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Dwight Alan Bickel

Dwight Bickel’s Answers

768 total

  • Can a special assessment survive tax foreclosure if it is on an "installment plan"?

    Dwight’s Answer

    A foreclosure of real property does not extingish the burden upon the property to pay assessments due to HOAs that was created by covenants.

  • What information does a lawyer need to a file a lien for unpaid HOA dues.?

    Dwight’s Answer

    I presume there are "Covenants" that were declared by all owners when the property was subdivided into lots. I presume the Covenants disclose creation of a Homeowner's Association ["HOA"] that has authority to require dues ["Assessments"] for HOA expenses to be paid by lot owners. I presume the Covenants impose a lien upon the property as security for the payment of HOA Assessments. I presume the Covenants were recorded at the time the land was subdivded, which occurred before conveyance to the present owner.

    Based upon those presumptions, there already is a lien upon the property that secures repayment of past and future Assessments.

    Sometimes the Covenants specifically require recording a Notice of Delinquency before the HOA may commence foreclosure. Any procedural requirement described by the Covenants should be done. The lien priority of the HOA usually is from the date of recording of the Covenants, not the date of recording a Notice of Delinquency. But the Covenants could state a different lien priority.

    The HOA must utilize a lawyer to pursue the foreclosure, if that is the decision of the HOA. That lawyer may advise that foreclosure is not yet needed and to instead rely upon the existing lien for later payment by that owner or a successor.

    That lawyer's advice will inform the HOA Board whether a purchase-money mortgage lien is superior to the HOA lien. That is typical, and its foreclosure would eliminate the HOA lien. The purchaser after that foreclosure usually is only obligated to pay recent Assessments. Other creditors have different lien priorities that vary due to disparate laws.

    The HOA Board has a duty to all owners to collect unpaid Assessments, which reduces the burden of other owners to pay for the delinquent owner. But the HOA must also consider whether lawyer fees and costs of foreclosure will not be paid if the mortgage is foreclosed.

  • Does the grantee need to sign a quit claim deed?

    Dwight’s Answer

    In Washington state the Grantee is not required to sign any deed form. Only all the Grantors are required to sign and each of their signatures to be notarized.

    There is one possible circumstance where it is wise to have the Grantee also sign a deed, though not required to be entitled to recording. If the deed is intended to create "joint tenancy with right of survivorship," then it is important to have the Grantee also sign "to confirm the intention to create joint tenancy with right of survivorship, and not as tenants in common or as community property. The reason is that if the Grantee dies, the title companies will be reluctant to vest solely in the survivor. Washington state does not favor the survivorship attribute, so the survivor should have evidence that the deceased Grantee intended that attribute. Without that evidence, the Grantee's heirs could allege tenancy in common was intended and claim ownership of the decedent's Grantee's share of the property.

  • Home Purchase with Family Member Under Joint Tenancy, She refuses to pay for maintenance and repair items.

    Dwight’s Answer

    Joint ownership can be a terrible way to own property if people don't perform as expected.

    Washington law does not require people who are owners of real property to contribute to any expenses equally. There is no duty to pay anything toward taxes, maintenance, utilities or mortgage payments. If one person occupies exclusively, there is no duty to pay rent to the other. The law presumes all who are jointly owners have equal shares, unless the deed states unequal percentages. When joint owners decide to sell, there is no rule they must share the proceeds equally.

    On the other hand, if there is a written contract between the owners as a partnership [also known as a joint venture, the law will enforce the obligation of one owner to pay according its terms. to reimburse the other owner(s) who pay more than their obligation. Worse yet, a creditor of one owner can encumber the property and require payment by the other person from the proceeds.

    In a legal action to separate ownership, called "partition," a court will allow evidence about the agreement of the joint owners and may divide the proceeds of a forced sale to reimburse one owner who paid more than their agreed-upon share.

  • Is it hard to get an easement for landlocked property?

    Dwight’s Answer

    It can be unreasonably expensive to force adjoining owners to provide an access easement to real property. Before buying property that appears to be landlocked, you should consult with a real property lawyer to understand possible theories and estimate the legal fees that might be incurred to obtain an access easement. You may not be correct that it is legally landlocked, regardless of the appearance of a road on the ground and the lack of an easement disclosed from recorded documents.

    There are several alternative theories that might provide a legal remedy to obtain an easement. Some are real property principles that occur when the property parcels were first subdivided by a common owner, that are not shown by recorded documents. Some are shown on prior recorded documents, even if not shown on more recent deeds.
    There is a basis to force an easement upon a neighboring property, much the same as a government has a right to condemn private property for a public road. That "Private Way of Necessity" requires a lawyer to pursue an expensive procedure in Court to determine the location, value the loss of value to the burdened property, probably win a court battle that the road choice you prefer is the least burdensome choice upon the neighbors, then you would pay that amount and you would pay the legal fees too.

    Be aware that title insurance companies will decline to insure you as purchaser, and will decline to insure a proposed mortgage lender to provide purchase money, if there is not a clear legal right of access. The law does not require the seller to provide a legal right of access.

  • Who actually owns the property if it was transferred into a LLC by an individual, the individual or the LLC ?

