Five Things to Know About the Warranty of Habitability

By Craig Chambers, Attorney At Law

The Littleton Lawyer

Vol 1.84    March 17, 2019

As a real estate attorney practicing in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver, Centennial, Lakewood, and the surrounding areas, I often deal with the warranty of habitability which exists for rental properties under Colorado law.

First, the “Warranty of habitability” under C.R.S. 38-12-503 et seq. means that the landlord has responsibility to ensure that the rental property is “fit for human habitation.”

Second, the warranty of habitability This exists in every residential lease. It can’t be waived. In other words, a tenant has a right to live in a habitable property.

Third, a residential  premises is deemed “uninhabitable” for problems with water intrusion, plumbing or gas facilities, lack of running water, sewage disposal , lack of eat, unsafe electrical  components, inappropriate extermination of rodents or vermin, unsafe stairs or railings, insufficient locks or security and similar safety hazards.

The actual definition of inhabitability is that the condition of the premises materially and substantially limits the tenant’s use of his or her dwelling.

Fourth, a tenant must give the landlord  notice of the problems with the unit and allow the landlord 5 business days to cure the problem with the property. If the landlord fails to cure the problems, the tenants can consider the lease terminated, withhold rent, and  vacate the home.

The tenant must prove two things: the premises are uninhabitable within the meaning of the statute; and the tenant gave the landlord notice and the landlord failed to correct the problems within 5 business days. Therefore, documenting both the problems with the dwelling and your communication with the landlord are crucial to winning your case.

Fifth, a breach of the warranty of habitability, if you can prove it, is a defense to an eviction FED proceeding; if you list the breach of the warranty of habitability as an affirmative defense,  a court would determine if the tenant was justified n terminating the lease and/or if the landlord breached the warranty of habitability, justifying the withholding of rent and terminating the lease.

Five Things to Know about Child Custody Cases

By Craig Chambers, Attorney At Law

The Littleton Lawyer

Vol 1.20    March 17, 2019

As a family law and divorce attorney practicing in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver, Centennial, Lakewood, and the surrounding areas, I often go to court on child custody matters. Here are five things to know about child custody cases.

The factors for where the child will reside as his primary resident are set forth in C.R.S. 14-10-124. The underlying standard is the court will determine child custody cases based on what’s in the best interests of the child.

First, what’s in the best interests of the child is not necessarily what a parent believes is in the child’s best interest. It’s not who has a nicer home or a better job. It’s up to the magistrate or judge assigned to the case, and it can vary depending on who the judge is. It’s what the court determines, after a hearing, based on the factors in the statute, as to what’s in the child’s best interests.

Second, in Colorado, there is no presumption of a 50/50 parenting plan. There are the nine factors in the statute for the court to consider, including the drive between the parents residence, the history  of involvement  between the parents and the child’s age, other relationships, school and adjustments to the community.

Third, the public policy of Colorado is to encourage the child to have a relationship with both parents. If one parent endangers the child physically or psychologically, it is possible to have the other parent’s parenting time restricted, or even supervised. These situations are rare and the underlying facts must be severe. In most cases, even if you don’t approve of your ex, he or she is likely to get reasonable and liberal parenting time.

Fourth, the child doesn’t get to choose his or her parenting time. Not even as a teenager. If the child is mature enough to express an independent and reasoned opinion the court can consider the child’s wishes. But the child can’t testify for one parent and against another.  Children can’t be witnesses.  Most judge’s  wont’ even allow the child to be questioned by the judge in chambers in a judicial interview.  You should never include your child in parenting or custody decisions. It forces the child to choose between his or her parents and it is harmful to the child.

In short, do not, under any circumstances, put the child in the middle of the parenting dispute.

Fifth, several of the factors in the statute relate to how well the parties get along. “The parties ability to encourage sharing of love, affection & contact between the child and the other parent”  “whether the parties past involvement shows a system of values, time commitment, and mutual support.”  “The ability of each party to place the needs of the child ahead of his or her needs.”

What’s best for the child is for you to communicate with your ex. Disparaging the other parent, or exaggerating about the other parents’ faults or misconduct is likely going to backfire. Colorado is a no-fault state. Unless your ex’s past conduct endangers the child the court won’t look at the parties’ misconduct.

