Question (CA): Re: Inquiry concerning EMC Mortgage problem from California borrower: Last time I checked, under California law, insurance proceeds for flood damage are not part of the security for the trust deed unless flood damage specifically mentioned in the trust deed as a category of required insurance. I actually won a case where the trust deed did not specifically mention wind damage, and received the insurance proceeds after they were held at the lender's order for six years. You might pass that information on to your reader, although I of course have no idea what wording is in his/her trust deed.
Answer: We wish to thank the above reader for sharing that information with us. Our own attorney added this comment (with the understanding that it is not legal advice), "It also seems to me that the insurance proceeds would have to be applied to the principal reduction, giving her more equity in the home to refinance." When we forwarded all the above to the reader who originally asked the question, we also wrote the following:
"If you get a chance, update us on any developments that have occurred since you wrote us on September 12, 2006. For example, have you hired a California attorney? There are readers throughout the country who empathize with your situation and who ... would like to know of any recent developments."
Question (CT): My wife and I are attempting to purchase a home in Connecticut. We received a disclosure form that had no mention of mold present within the home. After a $475 inspection we came to find that the house is infected with mold throughout the house. We feel that this should have been disclosed by the seller. Therefore, we believe the seller should refund us the amount we paid for the home inspection. Is there any legal basis for our dispute?
Answer: Your question as to whether there is any legal basis for your issues with the Connecticut "Seller's Disclosure" omitting the alleged presence of mold -- albeit in copious quantities -- is a question that needs to be asked of a Connecticut attorney at law hired to represent you.
The problem you will most probably have, should you decide to litigate this issue, is proving in a Connecticut court of law that the seller knew about the existence of mold. The fact that you could terminate the transaction having only expended the inspection fee, as opposed to the fees usually associated with a purchase, is evidence that the Connecticut Statutes are performing in the manner that they are designed to perform.
That is, in answer to your general real estate question, Connecticut does have a Residential Property Condition Disclosure Report, that is required of any seller of residential property by the Uniform Property Condition Disclosure Act (Connecticut General Statutes Section 20-327b), and that must be given to any "... prospective purchaser prior to the prospective purchaser's execution of any binder, contract to purchase, option or lease containing a purchase option" of four residential dwelling units or less regardless of whether a licensed broker or salesperson is involved in the transaction.
Generally, if the transaction closes without the seller providing the Residential Property Condition Disclosure Report, the seller will be required to credit the purchaser with $300.00. However, please note that the transaction must close. Yours did not close.
The next time -- assuming you did not already do this, we suggest that you hire a Realtor to represent you in your transaction.
Question (FL): We purchased a new home in August of 2005. The builder offered a complete home warranty for one year from closing, 8/15/05 - 8/15/06 which we used to have a few minor things fixed.
We recently had gutters installed and the workers pointed out a number of areas where corrosion had occurred on the posts surrounding our porches. They explained that it was a builder's defect because he applied aluminum to pressure treated posts and that combination caused the corrosion. With my warranty expired, is this something that my builder should fix since it was a 'defect' or should I just pay myself to have the posts fixed since the warranty expired 6 months ago?
Answer: What will it cost to fix? If you are faced with an "either or" situation, we'd recommend fixing the posts. However, if any of the posts are load-bearing, we definitely recommend your getting them fixed as soon as you are able.
Builder's warranties are sometimes tricky things to interpret since they are usually different (the warranty is a contract between the purchaser and the builder) for each builder. We cannot offer an opinion about your builder's warranty terms and provisions since we have not (nor do we wish to) read the entire contract.
However, having said that, many builder warranties offer a warranty of good and workmanlike construction. If you have evidence of a "builder defect" (i.e. will the workers who installed your gutters agree to testify in the event of a lawsuit? Are they credible?) that did not manifest itself until after the one year warranty expired, there could be several avenues to pursue in addition to the builder's warranty contract including, without limitation, a "disparate bargaining position of the builder." Bottom line, here, however, is that we recommend you hire a Florida attorney that is successful in this type of litigation should you choose to pursue it.
As to whether you should attempt to get the builder to pay, which could take a very long time especially if you end up in court, or you pay to fix the posts yourself, we tend to favor your fixing the posts yourself as we've indicated in our first paragraph above. That should not impair your ability to file a lawsuit against the builder should you choose to do so, but it would certainly contribute to maintaining the visual appeal and perhaps even the structural integrity of the property.
Question (GA): I currently live in Georgia, but may move to Texas in the near future. Is there a sales tax on Real Property (as in a single family residence) in Texas?
Answer: Not only is there no sales tax, but the people are friendly and the weather is always excellent!
