Understanding the Basics of Real Estate Evictions

real estate evictionsMoney and personal property are both sources of contention in all sorts of relationships, so it’s no wonder why it can sometimes be difficult to find a landlord/tenant relationship that isn’t fraught with tension. It can be easy for each party to get frustrated with the other, but no matter how strong the temptation for retaliation might be, it’s important to remember that there are laws in place for real estate evictions to protect everyone involved.

Landlord Disclosures

Landlords are required by Illinois law to disclose specific information to tenants, such as how utilities will be billed if tenants are made to pay a portion of a master metered utility for the building. One common example is the water meter. This information would usually be included in the lease or rental agreement.

Security Deposit Restrictions

Most states don’t have laws that limit the amount landlords can charge for security deposits, but there is a limit on how long after the tenant moves out the landlord can wait before returning the security deposit. In some states, the limit might be 30-45 days after the tenant has vacated the premises. The range is to account for delays landlords might experience if they include an itemized statement and receipts, or if the tenant disputes any deductions made from the security deposit.

Tenants can take their landlord to small claims court for failure to return a security deposit. The law allows tenants to sue for up to $10,000. So, if you’re a tenant looking to sue for a missing security deposit, or a landlord looking to defend yourself against a suit for a missing security deposit, talk to an experienced real estate attorney in your area.

Rent

There are several state laws regulating rent, including the amount of notice landlords must provide their tenants before raising the rent, and how many days a tenant must be given to pay rent or move before the landlord can file for eviction.

Eviction

Despite the Hollywood image of landlords dumping tenants’ belongings on the side of the street, the law is very specific about how and when landlords can evict their tenants. First, a landlord must be able to prove that the tenant failed to abide by one of the terms of the rental agreement. Then the landlord must give the tenant a specified time period to move out before they can file for eviction. These laws vary from State to State, so it is important to consult an attorney if you need help with this issue.

Personal Property

The law lays out specific procedures landlords must follow when renters leave property behind after moving out. If you’re a landlord with this problem, be sure to check all the relevant state and local laws for your area before touching your tenant’s personal property.

Tenant Protections

Federal and state rental laws are also careful to protect the rights of tenants. In addition to fair housing laws that prohibit discrimination, special protections are usually granted to victims of domestic violence. The law also forbids landlords from retaliating against a tenant for exercising any right granted them under the law, for example, complaining about unsafe living conditions.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

How Does Divorce Affect Your Credit Rating?

Credit RatingDivorce does not directly affect your credit rating. There’s no factor for divorce or marital status when calculating credit, but divorce does cause a lot of upheaval, specifically to your finances.

As if the stress of ending a marriage wasn’t bad enough, the impact of the financial strain that tends to result can hurt your credit score. Going from two incomes to one can make it hard to pay all your bills on time, and if you fall behind, that will hurt your credit.

The first thing you need to do when separating from your spouse is to come up with a new budget that takes into account your reduced income. If you’re expecting any child support or alimony as part of the divorce settlement, do not include it in your budget. Many spouses avoid making these payments as a form of revenge against their ex-spouse, regardless of what the court order says, while others are simply unable to make the payments due to their own financial circumstances. Either way, you’re better off not depending on that income.

Joint accounts that have both your name and your ex-spouse’s name can also be problematic, as can shared debt. Judges generally assign one spouse to be responsible for handling the account/debt, but your credit score doesn’t know that, nor does it care. As long as your name is on that account, your credit score will be affected by it. In some cases, when divorces get nasty, people will intentionally avoid paying off debt in order to hurt their ex-spouse’s credit rating. Of course, doing so also hurts their own credit rating, but people rarely act rationally when they’re hurt and angry.

For this reason, you will want to keep track of all accounts that bear your name, even if you’re not the primary account holder. It’s a good idea to at least make the minimum payments, then ask the court to order your ex-spouse to reimburse you for those payments.

