Inspections Make Sense

          Most new homebuyers never think about it, but it’s true.  How do all those new homes get built?

Homebuilders often use subcontractors to do large portions of their work on new homes.  A substantial portion of a Homebuilder’s work consists of coordinating the work of the different subcontractor trades.  Scheduling can become a critical issue.  If the concrete subcontractor is too busy to pour the foundation, then it’s difficult for the framer to put up the walls.  Sometimes different phases of the construction can be done in parallel.  But you’re not going to put the roof on before the walls go up.

Lack of proper sequencing by the developer can lead to odd results.  For example, what if a Homebuilder schedules the sheet metal contractor to put on the chimney caps before the chimney flues are fully finished?  It can happen.  If that kind of a sequence is followed, a house could end up with a sheet metal cap on the top of the chimney, but the flue might be only partially completed – or there might be no flue at all.

Is it possible for such things to happen?  Yes.  And they do.  So what would happen in such a situation?  The embers from a fireplace could ignite the wooden chimney box in a framed in chimney – and a house fire could result.

So how can homebuyers protect themselves from such things?  It’s difficult to detect every construction defect in new construction.  But many new homebuyers seem to think there’s no need for a home inspection on new construction, because after all, the home is brand new.  What these homebuyers don’t realize is that even though construction is new, there can still be issues or imperfections.

Insurance Coverage is Important

It’s probably safe to say that most home buyers use a loan from a bank or other lender to help pay for their house.  While some home buyers have enough money to pay cash for their home, most home buyers end up paying for their home over a period of years.  The most common way to buy a home over time is to get a loan from a bank or other lender. When this is done the buyer can pay the seller cash for the home, and then the buyer repays the lender over a period of years.

Most institutional lenders will require that a homeowner obtain homeowners insurance.  There’s a good reason for this.  The home serves as the lender’s security.  If the homeowner defaults on their loan payments, then the lender can foreclose.  However, if the home has been severely damaged from fire, storm, or other cause then the lender’s security is damaged as well.  Insurance proceeds can be used to help repair a damaged home.

Most homeowners probably buy an insurance policy and never think twice about what might happen if they ever had to make a claim under their policy for significant damage to their home.  Homeowners might not realize that an insurance company’s obligation to pay will probably be limited by the amount of coverage purchased.  If the homeowner’s coverage limit is a million dollars, then if a storm damaged their home and the damage cost two million dollars to fix, then the homeowner may end up short of cash.  This can be a significant problem.  Also, insurance policies often contain “exclusions.”  These exclusions determine the types of loss the policy will cover.  For example, if an insurance policy excludes coverage due to earthquake, then if a home is damaged or destroyed by an earthquake then the homeowner may very well not be entitled to any payout from the insurance company.

Insurance coverage questions can be quite complex.  For example, if a homeowner’s policy includes coverage for fire but excludes coverage for earthquake, then a question may arise whether or not coverage exists if a water heater falls over in an earthquake starts a fire.  In such a situation, the insurance company may claim that no coverage exists because earthquake damage is excluded from coverage.  However, the homeowner may claim that the damage was caused not by earthquake but by fire, and fire damage is covered in the policy.  Many of these types of questions have already been answered by California cases, but others remain unanswered.

When insurance coverage questions exist, attorneys often get involved in an effort to obtain insurance coverage for their clients.  These attorneys often work long and hard in an effort to obtain such coverage.  Many times such efforts are successful, but sometimes they are not.  An unusual example illustrates this concept.

Several years ago, two motorists were traveling at night on an interstate freeway in Ohio when their car struck a cow that had wandered onto the freeway. The motorists were injured, and they filed suit against the owner of the cow.  However, the owner had no liability insurance.

The motorists’ policy apparently provided that the motorists’ own insurance policy would cover them for injury or damage if another motorist was at fault for a collision even if that other motorist didn’t have any insurance.  Because the owner of the cow had no insurance, the motorists made a claim against their own insurance company for uninsured motorist coverage.

