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Adam W Heaton
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Adam Heaton’s Answers

37 total

  • Can a home be signed over to one spouse if both are on the mortgage?

    2 spouses own mortgaged house are separated but one spouse won't leave. Can the one spouse legally sign the home over to the other and not be responsible financially?

    Adam’s Answer

    It depends. Did both sign the loan documents such as the promissory note? The vast majority of people do not realize that a “mortgage” is not the same thing as a loan from the bank. The mortgage is the security instrument the bank uses to put a lien on the underlying collateral property for the repayment of the loan from the bank. Both could be owners of record of the property while only one actually borrows money from the bank; but practically speaking, the bank would need both signatures on the mortgage documents (but not the loan documents) in order to properly place the lien on the underlying collateral property.

    So you need to determine whether both husband and wife borrowed the money from the bank and thus both signed the loan documents. If both signed the loan documents then both are contractually liable for what is written in the loan documents.

    If only one signed the loan documents, then the other is not “contractually” liable; however, there is very likely a mortgage-lien on the underlying collateral property that can only be removed by repayment of the loan from the bank.

    I know this may sound a bit confusing; this is why you will want to discuss you specific situation with a qualified attorney.

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  • Can someone run a business out of an apartment AND rent it out to someone?

    I am a condo president, and have recently become concerned that one of the other owners is engaging in fraud. These are one-bedroom condos, about 900 sq. ft. He runs his business out of this location (he lives overseas) but also rents this space ...

    Adam’s Answer

    You do not have sufficient information to conclude fraud is occurring. For all you know, the tenant is involved with the business in some respect. It does not sound like there is a specific violation of any homeowners' association covenant, rule, or regulation.

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  • Do they need to reimburse all of the fee?

    I bought a house to use as a rental property. The property already had renters and a management company at the time of the purchase, and I decided to keep the renter and use the management company. The management company only told me about the mon...

    Adam’s Answer

    It’s not a simple answer. Although one could attempt to take the position that there was not a contract between you and the management company, that may not necessarily be the case. Even though there may not be a “written” contract, that does not mean a contract was not created. Moreover, even assuming that technically speaking a contract was not created, the management company could have a strong quantum meruit argument; simply this means something along the lines of "reasonable value of services." In other words, the management company’s argument would be that it should receive reasonable value for the service(s) it provided. I would encourage you to attempt to convince the management company to refund the renewal fee, but don’t be surprised if the company does not see things your way. You could also remind the management company that you could simply discontinue using the property management services altogether; this may encourage the management company to at least meet you in the middle.

    Good luck.

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  • How do I get my boyfriend of 16 years out of my house in a hurry he is making my life a living hell and costing me extra money.

    I own my home his name is on nothing we have 2 kids he has not supported us at all he will not get a job. He has been leaving my windows and doors open when the central air is on to boost up my bill he has left the water hoses running outside my h...

    Adam’s Answer

    • Selected as best answer

    Most importantly, are you and the children safe from harm? If you or the children have been threatened (put in fear of imminent bodily harm) or actually physically assaulted, then you can immediately seek an Order for Protection (“OFP”) from the county (district) court, which if granted will legally restrict him from coming within a predetermined distance of the home and/or you or the children. OFPs are enforced by law enforcement and it is a criminal act to violate an OFP.

    If there is not a risk of physical harm, then yes, you can seek an eviction order from the county (district) court. Forms are available at most courthouses, and I’m nearly certain they are not only available at the Hennepin County Courthouse but also online at the website for Minnesota’s Fourth Judicial District.

    To be clear, just because you seek an eviction does not mean you will automatically be granted an order evicting him from the home. But given the fact that he does not pay rent and is causing damage/waste to the property I think your request is likely to be granted.

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  • Researching prior litigation involving residential builders.

    Where is the best place to find public information regarding litigation outcomes of Homeowners vs. Builders. Specifically, the big names such as Lennar & DR Horton ?

    Adam’s Answer

    • Selected as best answer

    In Minnesota, in the state district courts, you could search the Minnesota Trial Court Public Access system at http://pa.courts.state.mn.us/default.aspx
    Many, but not all, Minnesota appellate court records can be searched and reviewed at http://mn.gov/lawlib/search/
    The federal courts use a completely different electronic records system that can be accessed at no charge by visiting one of the federal courthouses and sitting at one of the computer terminals available to the public.
    In addition to the above, there are several resources that offer electronic court records search for a fee; such as Lexis Nexus, Thomson Reuters, FastCase, etc.

