Alabama Real Estate Legal Questions

You need to speak with a local consumer rights attorney.  There are various federal, local, and state consumer protection statutes that may protect your rights and a local consumer rights attorney will be able to determine which laws apply.   Most consumer rights attorneys offer free initial consultations to determine what options are available. This is not intended to be legal advice, and is general in its nature. No attorney-client relationship exists or is formed by this information. Furthermore, this does not represent the views or opinions of LexisNexis or its affiliated companies.... Read More

Your purchase contract is the most important factor in determining whether you have a cause of action.  If you bought the house "as is", you will probably not be successful in pursuing the seller for a remedy.  The adage "let the buyer beware" is applicable in many states - including Alabama.  It means that the buyer has the responsibility of investigating the condition of the property and satisfying himself that it is acceptable.  This principle is tempered by the principle that a seller cannot conceal a latent defect - one that cannot be reasonably discovered.   The fact that the seller's realtor has taken steps to at least attempt some repairs suggests there may be something in the contract that exposes the seller - or the realtor - or both to some liability; or perhaps that these defects were indeed latent defects that the sellers knew about (or should have known about).   If the realtor continues to reasonably attempt repairs, it may be that you will finally get the repairs you need without litigation.  If that is not the case, you should confer with a good real estate attorney in your area for guidance.           ... Read More

There are at least some contracts that an unlicensed contractor cannot enforce.  Yours may be one of them.  But that isn't the immediate question.  The question, I think, is whether a lien filed in 2008 is still a valid lien.  A general contractor who is employed by the owner can file a lien up to six months after the last work was performed -- but he also has to file a lawsuit within the same time frame which is aimed at enforcing the lien.  Had he filed the suit to enforce his lien, you would have already litigated the question about whether his absence of a license would defeat his contract -- and whether his work was reasonably done.  At this point, the lien's validity is in question and perhaps could be ignored by the lender's title insurer.  You should ask the title examiner whether the lien can still be any good after 4 years and whether the exception to the title commitment might be deleted.  If your lender's title examiner is not local, confer with a good real estate lawyer in your area.  If he concludes the lien has expired, perhaps you should ask if he can assume responsibility for closing your refinance loan. ... Read More

In light of the date you have recited, I think your question is probably moot by now.  But if the matter is still pending, I'm afraid the information you have given is not sufficient to give a meaningful response.  By saying you are in a "loan mod process", I understand you are in the process of modifying your loan.  If that be the case, there is no sale involved!  Let me guess:  Are you saying your loan is in default and that you are trying to get the lender to modify the loan amount or interest rate -- and now you have learned that the lender is going forward with foreclosure?  If that is your situation, I believe the lender is entitled to enforce its mortgage terms any time that its loan goes into default.  A borrower has no "right" to compel a lender to refinance, or to otherwise compromise its rights under the Note and mortgage that was put into place earlier.  If it chooses to modify some or all the loan documents, that is a benefit to the borrower, but there is no requirement that it do so.   ... Read More

I am not aware of any statute in the Alabama Code that either allows or prohibits the cancelation of an absolute auction.  That does not mean there is not such statute.  Without performing any research on the question, I would guess that the answer would lie more in the contract provisions governing the transaction.  If the auction company uses a contract that allows cancelation on certain terms, then it would be allowed if those conditions were met.  If an auction company uses a contract that forbids cancellation after a given point, then no cancellation would be allowed.  an auction company makes a heavey investment in an auction.  It incurs substantial costs for advertising, preparation of advertising materials, hiring agents to handle various aspects of the sale, arranging for security, etc, etc.  Certainly it would be unfair to allow the auction company to incur all those costs and then cancel the sale without some means of payment.  If you want or need a more specific response, I recommend that you confer with a competent real estate attorney in your area and ask him to do a bit of research on the question.  You can expect a charge for doing the research, but we normally have to pay for getting the benefit of someone else's work product.  ... Read More

Since I don't know the specific facts that are in play, let me just give you some basic information that is probably at work here. First, keep in mind that the property in question belongs to the "owner" whoever that is -- whether an individual or a bank that foreclosed on it.  The owner cannot be forced to sell for any given price unless he has signed a valid written contract.  That means the seller can change his mind about the price that he is willing to accept.  Keep in mind also that the housing market is very, very weak.  Because there are so many houses on the market due to foreclosures, the value of virtually all houses have declined.  Many people who don't want to sell their homes are finding that, because of the market decline, they now owe more on their mortgage than the house is presently worth.  Property owners who wish to sell (or who are being forced for some reason to sell), very often find themselves trying to decide just how much they can afford to lose on a deal.  It isn't so much -- in today's market -- that seller's are trying to make more money; I think they are often trying to reduce their losses.  You have described a situation where the real estate agents ... Read More