The insurance company denied the claim and the matter was submitted to a court for a decision.  The Court found that the motorists’ policy provided coverage for injuries caused by an accident arising out of the “ownership, maintenance or use” of an uninsured land motor vehicle. The court found that the owner of the cow had no insurance.  However, the Court had a problem with whether or not a “cow” qualified as a “motor vehicle.”   The Court’s own words are as follows:

“There appears to be no dispute that there was a collision; the cow was not insured at the time of the collision, and that the cow caused the collision.  The dispute in this case is whether the cow was a ‘land motor vehicle’ as defined in the policy. While a cow is designed for operation on land, we do not believe a cow is a “motor vehicle.”  The policy at issue does not separately define ‘motor vehicle;’ therefore we must look to the common, ordinary meaning of this term.  The American Heritage Dictionary defines ‘motor vehicle’ as, ‘a self-propelled, wheeled conveyance that does not run on rails.  A cow is self-propelled, does not run on rails, and could be used as a conveyance; however, there is no indication in the record that this particular cow had wheels.  Therefore, it was not a motor vehicle.”

For the full report of the case, see Mayor v. Wedding, (2003) WL 22931354.

The end result?  The cow won (and the motorists lost).

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel. 
Robert B. Jacobs is an attorney, mediator and arbitrator with over 30 years of litigation experience.  He mediates business, real estate, construction, personal injury, wrongful death, employment, trust and probate cases.  He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell.  He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. Since 2018 he has been an update author for the CEB treatise Real Property Remedies and Damages. He is an adjunct law professor at Hastings College of the Law in San Francisco.  Reach him at [email protected]

Law advises landowners to make use of property

When I was a youngster, my mother always told me “You can’t get something for nothing.”  Mother, bless her heart, obviously didn’t own much real estate.

What mother didn’t know is that almost all real estate—even the old family homestead—is at risk from what is known as a “prescriptive easement.”

The policy of the law is to favor the actual use of real estate.  The law, in proper situations, also favors certainty in the use of real estate.  What all this means is that in real estate, owners must either “use it or lose it.”  And for non-owners, the policy can be “use it—and get it.”

An owner, who doesn’t use real estate for five years, may lose ownership if a stranger occupies the property for those five years and pays the taxes on it. This principle is known as “adverse possession.”  If the owner pays the taxes each year, then he or she can’t lose ownership of the property.

However, if someone else uses the property, that person may gain a “prescriptive easement.”  This “easement” is an actual ownership interest in the property.  It doesn’t exclude the owner, which means the owner can continue using the property.  But if the occupant gets an easement, then the occupant has a legal right to continue using the property.  The owner may not be able to exclude the occupant or stop him or her from using the property.

The process for obtaining a prescriptive easement is similar to the process for obtaining title to property through adverse possession.  However, an occupant need not pay taxes to get a prescriptive easement unless the easement has taxes separately assessed.

In order to get a prescriptive easement, an occupant must occupy the property for five years.  The occupant doesn’t have to live on the property or stay on it.  Even driving over a road when needed may be sufficient as long as the owner doesn’t give permission and as long as the use is sufficiently open that the owner can observe it.

After five years of such use, the occupant, or user, holds an “easement by prescription.” This easement isn’t ownership, but it is a right to use the property.

Obtaining a prescriptive easement might look appealing.  But persons who unlawfully and without permission enter property belonging to someone else can be guilty of a trespass.  As a result, the obtaining of a prescriptive easement can in some cases result in potential trespass problems.

To protect themselves from potential claims of easement, owners can post signs at each entrance to their property and at certain intervals along the boundary.  These signs say “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”  When done properly, these signs can prevent users or occupants from gaining an easement in the property.  However, property owners do well to seek professional legal counsel before placing such signs, because the law contains specific requirements for such signs to be effective.

Unreasonable Music

As defined by Webster’s II New College Dictionary, the word “nuisance” means “something that is inconvenient or vexatious: bother.”  That’s a concept that’s easily understood – when something (or someone) is a nuisance, then there’s an annoyance, or a bother.

But there’s a slightly different meaning in the law.  Webster’s also notes that in a legal context, a “nuisance” is “a use of property or course of conduct that interferes with the legal rights of others by causing damage, annoyance, or inconvenience.”

These two definitions are the only two definitions of the word “nuisance” that is given in Webster’s II New College Dictionary.

There are many kinds of dictionaries.  In addition to dictionaries of English words (such as Webster’s) there are also dictionaries that define and describe specialty words.  For example, Means Illustratrated Construction Dictionary gives definitions (and pictures) of many different kinds of construction terms.  And it’s possible for anyone to purchase Mosby’s Dictionary of Medicine, Nursing & Health Professions.

