Avoiding Pitfalls During the Contracting Process

In the current real estate environment, it often seems as though even the most straightforward transactions are getting tripped up somewhere along the way. However, there are steps that you can take early in the your house sale process to minimize these hiccups or avoid them entirely. Reviewing the following items prior to the contracting process will make for a considerably smoother contracting process:

1. Review the property description on your deed to make sure there are no unusual easements. If there are, discuss them with your broker and attorney to make sure that they are disclosed properly and will not negatively affect your property value. If you do not have a copy of your deed, you can obtain a copy from the Town Clerks office.
2. Check the Tax Assessor’s field card. Does the field card correctly list the livable square footage in the house and other structures and does it match your listing? Note that you may not want to correct the field card if doing so might cause the property’s taxes to increase, but you should be aware of the issue and be prepared to address or respond to any discrepancies.
3. Look for open permits at the Building Department, and be sure the permits on file match the improvements that are listed. Any open permits can generally be closed without too much time and effort. If there was unpermitted work on the property, you should discuss this with your attorney to decide how to best describe this work and properly disclose it to potential buyers.
4. Confirm that any paperwork on a removed oil tank was properly filed with the Fire Marshal and that there is no indication of remaining contaminated soil. Full removal paperwork was not routinely filed with the Fire Marshal until relatively recently; therefore, if the paperwork seems incomplete, check to see if you have more complete paperwork in your personal files.
5. If the property is in a flood zone, ensure that you have an up to date flood elevation certificate to share with potential buyers. If you have flood insurance, confirm that it is possible to transfer the flood insurance portion of your homeowner’s insurance to a new buyer.
6. Finally, review the inclusion/exclusion list on your listing in detail. Do you really want to take flat screen television brackets off of the wall and repair the holes that are left behind? Is it worth it to dismantle and rebuild the children’s swingset at your new home?

At Rucci Law Group we consider ourselves part of the home transaction team, with the goal of a successful closing that is as stress-free as possible. If at any time you have questions regarding your listing or whether a certain issue should be disclosed to a buyer, please do not hesitate to reach out to us for help.

Amy Zabetakis is one of founding members of Rucci Law Group, LLC. She practices primarily in the areas of real estate, zoning and land use litigation. Amy can be reached at 203-202-9686 or at [email protected]. 

THE INTERSECTION OF MATRIMONIAL,
REAL ESTATE, ESTATE AND TRUST LAW

For those seeking a divorce, the obvious first move is to hire a divorce attorney. But many divorce cases are complex, involving real estate, estate planning, trusts, and other issues. In this age of legal specialization, no one attorney knows all aspects of every discipline, therefore there is a great advantage to having a team of legal resources at your disposal. Attorneys who can work together to manage all the disparate aspects of divorce will make for an easier transition and a more satisfying financial outcome for all parties. Here are several common considerations in a typical divorce today.

Real Estate

Most postnuptial and divorce separation agreements include provisions for the disposition of the family home and other real estate. A matrimonial attorney will negotiate the equity split for each party, along with other assets and liabilities. Some couples may agree to keep their interests in the property until children grow or for other reasons, but most often one spouse will move out. When that happens, a real estate attorney will need to negotiate securing the departing spouse’s interest through a mortgage or judgment lien.

What if one partner wishes to buy a new property in his or her own name and experiences credit issues as a result of an existing mortgage? This year, changes in the tax code have brought an added wrinkle to that process. Lenders used to rely on tax returns to show alimony paid to loan applicants. But as of January 1, 2019, alimony is not taxable to the payee (nor deductible for the payor), and therefore tax returns will no longer show a record of receipt of alimony. Lenders are now left having to find an alternative reliable source to confirm an alimony payment. Real estate attorneys know the resources and rules for guiding such purchasers, and can cooperate with matrimonial lawyers to work toward appropriate protections that achieve the goals of both spouses.

Estate Planning

Estates are another factor that can play a significant role in matrimonial matters. When the divorcing couple is older, one or the other spouse may be expecting an inheritance from an aging parent or other relative. If that happens, the details of estate administration become relevant and matrimonial lawyers will want to consult with estate lawyers. Considerations include estate taxes, the timing and expense of the administration process, and elections that may be made by executors concerning IRA distributions.

To be clear, courts will not consider the potential inheritances of any party until the person who may leave property to a party has actually died. The simple reason is that any person can always change his or her Last Will & Testament, so there is no actual assurance of inheritance. Similarly, it rarely works for a spouse to make a particular provision in a matrimonial agreement concerning her Last Will & Testament because it is difficult to enforce. Again, either spouse can change a Will at any time. If a party violates a provision of the matrimonial agreement requiring a term in the Will, the only alternative for the surviving party is to make a claim in the court overseeing the Will’s administration. However, it can be important in negotiating a divorce agreement to ensure that a new Will is executed to carry into effect the intentions of the divorce agreement for the benefit of heirs. Matrimonial and estate planning attorneys should work together to coordinate language and particular terms between the divorce agreement and the Will.