You did not say whether the property has been appraised, and it is doubtful that a $15,000 upgrade on the kitchen will enhance the appraisal by that much.  Even so, such an upgrade will certainly make the home look better and will help to sell it.  Any "side deal" such as your proposed allowance will have to be disclosed to the buyer's lender -- and such side deals will usually be disallowed by the lenders.  Have you asked your realtor about the feasibility of entering into a sales contract with a buyer that recites, as a condition to the buyer's purchase, that certain work be performed?  That way, the prospective buyer would be able to pick colors, etc, but you would have to spend the money to get the work done in order to get to the closing table.  The appraisal could probably be done in anticipation of the upgrades being done. Keep in mind that Fha and VA loans will ordinarily require that the property pass an inspection.  In order to qualify the property for financing under those regulations, the inspector may require that specified repairs/upgrades be made.  Conventional lenders may allow "as is" purchases.   If a conditional contract (such as suggested above) cannot be worked out, it is a judgment call as to whether you would be better off funding the work up front or reducing the sale price.       ... Read More

You have not provided enough information for me to understand the problem.  How could "minors" be the owners of real estate?  How could their "mother" put a lien on property she did not own?  What is your connection to the land?  If it belongs to the children, are you one of them?  I will guess at a couple of things:  I will guess first of all that the mother had some kind of repair work done on the house in 2002.  If she had title to the house at the time, the contractor could have legally placed a lien on the property because he was entitled to receive pay for the work done. If he placed a lien on the property in 2002, he may have waited too long to enforce it.  Ordinarily, a lien by a general contractor must be enforced by suit filed within 6 months after the last work was performed or the right to enforce it will expire.  The contractor would still be able to file a suit under the contract.     If, for some reason, the children had inherited the property and Mom really didn't own any interest in it, the contractor may have been misled about the title.  He would still be entitled to receive his pay for work done and, I think, could still file a lien.  But if title was indeed in minors at the time, he perhaps could not enforce the lien by suit until the children reached maturity -- and he may have lost the right to enforcer it at all.  You should make an appointment with a competent real estate attorney in your area and inform him of the details.  There probably will be a modest conference charge but that should be money well spent to learn whether you have a real concern.  To anguish over the uncertainty is a poor choice when a modest conference fee can almost certainly provide the information that you need.     ... Read More

You do not state what the alleged violations were, or whether you knew at the time that you had violated the lease terms.  The specific breaches might be of importance in forming a proper opinion as to your status. Ordinarily, if a tenant fails to comply with material requirements of the lease agreement, the landlord may deliver a written notice to terminate the lease.  Such notice should identify the acts or omissions complained of and state that the lease will terminate on a specified date unless the breach is corrected within 14 days.  after receipt of the notice.  If the breach is remedied, the lease agreement is not terminated.  It is my opinion that, if your landlord is attempting to terminate the lease without such notice and opportunity to correct the breach, you should confer with a competent real estate attorney in your community. ... Read More

Unfortunately I hear similar stories all too often.  Sometimes the contractor is stressed and/or not very concerned about building a reputation for quality work and satisfied buyers.  Sometimes the buyer is a bit "picky" and the contractor gets burned out on repeated calls for minor details of little substance.  By saying "construction was not quite finished", you imply the issues are not trivial in nature.  There are only two ways to resolve your problem:  One of them is by somehow getting the contractor to come out and take care of whatever is lacking.  If you simply cannot get him to do that, the other way is to go to court.  If you choose to explore that route, you should hire a good contractor with a reputation for excellence; ask him to examine your home and advise you of the cost for completing the work.  Ask him to give you a written estimate of the cost and to agree to go to court with you, if necessary to testify to his opinion that the work was left in an unsatisfactory state.   I recommend that you then have the work completed and, if the cost justifies litigation, confer with a good lawyer who has experience in trial work.  Some real estate lawyers spend little time in court and prefer to maintain an office practice.  A good real estate attorney who also is comfortable doing trial work is the best. At that point you can present your attorney with the initial contract, a written estimate of the shoddy work, and an excellent witness who can testify to the shoddy work and the actual cost of finishing.  Unless you have an unusual contract, you will not be able to recover your costs of litigation. Review your contract with the builder carefully too.  Sometimes there is a provision that "moving it" constitutes an acknowledgment that the construction is finished.  If you have that in your contract, it may well defeat your efforts. If the cost of finishing is so modest as to not justify hiring an attorney, you may wish to proceed against the contractor in Small Claims Court.  You should inquire about that if you confer with attorneys and they tell you the case does not involve enough money to justify hiring an attorney.       ... Read More

