By Matthew A. Quick In the case of 1010 Lake Shore Association v Deutsche Bank National Trust Company, the Court held that a bank shall pay outstanding assessments due on a condo, including assessments incurred prior to bank's purchase of condo, and any late fees. A lien created under Section 9(g)(1) of Condominium Property Act for unpaid assessments by a previous owner is fully extinguished after judicial foreclosure and sale when the buyer (in this case the bank) pays assessments.
By Matthew A. Quick The Illinois Court of Appeals in Messerly v Boehmke ruled on a case that involved an incomplete residential real property disclosure report and the purchasers suing the sellers regarding information that was not included on the report because it was left blank. The Court said that the purchasers of residential real estate did not waive their right to recovery against the sellers because they relied on an incomplete residential real property disclosure report.
The lesson: sellers should, in good faith, complete the entire residential real property disclosure report for consideration by the purchasers to give full disclosure of the premises and forestall an action regarding information not contained on the report.
By Matthew A. Quick Title insurance coverage is dictated by the terms of the policy issued by the title insurance company. In most, if not all, policies for title insurance there is a provision for "Continuation of Coverage" or "Continuation of Insurance." Typically, this provision provides that the insurance will continue only so long as the insured holds an interest in the land or has liability by reason of warranties given in any transfer of the title.
It is common for real estate to be conveyed with quit claim deeds and/or no title insurance. Perhaps the informality is due to estate planning or the relationship between the grantor and grantee, nonetheless the conveyance is without warranties, thus, could discontinue title insurance coverage.
To address this issue there usually exists a policy modification endorsement that can be purchased from the title insurance company when any deed modifies the current vesting. However, this endorsement does not cover a quit claim deed to a completely unrelated third-party. It will typically cover a spouse that is added or removed from title, or if property is moved into trust.
In addition, consider using warranty deeds to effectuate property transfers rather than quit claim deeds. If a warranty deed is the proper convincing method, it may be useful in continuing the insurance coverage. That is to say, if a title problem arises, the grantees may be able to look back to the grantor for title coverage.
The lesson: Before transferring real estate, talk with an attorney to avoid unintended consequences.
By Matthew A. Quick Typically, in order to correct a deed that has been recorded, the original, recorded deed must be used. The information on the deed that requires correction must not be erased or scribbled out and corrected, but crossed out and corrected. The corrected deed must state that the deed is being re-recorded to correct [whatever the error or deficiency]. In addition, a new filing fee will be collected, therefore, there must be enough space on the first page of the deed for a new stamp. If there is not enough room on the first page of the deed for a new stamp then a cover page must be added.
Explore the accuracy of this process with the recorder's office before altering any deed.
By Matthew A. Quick As a general rule, a plat act affidavit, as prescribed by Illinois law (765 ILCS 205, et seq., referred to as the "Plat Act"), only must be executed and filed with the recorder of deeds if the property being transferred is not in a subdivision, meaning the property being transferred has a metes and bounds legal description.
By Matthew A. Quick There are two main ways a state can, and in some circumstances must, reclaim expenses paid on behalf of a Medicaid recipient. The first is a Medicaid Lien, which gives states the ability to recover the expenses of long-term care of a Medicaid recipient by placing a lien on the home of the Medicaid recipient. The second is Estate Recovery, which is the process employed by states to recover the expenses of long-term care paid on behalf of a Medicaid recipient where the state acts as a creditor against the Medicaid recipients estate, post-death.
Medicaid Liens typically apply only to the homes of permanently institutionalized individuals. A permanently institutionalized individual is one who cannot reasonably be expected to return home. A Medicaid Lien has priority over other people who claim an interest to a Medicaid recipient's home and its priority over other liens is determined by state law.
There are restrictions on the placement of Medicaid Liens. These restrictions are intended to protect homes when they are needed by Medicaid recipients or certain close family members. The restrictions follow: The Medicaid recipient must be deemed permanently institutionalized; and No lien may be placed if any of the following relatives of the Medicaid recipient live in the home: 1. A spouse; 2. A child under 21, or a blind or permanently disabled child of any age; and 3. A sibling with an equity interest in the home who has lawfully resided in the home for at least one year before the Medicaid recipient’s admission to a medical institution.