Never disparage the other parent, especially in front of the child.

Custody disputes can be overwhelming and stressful. The best thing you can do in a custody dispute is to be the mature one:  encourage stability for the child’s sake.  Encourage the relationship between the child and the other parent.

Just because you and your ex may no longer get alone, what the court looks for in a custody dispute is which parent is most likely to put their differences aside and encourage a stable and supportive environment for the child.

5 Things to Know About Common Law Marriage

 By Craig Franklin Chambers, Esq

 The Littleton Lawyer

Family Law Blog  Vol 1.9. January 21, 2019

 As an attorney focusing in family law, marital law, divorce and child custody cases in Littleton, Englewood, South Jeffco, Englewood, Ken Caryl, Roxborough, and Highlands Ranch, here are five things to know about common law marriage.

First, Colorado is one of a handful of states that still recognizes Common law marriage. This important because your rights as a married person are greater than your rights as a non-married person simply cohabitating. To prove common law marriage in Colorado, you must show that you cohabitated with your partner and held yourself out to the public as married.

Second, there is no time period of cohabitation that results in common law marriage. Once you are married  under the common law, you are married just as if you had obtained a marriage license.

Third, there is no common law divorce. Even if you are separated for years, once you are married, you are married until you go to court and get a divorce.

Fourth, the hardest part of proving a common law marriage is the second element: holding yourself out to the public as married. Many things a couple does that resembles what married couples do such as having children, buying a home, or having a joint checking account doesn’t prove that the parties held themselves out as married. Generally, unless you and your partner signed something stating you are married, or filed tax returns or insurance forms representing yourself out as a married couple, the court will not find you to be married under the common law.

Fifth, if you believe you are common law married, you file a dissolution of marriage just like a regular divorce.  If your partner disputes that you are married, the court will hold a hearing as to this issue. If you win the hearing, the divorce proceeds; if not, the divorce is dismissed for lack of jurisdiction because you were never married.

FIVE THINGS TO KNOW ABOUT REAL ESTATE SALES COMMISSIONS

By Craig Chambers, Attorney At Law

The Littleton Lawyer

October 31, 2018, Vol 1.83

As a real estate lawyer practicing  in Littleton, Roxborough, Ken Caryl, Highlands Ranch, Denver, Lakewood, and the surrounding areas, I often provide real estate transaction services for For Sale By Owners or FSBO’s. Here are 5 things to know about real estate commissions in the current Denver Metro area real estate market.

First, if the property is not listed with a listing broker, or the buyer has not signed an agreement with his or her broker, no real estate commission is owed.

There is no “automatic” commission. In fact, if you find your own buyer (or you are a buyer and find your own property) you may be better of with just hiring a lawyer to do the paperwork and to follow-up with the transaction.

This could result in a considerable savings because a lawyer charges by the hour, not a real estate commission based on a percentage of the selling price.

Second, if there is a commission, it is basically two commissions.

It’s true:  there is the total commission paid by the Seller to the Listing Broker as per the listing agreement, which  is the listing broker’s portion of the commission. This is typically 2-3% of the purchase price  to the listing broker. Then there is the Selling Broker’s commission, typically 2.8% of the purchase price, which is also usually paid by the Seller at the closing for the benefit of the Buyer.

This “Success fee” or “Co-op Fee” is deducted from the total commission and offered by the Listing Broker to other brokers in the Multiple Listing Service (MLS) for bringing the buyer to the transaction.

Third, both of these commissions are negotiable. Yes, there is no set real estate fee. In fact, if real estate companies collude to fix the costs of a real estate sale, that’s against anti-trust laws.

Fourth, these commissions have gone down.

Gone are the days of a 6% or 7% commission. With the home listings now being distributed openly and freely on the internet, the real estate commissions have come down considerably. Aside from the lower fees, some companies offer discounts if you purchase another home through the broker or if the broker brings his own buyer.

On the other hand, some firms add a “transaction fee” to the deal, on top of the commission. All of these commissions and fees need to be disclosed and agreed to in writing.

In addition, while it common to negotiate down the listing broker’s portion of commission, substantially reducing the selling broker’s commission could make the home less marketable on the open market; however, nothing prevents the Selling Broker (who is working with the Buyer) to reduce the 2.8% commission or to pay the broker himself instead of the Seller paying the Buyer’s broker to make the offer more competitive.