    Dwight’s Answer

    Washington real property title law recognizes that an LLC that is legally formed under the state's corporation laws is a legal entity, and is separate from the owners of the corporation. The phrase used on the recorded deed is common, using words to state that the transfer of ownership is not a taxable sale of the property. Sales of real property in WA pay a tax based upon the consideration given by purchaser to seller. The transfer of ownership to a corporation, where the seller owns shares (or a membership) in that corporation, is exempt from that "excise tax."

    Based upon recording that deed, any person may rely upon that deed to presume the Grantor does not own that real property.

  • I am not legally separated but have filed married but separate for 2 years now. I want to buy a home but don't want to add ex.

    Dwight’s Answer

    This is to answer only the question about acquiring a residential loan, secured by real property in Washington, when only one spouse is obligated to repay the loan. WA real property law regards property acquired by people who are legally married as presumably community property. Only a signature upon a recorded document by the other spouse can be relied upon by mortgage lenders to accept a mortgage upon the real property if the other spouse is not to be obligated to repay that loan.

    Some residential mortgage lenders will provide loan funds where only one spouse is obligated to repay the loan, presuming that the one obligated spouse has sufficient income and credit. That is true whether or not the other spouse is shown as an owner on the title.

    If the other spouse is shown as an owner on the title, the mortgage will be signed by that spouse even if the other spouse is not signing the promissory note.

    But if the other spouse is not shown as an owner, the title company will still require that the other spouse sign a quitclaim deed that states the real property is owned by you as your separate property, and disclaims any "homestead" rights that WA law automatically gives to a spouse who occupies the real property. This is true regardless of your extent of "separation." Only a formal "Decree of Legal Separation" would be sufficient to avoid the rights WA law automatically gives to a spouse.

  • Can i move into a house with a lis penance on it and defend the money i invest to do repairs

    Dwight’s Answer

    If there is a prosecution initiated by the United States, disclosed by the Lis Pendens, you should not purchase that property, or invest anything in it, without advice from a good lawyer familiar with those Federal laws. I presume that is a forfeiture action based upon an alleged violation of Federal law upon that real property. The effect of that litigation would be the complete forfeiture of ownership, retroactive to the date that the Court determines the property was used for illegal purposes. Your "Buddy" might not get convicted for the crime, but the Federal forfeiture action can still succeed against the property, terminating Buddy's ownership rights. If you purchase his rights, it would be subject to [junior to, subordinate to] the rights of the United States. That Federal action could completely terminate any interest you acquire from Buddy.

    There are defenses that an innocent third party can assert against the Federal forfeiture, requiring ownership or a lien prior to the legal action, requiring proof of no knowledge of the illegal use of the land. An expert lawyer in this matter should be consulted before you invest your money or your time on this property.

  • Can my husband's ex put a lien on my house?

    Dwight’s Answer

    The posted question asks about enforcement of undisclosed lien rights upon real property. Unfortunately, the answer needs apply the law of the state that would affect the new property.
    It is also not clear if the "husband" you state you are leaving, but you state will be residing in the new house, is in a pending divorce with you, or a pending divorce with his "ex-spouse." A
    pending divorce court can enter orders affecting real property located in the same state as the divorce is pending. Debts created by a prior divorce case in favor of his ex-spouse would be liens against real property owned by him, and some debts, such as child support, are easily enforceable in other states. You should consult a lawyer in the new state to understand the law there related to rights your Husband may have based upon his residence, based upon the method used to purchase the new property. Similarly, you should consult with a divorce lawyer if you are in a pending divorce with that Husband while you acquire new property where he will reside. A divorce court can determine your Husband has rights to the new property despite the title being acquired in your name alone.

  • Is a Statutory Warranty Deed and Title to a Property the same?

    Dwight’s Answer

    There are too many possible issues to list here. Here are some examples about the requirements and the effect of issues.

    What appears to be a deed from a named person to another person is not "the title" to the land. That deed is not evidence of any ownership rights to the land.

    If that deed complies with all the requirements for a conveyance [actually signed by the named Grantor, who is an actual person, is acknowledged before a valid notary public, contains a full and proper legal description of the land, then is delivered while the Grantor is living to the named Grantee who is an actual person], then all that means is that whatever ownership rights that the Grantor owned at that time, or acquires thereafter, has been transferred to the Grantee.

    A deed can appear properly signed, but if the Grantor is not living, is not a real person, or does not actually sign it, the deed transfers nothing. A deed can be properly signed and delivered, but if the Grantor does not own the land, the deed does not transfer anything. A deed that is properly signed, but not acknowledged before a notary public, does not transfer anything. A deed that does not fully and properly describe the land does not transfer anything. A deed may prove to be invalid for that Grantee if later the Grantor gives a different deed to a different Grantee who records in the County Auditor before the first Grantee.

    A deed does not transfer ownership free from possible rights of other persons to the land, such as other owners of all or a portion, rights of other persons to foreclose liens, and taxes and assessments that whoever owns the land must pay to avoid loss of the land.

    Title insurance is not required, but without a title company insuring that the deed is valid, that the Grantor owned it, and now the Grantee owns it, the Grantee assumes a lot of title risks. A lawyer should be consulted before you rely upon what appears to be a deed.