A Medicaid Lien does not interfere with the Medicaid recipient’s use of the home. However, if a Medicaid recipient attempts to transfer the home that has a Medicaid Lien, states can require the Medicaid recipient's equity in the home be used to pay the expense of the state's Medicaid expenditures.
Estate Recovery occurs after a Medicaid recipient's death, during the settlement of the deceased Medicaid recipient's estate. Estate Recovery can apply to personal property or real estate, but most commonly it involves the Medicaid recipient's home.
There are restrictions on Estate Recovery, which are again intended to protect homes when they are needed by certain close family members. The restrictions follow: 1. When there exists a surviving child who is under age 21, or a blind or disabled child, no matter where he or she lives (Estate Recovery may take place when the child no longer meets these criteria); 2. When a sibling with an equity interest lives in the home who has lawfully resided in the home for at least one year before the Medicaid recipient’s admission to a medical institution and continuously since; 3. When an adult child lives in the home who has lawfully resided in the home for at least two years before the Medicaid recipient’s admission to a medical institution and continuously since and can establish that he or she provided care that may have delayed the recipient’s admission to the nursing home or other medical institution; and 4. During the lifetime of the surviving spouse, no matter where he or she lives.
In these restricted instances, the survivor can typically inherit the home and other assets to use as they wish. However, the state may place a lien or file a claim against the survivor for payment of the Medicaid expenditures upon the death of the survivor.
By Matthew A. Quick We seek to save, even while spending. With a little estate planning, we can continue this trend by saving on the tax imposed on the sale of our main home. It is understood that most of us do not currently pay taxes when our homes are sold, which is due to an exclusion that is given by the government. This exclusion is limited, though, and without some attention we, or our loved ones, could inadvertantly pay a significant tax on something that could have easily been avoided.
The Absolute Basics
The amount of federal tax on the sale of someone's primary residence is determined by taking the amount realized (the proceeds from the sale of the home) and reducing it by the adjusted basis (the cost of the home). If the difference is a positive number, then there is a gain and a gain is treated as income, which can be taxed.
On the other hand, if the difference is a negative number, then there is a loss. Typically, losses can be deducted from taxable income, which reduces the amount of income taxed. However, a loss taken on the sale of a primary residence cannot be deducted from taxable income. For this reason, this article will not further contemplate losses.
Due to a gain exclusion (which will be covered below), tax is normally not paid on the sale of a primary residence. In order to talk about a gain exclusion, we have to talk about gain and in order to figure gain, we have to talk about adjusted basis.
Determining Adjusted Basis
Adjusted basis is the benchmark of an investment. It is the point of reference when determining the cost of an investment, which is further used to determine whether the value of the investment went up or down.
The first factor in the adjusted basis calculation is to determine how the owner got the home. If the owner bought it or built it, then the adjusted basis is the cost of the purchase (down payment and loans) or build (cost of construction). If the owner got it as a gift, typically, the adjusted basis is the same as the previous owner's. If the owner got it as inheritance, typically, the adjusted basis is the fair market value of the home on the date of the decedent's death.
NOTE: If you owned your home jointly with your spouse and your spouse has passed, your basis in the home will change. The new basis for the half interest that you receive from the deceased spouse will be one-half of the fair market value on the date of death. The basis in your half will remain one-half of the adjusted basis determined from the initial adjusted basis. Your new basis in the home is the total of these two amounts. An example from the IRS website follows:
Your jointly owned home had an adjusted basis of $50,000 on the date of your spouse's death, and the fair market value on that date was $100,000. Your new basis in the home is $75,000 ($25,000 for one-half of the adjusted basis plus $50,000 for one-half of the fair market value).
NOTE: Some basis situations are not contemplated in this article, such as adjusted basis when receiving property in a divorce settlement, adjusted basis when a home is built using insurance proceeds, etc. If you have a question about a certain basis situation, please contact an attorney.
The second factor is to add to the adjusted basis the costs of getting the home, called settlement fees or closing costs. These costs include installation of utilities, abstract of title fees, legal fees, recording fees, survey fees, transfer taxes, title insurance, certain real estate taxes, any amounts the seller owes that the buyer agrees to pay, etc. NOTE: not all settlement fees or closing costs may be used to adjust basis. If you have a question about a certain fee, please contact an attorney.