Remember that joint accounts aren’t the only accounts that can affect your credit score. Any accounts on which you are listed as a cosigner or authorized user can also be used to hurt your credit score. Make sure all your accounts are in order when going through a divorce, and leave no stone unturned when making sure your name is only associated with the accounts for which you are directly responsible.

For this reason, when dividing up assets and responsibilities in the course of a divorce, it’s best to get one name completely removed from any joint accounts you held with your spouse during the marriage. Whether that means getting your name removed from accounts for which they are now responsible or vice versa.

Alternatively, you can simply close those accounts (both over the phone and in writing, and make sure you have a copy) and ask them not to reopen the account. The best way to regain total control of your finances after a divorce is to make sure your name is only associated with the accounts for which you are responsible, and that the accounts for which you are responsible bear only your name.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Dividing Property That Is in A Trust During Divorce

Dividing PropertyAny property acquired during the marriage is generally considered marital property – meaning both parties have an equal claim on the property – but that’s not always the case with trusts. A trust is a piece of property that is managed by a trustee for a beneficiary. The piece of property funding the trust can be anything from cash to real estate.

There are a variety of reasons someone might want to create a trust. In some cases, they may just want to avoid paying taxes on the property, or they may want to pass it along as an inheritance while avoiding going through probate court. Protecting certain assets from spouses in case the marriage doesn’t last may be the reason behind creating a trust, or it may just be a benefit if that sad day comes.

Trusts received as a gift or part of an inheritance are generally considered separate (non-marital) property, rather than marital property, under Illinois law.

Trusts acquired before marriage are generally not considered marital property unless the funds have been distributed and commingled with marital property. For example, if any funds from a trust had been deposited into a joint bank account shared by both partners, then it would be considered to have commingled with marital property, in which case a judge may consider the trust marital property when dividing assets.

Any property or assets acquired during divorce is generally considered marital property, regardless of whose name is on the title or listed as the beneficiary. This can be true of trusts as well, but there are some exceptions, namely the revocable trust.

Trusts can be revocable, which is when the grantor (creator of the trust) reserves the right to cancel the trust at any time. Beneficiaries of revocable trusts cannot access funds from the trust, which is one way for the grantors of trusts to help provide for a loved one while keeping the funds safe from that loved one’s spouse or ex-spouse.

Sometimes a spouse will create a trust and name the other spouse as the beneficiary as a way to leave something to the beneficiary if something were to happen to the grantor first. Such a trust can be created out of either marital or non-marital property, but either way, once divorce proceedings have begun, the trust is usually revoked and the property reverts to its previous status as either marital or non-marital property.

But most revocable trusts are not automatically revoked in the event of a divorce under Illinois law. If the property used to fund the trust was marital property, then the trust can be revoked in order to finish dividing the marital assets, but any trust assets that were not already set to go to an ex-spouse will automatically be revoked.

If the grantor is the one getting divorced, then all provisions of that trust pertaining to the grantor’s spouse, and which are revocable by the grantor, do get revoked. This includes any gifts or interests in property.

Although the beneficiary of a divorce may succeed in keeping all their rights to that trust secure, if there are children involved, the value of that trust will be included when calculating child support and/or spousal maintenance (alimony).

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What to Do When an Executor Fails to Carry Out the Will

carry out the willAn executor’s job is to carry out the will, meaning he or she will execute the will and handle the estate of the deceased by carrying out their wishes. This can include paying debts and taxes and distributing the assets to the beneficiaries in accordance to the instructions of the will. It is the responsibility of the of the executor to do these things in a timely manner, and act in the best interest of the beneficiaries.

But what happens if the executor isn’t doing their job? Can they be removed from their position? There are many things you should do if you find that the executor isn’t doing their job properly.

Know the Timeline to Settle an Estate

When a loved one passes away, you probably start to wonder how long it takes between the time the will is read and when you will get your inheritance. It depends on how complex the estate is, and the process can take anywhere from a few months to a few years. The executor can only disperse the assets of the estate after the property is evaluated and all the debts and taxes have been paid. The executor can be held personally liable if the inheritances are paid first and there isn’t any money left to cover debts and taxes.