There are also Legal Dictionaries that define legal terms, words and phrases.  One of these is Black’s Law Dictionary (seventh edition).  Black’s definitions of “nuisance” occupies more than a one and a half pages of text.  That’s a fairly clear indicator that “nuisance” is a concept that is pretty well developed in the law.  Black’s defines “nuisance” as “A condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.  Black’s notes that a “nuisance” isn’t necessarily something that is offensive to all people.  For example, Black’s cites a United States Supreme Court case from 1926 for an example of a nuisance: “A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”  But Black’s also observes that the concept of “nuisance” has a wide range of applications.  “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’  It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” (The original source of this statement is a famous legal work entitled “Prosser and Keeton on the Law of Torts §86, at 616.”)

The concept of “nuisance” is not new.  It’s been around for many, many years.  In an entertaining case from 1939, a New York court described as follows one particular case of nuisance “Claremont Inn, at 124th Street and Riverside Drive, is an old institution rich in historical incident. Acquired by the City in 1872, it has been under the jurisdiction of the Park Department, leased at various times to private persons to conduct as a place of refreshment. Renovated in 1934, it was converted from an expensive to a popular establishment. It consists of an indoor restaurant and bar and also a large outdoor pavilion with an outdoor modern dance orchestra. The outdoor section is open from about June 1st to the end of September. And the band plays from 7 P. M. to 1 A. M. (on Saturdays and holidays to 2 A. M.). It is noteworthy that this is the only open air dance orchestra in a residential section in any part of the City.”

The neighbors filed a lawsuit, asking the New York Court to order the Inn to close earlier each night due to “loud music, excessive noise, heedless conduct of its operators and boisterous behavior of its patrons.”  The court noted that “Assurances have been given for the correction of many of the offending practices, such as rehearsals of the orchestra at 3 A. M.; the removal of refuse cans, and deliveries by tradespeople, with attendant clatter and rumbling of trucks, early in the morning; and congested traffic and parking, with resulting clamor and shouting, when the patrons of the Inn depart. But the defendants insist upon continuing the outdoor band to the hours above specified—and the residents of the district, claiming that their sleep is disturbed, insist on an earlier hour.”  The case is reported as Peters v. Moses (1939) 12 N.Y.S.2d 735.

This was evidently quite an event each evening.  The outdoor dance floor was located in a residential neighborhood.  The dance band held rehearsals at 3 a.m.  The band played until 1:00 a.m. each evening, except for weekends when it played until 2:00 a.m.  With all of the noise, disturbance, and clamour of an outdoor dance, the neighboring residents were understandably up in arms.

Open House Has Surprising Result

            On any given summer weekend, it’s possible to drive around suburban neighborhoods and see realtor signs out on the sidewalk.  It’s a known fact: Realtors hold open houses.  These open houses can be a great opportunity for buyers of real estate to check out a neighborhood, check out a potential new home, or even check out a realtor.  No appointment is necessary – all you have to do is get in a car, find an area you like and start driving.  If you’re lucky, you might even score some refreshments.

The history of theft, fraud, and abuse is as old as mankind.  Stories of theft, fraud and abuse go all the way back to the earliest recorded histories.  So it’s no surprise that sometimes people come up with new ways of doing an old thing – which is trying to get something for nothing; an effort to get something without working for it and without paying for it.  The problem is, people who try to make a fast buck illegally often underestimate the true costs of such activities – the emotional drain they experience from working outside the law, the risk and fear of getting caught, always looking over their shoulder, and then ultimately the consequences if and when they do get caught. It’s just bad every which way.

In the old days, Burglary was sometimes defined as breaking and entering into another’s dwelling at night with the intent to commit a felony.  The modern law is usually not so limited.  Burglary is no longer usually limited to an entry at night, and Burglary is generally no longer limited to entry into residential properties.  Therefore, an unauthorized entry into a commercial property with an intent to commit any larceny (i.e. theft) or with an intent to commit any felony can qualify as burglary.  Most people probably think of a burglar as someone who unlawfully enters into a property with the intent to steal something.  This might be the most common result of burglary – a theft of something — but a burglary can also exist where there’s an intent to commit any felony.

Differing degrees of burglary exist.  First degree burglary generally includes burglary of an inhabited dwelling house, or an inhabited floating home, or an inhabited trailer coach, or the portion of any building which is inhabited.  Second degree burglary is any burglary which is not first degree burglary.  There’s a long history in the development of the law concerning burglary.  These definitions aren’t the full story concerning burglary – but they are a starting point.

