Attorney Shannon Wynn: When building a home, get lien waivers

A casual conversation with one of the many area realtors with whom Wynn at Law LLC works revealed an interesting take on the current real estate market in Walworth County. It’s a seller’s market right now (see related article). The demand outpaces the supply. That scenario is great for sellers, and it’s also great for those wishing to build rather than buy a home.

There are plenty of subdivisions in development in the area. Visitors from Chicagoland are usually struck by the amount of larger parcels available for country living, too. When you buy one and start to build – or if you’ve already broken ground – an important pair of words for your venture are: Lien Waiver.

A lien waiver is a legal document you have your contractors and subcontractors sign. It says – I’m paraphrasing – the contractor has been paid in full and releases any future claim on the property. What this document does is protect you from the contractor coming back to say such-and-such wasn’t paid for, or they neglected to invoice you for X component.

Wynn at Law LLC works with both, contractors and property owners, and we know most of our area contractors act entirely above-the-board when working on residential or commercial projects. Sometimes, legitimate expenses for which you weren’t invoiced get lost, forgotten, or delayed. Other times, a contractor might struggle financially and return to bill you. Protecting yourself and your property from unexpected claims once the work is complete is a wise peace-of-mind move.

Roofing. HVAC. Foundations. Plumbing. The dwelling itself.  Each of those are put together on your behalf by skilled tradesmen who are owed for their work. When a builder or contractor slaps a lien on the property because of amounts unpaid, they have been to a court clerk to get that lien. That doesn’t mean they are 100 percent entitled to the amount they claim to be owed, only that they have presented evidence that something wasn’t paid in total for the work they performed. A lien waiver signed as you deliver the final check on the final invoice protects you. This goes for home repairs, additions, remodels, as well as new construction.

There are waivers you can get during the project for work performed ‘to date’ as well… feel free to talk to us about those. And don’t be uncomfortable bringing up the subject of lien waivers: This is nothing new to any contractor. Be wary of one who won’t sign it.

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 

 Photo by Leena Robinson, used with permission.

Attorney Shannon Wynn: Minding summer’s attractive nuisances

 

Warmer weather has at last arrived. School’s winding down. That means more kids out and about. When a kid spots something in your yard and says, ‘Wow, that looks like fun,’ there is probably the potential for litigation. Wynn at Law LLC’s team isn’t the downer you’ll neglect to invite to your neighborhood party, but we do help clients stay clear of ‘attractive nuisance’ trouble. I’m talking about a pool. A trampoline. A ladder. A junked fridge. Kids are drawn like magnets to them and other adventures.

When adventure turns into trespass, misadventure and injury and it ends up in court, the property owner is under fire… not the trespasser.

Defining an attractive nuisance is lengthy but pretty cut-and-dried. It’s anything artificial on your property you know that can cause harm, especially to people too young or inexperienced to understand the risk, and you fail to take reasonable measures to eliminate the danger. It’s a mouthful. But so is defending your attractive nuisance in a court case.

Here’s a link to an interesting piece from the American Bar on home/property owner risks, and here are three common nuisances with some remedies that will help keep summer fun, safe, and litigation free.

·         Pools – even the small splash pools – are the leader in litigation. Property owners sometimes prevail in swimming pool injury cases, when they can show a trespassing child got into pool areas despite the owners' reasonable measures (high fences, locked gates) to keep them out.

·         Home construction projects draw in little boys like moths to a flame. Loose lumber scraps in the yard or dumpster are like gold to them. Newly dug foundation holes are an invite to treasure hunt. You should wall or fence off these areas well. Courts sometimes side with or exempt builders and construction companies in attractive nuisance cases: Their very businesses require them to maintain a temporarily hazard. However, the property owner should see the risk as incentive to minimize dangers to children.

·         Play structures are designed for kids, but are a risk to them as well. A fenced yard helps keep out younger or less experienced kids when it comes to skateboard jumps, trampolines, jungle gyms, and tree forts.

See the common theme here?  Fences. There’s an old saying that good fences make for good neighbors. The minor expense of a fence also makes good sense for protecting you from litigation.

 

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 

 Photo by Scott Stevens, used with permission.

Attorney Shannon Wynn: Being neighborly while protecting your rights

When you buy a property, one of the things Wynn at Law, LLC looks at closely is whether or not the property has easements. The most common easement is the right to travel over your land, like you'd give to the power company. This is known as a 'right of way.' Property owners commonly grant easements for the placement of utility poles, utility/cable/phone trenches, water lines, or sewer lines. If an easement is in place, the legal title to the property still remains in your name as the owner. The person or company granted the easement owns the right of way.