The third factor is to add to the adjusted basis additions and improvements to the home. In order to qualify as an addition or improvement that can be added to the adjusted basis, the addition or improvement must have a useful life of more than one year. This can include basic additions and improvements (new or improved bathroom, new or improved deck, new or improved kitchen, etc.), funds expended for special assessments for local improvements (a condo special assessment for a new roof), as well as amounts spent after a casualty to restore damaged property.
NOTE: there are several factors that decrease the adjusted basis that are not contemplated in this article, which may lead to greater gain (discharge of some or all of the debt incurred for purchase or development of the home, insurance payments for casualty losses, residential energy credits claimed, etc.). If you have a question about a certain deduction in adjusted basis, please contact an attorney.
Again, to determine the amount of gain, take the amount realized and reduce it by the adjusted basis. To calculate the amount realized, take the selling price and subtract any selling expenses and personal property that was sold with the home. Selling expenses can include real estate broker commissions, advertising fees, legal fees, etc. If you have a question about selling expenses, please contact an attorney.
How about a few examples?
Example One: Home Was Purchased Take the amount realized (let's say the selling price was $505,000 and the amount of selling expenses and the personal property that was sold with the home is $5,000 ($505,000 - $5,000 = $500,000)), which is $500,000, and reduce it by the adjusted basis from the purchase (let's say the house was purchased for $130,000, the settlement fees and closing fees total $3,000, and there was an extra room added for $17,000 ($130,000 + $3,000 + $17,000 = $150,000)), which is $150,000. The total gain on the home would be $350,000.
Example Two: Home Was Gifted During the Original Owner's Life Assume the same amount realized from Example One ($500,000) and reduce it by the adjusted basis from the original owner, since the property was given during the original owner's life (let's say the original owner's adjusted basis was $50,000 and there was an extra room added by the subsequent owner for $20,000 ($50,000 + $20,000 = $70,000)). The total gain on the home would be $430,000.
Example Three: Home Was Inherited Assume the same amount realized from Example One ($500,000) and reduce it by the adjusted basis, which would be the fair market value on the date of the previous owner's death (let's say the fair market value on the date of the previous owner's death is $420,000 and there was an extra room added by the subsequent owner for $20,000 ($420,000 + $20,000 = $440,000)). The total gain on the home would be $60,000.
The Gain Exclusion
After calculating the gain, let's explore the gain exclusion. To qualify for the gain exclusion, an owner must have owned the home for at least two years and lived in the home as the owner's main home for at least two years during the previous five years. If the owner meets the exclusion, then the owner can exclude up to $250,000 if filing a single return, and $500,000 if married and filing a joint return.
Calculating the Tax
Let's determine the tax of the previous examples for a single person and a married couple assuming a 15% long term capital gains tax:
Example One Gain was $350,000. A single person using the exclusion would have a gain of $100,000 and a tax of $15,000. A married couple using the exclusion would have a gain of $0 and a tax of $0.
Example Two Gain was $430,000. A single person using the exclusion would have a gain of $180,000 and a tax of $27,000. A married couple using the exclusion would have a gain of $0 and a tax of $0.
Example Three Gain was $60,000. A single person using the exclusion would have a gain of $0 and a tax of $0. A married couple using the exclusion would have a gain of $0 and a tax of $0.
Taking from The Examples
A quick analysis of the amount of tax in each example would yield the understanding that a higher adjusted basis, thus a lower gain, is key to minimizing tax. People will gift their property during their lives, which can be a big mistake (they are also gifting their assumably low basis). There are so many other easy ways to gift property, than just outright, that would carry the benefit of a stepped up basis and reduction of tax. A reduction that could possibly be several thousand dollars.
Please feel free to contact me for any further explanation of this article or to answer any questions; I am always happy to help.
By Matthew A. Quick A very effective and efficient estate planning tool has been made available in Illinois as of January 1, 2012, especially suited for people who want to make an outright distribution of their property without the protections of a trust. A new Illinois law, called the Illinois Residential Real Property Transfer on Death Instrument Act, at 755 ILCS 27/1, et seq., allows owners to transfer their Illinois residential real estate outside of probate using a prerecorded instrument, which is akin to a deed, but referred to in the new law as a "Transfer on Death Instrument." Practically speaking, this law allows an owner to indicate who should be the beneficiary of certain real estate before the owner's passing. Upon the death of the owner, the property will simply pass to the beneficiary with minimal administration (basically all that is required is the filing of an executed form, there is no requirement of probate and no requirement of a trust arrangement).