It seems that in June of 2010, a realtor was holding an open house in California.  Two individuals attended the open house.  Once inside the property being shown, the individuals split up.  One of the individuals spoke with the realtor for several minutes, and the other disappeared for a few minutes inside the property.

After the individuals left the house, the realtor realized her wallet was missing. Her wallet contained several credit cards, a gift certificate, and a lottery ticket.  The realtor looked about the property and her car for her wallet, and contacted her roommate at home to see if she had left the purse at home.  She couldn’t locate the wallet, and so she called the police.

An on-duty police Sergeant heard the radio dispatch about the stolen wallet while he was out working in the field.  He spotted a pickup truck that matched the description from the dispatch.  He made a traffic stop, searched the pickup truck and found the realtor’s credit cards in between the seats.  The realtor made a positive identification of the persons in the pickup truck.

One of the suspects was charged, and after trial was convicted, of first degree residential burglary, second degree commercial burglary and fraudulently using an access card.  On appeal, this individual claimed, among other things, that he was not guilty of first degree residential burglary because the occupants of the house were not present at the home at the time he was there.  He argued that first degree burglary can only exist for a dwelling which is occupied, and that because the residents weren’t there at the time of the open house, the property wasn’t “inhabited.”

The court of appeal disagreed, and found that the property was “inhabited” but that the occupants were “temporarily absent” at the time of the open house.  The court of appeal affirmed the judgment of conviction.

The single theft of the wallet from inside a residential property resulted in the individual being convicted of three crimes, one of which was first degree residential burglary.  It was a high price to pay for stealing a wallet.  The defendant was sentenced to 21 years and 4 months.

The case is reported as People v. Little (2012) DJDAR 7965.

This article only summarizes some of the main points of this case.  The complete facts and law involved in this case are more detailed and complex than those summarized here.  Nothing in this article should be relied on in any specific situation, because the considerations in any specific situation may require different considerations or may provide a different result.  Persons with questions or issues concerning the legal issues raised in this column should consult competent legal counsel.

Options Exist for Check Problems

With the continuing popularity of online banking and the widespread use of credit  and debit cards, it seems like virtually all transactions these days are being done electronically.  But some large transactions are still done mostly by check.

A good example of this is the sale of real estate.  Most real estate sales involve an “escrow holder.”  This “escrow holder” accepts instructions from both the Buyer and the Seller.  The Seller deposits a deed into escrow and the Buyer (or the Buyer’s lender) deposits the purchase price into the escrow.  When the escrow holder can fully comply with the instructions from the Buyer and the Seller, then the “escrow” is closed, the deed is recorded and the Buyer’s money is given to the Seller.

Most often the purchase money is given to the Seller in the form of a check.  So what happens if the Seller takes the check, goes out to dinner to celebrate the sale, but leaves the check in the restaurant with their purse or wallet?  What if the check is lost or stolen?  Can the Seller do anything about this?

The answer is “Yes.”  In that situation, the Seller can contact the escrow holder and request that a “stop payment” be issued on the check.  The escrow holder can contact its bank and ask that the check not be honored.  A verbal “stop payment” is generally valid for 14 days.  If a letter is sent, then such a stop payment request is usually valid for 6 months.  As long as the bank is given sufficient notice to act on the sop payment request, then the Bank can’t properly honor the check if a valid stop payment request has been made.  If the bank honors the check after receiving a valid stop payment request then the bank may be liable for any loss or damage that results from any wrongful payment by the bank on the check.

This isn’t to say that persons receiving checks should plan to rely on a stop payment order if they lose a check.  Mistakes happen, and sometimes checks are honored when they shouldn’t be.  If a bank mistakenly pays a check subject to a stop order, the person who lost the check may be unable to get a replacement from the check issuer and this person may need to rely on the bank for repayment.

The bank may resist making such a payment and an expensive lawsuit may be necessary.  Further, if the stop payment was only verbal, there may be no record of the stop payment and the bank may dispute when or whether such a stop payment request was validly made.

Therefore, in order to avoid a real headache situation, the best policy with respect to checks is to treat them like cash.

Proper Advice Can Make A Difference

            “Penny wise and pound foolish.”

Maybe it’s an old saying.  But there can be truth in it.

I constantly see the practical application of this saying in the real estate foreclosure market.

