreciated. (Baden, PA)

A: This is somewhat complicated and you need a lawyer in GA. My thought is that if this is a fraudulent transfer, the bank cannot legally foreclose on the house. However, my experience with banks lead me to believe that they will try. Do not do this on your own and try to negotiate with the bank. An attorney needs to review the trust instrument as well as the deed which should be titled in the name of the trust. In addition, your attorney will need to look at all the documents indicating how your mother’s daughter got a loan on a house titled (hopefully and presumably) in the name of a trust. Do not wait to act on this.

Can I get out of a Standard Agreement for the Sale of Real Estate that I signed?

Q: I signed a Standard Agreement for the Sale of Real Estate and closing is scheduled for 7/26. I suffer from major depression and I was also withdrawing from a prescription from my doctor. I do not believe I was of sound mind and capable of making the decision at the time. Can I void the sale and cancel the closing? What are the potential consequences if I do this? (Pittsburgh, PA)

A: Your stated reason for rescinding the sales agreement will likely not be valid and I therefore would not disclose this to anyone. The answer lies within the language of the sales agreement. The damages against you may be limited to the security deposit. If so, the seller therefore cannot seek consequential damages. Read the paragraph which addresses damages. I am not sure which version of the sales agreement you have but it may be paragraph 22. If your damages are not limited by the wording of the agreement, I would pay an attorney to examine language of the agreement pertaining to inspections and other conditions precedent to acceptance of the property. If you have not already had an inspection performed, a building inspector may be very helpful to you. Follow the advice of your attorney.

Limited Power of Attorney question

Q: There are seven owners (including myself) of a property. I wish to get a Limited Power of Attorney (POA) from the other six that will give me the ability to list and sell the property. Do I have to customize the POA for the state where each owner lives or can I simply use the POA for the state where the property is located? Also, one owner lives in France, will that POA must be different? (Seven Fields, PA)

A: If you are using a Power of Attorney in the jurisdiction of Pennsylvania, it must comply with Pennsylvania law. A limited power of attorney for specific purposes, such as one for selling real estate or representing another person at a real estate closing, is not a General Durable Power of Attorney and therefore does not need to comply explicitly section 5602 of the Probate, Estates and Fiduciary Code. You would be better having an attorney draft a limited power of attorney. If you want to handle it on your own, the only basic advice I can give you is to make sure none of the parties to the document are minors or incompetent and that the scope of your powers (what you are doing for them) are clear.

Can we buy the same house with another Agent after initial Buyer Agency Contract expired?

Q: Can we buy the same house through another Agent after the expiration of initial Buyer Agency Contract, without any liability to the first Agent?

A: Be careful. Read the contract carefully. It is possible that the first agent will claim a commission if he was the one who first procured or engaged the seller for you. I suggest your contact a lawyer who handles real estate litigation.

Can a creditor go after additional assets to pay off a lien?

Q: There is a water lien on an inherited property from an old disputed water bill. We are happy to give the county this property as it is barely worth the lien. There are other assets in the portfolio however. Can they come after anything else?

A: It depends if you are sued in rem or in persona or both. Some real estate taxing entities and municipal service vendors, only seek to reclaim the real estate, which is in rem. If the proceeds gathered from the sale of the real estate, do not satisfy the claim, sometimes a “deficiency” claim is pursued against the persons who are record owners or heirs of record owners. This is called in personam. You can ask the water company how they handle this or what other options you may have. You can also consult with a local attorney who may have knowledge of the practices of your local tax collections services.

How can I remove a joint owner’s name from a residential property deed?

Q: If a cosigner on a mortgage has assumed all financial responsibility due to the joint owner’s default what is the process to get that joint owner off the deed or title? In Pennsylvania. No relation or marriage was involved just an act of good faith. The other party is not agreeable or even available or whereabouts unknown. Concerns around the other party’s debts continuing to mount in the way of liens on property. Intent to keep property but need to remove negligent party’s interests and ownership.

A: If your information is correct, that you are on the deed to real estate with someone else and the someone else will not sign off on a deed, you have a problem. If they are disagreeable, you may need to buy their interest out, or otherwise convince them to sign a new deed from both of you to you. If that is not possible, you will need to file an action for partition for real estate, which is expensive and time consuming. If their whereabouts are unknown, you may be able to serve them by public notice or advertising. You would need to discuss all the details with a lawyer for a more definite answer. Also, you may have a potential problem if the mortgagee (bank/lender) will not agree to taking the other person off the deed. You would need to seek their permission.