Highlights of the new act: The real estate must be residential (a building with less than 4 units, a condo, etc.); The instrument will always be revocable, even if contrary language is contained in the instrument; The beneficiaries, but not creators of the instruments, can be business entities; and The owner may deal with his or her residential real estate during his or her life without restriction.
The instrument: It must meet the requirements of a properly recordable deed and be witnessed (witnessed in the same way as a last will and testament, which is different from the execution of a deed); It must state that the transfer is to occur at the owner's death; and It must be recorded with the recorder before the owner's death.
Since the statute did not dictate any forms for use, please consult an attorney to draft an instrument if you are interested. When utilized correctly, a Transfer on Death Instrument can be an extremely efficient means of transferring property without the use of a trust arrangement or the probate process and would make a great addition to a basic estate plan.
By Matthew A. Quick In the case of Anderson v Kohler, the court held that an oral contract to sell a piece of property was not enforceable, because price and time-for-performance terms were indefinite, and no performance was demanded, nor were any funds tendered, within a reasonable time.
NOTE: a written contract should always be used during a real estate transaction. Without it, no enforceable promise is made.
By Matthew A. Quick Before going through the process of drafting, printing, signing and traveling to file your document (or sending it off in the mail), be sure it complies with the following, pursuant to MCL 565.201, or the Register of Deeds will not accept it:
1. The name of each person purporting to execute the instrument is legibly printed, typewritten, or stamped beneath the original signature or mark of the person.
2. A discrepancy does not exist between the name of each person as printed, typewritten, or stamped beneath their signature and the name as recited in the acknowledgment or jurat on the instrument.
3. The name of any notary public whose signature appears upon the instrument is legibly printed, typewritten, or stamped upon the instrument immediately beneath the signature of that notary public.
4. The address of each of the grantees in each deed of conveyance or assignment of real estate, including the street number address if located within territory where street number addresses are in common use, or, if not, the post office address, is legibly printed, typewritten, or stamped on the instrument.
5. Each sheet of the instrument must comply with all of the following requirements: (a) Has a margin of unprinted space that is at least 2-1/2 inches at the top of the first page and at least 1/2 inch on all remaining sides of each page. (b) Displays on the first line of print on the first page of the instrument a single statement identifying the recordable event that the instrument evidences. (c) Is electronically, mechanically, or hand printed in 10-point type or the equivalent of 10-point type. (d) Is legibly printed in black ink on white paper that is not less than 20-pound weight. (e) Is not less than 8-1/2 inches wide and 11 inches long or more than 8-1/2 inches wide and 14 inches long. (f) Contains no attachment that is less than 8-1/2 inches wide and 11 inches long or more than 8-1/2 inches wide and 14 inches long.
By Matthew A. Quick When inspecting the deed to property, the buyer may find the word "Trustee" following the name of the person purported to be the trustee of a trust managing the property, but if the deed contains no other reference to a trust or trust powers, it does not itself constitute notice of a trust. Michigan Land Title Standard 8.2.
Michigan law provides that when an express trust is created, but is not contained or declared in the deed to the trustees, and the trustees then convey the property to a purchaser (for valuable consideration and without notice of the trust) the title to the property shall vest in the purchaser for value. MCL 555.20.
In sum, more than just the word "Trustee" after the name of the trustee in the deed is required to give notice that the subject property may only be conveyed pursuant to the rules of a trust.
By Matthew A. Quick Remember trustees, if a trustee of an express non-testamentary trust directly or indirectly conveys trust real property to himself or herself in an individual capacity, the title acquired is not marketable unless the trust instrument authorizes the conveyance. Michigan Land Title Standard 8.7.
