I was divorced in March of 2011, in the divorce decree I was to sign my rights to the house away.

Q: I forgot to sign the quit claim deed for the home and received a judgment against me for credit card debt. My ex wants to refinance the house but since I am still on it he can’t due to the judgment against me. What are my options to get me off the house?

A: I agree that you should sign and record a quitclaim deed. However, you might also want to contact your former spouse and see if there are any documents required by the lender. This could lessen the risk that your spouse will come after you for violating the divorce decree.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by .
Re-posted from AVVO Legal Questions & Answers.

A lawyer drew up a Quit Claim deed using ARS 11-1134(A)(5), but the divorce papers don’t specify this?

Q: The divorce papers say I have to sell the house within 3 years of the divorce. The house is severely under water. My ex-wife wants her name totally off the house, she wants nothing to do with it. I re-financed and got her name off the mortgage, now we want to file a Quit Claim deed to get her off the title. A Lawyer drew up the deed and used, as an exception : ARS 11-1134 (A)(5)…5. A conveyance of real property that is executed pursuant to a court order. Is this exception OK?

A: Whether the exception is OK depends on what the court order says. If the court order can be interpreted to require the quitclaim deed, then the exception should be OK. You might want to ask the lawyer to give you a quick statement in writing stating that the exception is OK.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Answered by
Re-posted from AVVO Legal Questions & Answers.

Negotiating Your Commercial Lease

Making sure you are not on the wrong side of a one-sided agreement

Most businesses lease the property where they do business. The lease can be a significant investment for a business, and sometimes can even be the difference between enjoying a profit or suffering a loss. The lease can also commit a business for an extended period of time, closing off other possibilities. Consequently, it is very important that business owners negotiate carefully when choosing their lease terms and hire an experienced Arizona real estate attorney to review the contracts.

Commercial Lease Negotiation

Forming a commercial lease is very different from forming a residential lease. Commercial tenants are assumed to be more sophisticated and so they are given fewer protections under the law. Furthermore, the terms of a commercial lease are generally much more negotiable than the terms of a residential lease. The first draft of a commercial lease that is given to a potential tenant usually has terms that strongly favor the landlord. However, it is expected that the tenant will negotiate more equitable terms. The following are some basic questions that should be clearly answered in your lease:

  • What is the term of the lease and when does it begin? Is there a renewal option and whose option is it?
  • Is the leased property clearly described? Does it include bathrooms, common areas, or parking?
  • Who pays the utilities, repairs, taxes, and insurances?
  • Do you have a gross lease, a net lease or some combination?
  • Is there an exclusivity clause that prevents the landlord from renting to a competitor? What is the definition of a competitor?
  • How much is rent? Does the rent increase each period? Is there a cap on the amount that rent can increase?

 

Careful Review of your Commercial Lease

There are many, many more significant provisions that will be important in your lease. Commercial leases can become complex, and it is important that you consult with an attorney experienced in real estate transactions to ensure that you obtain a fair commercial lease that will benefit your business. Many of the Mesa real estate attorneys at Gunderson, Denton & Peterson have experience reviewing, negotiating and litigating commercial leases, and frequently counsel with clients to identify key issues and protect clients’ specific lease interests.

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Re-Posted from: http://gundersondenton.com/real-estate-law/negotiating-commercial-lease/

Arizona Real Estate Refinances, Short Sales or Foreclosures

Mark Twain once said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” If you purchased or refinanced residential property between 2005 and 2007, you have important questions and probably more than a few wrong ideas about your real estate investment that an Arizona real estate attorney can help you with.

How much is that property worth today, realistically? Chances are it’s worth significantly less than what you owe, so now what?

Short sale, foreclosure and real estate taxes

You’ve considered walking away. You’re hoping you can get a break through a government bailout program you heard about. You wonder if it’s better to short sale the property or simply let it go to foreclosure. You want to know how all of this may affect your credit. What about taxes? There seem to be a hundred other gnawing questions festering in your mind as you review this year’s property tax valuation notice confirming yet another year of steep decline in property value.