No.  However, you probably still need to have an attorney handle the closing just to insure that all the details are properly attended to.  In addition, the HUD form may be considered by your closing attorney as a convenient means of displaying the sale/purchase price and the charges, etc.  I do recommend, if your closing attorney chooses to use the form, that references on the form to it being a HUD transaction be deleted.  ... Read More

If you want an answer to your question, you will have to do a better job in setting out the question.  For example, what do you mean by the inlaws "giving your Mom 33 cens out of 1.5 acres"? What do you mean by saying there is a "stay" or a "writ" on the land? What is meant by "RTC copy"? What kind of "papers" do the inlaws want your Mom to sign? Who are the "inlaws" and by what rights or obligations have they "given" something to Mom and then ask that it be sold?  ... Read More

You have not given enough information for me to provide a meaningful response.  By "agreement" I will assume you mean a contract.  A contract ordinarily ties both parties to perform some act (or perhaps to refrain from doing something he/she otherwise has a right to do).  Ordinarily, when one of the parties fails to perform as required by the contract, the other is released from his/her duty to perform.  Sometimes, when one of the parties to a contract fails to perform, the other party is damaged in some way.  When that happens, the damaged party may have a cause of action against the defaulting party -- that is, he may be entitled to sue to recover his/her losses.  If there are no damages, then it would seem a default by one of the parties would entitle the other to declare the contract null and void.  ... Read More

The facts you gave are pretty sketchy.  It is my best guess that you purchased a home with your husband; that the home was mortgaged; that you were then divorced and he was ordered by the divorce court to pay you for your interest and for you to convey your interest to him.  I will assume further that he has not yet paid you and that you have not yet conveyed your interest to him, but that he has possession of the property and you do not. You are now concerned that your ex-husband is allowing underaged kids to drink beer on the property.  If you are not residing on the premises, and if you are in no way participating in the "party" events, it is my opinion that you will have no liability should someone be hurt on the premises or should a criminal investigation be made.   ... Read More

 You do not state what kind of lien is on the property besides the mortgage.  A mortgage is a lien.  I will assume you speak of a tax lien or a judgment lien, and that it was placed on the record after the mortgage. If your buyer is prudent, he will have the title examined before the purchase and the lien (as well as the mortgage) will be discovered.  It will have to be paid along with the mortgage in order for good title to be passed from you to the buyer.  If your buyer is not prudent and does not have an attorney examine the title, and if you sell the property to him without paying the lien, and without informing him of the lien, the lienholder will almost certainly become aware of the sale and will cause the property to be sold to pay the lien.  If that happens, you can probably expect to be sued rather promptly.  Do not try to sell property that is subject to a lien without paying the lien off.   ... Read More

I understand from your question that the property was sold at a tax sale, that 3 years has expired since the sale and that you have made a purchase from the State.  You have what is commonly known as a "tax deed".  Such a deed does not convey good title -- that is, insurable title.  You have merely received whatever interest the State had. If the property is vacant, you are entitled to take possession of it.  After 3 years of adverse possession, you can probably be successful in getting a court order showing that you are then the owner of the property and at that point, you will have good, insurable title.  If the property is occupied by the owner that lost the property in the tax sale, or his/her heirs or family, the passing of 3 years has no meaning.  They will still have a right to redeem.  You have the right, of course, after getting your tax deed to demand possession but, when you do that, you will almost certainly encounter resistance which will most likely end in a redemption of the property. It is rare that a tax deed will ripen to good title.  ... Read More