Determine If You Have a Case

You should first try talking to the executor about your concerns. If that doesn’t work, you may have to take legal action.

To have an executor removed from an estate you need to be able to show that they are not living up to their responsibilities of their job or that they are doing something that isn’t legal. The court may remove an executor for the following reasons:

  • They are no longer eligible because they have been convicted of a felony after being named executor
  • They are no longer suitable because they have a conflict of interest
  • They have failed to carry out the wishes of the deceased or they haven’t done anything at all
  • They mismanage the estate by stealing from the estate or wasting assets

The executor must commit a serious infraction for the court to act. Taking a long time to settle the estate is not considered a serious infraction on its own. It must be in addition to one of the examples above. In most cases, you must wait a little longer to get your inheritance.

Seeking Legal Recourse

If you believe that the executor is not living up to their duties, you have two legal options: petition the court or file a civil lawsuit.

Beneficiaries can petition the court to have the executor removed from their positon if they can prove they should be removed for one of the reasons listed above. The court will have a hearing where the parties involved can tell their side of the story. Afterwards, the court can remove the executor and appoint another one if they find just cause.

Your other option is to file a civil lawsuit against the executor if you can prove that you have suffered due to their actions, or lack of actions. For instance, this would be an option if the executor has stolen money or failed to protect the assets of the estate. There is always a chance you will be able to settle before ever seeing the inside of a courtroom.

No matter where you are in the process of settling an estate, you need to speak to a qualified estate planning attorney if you have any concerns at all. At Sherer Law Offices, our attorneys will advise you and guide you as to what to do if you find yourself in this difficult situation.

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Why Contract for Deed is Good for the Buyer, Bad for the Seller

contract for deedA contract for deed is an agreement for buying property without going to a mortgage lender. The buyer agrees to pay the seller monthly payments, and the deed is turned over to the buyer when all payments have been made. It is simpler and cheaper than getting a mortgage yourself, but it isn’t risk free.

Benefits for Buyers

If you are unable to qualify for a mortgage because of a past bankruptcy or lack of employment history, a contract for deed could be the right solution for you. If the seller is willing to do business with you that is really all you need. You will possibly have more freedom for negotiating a down payment and you won’t have to pay any closing costs, origination fees, or other fees that are involved with taking out a mortgage. With a traditional mortgage, if you default, the lender could demand you pay off the entire loan even if you make up all of the missed payments. A seller using a contract for deed doesn’t have that option, unless you agree to include that clause in your contract. Other benefits include: no loan qualifying, low or flexible down payment, favorable interest rates and flexible terms, and a quicker settlement.

Risks for Buyers

The biggest risk when buying a home contract for deed is that you really don’t have a legal claim to the property until you have paid off the entire purchase price. This means that if you default and can’t make your payments, you lose the property and all of the money you have already paid into it (often including repairs and improvements). Unlike a traditional mortgage, a defaulting buyer in a contact for deed may only have 30-60 days to cure the default or move out. Another major risk is that the seller can still encumber the property with liens and mortgages as they are not required to transfer good clean title until the completion of all payments under the contract. In addition there are also very limited disclosure/inspection rules which means that a buyer who doesn’t perform a thorough inspection of the home could end up with a home that has significant defects which require substantial repairs.

Benefits for Sellers

A contract for deed offers you a way to do business with a buyer who can’t qualify for a regular mortgage. The process is usually faster than a regular mortgage sale. If the buyer goes into default, you can terminate the contract right away without having to go through all of the legal procedures that are required for a mortgage holder to foreclose on a home. Other advantages include: no appraisal required, wider range of buyers, possible profit on financing, and quicker settlement.

