Assume mortgage with transfer-on-death deed

Daughter worries bank will call loan due before she can find a job

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Nov. 2, 2011

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DEAR BENNY: Can you please tell me how to file a claim for property damage against a property that is in a land trust? The trees on that property have roots that are overgrown and have spread into my yard and destroyed the concrete. --Debra

DEAR DEBRA: All I know about "land trusts" is that they started in Illinois in an effort to hide the names of owners of commercial property. You will have to talk with an attorney in your state about how and where to file complaints.

However, the law in all states regarding tree roots and branches is that you have the absolute right to cut down branches overhanging on your property. You also have the right to chop off roots that are creeping onto your property.

You do not have the right to trespass on your neighbor's property, however, to take this self-help.

The laws involving trees and damage to property differ dramatically throughout the country. Here's a brief summary:

The Massachusetts rule: Even if damage is done to the neighbor's property, that neighbor is limited to self-help. That is the exclusive remedy. Many judges have called this rule the "law of the jungle" because "self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors."

The old Virginia rule. Until the Virginia high court reversed itself, the law there was that the injured landowner is limited to self-help "unless the encroaching tree or plant is noxious and causes actual harm to the neighboring property."

But several years ago, the Virginia court acknowledged that it was difficult to determine exactly what is meant by "noxious." Accordingly, the law in Virginia now states that if a neighbor's tree causes actual harm or poses an imminent danger of harm to an adjoining owner, the tree owner maybe held responsible.

The Restatement rule: The American Law Institute -- a prestigious organization composed of lawyers, judges and professors -- periodically issues "Restatements of Law" on various topics. While such statements are not legally binding on the courts, they do assist lawyers and judges in understanding and interpreting cases.

The Restatement of Torts, promulgated in 1979, determined that the tree owner has an obligation to control encroachments when vegetation is artificial -- i.e., planted or maintained by a person -- but not when the encroachment is natural.

In other words, if you planted your tree, and it causes damage to your neighbor, you may be financially responsible for this damage.

Most states rejected this theory, simply because it is often impossible to determine whether a tree is "artificial" or "natural." If you just moved into your new home, you have absolutely no way of knowing the origin of your trees.

The Hawaii rule: In 1981, the high court in Hawaii further modified the self-help rule. Normally, said the court, living trees and plants are not nuisances. While it may be an inconvenience for the neighbor if the trees next door cast shade, or drop leaves, flowers or fruit, this is not actionable at law.

However, "when they cause actual harm or pose an imminent danger of actual harm to adjoining property," the neighbor may require the tree owner to pay for the damage and to cut back the endangering branches or roots. And if this is not done within a reasonable period of time, the neighbor "may cause the cutback to be done at the tree owner's expense."

The current trend seems to be following the new Virginia rule, but you have to consult your own attorney to determine what the law is in your jurisdiction.

DEAR BENNY: I was widowed last year and have decided to move to another state where my daughter lives. I have put my house up for sale. I don't owe anything on it. Unfortunately, I found my perfect house in the other state and signed a contract to buy it before mine is sold.

I am 62. I have savings and some investments but am hoping not to drain those. My house is not selling fast enough to keep me from worrying myself to death. If it doesn't sell by the time I close on the new house, what would be the best thing for me to do? When the contract with my real estate agent expires, should I advertise it as rent to own or lease to own, or what? --Judith

DEAR JUDITH: I assume you can afford to buy the new house without having to sell your present one. If that's the case -- and if you are satisfied with the activities of your real estate agent -- I would continue to advertise the house. But I would consider advertising it either (a) renting it out (with or without an option to buy) or (b) for sale.

From my experience, if possible, it's always nice to be able to buy another property before selling your current one. This gives you flexibility to fix up the new place without having to move all of your furniture and belongings immediately into the new place.

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