Seems pretty cut and dried. Everything is, until it isn't. With the amount of lake property, hunting land, and farmable acreage in Walworth county, there sometimes is access given to neighbors to have right of way to the water, woods, or fields. This isn't the same right of way you give WE Energies. This usually is considered 'permissive use' – best kept in writing with an attorney – or can be an actual easement. An actual easement by a neighbor over your property can devalue the property you're buying… and if you're a seller, it could scare off buyers who don't want neighbors on their land the same way you allow.

Easements are difficult to reverse, and you probably wouldn’t want to reverse it when you're talking about a utility company easement. We look at them to give you a little foresight just in case there is a conflict down the road. Permissive use, on the other hand, can be reversed. You can just revoke the permission, again, in writing.

Wynn at Law, LLC helps you walk that fine line between being neighborly and exposing your property and yourself to potential litigation. Easements do open the landowner up to some liability and some trespass you may not foresee. It's best to work with a neighbor on an airtight agreement on what you're granting, for which use, and when. Putting it in writing with signatures from all parties is the best way to protect your largest investment even when the situation for which you grant permission seems harmless at first. Verbal agreements do not stand up in court.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 

Photo by John Panella, used with permission.

Attorney Shannon Wynn: Who needs estate planning? Everyone!

Wynn at Law, LLC clients sometimes have a shocked look when we bring up estate planning. “We're not dying!” “We're not old!” The best time to set in motion an estate plan is when you're neither old nor dying. No crystal ball or family tree can predict how or when you'll age, get injured, or pass on.

Estate planning is sometimes overlooked because a client doesn't think they have an estate. The fact is, everyone has an estate. Your estate is everything you own, including your car, home, other real estate, bank accounts, investments, life insurance, furniture, and personal possessions.

If you don't have a plan for these, the state has one for you

Wynn at Law, LLC works with you to ensure your wishes are carried out for whom you want to receive something of yours and when they are to receive it. Sounds like a will, right? A Last Will and Testament is part of the plan for when you pass on, but only scratches the surface of what estate planning entails. A thorough plan includes what happens if you're living, too.

You don't want the courts divvying up what's yours, but it will. Without an estate plan, the courts can choose how your assets are used to care for you through a conservatorship or guardianship. Those two, long, technical terms are the complicated way of saying you don't have a say in a process that's going to be open to the public and difficult to end even when you recover. An estate plan includes:  

·         Instructions for your care if you're suddenly disabled

·         Establishing a guardian for minor children if you can't care for them

·         Protecting property and assets from loved ones who might be irresponsible with money or their spouses, current or estranged.

While speaking of disability or death can be a morbid topic, it is a topic that can help you protect your being, your assets and your legacy. That is worth the peace of mind. 

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 

 Photo by, used with permission.

Attorney Shannon Wynn: Make an equitable real estate offer with these five tips

Wynn at Law, LLC is honored to be part of more successful real estate offers than we can count since the 2008 recession. Every one of them had five components in common that made for 'clean' bids and negotiations without animosity.

1) Know what you're buying. This means getting your property inspected and making sure that your offer is based on what the inspector says. Making an offer with the inspections waived is a huge gamble with one of your largest investments… it can be done, but it takes a perfect storm of knowing the property extremely well, a bargain on the market as-is, and a knowledgeable attorney in your corner. A tip: Walk through the house with an inspector before your offer.

2) Know what it's worth. Real estate 'comps' show what similar homes have sold for in the area. A good agent will produce them for you. You can also sleuth for them on your own through public records. You'll know what the owner paid when. You can also find permits issued for renovations the current owner made so you'll know the work was locally inspected.

3) Know your seller. Is the bank selling the property? Or is the owner distressed? Or is the family selling on behalf of a decedent? Each selling situation has its own nuances. For example, the bank is less emotionally attached to a number than a long-time owner.

4) Know your own finances. Offer c-a-s-h. This is true whether it is your cash, or a lender's money. From the bank’s perspective in a foreclosure or distressed property, by placing a cash offer they view you as not subject to financing. Regardless of whether it's bank-owned or family-owned property, the seller's been previously dealing with offers that involve financing.