The laws regarding tax sales and redemption are complex and sometimes vague.  Little litigation has occurred in this field because people who cannot afford to pay their taxes seldom have the resources to fund litigation when they feel they have suffered loss improperly.  In general, one should not expect to obtain good and insurable title to valuable real property through a tax deed.  The realistic expectation should be limited to recovering a nice return of interest when the property is ultimately redeemed because it almost always is redeemed.  Now that I have hopefully moderated your expectations, let me try to answer your questions: Your "facts" are not altogether clear but I think I understand that you have already bid the condo property in at a tax sale and that the 3 year wait period will expire in 2012, and that legal title is in a bank.  I will assume also that the bank is collecting the rent from the condo units.  Your questions are: 1. How do you get possession?  You would ordinarily make a written demand that those in possession vacate by a specified time - and your notice must be in compliance with the State's laws pertaining to evictions.  Here you have a unique situation where the bank is in possession through tenants.  I think you probably don't want to oust the tenants but rather to step into the bank's shoes.  So your demand letter would properly be directed to the bank -- which will certainly oppose your efforts. 2.Can you get the rent money?  Well, if you succeed in wresting "possession" from the bank, you could.  But I don't think you will succeed in wresting possession from the bank.  Another feature of the redemption laws is that the 3 year redemption period does not apply where the owner is in possession.  The owner's right to redeem will continue on, as I understand it, indefinitely so long as the owner remains in possession.  And again, the owner need not personally occupy the property.  Possession can be through tenants. 3. Must you continue to pay the taxes, insurance, etc, and will you ever be reimbursed?  If you do not continue to pay the taxes, there will be another tax sale and someone else will become the owner of a tax deed but will meet the same obstacles that you have.  I think you will ultimately be able to recover your taxes and your "necessary expenses" along with interest.  There may be controversy over what expenses are really necessary expenses.  Bottom line, I think you should be content with the interest income you will get from this "investment".  Perhaps the best way to get the bank's attention and bring the entire matter to a head is to make a demand on the bank for possession.  I recommend that you confer with a competent real estate attorney who has experience with foreclosure/tax sale/redemption procedures.  Not all real estate attorneys have such experience.... Read More

Your's is a difficult question but it is one that many people are having to face in these hard economic times.  I will assume you had at least some equity when you made the purchase, but that now you owe more than the property is worth.  My thoughts are: 1.    If you walk away you will certainly do much damage to your credit.  In addition, you cannot be certain that the mortgage lender will foreclose and simply accept the financial results.  For example, if you owe $140,000.00 on the note and the house is worth only $100,000.00, a re-sale after foreclosure might not net the lender more than, say, $75,000.00.  So, the lender has lost $65,000.00.  Will it be content?  Probably not.  If you have assets and a job, there is reasonable likelihood that the lender will sue you on the note for the $65,000.00 loss.  After all, when the loan closed, you signed a note stating that you would re-pay the loan of $140,000.00.  2.    If you have the capacity to hang in and make the payments, there is some reasonable expectation that the real estate market will bottom out and begin again to appreciate in value.  In other words, there is hope that the present loss will be reversed at some point in the future.  3.    ... Read More

Yes.  If there is no voluntary agreement to sell, any of the three owners can file an action in court and ask the court to partition the land among the owners if there is a feasible way to do that.  If there is not enough land to make a partitioning feasible, the court can then order the property sold at public auction and the net sale proceeds divided among the owners.   ... Read More

It is difficult in today's market to qualify for a loan at all.  It is my opinion that lenders would be more comfortable making a loan knowing that the borrower would have a significant investment in the security property.  A significant investment is not limited to a financial investment.  If the security property is the borrower's home, the lender can be assured that the borrower will have greater reason to take care of it and to not risk losing it by failure to make payments.  ... Read More

Yes.  If you read the foreclosure notice, it will say that the sale is for cash to the highest bidder.  This can be required literally - payment can be required immediately.  It is common practice for the auctioneer to allow time for the successful bidder to go to his bank and withdraw the funds but the time allowed is discretionary with the auctioneer.  I will assume that the record examiner was retained by you and not by the seller.  The results of the title examination are, of course, important to you as the purchaser and if you are forced to make a decision before the results are in, you may either take the risk of the purchase or walk away from the purchase.  In that case, the auctioneer will turn to the next highest bidder. The best you can do is ask for additional time - but you may not get it. ... Read More

You have given very little information about the issue.  If, indeed, the property has passed through an estate and is now owned by a group (whether large or small) of heirs, it can be sold by either of two ways.  The first is for the "group of owners" to voluntarily get together and agree to sell the property and then place it with a professional broker to maximize the return.  If the "group" -- the owners -- cannot agree to do that, any one of the several fractional owners can file a lawsuit in the Circuit Court where the property is located and ask the court to either partition the property among the several owners or to sell the property and divide the net sale proceeds.  If it is practical to partition the property among the several owners, the court will almost certainly do that.  If the property cannot reasonably be partitioned, the court will order the Clerk of the Court to auction the property off at a public auction.  Anyone can bid on the property.  If the property is vested in some kind of Trust, family limited liability company or some other vehicle for holding title -- and not in the heirs personally -- it may not be possible to achieve a court ordered sale in the manner described above.  You should confer with a competent real estate attorney and provide better details on how title to the property got dispersed as it was.  A brief conference should bear a modest cost and the information would enable you to see your options clearly.... Read More