Frequently Asked Questions:
Real Estate Law FAQ
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What is real estate law anyway?
Virtually any legal matter or litigation that has to do with a piece of
property – such as homes, commercial structures, or privately-owned
business, to name a few – is considered real estate law. Due to
the complicated nature of these laws, many attorneys are decidedly unfamiliar
with them. If you have any problems regarding your property or estate,
you need to find a qualified real estate attorney.
If I find a problem with my home after the purchase, what can I do?
If you are lucky, the real estate agency should have included some sort
of warranty policy with your newly-purchased home that covers unforeseen,
preexisting faults. It is common for these policies to be extremely specific,
however, and the problem you discovered might not be covered. If this
is the case, or if you have no warranty policy at all, you will have to
take them to court with the help of a real estate law attorney.
Will claims or liens affect my chances of selling my home?
In short, the answer is yes. When you sell property with third-party claims
or liens against it – usually from some sort of financial institution
– the buyer will inherit those forms of debts. Most people will
stray away from a property that claims and liens against it for this reason.
It is in your best interest to try to resolve these prior to a sale. If
you cannot, retain a Sarasota real estate lawyer to help you find the
best way to approach your sale with liens and claims intact.
I've purchased a home "as-is" – am I responsible for
If you willingly purchased a home "as-is" or in whatever condition
it was presented in, you will ultimately be responsible for any future
repairs and maintenance. Before you sign anything, make sure you are aware
of all defects and are comfortable with having to many any repairs yourself.
If you think you are being presented with an unfair deal based on the
condition of the house, speak to a real estate law attorney to determine
if any legalities are being violated.
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I am in foreclosure – what do I do?
If you have been served with
foreclosure papers or will be within a short period of time, you should know that
the worst thing that you can do is NOTHING. Ignoring your real estate
problems will only make them worse. Homeowners facing these difficult
and challenging circumstances are urged to contact The Edwards Law Firm,
PL for a consultation to evaluate their financial situation and their
mortgage documents. The cost of our
foreclosure defense services is surprisingly very affordable and may be available at no cost
to the homeowner under certain circumstances. However, we cannot help
you if you do not take the first step and call our office.
Which is better for me - a short sale or a foreclosure?
Generally speaking, a
short sale of an underwater property has less of an effect on your long term credit
rating than the completion of a foreclosure does. By doing NOTHING and
allowing the lender to complete its foreclosure, a homeowner is subject
to significant long term effect on credit and a later action by the lender
to collect the deficiency. A short sale allows the homeowner to retain
control over their
underwater mortgage problem by negotiating their best deal with a buyer and then negotiating
the terms of its acceptance with the lender, including a waiver or settlement
of the deficiency. If a homeowner does not like the terms of the short
sale acceptance - for example, the lender requires a payment to settle
the deficiency balance that is more than the homeowner can afford - then
the homeowner can cancel the short sale contract with no further obligation.
What is an "underwater mortgage"?
An "underwater mortgage" is a mortgage whose balance exceeds
the market value of the property. In Sarasota, most real estate values
have fallen by more than 50% since the peak of the market in 2005.
What is a "strategic default"?
A "strategic default" or "voluntary default" is a situation
where a borrower makes a conscious choice to stop paying their underwater
mortgage because the borrower realizes that they are throwing "good
money after bad" and that the amount being paid on their mortgage
(which is significantly more than rent on a comparable property) will
never be recouped. A "strategic default" is often coupled with
a short sale which allows a borrower to negotiate the terms of a sale
of the underwater property with the lender to include a waiver of deficiency.
What is a "waiver of deficiency"?
A "deficiency" is the amount of a mortgage that exceeds its value.
A deficiency is possible in both a short sale and a foreclosure. In a
short sale, a deficiency can result because the property is being sold
for less than the mortgage balance. In a foreclosure, a deficiency can
result if the fair market value of the property is less than the mortgage
balance on the date of the foreclosure sale. A homeowner who does NOTHING
and allows a foreclosure to be finalized by the lender is subject to later
collection efforts by the lender. A homeowner who retains control over
their real estate problem and sells their underwater property in a short
sale has the ability to negotiate with the lender for a "waiver of
the deficiency", often with little or no money paid by the borrower.
The Edwards Law Firm, PL is experienced and qualified to negotiate your
short sale and obtain a
waiver of deficiency from the lender. However, you must call us for help.
Will the lender take a deed in lieu of foreclosure to settle my case?
A "deed in lieu" of foreclosure occurs when the borrower has offered to deed the
property to the lender instead of allowing the lender to complete its
foreclosure. After a borrower has given the lender a "deed in lieu",
the lender will own the property and the borrower will have no further
obligation on the note and mortgage. Generally speaking, the lender will
accept the "deed in lieu" in full settlement of the note to
include a waiver of the deficiency. Whether or not the lender will accept
an offer of a deed in lieu will depend on the individual circumstances
of the borrower. We can quickly evaluate the likelihood of a lender's
acceptance of a "deed in lieu" during a consultation.
Can a lender pursue me for a deficiency balance after a short sale?
Depending on who a homeowner retains to negotiate their short sale, often
there is no attempt to resolve the future possibility of a lender pursuing
the homeowner for a deficiency. If a homeowner sold their property through
a short sale and the short sale approval letter does not include terms
that indicate a "full settlement" or "waiver of deficiency",
it is very likely that the lender (or a collection agency working for
the lender) will later pursue the homeowner for additional sums to pay
the deficiency balance. At The Edwards Law Firm, PL, we always attempt
to negotiate a full settlement of the note and mortgage in a short sale
to avoid the possibility of a later deficiency judgment.
What is probate?
Probate is the process of administering and distributing someone's
estate after they pass away. This should be a simple process, but legal
issues and disputes over the decedent's estate can make the process
complicated and difficult. That is why you need a probate lawyer by your side.
How much does probate cost?
It is common for people to want to know how much probate will cost. This
is especially true with small estates, because you may be wondering if
probate is even worth it. Probate involves court fees, filing fees, and
other administrative fees, but the biggest expense is usually the attorney
fees. The Florida Probate Code requires "reasonable attorney fees"
ranging from $1,500 for an estate worth $40,000 or less, to $3,000 plus
2% - 3% of the value of an estate worth $100,000.01 or more. Consult a
lawyer to get an approximation of how much probate will cost in your case.
How long does probate take?
The length of time needed for probate varies depending on circumstances
(such as whether or not disputes and litigation are involved), but the
average probate takes anywhere from 1 - 4 months.
Can probate be avoided?
In many cases, yes, probate can be avoided through proper estate planning
ahead of time. Disputes may still arise over a decedent's will, trust,
or estate plan, but a comprehensive and well-drafted estate plan can help
make the probate process run much smoother and, in some cases, eliminate
the need for probate altogether.
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How much does it cost to hire The Edwards Law Firm, PL?
Generally, our firm charges for its foreclosure defense services at an
affordable hourly rate. We do not charge an upfront fee for our services
to negotiate a short sale - our short sale negotiation fees are typically
paid by the lender as a closing cost in the short sale transaction. However,
in certain circumstances, our services for both foreclosure defense and
short sale negotiation are available at no cost to the borrower. Call
The Edwards Law Firm, PL today for a consultation and discussion of the
fee structure that will apply to your situation.
Contact a Sarasota foreclosure defense lawyer
if you are at risk of losing your home and would like the assistance of
a skilled legal professional to assist you with your underwater mortgage
or other real estate problem.