Risks for Sellers

The biggest disadvantage of a contract for deed for a seller is that the property won’t be out of your name for many years. This quite possibly won’t suit your investment strategy. You will also be waiting until the contract is fulfilled to receive all of your money, instead of having an immediate payment of the total purchase price from a traditional mortgage company. Other risks include: the loan stays on your credit report, the seller is still liable for the loan, risk of non-payment by the buyer, and the buyer never goes through a formal application process like with a regular mortgage. In addition, the seller is still the legal title holder and if the buyer fails to keep the property up to code and ordinance requirements, the seller could be subject to fines, lawsuits and other legal problems as a result of same.

Flexibility for Both

The terms of a contract for deed are flexible, depending on what each party works out between them. The length of the contract and the amount of monthly payments are up to the buyer and the seller to agree upon. Depending on the exact terms, this flexibility could be a pro or a con.

 If you are the buyer or the seller of a home, and you chose to use contract for deed financing, you need to enlist the services of a qualified real estate attorney. At Sherer Law Offices, our attorneys will draft the appropriate disclosures and indemnities to protect all parties involved

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How to Purchase Investment Property That Has Legal Issues

investment propertySo, you have decided to make the biggest financial decision of your whole life by buying an investment property. However, you have concerns about the legal issues that others have had in recent years. Maybe the property is underwater, or the rental income doesn’t cover all of the expenses associated with the property, or maybe the mortgage payments have become unaffordable.

You aren’t alone. Even though those issues are there when buying investment property, there are many more. Despite the fact that these issues have been around forever, it is only recently that buyers have been getting better about doing their due diligence and taking the time to work hard to lower the risk on real estate. The process is really not that complicated, but it is time consuming. The following is a list of things that should be on your due diligence list to lessen the chance of something going wrong with your investment.

Understanding the Purchase Process

A buyer should have a complete understanding of the purchase process right from the beginning. Review the contract as early as possible before you sign it. Make sure you understand how to shop for the right property, make sure you know about making an offer, contingencies, appraisals, financing a mortgage, and when the earnest money deposit becomes “at risk”.

Does it Make Sense Financially?

Start by jotting down the deal. You need to determine the amount of cash you will invest and what rate of return you project to be earning. Bank CD’s pay 1%, Bonds pay 5%, while real estate is riskier. So what should you be earning? Five percent is the suggested amount. Farther down the road appreciation value may come up, and it will most certainly help, but let’s count the cash first.

What about buying vs renting? There are a few simple guidelines to consider. If you plan to own for less than five years, you should keep renting. You will not be throwing away money and it will be less stressful. Buying for the long term is the best move you could make. And don’t buy just anything to be buying something – buy the property you fall in love with that will make you happy in the long run.

Be a Smart Shopper

Are you hoping to grab a deal of a lifetime on a foreclosure or short sale? If you are after a great deal at an auction, it only wastes your time and energy chasing something that has little chance of success. Skip past the get-rich-quick schemes. Go with a more conservative approach and shop for a traditional sale.

Income and Real Estate Taxes

If you are buying to save money on your taxes, you should know that many couples guying under $300,000 get little in tax savings. People with a higher income and more expensive property get the bigger tax benefits. Meet with your CPA or an experienced real estate attorney to determine if there are any tax benefits you can earn.

Getting a Fair Deal Financing Your Mortgage

If you can get financing, it has become easier to get a fair deal because of the new federal regulations. Even so, you should understand your Good Faith Estimate and how to take it apart to make sure you get that fair deal. Mortgages are long term, so take the time necessary to talk to a couple of different lenders, understand your mortgage, and make a good decision.

Homeowners Association (HOA)

This is an item that most buyers don’t know to review. The finances and the operation of an HOA are becoming a huge risk issue these days. If you don’t take the time to review them and understand them, you may get a big surprise in the form of drastically higher fees or special assessments in the years to come. Meet with someone that can help you decipher them. A qualified real estate attorney can help you with that. The ultimate goal is to avoid a community where the HOA is in really bad shape.

