Q:   My wife and I are in our eighties and would like your comments regarding a very critical decision concerning our future.

We have to leave our home of fifty plus years and are hoping to sell it and be assured that we are on the right path as to the prospective buyer.

We have an offer from a builder who plans a “teardown” which is acceptable to us. We have a professional appraisal valuing our home at $330,000 which we believe is fair.

Our dilemma is the builder wants to discount the appraisal with an 8% fee similar to a real estate agent which he is not. Our plan was to not use a realtor and in effect save the commission.

Should we have to pay the buyer a fee for buying our house? Is it legal to do so? Robert .

A: Robert. First, let me repeat what I often write: “everything in real estate is negotiable”.

No, you do not have to pay that potential buyer any commission – or whatever it may be called. In fact, you do not even have to agree to sell the property to him.

You indicate you want to avoid paying a real estate commission. I find that commendable, but have to caution you that it does not always work. You need to be prepared as to how you will deal with a potential buyer who says “OK, I like your house and want to buy it. What’s the next step?”

Yes, what is the next step? Do you have a real estate contract you can prepare and give to the buyer. Do you have some lenders willing to work with that potential buyer? And how and where will closing (escrow) take place?

Let me make it very clear that I fully support trying to sell your own house without a broker.  You will be called a “FSBO” – for sale by owner – but so what? If you are prepared, and have professional backup, you should at least try it for a couple of weeks. I often counsel FSBO’s, and my fee is considerably less than a 5-6 or even 8 percent commission that the real estate people may charge.

You have the proverbial “bird in the hand”. Why not negotiate? Raise the price and/or lower the “commission”. Remember, everything is negotiable.

But if you decide not to go with that potential, please consult a local attorney who can be your backup when you will need it.



Q:   My wife and I have a condominium.  At this time there is a big dispute going on about the fact that nine holes of the golf course have been sold to a developer to allow it to construct a large number of  units consisting of homes, town homes and duplexes. At this time, there are groups fighting this move for various reasons, including keeping open land, worries over flooding and concerns that the county zoning board did not do a proper job. This last group sued the county board to stop this development. They have hired lawyers to accomplish this end. In our building, they have taken money from the reserves for legal fees and are proposing a special assessment. Not all residents are against the development and feel that taking money from our reserves for this reason is not for the improvement of the building. Is it legal for the board to take money from reserves and have a special assessment for all residents for this purpose? Barbara.

A:   Barbara. The first thing that you  – or perhaps an attorney representing your group – should do is to review your legal documents. Typically, there is language in those documents spelling out the requirements for maintaining a reserve account and in many cases those funds are earmarked for major repairs and replacement of common elements within the association.

Generally, reserve funds cannot –and should not – be used for normal operating purposes – such as water bills, landscaping, snow removal, etc, although if really necessary, the board may have the authority to temporarily tap into the reserve fund. But a serious effort must be made to repay and replenish the fund as soon as possible.

However, in your case, unless there has been a vote by a majority of the owners to fund legal fees out of reserves, I believe it is wrong and the board may be engaged in breaches of their collective fiduciary duty.

You should consult an attorney in your area to confirm my opinion, since I cannot provide specific legal advice in this column. Your attorney – if he/she agrees with me – may have to file a suit against the board members to stop the withdrawal of the money.



OF INTEREST;

Is your home a “public place”? I recently read an interesting case decided on June 12, 2015, by the Iowa Supreme Court. Ms. Patience Paye called the police to her home claiming she was assaulted by her husband. Turns out Ms. Paye was intoxicated, and the police arrested her for intoxication in a public place.

Ms. Paye did not leave the house; she did, however, go out to discuss the matter with the police but stayed on the front stairs of her home. The trial court convicted her, claiming that her front steps were “public”. The Iowa Supreme Court – in an interesting opinion – reversed.

First, it should be noted that Iowa is one of the few states to criminalize the mere fact of intoxication. The Iowa Code defines “public place” as any place “to which the public has or is permitted access”.

The court distinguished the front steps of a private house from those of an apartment building, pointing out that the former are an “access point”whereas the latter are a “thoroughfare”.

The court held that the steps of a private house were not a “public place”, and made the following observation: “if the front steps of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce –unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy handed.”

Real property 101: your home may still be your castle.



Q: My neighbor put a new fence 2 feet inside on my property. I have a land survey document which confirms this. He put the new fence on May 29, 2015. I was using  2 feet of the property for 18 years and now the neighbor says it is his. Since he already put the fence up,  how can I get that land back legally? Syed.

A:      Syed.  I am confused. Are you saying that the survey shows that you own that 2 feet of ground, or are you saying that you were using that 2 feet for 18 years even though it was not your property?  I will answer both ways.

If your survey shows that your neighbor installed his fence two feet inside your property line, he is trespassing. In many states, before someone can install a fence, the city (county) must review and issue a permit. You should confirm if a permit was obtained. If so, I am sure there is a procedure whereby you can contest the issuance of that permit, with the view toward having the fence removed. This can be ordered in some situations by the local government; otherwise you will have to go to court to get an order directing the other owner to remove – at his expense –his fence.

If no permit was issued, you will have to hire an attorney and take the neighbor to court on a trespassing charge. If you can prove that the neighbor installed the fence on your property without your permission, the court should be able to issue an order forcing the fence to be removed.

Now to the second question: you have been using the property for 18 years and no one has objected. You may be able to claim ‘adverse possession” – this is a legal concept whereby if you (1) openly, (2) notoriously and (3) hostility occupy someone else’s property, and you do it for the period of time authorized by your state statute, you can go to court claiming adverse possession. Here, you must talk with your attorney. For example, the applicable length of time in the District of Columbia is 15 years, but in Maryland (right next door) it is 20 years. The burden of proof is on you to demonstrate that you meet the tests; however, a fence that has been installed for that period of time should be more than adequate proof.