Despite their best efforts, many people find themselves in court struggling to rescue their homes from foreclosure. If you’ve done all you can but it still looks like the bank is going to win, there are two things you need to do to protect yourself.
Negotiate a Full Release
If the market value of your home is less than what you owe the bank, you may still be beholden to the bank even after the lender has taken possession of the house. Depending on where you live in Canada and the type of mortgage you have, the lender can sue you for any balance remaining on the loan after the home was sold and the proceeds applied to the mortgage note.
This is known as a deficiency judgment, and it can continue to be a financial burden long after the foreclosure process has ended. The best way to get around this issue is to negotiate a full release with the bank, which is essentially an agreement on the bank’s part to not pursue you for any deficiency that may be left over.
As you can imagine, it may be challenging to convince the lender to give up its right to sue for losses it may sustain because of the foreclosure. You may be able to get the bank to agree to a full release if you can convince the lender you are judgment-proof and likely to remain so for a long period of time. Being judgment-proof means you have little to no income or assets the lender could collect if it were to sue you. In this case, the lender may decide to cut its losses and agree to a full release.
Ask for Exclusive Conduct of Sale
At the end of the redemption period in a foreclosure, the bank will usually ask for permission to sell the home using its own real estate agent. When this happens, you will lose the right to sell the property and won’t have any say in the process.
This is okay if you want to walk away from the situation. Be aware, though, that the bank may prioritize expediency and settle for the first reasonable offer that’s submitted, which may be lower than what the property is worth and leave you with a deficiency judgment or an even bigger one than expected.
If you think you can sell the home for more than the bank can get or you want to have some control over the sale, ask the court for exclusive or joint conduct of sale. Exclusive conduct of sale lets you handle the sales process from start to finish, while joint conduct of sale requires the lender to work with you to sell the house. This can help you make sure the home sells for the maximum amount so you can reduce your liability.
Going through foreclosure is challenging on many levels. Consult with real estate lawyer David Cohen for assistance with protecting yourself while going through the process.Learn More
If you rent commercial property, you probably have a clause in your lease that requires you to pay additional rent for your proportionate share of both the fixed and variable operating expenses. This includes things like taxes, insurance, utility costs, repair charges, and maintenance. How do you make sure that you’re being charged a fair rate and avoid ending up in court over conflicts about it with the landlord?
Make sure that you understand how grossing up is done.
A lot of commercial tenants who are new to the situation don’t understand the concept of grossing up. Grossing up is the only real way that your landlord can break down variable operating costs fairly so that he or she doesn’t bear an unreasonable cost.
Grossing up increases your responsibility for the variable operating costs of the building artificially — as if the entire building were filled to full occupancy (although sometimes a lesser figure is used, like 90%). For example, if you’re the only tenant and you take up 50% of the building space, you would still pay 100% of the variable operating costs. This is because you are the only tenant benefiting from those services. If a second tenant moves in, you will only pay 50% of the costs.
Keep in mind that you should never be grossed up for fixed operating costs, like property taxes, because the landlord would be charged the same if the building were empty.
Make sure that you understand the right of the landlord to increase your proportionate share.
Keep in mind that unless your lease specifically divides up your proportionate share according to the amount of space your business occupies, your landlord does have the right to increase the amount that you pay for one or more of the variable expenses according to your use of those services.
A 2014 case illustrates what can happen. In that situation, the tenant was a yoga studio that had undertaken major renovations that significantly changed their ability to access the water provided to the building. They added new showers, faucets, sinks, and plumbing. The landlord’s overall water bill increased dramatically after the yoga business moved in and the landlord eventually assigned the extra portion of the water bill to the yoga studio, rather than dividing it evenly among all the tenants.
Naturally, the yoga studio was unhappy, because they believed that their contract entitled them to divide the bill up evenly. The court, however, disagreed. It held that the yoga studio’s proportional share was meant to be fair, not burden the other tenants and landlord for the cost of water that they weren’t using.
What should you do if you think that you’re being unfairly charged for common expenses? If either your landlord or another tenant is taking advantage of the situation and not paying for what’s truly their fair share of the variable expenses, contact an attorney for assistance.
To learn more, contact a real estate lawyer like Tarbush Giller & Associates Family Lawyer.Learn More
Divorcing from your spouse is a confusing and emotionally challenging task to do, and it is important for you to be as informed as possible about divorce law in Calgary. If you are unfamiliar with divorce proceedings, you might benefit from reviewing the following couple of answers to divorce questions new clients often ask.
Should You Hurry To File The Divorce Paperwork First?