Trusts

Trusts are also frequently involved in matrimonial matters. One or both spouses may be beneficiaries of trusts which they established for themselves or which others established for their benefit. The issue is the degree to which a spouse has control over the distribution of principal and interest for his own benefit as well as any history of distributions to another party. If there is some ability for the spouse to receive a distribution from the trust at the third party’s request, that could become an important factor in the divorce case. Such distributions may result in no alimony being required. Trusts for children established by a parent may substitute for child support payments by a parent. The ability of the trustee of one trust to allocate its assets to a different trust (which may have different provisions for benefiting a party) can complicate the consideration of the trusts. All of these factors can be tricky to work through and are best handled in collaboration between matrimonial and trust attorneys.

The lawyers of Rucci Law Group have strong experience not only in matrimonial law but in all these overlapping areas and are able to identify and resolve issues that smooth the path of what can be a difficult, emotional journey for the parties involved.

George Reilly works in family law, real estate, estate planning and administration, and corporate development. George can be reached at  203-202-9686 or [email protected]

A recent small business scam is an official looking mailing from “Workplace Compliance Services”. The mailing looks like an official request from the Secretary of State’s office, however, in reality it is a request for the business owner to send money to Workplace Compliance Services to file with the Secretary of State on the business’s behalf. The fee charged is a significantly larger fee than a small business owner will incur if they do their own filing online. Small businesses, particularly Limited Liability Companies, have been the target of scam mailings seeking to trick busy owners into paying fees to third parties. These scams run the gamut from the clearly fraudulent, to this most recent one.

The Connecticut Secretary of State will never send unsolicited mailings to business owners seeking payment or information. In general, the Secretary of State only communicates via the email on file for the business. If there is no email on file, the Secretary of State’s office will send a postcard reminding the business to file its annual report online but it will not mail the form or request for payment via regular mail.

It is very important that business owners comply with state filing regulations regarding their business. If you have any questions regarding the status of your company or your filing obligations, please reach out to the attorneys at Rucci Law Group who will be happy to go over the process with you and help you decide if you need assistance.

Like most homeowners, you are probably aware that your property and your neighbors’ properties are subject to zoning regulations that are imposed by the local municipality. You understand that before undertaking a construction project, you must research those laws and make sure your plans for the property will be allowed. However, confirming that your proposed addition, subdivision or other change complies with your lot’s applicable zoning regulations must not be the end of your investigation. It is also essential that you review your title to confirm that there are no private restrictions on your property that would allow a neighbor to block your proposal.

Private restrictions (sometimes referred to as covenants or agreements) can include specific items that would impact construction, such as setbacks that are greater than the setbacks imposed by town zoning laws, restrictions on the size of buildings on the property, limits on the number of buildings on the lot, and parameters or prohibitions on fences. Some private restrictions even grant a neighbor or group of neighbors the right to review and approve the design of your home. Private restrictions can also constrain how your property is used by imposing prohibitions on certain commercial activities and forbidding the presence of certain animals on the site. Finally, private restrictions can block the subdivision of a lot or bar construction of more than one single family home on that lot (which effectively prohibits subdivision).

Generally, private restrictions will be recited in your deed; however, sometimes the face of a deed only references restrictions and the language of the restriction can only be found in another deed or on a map. For these reasons, it is very important to have a full title search run before you purchase your property and to hold onto the search (or have a new search run) before you begin planning a new project.

Private restrictions must be listed on the land records in the town where your property is located. It is therefore very important to review those records before starting any work. You can search the land records yourself at your local town clerk’s office, but it is often advisable to hire a professional title searcher and an attorney to help with document interpretation and to ensure that nothing is missed. For example, on occasion, a restriction that may appear on its face to be problematic may have expired or otherwise be unenforceable for other reasons, including violations of fair housing regulations.

Remember that if you violate a private restriction, knowingly or unknowingly, the individual with the power to enforce the restriction can file a lawsuit to stop construction and, in some circumstances, successfully litigate the case such that a court requires you to demolish a structure that violates the restriction. With that outcome in mind, it is most often worth the time and effort to review a property’s private restrictions before construction begins. It is also important to understand your rights before your neighbor begins construction or makes significant changes to his or her lot since you may have the right to enforce a private restriction to prevent that neighbor from engaging in activity that might be harmful to your property.