By Matthew A. Quick Before acting on the hope of reconstructing your condo, consider what the court held in Picerno v 1400 Museum Park Condominium Association. Owners of adjacent condo units sought to construct a common front door in the hallway of the condo complex and connect their two entrances. The court held that particular modification would diminish ownership interests of other condo unit owners, per declarations that each owner has an undivided interest in common elements. The Condominium Property Act requires that renovations are subject to limitations in condominium instruments, therefore the condo owners that wanted to renovate should have complied with the requirements of the condo declarations, which in this case, were to seek approval of board and of other condo unit owners.
By Matthew A. Quick Avoiding probate seems to be the goal in everyone's mind and, most often, for good reason. Although probate may be necessary at times, it can be time consuming, public and costly (with probate court fees and costs and publication fees alone averaging approximately $800 for an estate with property worth $200,000).
Remember, probate is the court process of distributing the property of someone's estate (what someone owns at death). If there is a will, the probate process distributes property pursuant to it. If there is not a will, the probate process distributes property pursuant to state law. A common misconception is that a will allows an estate to avoid probate. In fact, the opposite is true. In order for a will to be used, it MUST go through the probate process.
There are two main alternatives to relying on probate (that is relying on only a will or nothing at all). The first is the use of a trust, which is an agreement that requires a trustee to hold property for the use and benefit of someone else. Trusts are a great utility for families with loved ones that have special needs or minor children, because of certain protections and distribution provisions that are offered. However, sometimes a trust is not necessary.
If someone has basic wishes for distribution of his or her estate, designating beneficiaries on the titles of the property he or she wish to distribute is the effective and efficient alternative. Beneficiary designation works in the following way: as for a deposit account (checking, savings, investment), a "Transfer on Death" provision can be added allowing the owner of the account to give the funds of the account to another upon his or her death; as for a house, a deed can be written to create an interest for someone else upon death by use of a Lady Bird provision (a provision that states the owner shall own the real estate for his or her life and do with it whatever he or she pleases, but if the owner continues to own the real estate upon death, the real estate shall be transferred to certain beneficiaries); as for vehicles, a form can be filed with the Secretary of State by a spouse or heir (for more info on this click here); and personal property may be transferred before death or entrusted to someone to help distribute it after death.
Ask your attorney to help because beneficiary designation can be a bit daunting, but, if done correctly, it can save time and money.
NOTE: a will should always be prepared as a safety net, even if a trust or beneficiary designation exists. If an estate is planned to avoid probate, and organized appropriately, the will is not used.
By Matthew A. Quick
For a more general article on real estate tax proration go here.
Property taxes in Cook County are annually paid in two equal installments and are paid in arrears, which means the taxes paid in 2011 are really for government services rendered in 2010. Since Cook County has adopted an accelerated billing method, the first installment of taxes is 55% of the previous year's total tax amount. It is considered accelerated billing because a tax is levied on real estate without the County ascertaining the tax rates (in other words, a portion of the tax is paid before the amount of tax is calculated). Therefore, the first installment of taxes alone cannot be used to determine the entire year's tax obligation, because the entire year's tax obligation has not yet been calculated.
To prorate Cook County taxes for a home sale, one must look to the last ascertainable full tax year. For example, if a home was bought in May of 2011, at a time when the taxes for 2010 were being paid, then 2009 will be the last fully ascertainable tax year, because the second installment of the 2010 taxes had not yet been calculated. Once the most recent fully ascertainable tax year has been found, look to the real estate contract to see if a the taxes should be prorated at a higher amount than 100% (typically taxes are prorated between 105% and 115% of the most recent fully ascertainable tax year). Finally, determine the closing date, because this will be the last day for the seller, and the first day for the buyer, to take advantage of the government services afforded by the taxes. Now let's prorate:
Let us assume that the closing date was set for July 15, 2011. The last fully ascertainable tax year was 2009 and the total tax for that year was, let's say, $10,000. Additionally, we will assume the real estate contract calls for a 110% proration. NOTE: the second installment for 2010 has not yet been calculated or paid, but we know the first installment was in the amount of $5,500 ($10,000 x 55%). The calculation follows:
Second Installment for 2010 is determined by multiplying the last fully ascertainable tax year ($10,000) by the 110% proration factor (10,000 x 1.1 = 11,000). Subtract the amount already paid for 2010 (11,000 - 5,500 = 5,500). Thus, the prorated amount for the Second Installment of 2010 would be $5,500.