There is a popular misconception that you should always strive to be the first one to file the divorce paperwork. While this may seem like it would give you a large tactical advantage over your spouse, it actually does not. The courts will strive to keep the process as fair as possible, and this will negate any advantages you get by filing the divorce forms first.
In fact, rushing to file your divorce paperwork first can lead to a host of problems. For example, if you and your spouse decide to cancel the divorce and try to work things out, you will still be liable for the court costs and attorney fees. As a result, you should carefully weigh your options and take your time before deciding that divorce is the only option.
What If You Are Unhappy With The Final Divorce Ruling?
Just like any other legal dispute, the court will issue a ruling that divides the assets of the marriage, addresses child custody and settles all the other legal issues surrounding the marriage. Unfortunately, there can be a chance that you may not be happy with the outcome of the ruling. When you find yourself in this situation, it is important to note that you may have the option to appeal the ruling of the court.
When you appeal a divorce ruling, an appellate judge will review the proceedings and ruling of the court to determine whether or not an error was made. These courts can only overturn rulings in the event that the lower court made an error, and your attorney will have to prove that occurred in order for your appeal to be successful. If the appellant court rules in your favor, it can reverse the erroneous aspects of the divorce ruling.
If you are considering divorcing your spouse, you need to be informed about this legal option before you decide to file the paperwork. Realizing that rushing to file divorce forms first offers no advantage and that you can appeal the final ruling of the divorce judge should help you to be better informed about these proceedings.Learn More
The birth of a child is what will often cause people to start thinking about creating a will. That is because it is the best way to decide who will become the guardian of your child if you and your spouse were to suddenly pass away. Selecting a guardian is a big decision to make, and not something you should take lightly. Here are 3 things to think about to make the decision easier.
Philosophies and Values
A parent’s philosophies and values play a big role in decisions they make. Your child’s guardian should share many of your personal beliefs and values, which will ensure that those philosophies will still be a part the child’s life.
Consider religious beliefs, social values, educational values, moral values, and even their philosophy on child-rearing.
Think about how your child will be raised in their guardian’s lifestyle. For example, the age of a guardian can play a big part in your child’s life. Your parents may share a lot of your philosophies and values, but will have difficulties with how active a child can be on a daily basis. Younger guardians may not be mature enough to handle a child, even if they have the same beliefs as you.
Be sure to consider both partners when selecting guardians. One person may be an ideal fit for your child, but their spouse has different philosophies that will impact the child’s life. You must consider how each guardian will parent as an individual, not only as a couple.
It’s important that your child’s guardians also live close to other family members. Even if they are a good fit for your child, it can be disrupting to your child if they have to move to a different state where they will no longer be close to other relatives or friends.
You should also consider children that a potential guardian already has. Does your child get along well with their child? Are they close in age so they can relate to each other? What sort of influence will their child have on yours? These are all questions you should be asking yourself before making a decision.
Even if all of the previous factors match up, you should select a guardian that has a good personality. Someone that is affectionate.loving and patient when caring for children will be a great role model.
Once you decide on your child’s guardian or guardians, you should meet with a lawyer like Terry Napora Law Office about adding them to your will. You want to ensure that there is no confusion about who your child’s guardian would be if you were to pass away.Learn More
If you’re facing criminal charges, you may have heard lots of well-intentioned advice from friends and family. While their hearts are surely in the right places, there is a lot of bad legal advice floating around that can do you more harm than good if you were to follow it. Below are three such common pieces of advice that you’re better off not listening to.
Bad Advice #1: “Hiring a Lawyer Makes You Appear Guilty”
In a perfect world, innocent people wouldn’t be wrongfully jailed for crimes they didn’t commit. Alas, that’s not the world you live in and because of this, you have the right to legal counsel.
An attorney is not a get-out-of-jail-free card. Instead, they’re an advocate, fighting for your rights before, during, and after your trial. Hiring a lawyer doesn’t make you appear guilty – instead, it sends the message that you’re not to be messed with and are taking your defence seriously. Having an attorney doesn’t guarantee your freedom, but it does significantly increase your odds for a fair trial than if you were to represent yourself.
Bad Advice #2: “A Lawyer is a Lawyer – They’re All the Same”
Lawyers are a diverse group of professionals who may not always have the particular experience or advice you need. It’s unfortunate, but finding the right lawyer for you can take time and money.
All lawyers aren’t the same. Instead, each lawyer brings something different to the defence table. The past experiences of each lawyer will reflect in their work and is something that needs to be carefully considered. To find a lawyer who’s right for you and your situation, the best thing you can do is set up a consultation. A consultation gives you the opportunity to ask the questions you need and see what it would be like working one-on-one with them as a professional.
