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Residential Real Estate Transaction Law Blog

Real estate and property law since 2003

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A spouse automatically inherits the house from their deceased spouse, right?

The answer is no.  It is not automatic and surviving spouses can be in a bind if they aren’t prepared.   Ideally, spouses are  listed as “joint tenants with right of survivorship” on the vesting deed.  If this is the case, then the surviving spouse automatically becomes the owner of the property.  This is also true for any co-owners of…
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Heir to a Reverse Mortgage

When a person passes away, the heirs must decide if they want to sell the house or convey it to an heir.  With a regular mortgage, heirs have three options: Keep paying the mortgage of the deceased person until an heir assumes the loan Sell the house to a third person  Let the house go…
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Sometimes Foreclosure is Exactly What You Want

Regular mortgages require the borrower to be personally responsible for the note.  If the borrower is in default, the bank will foreclose on the property and sell it to recoup the loan amount.  If the bank sells the house for less than the amount due on the loan, the bank can file for a deficiency against the…
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Recording Fee Overages

When you receive a small check for $2.00 or less in the mail, do you always deposit it?  Or do you throw it away? Most closing attorneys have borrowers sign a statement at closing that allows the attorney to keep any overage for recording fees.  This could give an incentive to over-estimate recording costs.  Origin…
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Changes to Recording Fees in the State of Georgia

Things don’t often change with real estate recordings.  In fact, it’s been over 20 years since recording fees changed in Georgia.  But times are changing and Origin Title and Escrow is prepared before they happen.   Currently, one- or two-page deeds cost $10 or $12, mortgages cost about $60 to record and liens are about $10 to…
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Don’t Be Fooled by Last Minute Changes

Wire fraud is a real – and growing – danger for individuals who are buying homes. In 2018, fraudulent wire transfers stole $423 million from US consumers.  The scammer’s favorite tactic involves sending an email to the buyer, telling them to use the new wiring instructions enclosed. Buyers often don’t think to verify the information, they…
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Tenancy Status Varies by State

In Georgia, people who buy homes together typically choose to declare joint tenancy with right of survivorship. This status guarantees that upon the death of one owner, their ownership interest immediate transfers to the survivor, without the need for probate. In Florida, homeowners can choose to declare tenancy by the entirety. In this circumstance, the…
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Have Refi? Will Travel.

Everyone has heard of the real estate transaction that blows up at the closing table. The reasons vary widely, but in our office about 95% of all purchase transactions close.  With purchases, both the buyer and the seller are typically very motivated to see the sale through, so problems that arise are taken care of, so…
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Who holds the earnest money in a For-Sale-By-Owner transaction?

When a buyer enters into an agreement to purchase a home, the sales contract specifies the amount of earnest money paid and who will hold said earnest money. Should the seller be the person designated to hold the earnest money?  It is more prudent to have a real estate agent or closing attorney hold the earnest…
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Remember the movie Brazil?

The rogue handyman, Harry Tuttle, played by Robert DeNiro, didn’t follow the rules because he hated the paperwork.  The paperwork found him on the street one day and he eventually disappeared in the mass of papers. People selling their house without an agent can feel as if they are being buried by paperwork, but the biggest…
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When there’s no real estate agent, how does a buyer begin the buying process?

Once the buyer has decided on the house of their dreams, they need to make an offer to the seller. An offer is simply a sales contract signed by the buyer and sent to the seller.   The contract will give the seller a set number of days to respond by agreeing to the contract, or making a…
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Understanding regulations before a home purchase

 A home buyer can decide to undertake the purchase without the benefit of a real estate agent, but if they do, they take on the responsibility for understanding the local and federal regulations that will apply to their transaction. While everyone is most focused on the money that is changing hands, that’s just one of…
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Is it a mistake to do a deal when the property is “for sale by owner”?

We don’t recommend it, but it is possible to buy and sell a house without a real estate agent.  Even without an agent, a closing attorney is required to complete the sale. The closing attorney will draft and review the sales contract and make sure the transfer of ownership is handled correctly.   Often a person…
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A 10-DAY WINDOW FOR COMMERCIAL WATER BILLS

Restaurants are sure to need water service.  When a restaurant owner rents or buys real estate, they may inherit the past due water bill for the property. A commercial water bill can be high — $10,000 to $20,000 is common. Even if the bill is technically owed by the previous owner or tenant, the county…
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WHEN CAN WATER GET IN THE WAY OF A COMMERCIAL REAL ESTATE CLOSING?

When it comes to potential surprises at the closing table, water bills are worse than unexpected fees because they automatically become liens on the property.  Commercial and residential water bills are treated very differently.  For residential property, if the water bill is in the owner’s name then it becomes a lien on the property. For…
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WHAT IF THE SELLER’S MORTGAGE ISN’T PAID & CLOSED WHEN YOU BUY A HOUSE?

Imagine this:  a couple buys a house in September, 2016. Unbeknownst to them, the seller opened an equity line of credit using the house as collateral in May. The title search was performed the buyer’s chosen closing attorney on September 20, perfectly in line with the usual process.  The lender didn’t file the equity line…
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HOA FEES DISCLOSED COMPLETELY, OR ELSE SELLER PAYS

In 2019, the Georgia Association of Realtors took steps to make sure that all Homeowner Association fees are fully disclosed to the buyer. The contract states that any HOA fee that isn’t disclosed properly will be paid by the seller. This keeps the buyer from being surprised at closing with unexpected fees. HOA management companies…
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MAKING SURE THERE ARE NO SURPRISES ON MOVE-IN DAY

When a prospective buyer sees a home with a luxury brand French-door refrigerator in the kitchen and the seller’s disclosure indicates the refrigerator stays with the home, said buyer understandably assumes that nice refrigerator is part of the purchase. Sadly, some unscrupulous sellers took advantage of the “loophole” in the seller’s disclosure, and substituted another…
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PAYING EARNEST MONEY WITHOUT A CHECK

ACH (Automatic Clearing House) transfers push money from one bank account to another, and it can go two ways. An ACH transfer can send money to an account and it can pull money out of an account. A wire transfer sends funds from one account to another, but it is always a one-way transaction. It…
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WHAT IS AN IOLTA ACCOUNT?