In California, some loans are “non-recourse.” With “non-recourse” loans, the borrower generally won’t have personal liability after a foreclosure for any shortfall or deficiency in the foreclosure sale price.  In other words, if the property is worth less than the loan, the borrower won’t have to make up the difference if the property is sold in foreclosure.

Most borrowers don’t know the law with respect to foreclosure.  Foreclosure can seem mysterious, and somewhat foreboding. The phrase “Short sale” sounds so much less foreboding than the word “Foreclosure.”

But many homeowners who can’t meet their payments have a choice between foreclosure or a short sale.  There are often tens of thousands, or sometimes hundreds of thousands, of dollars at stake in such a decision. The net economic difference to a homeowner between selling their home in a short sale as compared to losing their home through foreclosure can be very significant.  Sometimes a short sale yields a better result.  Sometimes foreclosure is better.  But it’s difficult when I hear that homeowners facing such decisions are unwilling to spend a few hundred dollars to get some professional advice on which course of action makes the most sense for them and which one is likely to yield the better result.

It’s tough.  Homeowners facing a short sale or foreclosure are already losing their entire down payment.  And they are also often losing all of the work, money, and improvements they’ve put into their property.  The thought of spending additional money on attorneys fees only to lose more money can seem like throwing good money after bad.

What these homeowners often don’t realize is that the money they spend for professional help is being spent in the nature of “damage control.”  Homeowners who choose a foreclosure or short sale can end up being surprised at the end of the day when they think that the short sale or foreclosure is the end of the process, only to learn too late that the lender has preserved a claim against them following foreclosure and intends to pursue it.  This can often happen in situations where there are two loans against a property, but it can happen in other situations as well.  A short sale or foreclosure can both be thought of as a transaction, though such transactions may be made under pressure. Even though a homeowner will most likely lose money in such a transaction, there can sometimes be an opportunity to lose even more.  Competent, qualified, professional advice can sometimes make a big difference on helping homeowners minimize their losses and can help them avoid losing even more.

Short Sale Considerations Are Complex

    The concept of a short sale is simple.  A “short sale” occurs when the sales price of a property isn’t enough to pay off the mortgage.  The sales price is “short” of the amount needed to fully pay off the mortgage.  If the bank agrees to a “short sale” then the property is sold for less than the amount due on the mortgage and the bank receives less than the amount that is owed.  When the Bank receives less than the amount owed, the property is sold “short” of the amount due, and this is known as a “short sale.”

The concept of a “short sale” is simple.  But the decision whether or not to short sell a property can be quite complex.  Each potential short sale situation is unique, and the decision to short sell must be carefully made and evaluated for each borrower.

There are many considerations involved in deciding whether or not a property should be short sold.  Three important considerations involve potential lender liability, tax issues, and credit concerns.

When a property is short sold, the bank won’t receive the full amount due on the loan.  In some situations, the bank forgives the unpaid balance with the result that the borrower won’t be personally liable to the bank for any unpaid amount.  In other situations, the bank may retain a claim against the borrower for the unpaid amount, and in these situations the borrower may be personally liable for the “short” amount.  In still other situations, the bank may neither expressly forgive the debt nor retain a claim against the borrower.  In these situations, the borrower may still be liable to the bank for the unpaid amount after the short sale.

A short sale can involve significant tax considerations.  Some of these tax considerations can be quite complex.  The amount of time a borrower has lived in a property can have important tax consequences in a short sale situation. Sometimes a short sale can result in a significant tax liability, and sometimes a borrower can avoid these taxes by moving back into the property for a period of time.  Many borrowers have refinanced their homes.  Sometimes these borrowers have taken equity out of their property in connection with their refinance.   In some situations these equity withdrawals can create a significant tax liability following a short sale.

A foreclosure will almost always result in negative credit reporting on a borrower’s credit report.  But in many cases the negative credit effects from a short sale will be less than the credit damage from a foreclosure. Whether or not credit is important can vary between borrowers.  The likely negative credit effect of foreclosure versus short sale must be evaluated for each borrower depending on their specific circumstances.

There is no single correct answer as to whether or not a short sale is the best answer for any specific borrower.  Each borrower’s specific situation must be separately evaluated.  Borrowers would do well to seek competent, professional tax and legal advice in connection with any anticipated short sale.

