All Forum Posts by: Tom Gimer

Ordinarily those tenant vacated damages would be too remote, but it sounds like they were contemplated by both parties at the time of contract.

Were I in this situation I would be looking to state law to determine if the EMD is truly the extent of my potential liability as a buyer. Based upon my research findings I might also start thinking hard about that heater.

OP should try less whining about James and more finding a way to close...  such as by including affirmative coverage for forced removal in the loan policy. 

If this encroachment is truly a matter of inches is anything going to come of it? No.

@Jay Hinrichs I handled an auction sale years ago where the city/state had assessed a riverside parcel at 60+ acres for decades when it was actually less than 20. Oops, sorry… no you are not getting a refund. And no, the purchaser would not have a viable claim over the incorrect record as all information concerning the subject property must be independently verified.

Owner should have accepted the pre-auction offer which turned out to be ~2x the high bid.

According to the fact pattern the seller can provide clear title… but the buyer’s lender won’t accept the proposed resolution. I would need to review the contract language regarding title defects but my bet is it could quite easily be argued that this is on the buyer.

One option perhaps not considered -- accept the easement and close cash. Or find another lender.

@Jay Hinrichs This is a state law issue. In some for a deed to be effective it must be "delivered" to the grantee. In others it must be recorded. So in those states it's possible to hold a deed in escrow pending the occurrence of some event, then deliver it / record it. Or if the event never occurs, destroy it like it never existed.

In states where a deed is effective immediately upon execution that would not be possible.

Of course as stated previously a pocket deed if recorded does violate the borrower's right of redemption and the right to have a property sold at a commercially reasonable foreclosure sale. Maybe that's not "illegal" but it is potentially actionable. Thus a DIL executed prior to default creates title insurance issues as you can't satisfy the underwriters' checklist -- prior default, comparison of value vs. amount owed, a negotiated DIL agreement, etc. 

@Jay Hinrichs We essentially have an in-house abstractor (Salt Abstracts — MD; M&M — DC), so when I REALLY need it I can have title in ~1 hour.

I try not to be that demanding often but it’s a nice resource to have access to.

Unjust enrichment is an equitable remedy. The existence of a contract -- I agree with you on this -- may be a complete defense to such a claim. 

Oops I didn't follow the lien laws so I'm going to sue for unjust enrichment is not a likely winner.

Again, without knowing where this property is located, this whole discussion is kinda pointless.

@Marc Shin You need to provide the location of the property.

Mechanics liens laws are state-specific with respect to contract and notice requirements, license status, dollar amount thresholds, and especially TIMING. Nobody can answer your question as-is.

The contractor may have zero to stand on here.

@Dave Hart A release would not be recorded until the note is paid in full. 

In a perfect world an assignment (like @Chris Seveney suggested) would be recorded with each transfer of the note but in reality that does not occur. Lenders fail, go out of business, merge, etc. Yes, this creates problems for title companies and title insurers to resolve. 

@Jordan Sachs This is 100% a state law issue... developed through court cases over time. There are rules and exceptions to the rules -- it's actually pretty interesting if you take the time to research it. You'll be surprised how many cases there have been and how the law has developed.

Do a quick search for Pennsylvania tree laws or Pennsylvania tree liability and you'll see what I'm talking about.