The days leading up to closing is determined by again multiplying the last fully ascertainable tax year ($10,000) by the 110% proration factor (10,000 x 1.1 = 11,000). Determine the amount of days from January 1, 2011, to July 15, 2011 (195 days). Reduce the amount of tax (11,000) to the amount of tax per day (11,000/365 = 30.137). Multiply the amount of days by the amount of tax per day (195 x 30.137 = 5,876.72). Thus, the prorated amount for the days spent at the property for 2011 would be $5,876.72.
The total amount of tax based upon this proration would be $11,376.72.
This tax would be sent from the seller to the buyer, because, as noted above, Cook County assesses taxes in arrears. This means, up until the point of closing, the seller has had the benefit of government services without paying for them.
By Matthew A. Quick Terminating the lease of a tenant can be tricky, mainly because of the rules involved. The situations where particular attention needs to be paid concern tenancies from year to year, month to month, and week to week (these tenancies are also known as a periodic tenancies).
If a periodic tenancy is year to year and does not involve farmland, 735 ILCS 9-205 states that:
60 days' notice, in writing, shall be sufficient to terminate the tenancy at the end of the year. The notice may be given at any time within 4 months preceding the last 60 days of the year.
If a periodic tenancy is year to year and involves farmland, 735 ILCS 9-206 states that:
The notice to quit shall be given in writing not less than 4 months prior to the end of the year of letting. Such notice may not be waived in a verbal lease.
The statute then prescribes the following notice:
You are hereby notified that I have elected to terminate your lease of the farm premises now occupied by you, being (here describe the premises) and you are hereby further notified to quit and deliver up possession of the same to me at the end of the lease year, the last day of such year being (here insert the last day of the lease year).
Alternative rules exist if the real estate involved is farmland and the lessor is a life tenant.
For a periodic tenancy from week to week, where the tenant holds over without special agreement, 735 ILCS 9-207 provides, "The landlord may terminate the tenancy by 7 days' notice, in writing, and may maintain an action for forcible entry and detainer or ejectment." Further, involving periodic tenancies other than week to week that are less than one year, the statute provides, where the tenant holds over without special agreement, the "The landlord may terminate the tenancy by 30 days' notice, in writing, and may maintain an action for forcible entry and detainer or ejectment."
735 ILCS 9-208 further states:
Where a tenancy is terminated by notice, [under the sections detailed in this article], no further demand is necessary before bringing an action under the statute in relation to forcible detainer or ejectment.
By Matthew A. Quick The court in The Board of Directors of the Warren Boulevard Condominium Association v Milton, found that an eviction complaint was appropriate when filed by condo association against condo owner where she failed to pay $4,484.00 in assessments and sought possession of condo unit and rents accruing through trial, costs, and attorneys fees. Condominium Property Act allows for forcible entry and detainer action to be filed, based on unpaid assessments, and court properly ordered condo owner to pay monthly $178 assessments during pendency of lawsuit.
By Matthew A. Quick For those that have real estate that they wish to be owned by an entity (a good idea for the sake of liability, tax and succession planning), the most beneficial entities to consider are generally neither S Corporations, nor C Corporations. Only a Partnerships or LLCs have the benefit of making a 754 Election, which provides a step up in basis upon the death of an owner. A step up in basis reduces the taxable gain on a future sale, thus reducing the eventual tax.
By Matthew A. Quick The court in K. Miller Construction Compay, Inc v McGinnis iterated that oral contracts are enforceable and quantum meruit relief is available even if the Home Repair and Remodeling Act was not followed. Specifically, the Act states that “[p]rior to initiating home repair or remodeling work for over $1,000, a person engaged in the business of home repair or remodeling shall furnish to the customer for signature a written contract or work order.” The court opined that recovery is available under both theories listed above even if the the agreement is not in writing.
By Matthew A. Quick The court in Hirsch v Optima, Inc, 397 Ill App3d 102 (2009) found where a builder knew of leaking and flooding problems of a condominium and told owner to not disclose leakage, a claim for fraudulent misrepresentation and consumer fraud can stand where indirect misrepresentation is alleged. Negligent performance of voluntary undertaking can be established without element of reliance, if theory is that tortfeasor's conduct increased risk of harm.