Fix Up Costs and Home Inspections

One of the most important things you can do as a buyer is to have a home inspection done. During this process, you should be putting together a list of what needs to be fixed and/or replaced. You can then take your list to a home improvement store and get an idea of the total cost of bring the property up to your standards. This will also help you to negotiate and seller’s credits and/or terminate the deal if the costs are too high.

Title Issues and Lot Lines

This is another item people tend to neglect paying attention to. Even though the risk of an issue is very low, the loss potential is huge. Take the time to review your title abstract and the plat or survey of the property, then take a walk around the property. It could save you endless financial stress in the long term.

Buyer Beware!

If you take the time to learn the risk issues and do your due diligence before you purchase property, you can greatly reduce your risk of something going wrong. While it can be a lot of hard work, it will be much easier than trying to straighten out a big mess after you close the deal.

Investing in real estate is a huge step. At Sherer Law Offices, our experienced real estate lawyers will help guide you through the process to make your real estate investment as smooth as possible.

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Can My Spouse Lease Out Our Rental Property Without My Consent During a Divorce?

rental property during divorceThe answer to this question, simply put, is no. When it comes to owning property, a married couple has to abide by the same rules that two business partners would, which means you both have to get the other person’s permission to take any action involving your property.

Basic Facts

Under Illinois law, all property acquired during the marriage, is considered marital property, regardless of how the property is titled. For most couples, when they buy property, they sign documents involving ownership and payment agreements. But even if you aren’t on the title to property, the house is presumed to be marital property if purchased at any point after the date of marriage, with some exceptions. Also, if you and your spouse took out a loan to pay for the property, you would have signed a document stating that you are both responsible for the monthly loan payment. Again, the same rules apply to debts in a marriage as property: if the mortgage was signed after the date of marriage, it is a marital debt even if only one spouse is on the loan itself.

Because a house that was acquired after the marriage is marital, you and your soon-to-be ex must have each other’s permission to do conduct any sort of transaction regarding the property, particularly if you are going through a divorce. This is always the case unless the deed states that a certain percentage of ownership has been assigned to each spouse, or whether your spouse’s ownership percentage specifically allows them to act on their percentage without your permission.

Haven’t spoken to your spouse in a while? If you are estranged with your spouse, they must still get your permission to lease out the property. The lease will be null and void without your signature.

What Can You Do?

If you find out your soon-to-be-ex has rented the property without your permission, there are few things you need to look into. First, you should contact your mortgage lender to see if renting out the property is even an option. Some mortgage lenders to not allow subletting your property while you are paying your mortgage, and they will be able to take legal action to stop it. If you rent out your property without the permission of the mortgage lender, they can assess fees against you and even repossess the property. Finally, if your ex has been collecting rent, you can request half of the money collected, and you need to take legal action to get your portion, at minimum within the divorce proceeding.

If you decide to agree with renting out the property, you need to put in writing how the rent money will be divided in order to avoid lawsuits in the future. If you no longer wish to have any involvement in the property, you can file a quick claim deed in your county courthouse to have ownership rights transferred over. However, it is advisable to first ensure that your spouse removes you from any loans associated with the property before you relinquish your legal interest. Once you’re divorced and legally removed from the deed and any mortgages, you can be free of any further liability with the property.

Important Things to Know

Each state has its own laws governing how property is handled during a divorce. Illinois law requires that the division be equitable and fair, but note that this does not always mean “50-50” as many assume. As discussed above, it also depends on if the property is marital property or separate property. Just because property was acquired before the marriage does not always mean it stays separate property either, as sometimes marital property gets mixed together with separate property, causing a conversion to marital property. . If you are unsure about your property rights during a divorce, you need to seek the advice of a qualified divorce attorney to protect your rights.