Real estate attorneys have a separate IOLTA escrow account to receive and disburse all funds involved with a real estate closing. IOLTA stands for Interest on Lawyers Trust Account and it means that the money in that account does not belong to the attorney.  Interest earned on the account also does not belong to the…
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DO ESTATE ATTORNEYS NEED TO DO TITLE SEARCHES?

Estate attorneys often try to prepare deeds for their client, and it rarely turns out well. In our office, we often see Executor’s Deeds, Quitclaim Deeds, or Administrator’s deeds on record captioned with this statement: “Estate Attorney prepared the deed without a title search”. While recording a deed without a title search will save their…
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WHO PAYS PROPERTY TAXES WHEN A PROPERTY IS SOLD IN GEORGIA?

Each state does property taxes a little differently. Some states don’t send a property tax bill until after the year is completely over. In Georgia, the 2018 property tax bill covers the time from January 1, 2018 through December 31, 2018. If the property sale closes before the tax bill is mailed, the seller pays…
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SUPER LIENS OUTLIVE FORECLOSURES

Unpaid real estate property taxes never get “forgiven” or wiped out in a foreclosure. They are super-liens that always have priority and stay attached to the property, no matter what.  In some jurisdictions in Georgia, water bills in the name of the property owner enjoy the same super-lien priority as property taxes. If a buyer…
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PAYING OFF YOUR MORTGAGE EARLY MAKES YOUR APR GO UP

The annual percentage rate, or APR, is the total cost of borrowing money over the full term of the loan, expressed as a yearly number. You’ll find it on page 5 of the closing disclosure, with the proviso that “this is not your interest rate.”  The purpose of the APR is to make it easier…
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DO CLOSING ATTORNEYS CHARGE JUNK FEES?

Sadly, yes – some closing attorneys do add what we would consider “junk fees” to the costs of closing a real estate loan. We worked with a client who was the seller in the transaction and used the closing attorney the buyer had stipulated in the sales contract. That attorney added a $250 charge to…
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DOES TITLE INSURANCE COVER THE GAP BETWEEN THE TIME OF CLOSING AND THE RECORDING OF THE PAPERWORK?

Yes, title insurance covers liens, mortgages, or other claims filed in the public records against the property prior to the closing. Here are two examples: A seller took out a Home Equity Line in July. The lender did not file the Security Deed/Mortgage until October 10th. The seller sold the property on October 14th. The…
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WITH A REVERSE MORTGAGE, CAN I LOSE MY HOUSE IF THE LENDER GOES UNDER?

When a borrower seeks a reverse mortgage, they are still getting a loan that uses the house as collateral. Instead of making payments toward paying off the loan, they receive distributions (like a line of credit) from the lender. If a lender goes out of business and is unable to service the loan – and…
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ARE PROPERTY TAXES PAID FROM AN ESCROW ACCOUNT WITH A REVERSE MORTGAGE?

Reverse mortgage loans do not require an escrow account, because the borrower receives money, rather than making payments. Since conventional mortgages are usually set up to include property tax and homeowner’s insurance, how does the reverse mortgage loan holder pay for those elements?  The borrower acquires and pays for insurance independently, and pays taxes directly…
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CAN REVERSE MORTGAGE FUNDS BE USED TO FUND ANOTHER INVESTMENT?

A reverse mortgage allows the 62+ year-old homeowner to refinance their home and receive the equity as a line of credit or a payout directly to them. Its purpose is to give seniors a chance to use the equity in their homes to help with living expenses, and it closely resembles a home-equity loan. And…
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GEORGIA DEPARTMENT OF REVENUE LIENS

In 2017, the Georgia legislature passed a law changing how we searched liens filed by the Georgia Department of Revenue. The law initially required a ‘clearance letter’ from the Georgia Department of Revenue before any deed could be filed.  Thankfully this was repealed and replaced in 2018. The GSCCCA is an on-line statewide searchable database for lien and deed…
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LIENS NOT RECORDED AT THE COURTHOUSE

We perform a title search for every refinance or purchase closing. There was a time when someone searching titles could get all the needed information at the courthouse.  That time has passed.  Deeds, mortgages, and most liens are still recorded in the real estate records at the courthouse, but several other items also need to…
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PROTECT YOUR MONEY FROM WIRE FRAUD SCHEMES DURING CLOSING

Sending an e-mail is like mailing a post card. Unless it is encrypted, there are ways other people can read the message and see what is in it. Even though e-mail is easy, it also has its dangers. Anyone in the world can try to read it, and even change what was written. Criminals who…
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REVERSE MORTGAGE BASICS

Reverse mortgages have been around since the late 1980’s. Almost all reverse mortgages are FHA insured and follow strict guidelines. The program was designed to keep seniors in their house as long as possible and to make the equity in the house available without selling it. There is a lot of mis-information on reverse mortgages.…
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Origin Title: Approved Attorney

These are a few of the more than 30 lenders who have approved Origin Title for residential loan closings on their behalf.

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Origin Title ~ Body of Work

Since 2003, John C. Bennett has performed thousands of closings.

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APPROVED LENDERS

Updated 12/3/2019

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