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  • Do I need a construction attorney?

    We remodeled our home last year, have a signed contract for placing a new high efficiency furnace. Had the unit serviced today, the technician informed me that the unit was over-sized for the home, not to code, and was 12 years old, he also did no...

    Adam’s Answer

    Advice and counsel from an attorney could be very beneficial in the situation you described; however, you do not necessarily need a "construction" attorney. Based on the little information you provided it appears that you may have multiple causes of action against the party that sold you and installed the furnace. I encourage you to contact an attorney that handles contract disputes and/or civil litigation and discuss the matter further. Good luck.

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  • When does the statute of limitation start on post chapter 7 bankruptcy HOA fees?

    My wife owned a condo in CA and we stopped paying the HOA fees by July of 2008 (6 years ago). We had a Chapter 7 BK filed in May 2009 and completed in September 2009. We just received a letter stating she owes post bankruptcy HOA fees from June ...

    Adam’s Answer

    Your situation is dealing with California contract and real property law in addition to U.S. bankruptcy law. I personally would not be comfortable providing much in the way of guidance without knowing whether California has adopted the Uniform Common Interest Ownership Act (like Minnesota has). If your situation involved property in Minnesota, and that property was subjected to (governed by) Minnesota’s version of the Uniform Common Interest Ownership Act (known in Minnesota as MnCIOA) then I could offer you very specific guidance. What you are going to need to do is seek the advice and counsel of a lawyer practicing real property law in California, and I would assume the real property attorney would be sufficiently competent in contract and bankruptcy law to address all of the relevant issues for you.

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  • Who pays for Flea extermination? Landlord or tenant? Tenant has no pets.

    Girlfriend and I have lived at this duplex unit since Aug of 2012 and this is a new flea issue as of a 2 weeks ago. (we have no pets and have never had a problem at other units). Thus far, I have purchased sprays and such out of my pocket. I me...

    Adam’s Answer

    In this scenario, landlord would have the obligation to provide a habitable dwelling under the warranty of habitability.

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  • A family member will not sign off on a contract for deed that another family member just finished paying off.

    A contract for deed on some property was drawn up 9 years ago between my brother and our Dad and Mom. Our mom died 7 years ago and our Dad remarried 5 years ago and put his new wife on the Deed. My Brother recently paid off the deed but the new ...

    Adam’s Answer

    The ownership interest in the applicable real property that the new wife obtained when she married your father is "subject to" the terms of any encumbrances in affect at that point in time. Just like she would be if your father had granted a mortgage to a lender as security for the repayment of a loan; in which case, if your father defaulted on that loan the party holding the mortgage would have the right to foreclose and take the property without any consideration of the fact that the new wife has what is known as her “marital interest” in the property. This is because the mortgage was granted before her marital interest came into existence. All of this is based on the assumptions that the necessary and appropriate documents were properly recorded pursuant to the relevant statutes, etc. If not, then it is much more complicated.

    Now for the practical, more useful, response. If new wife refuses to execute the conveyancing instrument (typically a warranty deed), and only dad signs it, then you have what we refer to as a “cloud on title.” This means that based on what exists in the property records, there is a question as to whether title to the property was properly and effectively conveyed/transferred, and a future transaction such as a sale or mortgage refinance, etc., may be held up because the title insurance company may not be willing to provide title insurance until the “cloud on title” has been lifted.

    In a nutshell your solution will most likely be to either
    (a) get new wife to sign by either convincing her it is the right thing to do or paying her;
    or,
    (b) commence the appropriate legal action in order to obtain a court order declaring the identity of the fee title owner and recording that court order in the property records (as well as completing some other administrative steps).
    NOTE: If the title to the real property is what we call “registered” or Torrens, then what I described will be slightly different by would nonetheless still require the involvement of the court.

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  • Do I have the right to enter a home I own that has 2 tenants that rent 1 bedroom? Tenants of other bedrooms have moved with no

    problem. Remaining tenants have not paid, do not answer their phone, keep blinds down and do not answer door. I live in another state. They have now posted a notice on outside door saying landlord cannot enter property without notice and only for ...

    Adam’s Answer

    Simply post written 24 hour notice on front door that you will be entering the next day; however, do not attempt to remove the tenants or their belongings without an order from the court.

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