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File civil lawsuit for property damage?

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POSTED June 24, 2011 1:10 a.m.

DEAR BENNY: While we were out of town, my neighbor and a well installer destroyed 400 square feet of my lawn, leaving us with ruts, dirt piles and dead sod. In addition, they buried 40 linear feet of water pipe and electrical cable on our land without our permission. I have a recent land survey to validate our claims.

They refuse to repair my lawn, or remove the pipe or cable. The sheriff has refused to take any action. What are our options? --Suszan

DEAR SUSZAN: And you call those people your “neighbors”? I understand that the sheriff might not want to get involved, even though (if your facts are correct) there was an illegal trespass onto your land. Police (and sheriff’s) departments are extremely busy with more serious crimes. I am in no way belittling your situation, but you have a civil remedy: File a lawsuit for wrongful trespass and damage to your property.

Generally speaking, our courts follow what is known as the “American rule on legal fees.” That means that each side pays his/her own legal fees, unless (1) there is a provision providing for attorneys fees to the prevailing party in a legal document -- such as a lease or real estate sales contract; (2) there is a provision providing for legal fees in a statute in your state -- you will have to have an attorney give you this advice; (3) a pool of money has been collected as a result of a court judgment obtained by an attorney -- such as in a class action; or (4) the court finds that the action of the defendant was not so outrageous that punitive damages (including legal fees) should be ordered.

I don’t want you to get your hopes up about this fourth category, but from your description, your attorney should be able to make a strong case for punitive damages against your “neighbor.”

P.S.: After writing this response, someone sent me a provision from the Virginia Code. I thought it would be of interest to my readers, as you may have similar language on your state laws:

“Section 15.2-1717.1. Designation of police to enforce trespass violations.

“Any locality may by ordinance establish a procedure whereby the owner, lessee, custodian, or person lawfully in charge as those terms are used in Section 18.2-119 of real property may designate the local law enforcement agency as a ‘person lawfully in charge of the property’ for the purpose of forbidding another to go or remain upon the lands, buildings or premises as specified in the designation. The ordinance shall require that any such designation be in writing and on file with the local law enforcement agency.”

DEAR BENNY: I paid off the mortgage on my townhome years ago. Should I have received something (the deed?) indicating that I own it? I contacted the lender last year and (a representative said the company) would send me something “in a few months,” but ... never did. Can you tell me what I should do? --Doug

Also a similar question from another reader:

DEAR BENNY: I paid off my mortgage two years ago; however, the only document I received from the credit union is a statement saying that the loan has been paid off. Where is the title or deed? --P.D.

DEAR P.D. AND DOUG: I will respond to both of your questions.

When you get a mortgage loan, you are required to sign a whole bunch of legal documents -- many of which are (in my opinion) irrelevant, unnecessary and/or duplicative.

However, there are three documents that are very important. First, the settlement statement (called a HUD-1). In the past year, it has been amended considerably by the Department of Housing and Urban Development (HUD), and presumably is aimed at providing more complete information about the services and fees involved in a homebuying (or loan refinancing) situation.

I recommend that readers (1) review the HUD-1 very carefully before you sign it, and (2) keep that document in your possession until you sell your very last house. There are expenses contained in the HUD-1 that may assist in reducing any capital gains tax you may have to pay when that home is sold.

Second, you sign a promissory note (the IOU to the lender). Once again, read it carefully before you sign that document; it contains information about the interest rate, the date on which the loan must be paid in full.

Also, if you are getting an adjustable-rate mortgage (ARM) it will explain when your interest rate will be adjusted and the formula on which the new rate will be determined. Your lender will keep the original, but you should not leave the settlement (escrow) office without getting a copy of absolutely every document you signed.

The third important document is the mortgage -- called a deed of trust in many states. If you get a mortgage, typically the lender will have to go to court to foreclose should you go into default. However, with a deed of trust, you get a deed to the property and immediately deed it -- in trust -- to a trustee (or trustees) selected by your lender.

The deed of trust gives the trustee the “power to sell” your house at a foreclosure sale, if you are in default. State laws differ dramatically as to how and when the trustees can proceed to a foreclosure sale.

The mortgage -- or the deed of trust -- is recorded among the land records in the jurisdiction where your house is located.

Now, you have paid off your loan -- either because you sell the property, you refinance, or you just decided to make all payments so that you have a house “free and clear” of that lien on your property.

If you sell your house or refinance your existing loan, the settlement (escrow) company will take on the responsibility of releasing the old mortgage from land records.

However, if you just pay off the loan and keep the house, the old mortgage (deed of trust) must be released from land records. All too often (as happened to our two readers) the lender just sends a letter advising that the loan has been paid off.

That is not sufficient: The lender should prepare a release (often called certificate of satisfaction), and that document must be recorded on the same land records where your original mortgage was recorded. You want the world to know that you now own the property free and clear of that old loan.

If your lender is a national bank, you can complain to the Office of the Comptroller of the Currency -- a federal agency (www.occ.treas.gov). If your lender is a credit union, you can file a complaint with the National Credit Union Administration (www.ncua.gov). Alternatively, you should send a complaint letter to your state’s banking office and to your state’s office of attorney general.

You cannot let this sit. In my experience with clients whose loan has been paid off but not released from land records, many times the existing lender no longer exists and it is a real hassle to find out who currently has the obligation to release that loan.

Ultimately, you may have to file a lawsuit to quiet title, but that’s time-consuming and expensive.

Incidentally, you should have received the deed when you first bought the house. The settlement (escrow) company records the deed, and when it is returned from the recorder’s office, the original should be sent to you.

DEAR BENNY: I purchased a home in April 2009. The house is relatively new, built in 1995. I purchased the home with an FHA loan, as a short sale. My concern is disclosure. My home is constantly creaking and cracking. I did have a home inspection before I purchased the home; however, it was not noticeable during the inspection. Are the previous owners responsible for disclosing the “noises”? Should I contact a real estate lawyer? --Diana

DEAR DIANA: There are two things you have to do first before you talk with an attorney. First, review your sales contract. Does it say that you bought the property in its “as is” condition? If so, then you may have a hard time convincing anyone -- a judge or the seller -- that the seller has any obligation to you.

Second, you should have a licensed home improvement contractor (or a licensed structural engineer) make a determination of the cause and source of the noise. Perhaps, it is routine settling; new houses often “creak” as they settle down on the ground. You should also find out how much it will cost to correct -- if correction is even possible.

There are things that you can do, without having to spend money on a lawyer. It may very well be that there is no way to solve the problem, and that in time, the problems will go away. It may also be that the cost to correct is minimal, and it would make sense for you to bite the bullet, pay the cost, instead of filing suit against the seller.

Over the years, I have advised my clients that sometimes it pays just to fix the problem instead of spending a lot of money (and time) on litigation.

 

 

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