Understanding property laws, marital law, and division of property during a divorce is not an easy task. You need the advice of a qualified attorney who practices in real estate law and divorce law. At Sherer Law Offices, our attorneys will advise you through the entire process so that you can get through this difficult time.
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5 Things to Remember if You Intend on Buying Rental Property

buying rental propertyBuying rental property can be a great way to build your wealth. There a very few differences between buying your own home and buying rental property. Here are a few things you need to know before you begin investing in real estate.

Do Your Homework

This part can be difficult because you might not know what questions to ask. Some of the questions you might want to ask include:

  1. What type of investment property are you interested in?
  2. How much property can you afford to buy?
  3. What neighborhood would you like to invest in?
  4. What is the average rental price for property in that area?
  5. What type of return on your investment are you looking for?

To answer these questions, you need to consult with some experts. Contact your banker or even a real estate attorney for advice and answers to your questions.

Make Your Plan

It is recommended that you put your plan down on paper to make it easier to refer back to when necessary. This is where you will decide how much house you can afford to buy. Set your price and stick to your goal. You don’t want to get distracted by a house that is way over your budget. By putting down your plan you will be able to stay true to your goals.

Pre-Arrange Financing

The most common mistake that home buyers make is not having arranged their financing ahead of time. If you go out searching for a home without having financing already in place, you run the risk of missing out on the perfect property. Having financing in place will also help you stay true to your goals, and your budget, by having a set amount to spend already in place. Be sure to talk to your banker about your spending limit before you go out looking for your rental property.

Find Your Property and Make an Offer

There are a lot of great ways to find a property to invest in. You can look on real estate sites such as Realtor.com or Zillow.com. You can even work with a real estate agent to find the property that is perfect for you. Typically, a real estate agent is paid by the seller when you buy a home. So for you, using your own “buyer’s real agent” is at no cost to you personally. (Note: This applies more to a home already listed by an agent, as a seller for a home “by owner” may be less negotiable on price if they agreed to pay your buyer’s agent commission.) A word of advice as well is that it might be helpful to find an agent that specializes in working with investors. They will be more aware of what makes a good rental property, and they will be able to help you stick to your goals by only showing you property that is in your price range.

Once you have found a property you would like to buy, the next step would be to make an offer. The real estate agent will complete the paperwork and submit the offer to the seller. There will most likely be some negotiation. Keep your purchase amount in mind and be willing to walk away if things don’t go your way. If you can’t agree on a price that is suitable for you, then it’s time to look elsewhere. Not having a deal is better than being stuck with a bad deal.

If you are successful with your offer, there are a few things you need to remember regarding the nuts and bolts of the purchase agreement. Some of these include the closing date deadlines, inspection contingencies and deadlines for requests to make repairs, the seller’s financial concessions, and more. All of these things are part of your offer and should be spelled out clearly in any well-written contract. Do your due diligence and do what you have to do according to your agreement with the seller. Also, it is always recommended that you hire an inspector to inspect the property. If something is found, you may need to go back and re-negotiate with the seller on who will conduct the repairs and/or whether there will be a reduction of sale price in lieu of repairs. This is an extremely important step, as you don’t want to get stuck with a property that eats into your expected profits due to costly maintenance issues.

You Are Now a Landlord

The deal has been done and now you are a landlord! Now it is time to learn how to rent out your property, how to be a successful landlord, and how to screen your prospective tenants. Some helpful links include:

There are so many things for you to consider when investing in a rental property. The smartest thing you can to is contact an experienced real estate attorney at Sherer Law Offices. We can walk you through the steps you need to make the best investment possible. We also will review real estate contracts and help steer you in the right direction for buying your rental property.

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Problems With a Neighbor’s Tree – What Should You Do?

chionanthus-virginicus-52809-auTrees can be a beautiful feature on your property, but they can also cause legal problems for a homeowner. If the limbs of your tree hang over your neighbor’s property or block a view, your neighbor can pursue legal recourse. Likewise, if you have trees planted between your property and your neighbor’s property, and the roots grow into your neighbor’s sewer lines, you could be legally liable for the damages.

If you are experiencing neighborly issues because of a tree or other landscaping, read on to learn more about your options for conflict resolution.