5) Know your real estate attorney. Wynn at Law LLC knows the real estate in southeast Wisconsin, most of the agents and many of the local lenders. As we mentioned in a previous article, the sooner in the home-buying process our firm is involved, the more we can assist in a smooth, legally sound transaction.

The fair comes in August

Remember our article on honesty? If you're low-balling an offer just for the sake of doing it, think twice. This tactic can burn your bridges with local realty professionals and homeowners alike. 'Fair' isn't really a real estate term. It's a subjective concept: What's fair to the seller or the buyer or the bank are not likely to be the same. Wynn at Law LLC sees the best offers as being equitable, rather than fair. From our experience, the only 'fair' upon which there is objective agreement is the one at the fairgrounds in August.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 Photo by Andy Dean, used with permission.

Attorney Shannon Wynn: Don’t cash out your IRA to avoid bankruptcy

Bankruptcy filing – or the prospect of it – usually puts Wynn at Law LLC clients in full-out panic mode. One of the most alarming, last-ditch, hail-Mary ideas coming from this desperation is to cash out a retirement plan to avoid bankruptcy court. In some cases, people can ‘borrow’ against their company retirement plan, usually a 401(k). This is as dangerous as cashing out to cover the financial struggle.

Don’t. Touch. This. Money.

Retirement money is tax-exempt until you touch it. If you touch it too early, you’ll be subject to taxes and penalties. Here’s a primer on a few of those consequences:

·         If you put the money in after paying taxes on it – like in a Roth IRA – you’ll pay tax on the earnings and a 10 percent penalty if the IRA is less than five years old and the owner is younger than age 59 ½.

·         If you put the money in tax free – like in a regular IRA or a 401(k) – the entire distribution is subject to income tax at your current rate, plus the 10 percent IRS penalty if the owner is younger than age 59 ½.

A tax specialist or accountant will give you clearer instruction on your particular situation’s consequences. Wynn at Law LLC is concerned about those immediate consequences, and the long-term ones. It’s your retirement income you’re putting in jeopardy. You’re mortgaging your entire future! If you leverage this nest egg to avoid bankruptcy filing today, you may have just kicked the can down the road, facing potential bankruptcy in your retirement years.

In almost every case, your qualified retirement plan is EXEMPT from your bankruptcy filing anyway. You get to keep the plan, your creditors don’t. But this goes back to a message from an earlier Wynn at Law LLC article on honesty: You have to disclose that your own a retirement account. It’s still going to be your retirement nest egg, they can’t touch it, but you can’t hide it.

 

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 Photo by Barbara Reddoch, used with permission.

Attorney Shannon Wynn: Get your real estate lawyer sooner

One of the oddities of Wynn at Law, LLC's flow of phone calls is this:  A potential client will call within seconds of getting a $180 speeding ticket, but will wait to call until well into buying a $300,000 home. The stakes are so much higher in the latter, and in fact, a real estate attorney on the front end can end up saving you money. Here are four ways how:

•       Wynn at Law, LLC reviews the title. It’s a history project that reveals covenants on the property, environmental concerns (like our Geneva Lake Watershed), and liens. Any one of these can be costly to the buyer well after the closing.
•       When there’s a Home Owner Association (HOA) it can have a lasting impact on your happiness with your investment. One area of completely subjective info a seller has to his advantage is his opinion of the HOA. “They’re great.” “They’re harmless.” If the HOA was terrible, would they really tell you and possibly scuttle the sale? I look at the more objective – and legally binding – HOA rules before any contract ties you to them. A sale contract most definitely will.
•       Buyers sometimes want out of a contract. If you haven’t engaged an attorney before the offer, you might not have protected your ‘out.’ Sellers have the upper hand from engaging an attorney before listing, or at least by using the real estate agent’s legal contract. If the buyer doesn’t have the offer prepared properly and the contract drawn up in his/her best interest, that’s a legal cliff. You’ll either close, or buy your way out of the deal. But…
•        …A seller may call his attorney. A suit follows. They’re not unanimously successful, but they are an expensive time-eater.

When I get the chance to work with homebuyers early in the home-buying process, they’re excited people. And you should be: This is a great life changer. When I work with them later in the life-changing deal once it has gone south, it’s usually because they’re ticked-off with the seller. Who doesn’t prefer working with happy clients? But more importantly, they’re going to avoid costly mistakes. That’s part of the reward in which we can all share.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 Photo by Syda Productions, Lev Dolgachov, used with permission.