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Ask Realty Times - June 18, 2004
by Peter G. Miller
Question: I am in the military and at present I am in Iraq. My divorce proceedings have begun and my soon-to-be ex contacted me to sign some papers concerning a refinancing loan. She is claiming that I need to sign a power of attorney (POA) to give her authority to sign to get my name off of the mortgage. I have someone serving as my POA already, but she claims that the mortgage company wants to deal with me directly. I do not trust her, but I really want to get my name off of that mortgage so that I will not be half accountable in case of a defaulted loan. I know that she has to refinance under her name only for this to happen. Should I sign that POA? Answer: A power of attorney is a substantial legal instrument that can allow someone to manage some or all of your affairs in your place. It follows that such authority should only be held by someone you absolutely trust. If there is a default on a co-signed loan you will be responsible for paying all outstanding debt, not just half. You are now in the midst of a divorce, a process which is never easy or comfortable. In this instance, take two steps: Speak with the nearest JAG officer you can find and have your wife contact the individual who now holds a POA for you. And, also, be aware that everyone thanks you for your service. Question: My husband and I have been in a home under a "lease purchase" contract. We have been making our payments on time to a broker. In March we were served with foreclosure papers (with the original owners names). We have tried several times to contact the lawyers for the lender with no luck to any of our questions. We have been very hesitant to make further payments but have continued to do so because of our contract. The broker has tried to reassure us that everything has been taken care of and that "ONE" payment was misplaced and I am sure that a lender would not foreclose on missing one payment that has SUPPOSEDLY been paid. He keeps telling us that he will produce all of this paperwork to show that things are fine but we still have not received anything. I have found a website online where I can check the status of what is going on with this foreclosure but am not sure what some of it means. I checked the website this morning and it is indicating that as of yesterday proof of publication was being entered. In my eyes it means the foreclosure proceeding is still under way. Answer: Today, immediately, contact an attorney or legal clinic in your community. Payments do get lost and it IS possible to be foreclosed by missing a single payment. However, foreclosure relates to a loss of title and you may not have any title to lose until some or all payments under your agreement have been made. If you have any written communication or dated notes show them to your lawyer. Question: Recently (about a year or so ago) my neighbor put up a fence along what appeared to be the natural tree-lined property line between our homes. Although I had an idea -- based on a survey I had in my files from the previous owner -- that the fence might be on our property, I didn't say anything because where the fence was placed was not an encroachment on the enjoyment of our property. The neighbor recently let me know that perhaps they had placed the fence beyond their property line but didn't realize it at the time of the installation. I said that it was okay and that when it was time for us to sell (another 10 years or so) the matter would be handled. When it is time for us to sell our property will we have issues if the new owner demands that they move the fence should their survey show that the fence is indeed on our property? We are very friendly with our neighbors and have no problem with the fence and would prefer not to spend the time, money or possible grief in legally documenting the situation. Answer: When the home is purchased there will be a survey and, if you are right, it will show an encroachment. That will mean the purchaser is buying less property than shown in the legal description, a potential problem. You might just want to re-survey the land and have the neighbor pay you a $1 or the cost of the survey to resolve the problem. But, you can't reduce the size of your property if it's mortgaged because the property is security for the lender -- all of it. Right now there is no problem in real terms. When you sell there may be a title issue. Why not speak to a local closing agent to see how such matters are handled? Or, if both you and your neighbor are refinancing, perhaps that would be the time to fix up the property lines. Question: We have a contract on a house that we are selling; we also have another contract that has come in. The first contract has a 72-hour right of refusal. They have verbally said that they are going to follow through with the contract but don't they have to give us another contract with the changes made or at least something in writing to make it binding? Answer: The first agreement is not a "contract" from your description, it's an option to purchase. It says that if you get a second offer, the first prospective buyers have 72 hours to determine whether or not they want to purchase the property at a given price and terms. If they say yes they are buyers, if they say no their option is finished and you can sell to the second party. Do you have a broker assisting in this sale? What is the benefit to you of allowing a 72-hour right of first refusal? You need to review this paperwork for specifics with your broker or with an attorney or legal clinic.
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