Category: Residential Transactions

SURVEYS: A DETAILED LOOK AT A PIECE OF LAND

SURVEYS: A DETAILED LOOK AT A PIECE OF LAND

If you previously bought or sold property you likely saw a Survey.  A Survey is a detailed description of real estate that includes the land’s boundaries, building lines, improvements, and any easements or encroachments recorded on the property.

Every property in Illinois is identified by a common address and a legal description.  The common address is mostly associated with a mailing address.  Legal descriptions are more exact.  They identify the specific lot number, location, and property measurements.

Surveys in Illinois must be performed by Professional Licensed Surveyors.  Surveyors start with the legal description to identify the boundaries for the parcel of property.  The legal description will also allow the Surveyor to search the history of documents recorded with the county in which the property is located.  This search reveals any building lines, easements, or encroachments that are related to the property.

Next, the Surveyor is likely to visit the property and perform measurements.  He or she wants to obtain precise information on all the property’s buildings, where they are located, and if they violate any building lines or easements recorded on the property that were revealed by the county search.

A building line prohibits structures from being constructed within a certain distance from the street or neighbor’s property.  Building lines are usually mandated by the municipality where the property is located and prevent a newly erected structure from damaging the market value of nearby properties.

Easements give another party certain rights to the searched property.  A common example of an easement is for utility or cable companies.  Modern technology allows electrical, cable, and other wires to be placed underground.  These wires may run underneath portions of property.  Utility and cable companies need to be able to fix, repair, or update their equipment.  As a result, they may be granted an easement to perform this work.

Encroachments can be violations of a building line or easement.  There may be a bay window added to the house or a shed that was constructed over a building line.  Alternatively, someone may have built a fence that runs along an easement designated for a public utility company.  It is also possible for an encroachment to come from the surveyed property onto that of a neighbor.

All these potential issues will be raised on a Survey when the specific property is bought or sold.  Insurance related to marketability of the property is unlikely to cover encroachments over a building line or easement.  As a result, you may be responsible for removing the encroachment if it causes an issue with the municipality that imposed the building line or holder of the violated easement.

It is generally a good idea to obtain a Survey when buying property.  First, most property sales have the seller pay for the Survey (approximately $500).  Second, the Survey will alert you to any encroachments over building lines or easements that you might be responsible to remove.

Sometimes Surveys come back “clear.”  In other words, there are no encroachments over a property’s building lines or easements.  But the only way to be sure is to demand the property’s seller provide a Survey for your attorney to review.  Surveys allow negotiations over how to resolve any encroachments, and you will be familiar with the rules of home additions or structures that may or may not be built upon the property.

Having a good attorney can help understanding the details of a Survey.  It can clear up confusion you may have as a property owner so you do not have to face a lawsuit down the road.

REFORMATION: FIXING A MISTAKE ON A MORTGAGE

REFORMATION: FIXING A MISTAKE ON A MORTGAGE

Most adults at some point have received a loan from a bank and given that bank a mortgage in return.  The mortgage acts as security to ensure you will pay back the loan.  Mortgages encumber specific property – typically the same property that you used the loan to purchase.

A mortgage defines the property it encumbers in three ways, 1) common address, 2) permanent index number, or “PIN”, and 3) legal description.

The common address is what you and the post office use to identify your house, for example, 123 Main Street, Crystal Lake, Illinois 60014.  In addition, every property is assigned a PIN.  Your county’s tax assessor uses the PIN to identify your property and the amount you owe in real estate taxes each year.  Different counties use alternate formats for PINs, but all involve a string of numbers designed to specifically identify your property, for example, “12-34-567-8910.”

Finally, every parcel of property in Illinois has its own legal description.  A legal description often takes the following format:

LOT [X], BLOCK [Y] OF [SUBDIVISION], BEING THE [WEST ½] OF THE [NORTHEAST ¼] OF SECTION [Z], TOWNSHIP [XX] NORTH, RANGE [YY] EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED [DATE] AS DOCUMENT [NUMBER], IN THE OFFICE OF THE RECORDER OF DEEDS OF MCHENRY COUNTY, ILLINOIS.

Occasionally, banks make a mistake when putting a legal description on a mortgage.  The Lot or Block number could be wrong, the name of the subdivision could be misspelled, or the legal description for a completely different property could be accidentally placed on the mortgage.

Banks solve problems or typos in the legal description through Reformation.  By asking an Illinois Court to Reform the mortgage, the Court may correct it so that it a valid and enforceable lien.  Court’s base their decision to Reform the mortgage on whether it appears the mortgage, with its incorrect legal description, does not reflect the intent of the parties to the mortgage.  In other words, the parties to the mortgage made a mutual mistake in placing the wrong legal description on the mortgage.

