Posts Tagged ‘Evictions’

Short Sale Contract Can Be Cancelled by Buyer Before Lender Approval

January 6, 2012

A purchase contract was signed for the short sale of an Arizona home. The closing was scheduled thirty days after approval of the short saleby the lender. The lender approved the short sale the requirement that the closing occur within fourteen days. The buyer was concerned, about qualifying for a new loan within fourteen days and cancelled the purchase contract. Did the buyer have the right to cancel the purchase contract?

A buyer can generally cancel a short sale contract without any reason at any time prior to the receipt of the approval of the short sale contract by the seller’s lender. If there is any condition in the approval received from the seller’s lender, however, such as a shorter closing date or a higher purchase price, the buyer can cancel the short sale contract at that time.

Note: All purchase contracts have contingencies such as home inspection, termite inspection, approval of title report, and the approval of the buyer’s lender for a new loan. A short sale contract simply has one additional contingency, namely, approval of the seller’s lender.


Explaining Adverse Possession Rights In Fence Disagreement

January 6, 2012

A homeowner’s backyard fence is 8 feet over into his neighbor’s property and the neighbor wants him to move the fence.

The homeowner has only owned my home for six years, and the neighbor is claiming that he has no adverse possession rights to the 8 feet, although his home is more than 20 years old. And while the fence looks more than 20 years old, the homeowner is not exactly sure when it was built.

According to Arizona real estate law, does the homeowner have to tear down the fence?

The answer is probably not. By “tacking on” the adverse possession years of the prior owners of the home, the requirement of 10 years for adverse possession can be met.

Therefore, the homeowner should initially try to contact the individual who sold the home, look at any old photographs or aerial maps of the property, and talk to neighbors in the area to determine when the fence was built. Another place to contact is the city for the date of any building permit for the fence.

If the fence was built more than 10 years ago, the homeowner does own the 8 feet by adverse possession and are not required to tear down the fence.

Remember to Update Your Estate Plan After Changes

January 5, 2012

While you cannot know what changes the future will bring in your life, you can be certain that change will come. Some of the most common changes in life include the acquisition of money and property, marriage and divorce, the birth of children, and death. An effective estate plan can provide for most of the important decisions related to each of these changes. Even if you already have an estate plan, these changes often necessitate updating your estate plan. Updating your estate plan may include changing how your property will be allocated among your heirs or beneficiaries, changing your personal representative or power of attorney, and selecting or changing a guardian to care for your children in the event of your death. Updating your estate plan can help you effectively address these changes.

In addition to a will and possibly a revocable living trust, a basic estate plan should include a living will, a health care power of attorney, and a financial power of attorney, all of which help you plan for events in which you may still be alive, but not conscious or capable of making decisions. Consideration should also be given to beneficiary deeds and payable on death (P.O.D.) accounts, both of which allow you to transfer property upon death outside of probate.

The Combs Law Group can help you create an estate plan, and can also help you update your existing estate plan to help you plan for the expected and unexpected changes that the future holds. We look forward to meeting your estate planning needs.

Are Smokers Covered Under Fair-Housing Laws?

January 5, 2012

A couple is moving to England next year so he can teach at the University of Cambridge. Their plan is to return to Arizona after one year so they want to rent their Chandler home while they are gone. They do not want to rent to smokers because they do not want the smell of smoke in their home upon returning home. A potential renter, whose brother is an attorney, says that they must rent to her even though she is a smoker because smokers have equal housing rights. Is this true? What are the Arizona landlord tenant laws regarding smoker’s rights?

The answer is no. When I’m asked about the rights of smokers, I am reminded of Ted Danson’s line in the movie Body Heat when, after everyone else in a conference room lights up a cigarette and he is offered one, he says, “No, thanks. I’ll just breathe the air!” Smokers are not a protected class such as race, sex, or familial status under the Fair Housing laws, and the couple is entitled to refuse to rent to smokers. Likewise, landlords can discriminate against college students, unrelated single adults, and illegal aliens, provided that the real reason for the discrimination is not based on the prospective tenant being a member of a protected class such as race or religion.