Fifth, Companies that claim they offers thousands of dollars in savings from traditional real estate firms are not exactly being honest because they don’t know what the traditional firm charges.  That’s up to each individual broker. Real estate companies misrepresent themselves to get your business. The two most important things in a real estate transaction are transparency and trust

Best Advice: a real estate commission through a broker may not be necessary if the property is not listed or if the buyer has not signed an agreement with a broker.

If you are going to use a broker, interview three different real estate brokers before choosing one, thoroughly read the listing agreement, and don’t hesitate to discuss and negotiate the real estate commission.

5 Tips on Legally Funding the Repairs on a Fix and Flip

by Craig Chambers, Attorney At Law

The Littleton Lawyer

September 2, 2018, Vol 1.82

As a lawyer specializing in real estate and property law in Littleton, Englewood, Centennial Ken Caryl, Highlands Ranch, Lakewood, and the Denver Metro area, here are few tips on how to legally fund the repairs for a fix and flip property.

First, if you find a true fix and flip, there are a lot of financial issues for the  repairs to consider. Please please have the home inspected. Also, please check the zoning department and make sure that the property is zoned for purpose for which you intend use it. Check with the Homeowner’s Association, if there is one, to see what kinds of approvals you need prior to doing the work on the property.

Repairs such as roofs, radon, sewer repairs, electrical and plumbing repairs are health and safety issues you should usually insist on the Seller repairing at his expense.  If the deal dies, now that the Sellers knows about them, he will have to disclose the problems to the next buyer. A typical buyer will insist on the home being a safe place to live.

Don’t count on the lender catching any of these problems. The lender does not usually inspect the home; the lender orders an appraisal which is not an inspection. The appraiser can make conditions such as roof repairs,   but his purpose is to ascertain he value of the home as security for the loans.

As for repairs on the home, you need to assess your skill set and find reliable contractors to do what you can’t and don’t have time to do!  Also, the Seller can’t give money back to the buyer. It affects the lenders loan-to-value ratio.

Neither can your real estate broker. The lender is entitled to know what the true terms of the deal are and make its loan accordingly. Side deals could be construed as loan fraud and the lender could call the loan due as well.

Here are a five ways to get the money to pay for the repairs.

  1. Seller paying your closing costs. This is by far the easiest  way to get money for the repairs. Take a closing cost credit lieu of the repairs. If the repair costs are greater than the lender’s actual closing costs, the extra funds can be applied to points to reduce the interest rate of the loan.  The credit can include title costs and HOA costs as well so long as NONE of the money goes directly back to you as the buyer. There’s a limit on the amount that the Seller can pay, though. Usually a percentage of the purchase price. You need to find out what that limit is from your lender.
  2. Reduce the price.  That simply gives you more equity in the home but no cash for the repairs. If you are planning on drastically reducing the price, paying for the fix-up with a  credit card or private loans, and then refinancing at the higher price after the fix-up to pay off the debt, the lender will make you wait six months before you can do the cash-out refinance.
  3. FHA  203K loans or similar loans. These are loans where the lender funds the fix-up as part of the deal. They can be difficult because the lender will inspect everything as the work is done. Can’t say I’ve had much success with these, most of us don’t want the lender involved, but those loans are out there.
  4.  A fourth  way is for the Seller to do the work before closing but then the warranty and/or relationship with the contractor is between the Seller and the contractor, not with you. Depending on the type of work, it is usually better if you choose and control the contractor. You could insist on the Seller doing the work with your contractor so you have some say in who does the work. Beware if the seller wants to do the work himself, he might do a crappy job.

You should get several written bids, though because the costs of labor varies enormously between contractors.

  1.  As a fifth alternative, you could get bids from the contractors and the money is paid directly to the contractor and/or escrowed at closing. Some lenders and title companies won’t allow the escrow so that means the check gets paid directly to the contractor from the title co. Check with the lender and title company to see if that’s possible. Anyone can be the contractor (so long as its not the buyer). The check could be paid to a third party, doesn’t matter who.

What a Seller will do depend on the motivation of the seller and how strong the market it.  It almost always takes longer than you think and costs more than you estimate because you will find additional problems as you go along.

A project like this can be financially rewarding.

 

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