Real Estate Transactions are Complex

I remember when we bought our first house in 1989.  We were presented with a document that was titled “Deposit Receipt.”  I accepted this document at face value, and assumed it was a receipt for the deposit we were making on our house purchase.  But as I read through this document, it started looking less and less like a “receipt” and more and more like a contract.  We never did see another contract in connection with our purchase of that house.  The Deposit Receipt was all we ever signed.  Sure enough, that document served as a “receipt” for our deposit, but it also served a more significant purpose.  That document was the contract by which we obligated ourselves to make the single largest purchase we’d made in our lives up to that point.

My wife occasionally points out that escrow officers don’t always know what to do with me.  Whenever we’ve closed a loan, or a real estate transaction, I always sit in the escrow office and read through the entire stack of documents, even if they are a foot high.  The escrow people often don’t seem to know what to do.  It seems like they’ve never had anybody actually wade through all of this stuff before.  Trouble is, I know what it means.  So I’m checking up on them – everybody – by reading all of the fine print.

Everybody tells me I should just sign the documents and take them home with me.  But if I do that, when will I read it all?  Never.  There’s no time like the present.  Plus, if I’m going to read it all, I may as well read it before I obligate myself to it.  Only if I read it can I know if there’s a potential problem involved.

It’s no surprise that non-lawyers who are involved in real estate transactions might get a bit bleary-eyed when confronted with such a stack of paper.  But there’s no defense based on the amount of paper involved in a transaction.  Except in unusual situations, Buyers, Borrowers, Lenders and Sellers who sign loan agreements or other documents are generally bound by such documents regardless of whether or not they read them.

So what’s a buyer to do when presented with a large stack of documents to sign?  Understanding all of the documentation involved in a real estate transaction is no small thing.  There are really only three options. First, Buyers and Sellers can choose to sign all of the documentation without reading anything.  This is certainly the quickest and easiest option, and it seems like some buyers opt for this approach.  But this is a risky approach if there are problems or potential problems.  Second, Buyers and Sellers can read the documentation on their own.  But real estate transactions are complex, and substantial education, experience, and training may be necessary in order to fully understand all of the elements of a real estate transaction. Most Buyers and Sellers lack the necessary training, education, and experience to fully understand and identify potential problem areas in a real estate transaction.  Third, Buyers and Sellers can rely on a professional to guide them through the process.  This professional can be a broker, an agent, an attorney, or another real estate professional.  This seems to be the approach taken by most Buyers and Sellers.  The quality of the advice and guidance received will depend in large part on the skill, experience, training and expertise of such a professional.


Robert B. Jacobs practices Real Estate and Business Law throughout the San Francisco Bay Area and California.   The foregoing article is not a complete discussion of the subject addressed, and should not be relied on.  Readers with specific questions or issues should consult an attorney.

Foreclosure a Reality

          When I started practicing law in 1987, two of my very first projects involved judicial foreclosures on agricultural property.  There had been a downturn in real estate values in the central valley, and a number of vineyard properties had been purchased on a speculative basis during the boom years.  It’s a familiar cycle – investors see huge gains in real estate prices, and they want to participate in these gains and so they buy properties hoping that the prices continue to increase.  But if a market drops, or adjusts, investors who purchase such lands aren’t able to sell or refinance their properties.  When investors can no longer make their payments, lenders foreclose.

Some foreclosures are conducted judicially, which means that the borrowers can be personally liable for unpaid amounts due on the loan (in some circumstances, borrowers can be liable following non-judicial foreclosures as well).    This is a hard experience for investors to go through.  Most investors don’t buy real estate so that they can lose money.  But when property values depreciate, borrowers can lose the down payment and their property.  With some loans, borrowers can also have personal liability for the unpaid amounts due on the loan.

After the mid-1980s, it seemed like property values stabilized and then increased dramatically.  In the 1990s, there was what seemed like a small drop in values, but this drop didn’t seem too dramatic.  As a result, I wasn’t involved in many foreclosures in the following years.

That’s all changed over the past several years.  This enormous market readjustment has resulted in record numbers of foreclosures and short sales.  Banks continue to struggle with handling these foreclosures, and homeowners are faced with challenges that seemed unthinkable a few years ago.

Foreclosure and short sale matters involve complex considerations of lender liability and tax law.  Many homeowners don’t realize the complexity or the significance of the issues involved.  Because hundreds of thousands of dollars of potential liability or debt forgiveness can be involved in a foreclosure or short sale, the risks to homeowners can be significant.  Homeowers do well to consult professional, competent legal and tax advice in connection with any proposed foreclosure or short sale.