Distressed Real Estate: find the solution that fits you

Unfortunately, there is no one-size-fits-all solution that makes sense for everyone. In fact, it is extremely unlikely that what makes sense for you will make sense for the next person. It is even more unlikely that your best course of action will simply occur to you. False assumptions and misinformation abound. Even more prevalent is the constant bombardment of advertising from opportunistic persons offering you a uniform solution that benefits them with little consideration for what is really in your best interest.

Distressed Real Estate: a complex business decision

The truth is this: you are facing a very complicated and nuanced business decision. Like any business decision, you must be informed on all relevant considerations and options, or you are likely to choose poorly. You might be surprised to learn what facts and circumstances really make a difference in your range of options. The most important factors can be boiled down to the nature of the property and the financing history. From there, any number of irregular circumstances can make a big difference. Things like whether it is a VA loan or whether only one of a married couple signed the loan documents. The key is to properly identify and understand the significance of your favorable facts as well as your troublesome facts.

That is where we come in. We’ve advised hundreds of homeowners searching for answers regarding their distressed real estate. We have thorough knowledge of the relevant statues, case law and lender practices to help you determine just where you stand. More importantly, we can help sort through your issues and available options and develop a customized strategy based on your best interests. You have important questions and we have the answers, including answers to questions you don’t know you have yet. Contact us today to discuss what you don’t know regarding your distressed real estate, and more importantly, “what you know for sure that just ain’t so.”

Published By:

Gunderson, Denton & Peterson, P.C.
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

Re-Posted from: http://gundersondenton.com/real-estate-law/real-estate-refinances-short-sales/

What if any effectivness does a personal guarantee have when included on a Note or Deed of Trust in Arizona?

On documents pertaining to properties would the personal guarantee provide protection to us as a lender?

A: A personal guarantee is an important protection and I would almost always require one as a lender. However, it needs to be drafted properly and in conjunction with the other loan documents. There are specific Arizona statutes on this issue, and they must be followed, or the guarantee could be worthless.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Answered by Arizona Real Estate Lawyer at Gunderson, Denton & Peterson, P.C.
Re-posted from AVVO Legal Questions & Answers.

Landlady has misstated square footage on our commercial lease and taken prime parking spots to give to other tenant

I have a small cafe. The lease agreement states I am renting 1100 square feet, but there is only 950. The landlady first stated she measured it herself. When I brought up the issue a year or so later, she stated the square footage came from the appraisal, but will not give me a copy. Also, the parking we share with our neighbor was removed and given to that adjacent neighbor to use for outdoor seating and a drive-thru. This was parking that had signs stating it was for our address and our neighbor’s. There are other unscrupulous issues with this landlady (real estate broker), but the above two are the largest. We have been leasing the space for 3.5 years and the lease ends (or can be renewed) in three months. Is it worth my time to seek justice in this matter? How should I proceed?

A: This comes down to two things. First, a court will look to the lease as the primary place to determine what the parties agreed to. So the lease provisions (or absence of lease provisions) are important. Second, a court will look at the communications between the parties. What did the landlady say to you? What did you say to her? What did everyone know about the signs? When were they put up and who agreed to them? That sort of thing.

Whether it’s worth your time to pursue it depends on how much you think you’ve been damaged. Certainly as you decide whether to renew the lease, you should be careful that everything important to you is included in the renewal.

Answered by Arizona Real Estate Lawyer at Gunderson, Denton & Peterson, P.C.
Re-posted from AVVO Legal Questions & Answers.

Sharing Property Losses

My partner and I bought a piece of land 5 years ago. It was for $420,000. I paid half cash, about $210,000 and my partner agreed to make monthly payments until it was paid off. The value of the land went way down and my partner stopped making payments. In 5 years, he made about $70,000 in payments. We settled with the bank and paid $10,000 is settlement through short sale. We split the settlement fee half and half. I am asking my partner to shoulder some of my loss by splitting the total loss. He says that he is not responsible for my loss. I have witnesses supporting my claim that we were 50/50 partners. However, we did not put anything in writing. Although she made the monthly payments for 5 years. Am I stuck with this huge loss or can I sue my partner for the loss and damage to my credit rating? I must say that my partner and I share a few other properties and he has other properties as well. I just do not feel that because the value of the land went down, I should suffer, where he walked away with much less losses. What can I do?