Bad Advice #3: “Refusing to Testify in Court Shows Your Guilt”
There are a number of reasons you and your lawyer may decide against you testifying for yourself in court. Not testifying at your own trial doesn’t mean you’re guilty and it won’t be perceived as such.
Testifying at your trial, otherwise known as appearing as a witness, opens you up to more risk than benefit in the majority of cases. Even if you didn’t commit the crime you’re being charged with, the prosecutor will be allowed to cross examine you and may attempt to destroy your character. It is the prosecution’s job to prove your guilt – taking the stand at your own trial may be of benefit to the prosecution, but very rarely will you, the defendant, benefit in anyway.
Criminal defence cases can be difficult to navigate on your own. While your loved ones are well meaning with their advice, it’s best to leave the legal advice to the professionals.
For more information on criminal defense lawyers, contact a practice like Sicotte & Henry.Learn More
Buying a new home is exciting, but it’s also overwhelming. While you might be ready to sign the purchase contract and be done with the whole process, it’s important to look out for legal snags that could turn your dream of home-ownership into a nightmare:
Closing Dates Marked Urgent
The closing date is the day you and the seller both agree to finalize the sale of the home. Closing dates are usually 1-2 months after the agreement is signed, but they may be further away depending on your and the buyer’s needs. If your closing date is very close, like a month from signing the agreement, you need to be sure you can complete all planned inspections in that time.
While sellers do often have to move a house quickly, some sellers will put urgent language around the closing date in order to make it harder for you to postpone closing once you’ve signed the contract. If planned inspections turn up hidden problems with the home that have to be addressed, you may not have enough time to perform repairs or renegotiate the contract before the sale is finalized.
To avoid running out of time, ask the seller to remove urgent phrases like “as soon as possible” or “time is of the essence.”
A Title With Other Claimants
In order for your purchase of the home to be legitimate, the seller must have complete ownership of the home’s title. Unpaid mortgages, liens, and other forms of debt against the value of the home mean that you won’t be able to keep the home if the creditor decides to repossess it.
In some cases, new home owners have found out that they have to pay the old owner’s mortgage or risk having their home foreclosed. Of course, costs can be recouped through legal action against the seller, but that’s a hassle you don’t want to take on if you don’t have to.
You don’t have to distrust every seller with debts against his or her home, though; you just need to sort out how the debts will be paid before you take ownership of the home. For example, if the bank allows it, you might take on the old mortgage payments and pay the owner the value of his or her equity in the home. In other cases, you might make a large deposit on the home so that the homeowner can clear up minor debts against it.
These are just two possible issues with your purchase contract that might complicate the process of buying your home. It’s a good idea to have your contract’s clauses thoroughly explained to you by a real estate lawyer before signing it, even if you really like the home and the seller. It pays to be careful, especially when you’re dealing with hundreds of thousands of dollars.Learn More
If you’ve been putting off planning for the future because you’re too busy, now is the time to reconsider. It’s important to have an estate plan in place so that there are no surprises. You shouldn’t attempt to do your own planning. With help from a lawyer, you can feel more comfortable about the process. Take a look at the following information to better understand the reasons as to why you should hire an estate planning lawyer to prepare for the future.
An Estate Planning Lawyer Knows Your State Laws
Never guess your way through the law, especially if you have absolutely no legal experience. An estate planning lawyer fully understands your state laws and how they relate to your individual planning needs. For example, your lawyer understands what documents need to be in place depending on your state’s requirements. If you have any questions about laws in your state, you can direct them to your lawyer.
An Estate Planning Lawyer is Worth the Investment
You shouldn’t skip out on planning due to finances. You may think that attempting your own planning will allow you to keep a lot of money in your pocket. This may not be the case if you make a costly mistake, because you will have to get a lawyer to fix it for you. If you’re concerned about money, speak with a lawyer about payment plan options or ask if you can do bits and pieces of your plan at once. This can cut down costs and make everything more manageable financially.
An Estate Planning Lawyer Can Better Explain the Most Important Documents
When planning, there are some very important tools and documents that need to be in place. A lawyer will talk with you to better understand your goals and needs and then can explain these documents and tools so that you better understand your options. Your lawyer can also help you make important decisions about each document so that you’re able to make the best choices for your future.
An Estate Planning Lawyer Can Help You Communicate with Loved Ones
When planning, you may need to get trusted loved ones involved. For example, when choosing a guardian for your children, you will need to ask a loved one if they’re able to handle this type of responsibility. A lawyer can help you have these difficult and important talks with loved ones.
As you can see, it pays to have an estate planning lawyer on your side when making estate plan choices. If you have any questions or if you’d like to start the planning process, contact a lawyer like Coley Hennessy Cassis Ewasko.