Arizona Law Says Five-Day Written Notice Required to Evict Commercial Tenants

February 4, 2011

A family owns a small strip shopping center in Glendale. Two years ago they verbally entered into a month-to-month lease with a hair salon for $1,500 per month. Although they originally intended to have the tenant sign a written three-year lease agreement, the property owners never did. Until now, tenant always paid the rent on time however they are more than two weeks late this month. The tenant said he will try to get us this month’s rent by the end of this month. The property owner would like to rent the space to another hair salon. Are they allowed to do that? What are the property owner’s rights under Arizona Landlord Tenant Law and how do you evict a tenant?

The property owner has two options. After giving five days written notice, they can either file an eviction action in court or they can lock out they tenant. A.R.S. § 33-361. If they choose to lock out the tenant, they must do so at a time when there will not be a breach of peace, generally after working hours when there is no one in the leased space. Unlike residential tenants, commercial tenants like this hair salon have little or no protection under Arizona statutes. The philosophy is that commercial tenants and landlords are “big boys,” and can protect themselves by negotiating a written lease agreement. Most written lease agreements will have a “cure” period, e.g., requiring at least ten days written notice from a landlord before a landlord can lock out the tenant or file an eviction action in court for non-payment of rent.

Misrepresentation Means Arizona Homebuyer Can Take Seller to Court

February 2, 2011

When an Avondale home was purchased the home inspector said that the air-conditioning unit was not cooling properly. The seller agreed to correct this problem and at the final walkthrough before closing, the seller said the problem had been corrected. The home was closed on the home in the winter and the air conditioning was not used, but when the weather turned warm and they turned on the AC it was discovered the unit was defective and a new $1,300 compressor was needed. The buyers’ real estate agent contacted the seller, and said a specific air-conditioning company had repaired the unit before the closing. After contacting that company, they had no record of any contact with the seller. Does the buyer have a claim against the seller for the $1,300 cost of the new air conditioning unit compressor and will they need real estate law attorneys?

Inasmuch as the seller apparently misrepresented that the unit had been repaired, the buyer should have a claim. File a complaint with Small Claims Court, which has jurisdiction of disputes up to $2,500. In Small Claims Court, the parties have no right to a jury trial, no right to be represented by an attorney, and no right to appeal. In other words, the buyer needs to tell the story to a judge like television’s Judge Judy, and then they decide if the buyer wins or loses.

Only 30-Day Notice Required to End Month-to-Month Landlord and Tenant Lease

February 2, 2011

A person signed a one year lease when he rented a small home in Peoria four years ago. After the one year lease expired he continued to make my monthly payments to the landlord. The tenant did many repairs on the house in the four years of living and never asked the landlord to reimburse the tenant for the money. Additionally, the tenant spent $1,200 improving the landscaping around the swimming pool last summer. Now however the tenant, without any warning, received a notice from the landlord he had 30 days to move out of the home. The tenant called the landlord, but the landlord refused to talk to the tenant. According to Arizona landlord and tenant law, does the tenant have to move out in 30 days? Can the tenant get reimbursement for the repairs and improvements that were made to the home?

After your one-year lease expired, you were on a month-to-month lease with the landlord, and either the landlord or tenant could terminate this month-to-month lease at any time by 30 days notice prior to the periodic rental date, which is usually the first of the month. A.R.S. § 33-1375 (B). Regarding the repairs and improvements the tenant made to the home, the landlord is unfortunately not required to reimburse the tenant.

Note: Commercial month-to-month tenancies can be terminated on only 10 days notice. A.R.S. § 33-341 (B).

Arizona Landlord Tenant Law Says Home Showings at Reasonable Times

January 3, 2011

Recently a man signed a one-year lease for a nice home in Tempe to rent while attending Arizona State University. However, he has now learned that the landlord is behind on the mortgage payments, and that a foreclosure sale will eventually be scheduled. The landlord desperately wants to do a short sale of the home and wants to hold open houses in the home every Saturday and Sunday between the hours of 1 p.m. to 4 p.m. The tenant is upset because he does not want real estate agents and prospective buyers walking through his home every weekend afternoon. Does the Arizona Landlord Tenant Law allow a landlord to require these types of open houses?

Under A.R.S. § 33-1343 the landlord is entitled upon two days’ notice to enter the home at reasonable times to “exhibit the dwelling unit to prospective or actual purchasers….” The holding of open houses totaling six hours every weekend is probably more than simply exhibiting the home to prospective purchasers.