A: The answer to this question is yes, you do have a claim. It is a bummer that your contract was not in writing. But that does not mean it is not enforceable. If there are email or other written documents confirming your deal, that will help. At any event, you may also have a claim for something called “contribution,” which would require your partner to pay his half of the losses of your enterprise. I have handled these cases before and would be happy to discuss your options if you would like.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

Can a voluntary dismissal “without prejudice” still give rise to a malicious prosecution claim?

If a party who brings a civil action (without probable cause and with ulterior motives) against a Defendant voluntarily dismisses their own suit without prejudice, is it is ever possible that the original Defendant may still potentially bring a future malicious prosecution claim against the original Plaintiff? Or, does a voluntary dismissal without prejudice ALWAYS/automatically eliminate the possibility of a future malicious prosecution claim being brought?

Additional information
Landlord brought eviction action against tenant, alleging an unauthorized occupant was living in tenant’s apartment, but failed to offer evidence at the forcible detainer hearing. At the hearing landlord stipulated to voluntarily dismissing action if tenant paid the previous month’s rent of which the landlord had already rejected prior to the hearing, specifically stating to the tenant in writing that they could not accept rent due to the pending outcome of the hearing. Tenant had voluntarily vacated the apartment just prior to the hearing due to landlord’s constant harassment over several months. The landlord was given back the keys to the apartment prior to the hearing, yet still went forward with the hearing even knowing that the tenant had already vacated the apartment. The landlord’s stated basis of moving forward with the forcible detainer hearing was to collect the rent from the tenant, however, this was the same rent that they’d already just rejected from the tenant in writing prior to the hearing.

A: Usually you need a ruling on the merits before a malicious prosecution claim can succeed. I’d have to know more about the facts of this before giving a definitive answer, though. However, I do agree with the other respondents that even if you have a case, it seems like one that isn’t worth bringing.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

Should we refinance for a 15 year term or 30 year again?

We are under water and planning to take advantage of the new HARP program coming out in March to help home owners that are current and more than 125% under. We want to refinance to get a lower rate. We are currently at 6.5%. We want to move to a better neighborhood as soon as possible. We have considered a strategic foreclosure but value our excellent credit and are scared of the negative affects. So, we are definitely going to try to refinance under this new program either way. We have lived in our home for 7 years. We currently have a 30 year fixed.

Our dilemma is do we refinance to another 30 year term, lose the years we have already paid into the house , to lower the payments several hundred dollars a month. Or, do we refi. to a 15 year term, cut 8 years off the term.

A: The part of your question about whether to accept loan terms is really more of a financial question than a legal question. Many times if you do the analysis of the value of your credit, you find that the enormous price of paying off an “underwater” house is simply not worth it.

What I would do if I were you is consult with an Arizona real estate attorney who is familiar with the HARP program. Most attorneys, including me and even many real estate attorneys, do not know much about the HARP program. Bert Millett is one attorney who does. His phone number is 480-655-7440 if you care to follow up. Good luck.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

Arizona Real Estate Civil Law Suit

Q: If I am involved in a civil law suit about a real estate partnership based on a verbal agreement and the partners were me wife the plaintiff and his girlfriend. They are suing, in addition to me personally, my LLC’s. My LLC’s were in no way involved in this partnership. No bank accounts, the LLC’s aren’t even active. They are being aged to be used later. I am trying to file a motion to get the LLC’s dismissed and to continue with the lawsuit against me personally (I know this is backwards). What motion (or law) do I file on what grounds?

A: I agree that a motion for summary judgment is the right motion to file. However, you need to file some groundwork first. Well-defined requests to admit and interrogatories will give you the foundation for your motion to succeed. In my experience on this type of case, you will want to make sure your ducks are in a row before filing. Also, the angle you take might be different depending on which Maricopa County Superior Court judge is assigned to your case.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.