Evidence that the parties made mutual mistake can include that the common address and PIN on your mortgage correctly describe your property.  In that situation, it is likely that the parties intended to put the right legal description on the mortgage.

Having a good attorney can help understanding how Reformation may affect your mortgage.  It can clear up confusion you may have as a property owner so you do not have to face a lawsuit down the road.

Home Inspection Issues and Negotiations

Home Inspection Issues and Negotiations

Buying and Selling a home can be a time-consuming process from beginning to end.  If you are buying a home, it can be very time consuming to schedule homes to view, going out to seeing the homes, and then finally making the decision. Once you make your decision your next step is to sign a contract. Once the contract is signed then the process really begins and it’s time to contact an attorney.

What Happens After I Sign the Contract?

After you sign your contract, in Illinois, if it is a standard real estate contract, you have five business days to do a home inspection. This means you need to find a good home inspector, and schedule a time they can go to the property. Your home inspector can be a very important person in this whole process. It is important to choose someone who will do a good job for you. If you are using a real estate agent, they usually have a list of home inspectors who are reputable in the area. Your home inspector will go to the property you are going to purchase and perform a detailed inspection. They will look at the bones and structure of the home and in return give you a detailed report of the home. A good home inspector will often list items in the home which need to be fixed, items which potentially need to be fixed, and items which are in good condition. This is all to help you make an informed decision about the home you are buying.

Once you receive the report, you may have some concerns or questions. You may decide to cancel the transaction all together, or maybe decide to push forward on the condition certain items be fixed. At this point you would contact your attorney to discuss the list of items you want fixed. Your attorney will then put together your list to send to Seller’s attorney. If more time is needed to make the deadline, your attorney can put together the proper forms to request this. A good attorney will be honest and responsive to your concerns and questions during this time. After the letter is sent, the negotiations begin. This can be a time consuming and frustrating process. Your attorney will help negotiate your needs effectively so you have the best result.  As the negotiation process continues, the Seller’s attorney will reply to your home inspection letter. A good attorney will take time to explain to you the exact terms and parameters of each reply and response letter and be your advocate during this process. Once there is a final agreement, the agreements become the terms of your contract and the transaction will move forward.

How to Take Title On Your Deed

How to Take Title On Your Deed

If you are buying real estate property you will be given a deed to your property. If you are buying with another person you may be wondering how you should take title. An attorney can help you decipher how the deed should be written so you are able to own the property with the other person in a manner which is best for your situation. There are a few common ways for people to take title in Illinois. The three ways are, Tenants in Commons, Joint Tenants with the right of Survivorship, and Tenants by the Entirety.

Tenants in Common.

In Illinois if the deed does not state how the property is held between people, it is defaulted to tenants in common. With tenants in common, each of the owners on the property has an undivided interest in the property. Undivided means you are able to use the entire property. However, you are only entitled to your percentage as ownership. As an owner you are able to sell your interest to the property to anyone at any time. You can take a percentage of the property however, you’d like. For example, you could hold a 50/50 interest in the property. Or you can hold a 20/80 or another other combination. Upon your death, the property goes to each individual owner’s heirs. It does not automatically become the ownership of the other owner. If you are unsure of how your property is divided, or are thinking of changing the deed, it is best to speak to an attorney who is well versed in both real estate and estate planning to better help your needs.

Joint Tenants with the Right of Survivorship.

Joint Tenants with the right of survivorship is similar to tenants in common. Each owner has the right to use the entire property to be considered a joint tenant. A joint tenant will be able to sell their share of the property without the other owner’s permission.  The big difference between a tenant’s in common and a joint tenant’s is the right of survivorship. Unlike with tenants in common, the right of survivorship means that if one owner passes, the other can take the property as a whole. The deceased owner’s share does not pass down to the deceased owner’s next of kin.

Tenants by the Entirety

Tenants by the Entirety in Illinois is one of the best ways for a married couple to take title. It is only available to married couples and you can only have one property as tenants by the entirety. This means, if a couple owns a residential home and a lake house at the same time, only one of the properties can be deeded as tenants by the entirety. This is similar to joint tenants with the right of survivorship. If one spouse dies, the property automatically transfers to the other spouse. If the couple divorces, the house will then be considered tenants in common. One spouse cannot sell their interest in the property, without the consent of the other. The biggest benefit to Tenants by the Entirety is that a creditor cannot place a lien on the property unless that lien is in both of the spouses’ names.

If you are buying or selling property it is important to speak with an attorney who can help you make the best decision about your deed. It is best to find an attorney who knows both real estate and estate planning law in order to help you make the best decision.

Are planning on buying or selling property?

Local attorney Andrew Szocka, Esq. provides thorough and speedy real estate and estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.