| August |
| Article 1 (Are you working with or at the best Real Estate Company?)
Article 2 (June Roundup: Sales of New and Existing Homes Slide) Article 3 (Q & A with Michael Merrill) Article 4 (Short On A Down Payment? Try a Lease/Purchase Agreement) |
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Q & A With Michael W. Merrill of Merrill & McGeary, a real estate attorney.
Q: I am a Trustee in a Condominium. A unit owner requested the Trustees of the Condominium to allow him to use a portion of the common area hallway outside his unit. He actually wants to build a wall around the area and make it part of his unit. Due to the location of the area and its appearance the Trustees would like to grant the unit owner permission because we think it will improve the hallway. However, one unit owner said we cannot do this without her permission. What rights do we have in this situation? A: The Trustees can grant the unit owner the exclusive right to use common area as long as a majority of the Trustees and the abutting unit owners consent. The Trustees do not need 100% of the unit owners to agree. However, it is not sufficient for this to occur as a result of a telephone call or a letter. The Trustees and the unit owner should follow the requirements of the Massachusetts Condominium Law (Chapter 183A) in order to validly authorize the use of the area by the unit owner. This includes recording at the Registry of Deeds a Master Deed Amendment signed by the appropriate parties and an easement plan describing the easement area. The Master Deed Amendment should set forth the terms of the agreement with the unit owner, the abutters and the Trustees including, for example, the construction of the wall, the length of the agreement, responsibility for the maintenance of the area and the cost and expense of document preparation and recording. This is a complicated matter which impacts common area and therefore I recommend the Trustees contact the Condominium's attorney before proceeding any further.
Q: I am purchasing a house which is being constructed. The closing is several weeks away, but I know the house will not be finished on time. Unfortunately, I have to move out of the place I live in now as of the closing date. If the house is not finished and I cannot close, I will have nowhere to put my personal belongings and furniture other than storage. Can I ask the Seller to let me put my things in the garage or the house? If not, should the Seller pay for the cost of my storage since it is his fault the house is not finished on schedule? A: This is not an unusual situation, but unfortunately, it is a difficult one for you. You should ask the Seller if you can store your property in the garage or in the house. While the Seller may not be legally responsible to store your belongings pursuant to the terms of the purchase and sale agreement, I am sure he feels a moral obligation to assist you if he can. If you and the Seller agree to put your belongings in the garage or the house, I recommend you enter into a written use and occupancy agreement with the Seller. This document will make it clear what the agreement of the parties is; for example, with regard to the responsibility for insurance, cost of storage, access to the property and the belongings, and length of the agreement. It is always best to have a written agreement in these situations to avoid misunderstandings. |
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Short On A Down Payment? Try a Lease/Purchase Agreement By Davis Rowley, President of the Residential Association of Realtors Buyers who find themselves short on cash for a down payment despite having qualified for a mortgage may want to ask the seller to consider a lease/purchase agreement, according to the Greater Boston Real Estate Board Residential Association of Realtors®. Often referred to as a delayed closing, a lease/purchase agreement can help prospective homeowners overcome financing obstacles and move into homeownership quicker than they might think. Often times, all buyers need are just a few extra months to save enough for a down payment to make the purchase. A lease/purchase agreement is a good option for buyers in a market like today's, where inventory and interest rates are both low and there's no guarantee a dream home will still be available when they're financially ready to buy. Lease/purchase agreements are often called "forced savings" agreements by lenders, because under the agreement, a portion of the tenant's monthly rent-usually 10 percent to 20 percent-is applied toward a down payment on the home. When the down payment savings reaches a specified amount, the tenant can obtain the actual financing for the remaining amount of the purchase price, the property goes to settlement and the title is conveyed. This arrangement generally works best for buyers who need an extended period to raise the funds, and for sellers who do not need the equity from the sale of their home to purchase another. Typically, lease/purchase agreements are more common in real estate markets that are sluggish. However, these types of deals can still be found in healthy markets, and are often used by sellers who want to sell their home but can afford to generate a little bit of rental income from it while they are waiting for a buyer. With a lease/purchase or delayed settlement agreement, a regular contract is written on the property and earnest money is held in a non-refundable escrow fund. The rent is then set somewhere over the market rate-usually between $100 and $300 monthly-and is put toward the down payment and closing costs. All contingencies of the selling contract in essence are removed except for the financing. The necessary appraisals and home inspections are completed and a specific contract is written that outlines how the sale will proceed. Under a lease/purchase agreement, closings typically occur between nine months and a year after the initial contract is signed. If the potential purchaser for some reason decides not to purchase the property, they lose their escrow funds. Usually, the selling price is also negotiated up front. When a seller agrees to a lease/purchase agreement, it enables the buyers to begin living in the home they want to buy. The seller knows the house is sold and that if the agreement falls through for any reason, they maintain any earnest money that's been put down. Unlike a lease/purchase agreement, renters looking to enter the homeownership arena should understand that a rent-with-an-option-to-buy doesn't always guarantee that the property will be theirs down the road. .The "option" in this type of agreement refers to an acknowledgement by the renter that if the property should ever become available for purchase, he or she would be interested in purchasing it. The property's owner, meanwhile, also acknowledges this fact and agrees to offer the property to the renter first. Rent-with-an-option-to-buy agreements make the most sense when an individual is 'cash poor' and can't afford a down payment, wants first option to purchase property in the future, or is having a delay or problem in a selling property he or she currently owns and needs additional cash to purchase a new property. This type of agreement also works when a seller is hesitant to sell due to a personal or professional situation (uncertainty about a job move, for example), but needs the property to generate an immediate cash flow. One of the most important factors parties entering lease/purchase contracts should insist on is that of including the exact selling price in the agreement. The seller needs to protect himself from selling too low in a hot real estate market and the potential buyer needs to be certain as to any contingent arrangements which may extend the offer period, and in turn cause a readjustment of price. Renters interested in becoming homeowners via a lease/purchase agreement can locate properties owned by sellers who are open to lease/purchase agreements in a number of ways. The best source, however, is to contact your local Realtor. Typically, all renters properties listed in the local multiple listing service will indicate if a lease/purchase option is available on a particular property. Both sellers and purchasers considering entering a lease/purchase agreement should seek professional representation by a Realtor who is well-versed in handling these types of contracts. Renters or sellers who are choosing this route should have professional representation to assist them in preparing a solid agreement to ensure both sides understand what it is they are entering into. Both parties to such an agreement need to realize that they are entering into an actual contract that will have an addendum that spells out what each side will be required to. For many people, the lease/purchase option is a good way. It provides a viable method that can make buying a home a reality quicker than some a lot of buyers think. |
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