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Real Estate Law Blog(Vol I.79)
by Craig Franklin Chambers, Esq. The Littleton Lawyer.
January 14, 2017
In my role as a real estate attorney in Littleton, South Jeffco, Roxboough Park, Ken Caryl , Denver, Highlands Ranch, and the surrounding areas, there are 3 reasons to be concerned with roof and furnace “certifications.”
If there is doubt as to the condition and the future longevity of a component of a home–usually the roof or the furnace–a home inspector will suggest –or a lender, as a condition of the appraisal–will require–a five year “certification” of that component. The five year certification requirement is the general practice of lenders to require that a roof or a furnace have five years of life remaining in order to give the buyer a loan.
Licensed contractors charge to inspect either the roof or the furnace and certify that it has five years of life remaining. The problem is that buyers are often misled to believe the certification is a warranty. While the buyer believes the “cert” is a warranty, the lender and the real estate brokers treat the certification as just another form for the file.
First, a “certification” is not a replacement for a home inspection. The Colorado Real Estate Commission-approved contract for the purchase of a home allows the buyer to conduct a home inspection. Under the residential real estate contract, a buyer can have as many types of inspections as the buyer feels are appropriate given the age and condition of the home.
Second, in a residential real estate transaction, it is important to know what you are buying. A professional, experienced, and detached set of eyes is useful in determining if the buyer should proceed with the transaction. If the home fails inspection, the buyer’s recourse is to terminate the contract, waive the inspection defect, or renegotiate the real estate transaction.
Third, a certification is not a warranty. It is an opinion by a licensed contractor for a fee that the component is functioning properly on the day of inspection. Although the “certification” is for five years, the buyer has no recourse against the contractor should the component fail within five years.
The buyer should be aware that if a certification is required or suggested, the component is likely towards the end of its lifespan; the roof or furnace is probable, if not certain, to fail in the near future. The five year rule is merely a lender guideline. A buyer is certainly free to re-negotiate with the seller for a new roof or furnace regardless of whether a contractor opines the roof has a remaining life of five years.
At the very least, the buyer should conduct further investigation and not rely on the certification as any type of warranty. And the buyer should go into a residential real estate transaction eyes open, fulling understanding all the terms of the real estate transaction.
Divorce and Family Law Blog (Vol I.1)
by Craig Franklin Chambers, Esq. The Littleton Lawyer.
July 8, 2016
As a family law and and divorce lawyer specializing in divorce law, family law, and real estate law in Littleton, Lakewood, Englewood, Denver, Highlands Ranch, and the surrounding areas, this question often arises: How long will my divorce take?
The answer: it depends. Under Colorado law, there is a mandatory ninety-one day waiting period from the time the Petition for Dissolution is filed and served to the day the Judge is legally authorized to sign the final divorce decree. The judge will usually sign the paperwork within a few days after the ninety-day period, depending on his docket. He often “tickles” dates into his calendar to help him keep track of these deadlines, but the burden is on the parties to prosecute the divorce or the case can be dismissed.
In order for the judge to sign the decree after the ninety-one days, the divorce has to be non-contested. The parties need to agree on all the terms of the divorce. All financial disclosures need to have been exchanged, and a Separation Agreement, an Affidavit of Non-appearance and Decree for the court’s signature need to be submitted to the court.
The Decree is a standard form that recites the necessary facts to meet the jurisdictional requirements for the divorce. It is the document that actually divorces the parties. The Affidavit of Non-Appearance is a standard form signed under oath by each party that each has received full financial disclosure and that each understands and is satisfied with the terms of the agreement. Even if the divorce is non-contested, if minor children are involved, the Court may hold a brief “Non-Contested Permanent Orders Hearing” to make sure the parties are truly in agreement and that the terms are fair.
The term “Separation Agreement” is confusing. Although the term “separation” does not necessarily denote finality, the Separation Agreement is permanent as to financial matters. The term “Permanent Orders” refers to a final order adjudicated by the court after a hearing.The Separation Agreement refers to an agreement or agreements made by the parties without going to court.
The Separation Agreement is final, and financial issues such as spousal support and alimony, division of property, assets, and debts can only be modified in rare circumstances. Children’s issues of parenting time and child support can be more easily modified as the needs of the children evolve.
The Separation Agreement is attached to the Decree and becomes an order of the court. It terms are enforceable only by a contempt proceeding. Because it is a final adjudication of the division of the financial aspects of the marriage, it is crucial that each party fully agrees to and understands the terms of the Separation Agreement.
As for the timing of the divorce, after the case is filed, the court will hold an initial status conference and issue a case management order setting forth the court’s requirements for setting a court date.
Usually the case management order requires full financial disclosures, completion of discovery, and a good faith attempt at mediation before scheduling a Permanent Orders Hearing. In the interim, temporary issues such as who resides in the marital home, how the bills are handled, and where do the children reside, can be resolved by agreement or by a brief two-hour Temporary Orders Hearing.
The time period for a contested divorce depends on how complicated the case is and how willing or unwilling the parties–and their lawyers are– to either prepare for or resolve the outstanding issues. Many of these issues are complicated by personal resentment and feelings of betrayal and guilt for the collapse of the marriage. The more issues left unresolved, the longer the hearing is required, and the fewer the dates that are available with the court’s docket.
In a contested divorce, from the time the case is filed and served to a Permanent Orders hearing, usually takes about a year.
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.
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.
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.
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.