Trees and Trespassing

According to the Illinois State Bar Association, a property owner is entitled to the undisrupted possession and enjoyment of their property and the ability to use it as they choose. This is, however, subject to the rights of others.   These rights extend to both underground and above ground property rights.

Trespassing, as pertaining to the above scenarios, includes interfering with a neighbor’s enjoyment of their property, whether physical damage occurs or not. Something as simple as allowing a tree to intrude across your neighbor’s property line could be technically classified as trespassing.

Solutions for Problem Trees

Illinois law allows a homeowner to cut off branches from a neighbor’s tree if the branches are trespassing across the legal property line. This is providing that they use reasonable care in removing the branches and do not trespass in the process of doing the trimming. It is recommended that the neighbor who wishes to trim the tree first give some notice to the tree owner to avoid conflict escalation.

If the trespassing tree causes property damage, or if the removal of trespassing branches will cost a considerable amount of money, a neighbor can take the responsible homeowner to court. For the purpose of getting a court order to resolve the problem, the offended party can even go so far as to sue the homeowner.

Jointly Owned Trees

If the tree in question is right on the property line and neither current homeowner is responsible for the original planting of the tree, then it is considered to be jointly owned. You do not have the right to cut it down without your neighbor’s permission, nor can he/she cut it down without yours. However, if the branches of the tree are hanging over your side of the property line and may pose a hazard, you do not need permission to remove the branches.

Be a Good Neighbor – Communication is Key

Preventing the problem in the first place may be the best solution for all parties involved. You should talk to your neighbors prior to planting trees or anything else near the boundary of your property. If your neighbor has done something to their property that can possibly cause problems in the future, you should first try to discuss the situation with them.

If a tree that is entirely on your property causes damage to your neighbor’s property, you will be liable. You have the duty to be responsible and take any necessary steps to prevent your tree from causing damage to your neighbor’s roof or any other part of their property.

If you are having issues with your neighbor regarding who owns a tree or any other property dispute, speak with an experienced real estate attorney that can help you sort it all out.

CONTACT Sherer Law Offices today for a legal consultation.

What Is the Difference Between Joint Tenants and Tenants in Common?

Difference-Between-Joint-Tenants-Tenancy-In-CommonWhen two or more people share ownership of land or other real estate, each person owns an interest in the property. For this reason, Illinois law requires that co-owners of property make a decision about how the title of the property is held. In Illinois, a title can be held in three ways: tenancy by the entirety, tenants in common, or joint tenants with the right of survivorship. The type of title assigned to a property will define the rights and authorities of outside creditors, and it will also affect how the property is transferred upon the death of an owner.

Tenancy by the Entirety

Tenancy by the entirety in Illinois is a means of holding title that is exclusively available to married couples. One of the benefits of this type of title is that it affords extra protection to marital property against some creditors.   For example, the property under this title may not be divided, sold, or otherwise encumbered for any non-joint debts of a husband and wife without the consent of both spouses.

While there are benefits to holding title as tenants by the entirety, the guidance of an experienced attorney who concentrates in real estate and contract law is recommended to establish this form of title.

**Important: Illinois law does NOT offer an automatic tenancy by the entirety provision for married couples that share a home as joint tenants. Instead, the courts require that specific terminology be employed in the deed to create this form of tenancy.

The two more common forms of holding title are as tenants in common or as joint tenants. Here are a few important differences to remember between the two.

Tenants in Common

A title held as tenants in common is the most basic form of title. In Illinois, this form of title is considered to be the default if no other specifications of ownership are defined.

Tenants in common usually have different interests in ownership of the property. For example, Bob and Stan may own 25% each, while Steve owns 50%. Tenants in common may also acquire ownership at different times. However, these “fractional interests” do not mean that any one owner is entitled to use the property more than the others. The equal use of the property is known as unity of possession.

Tenants in common each hold independent ownership interests. This means that each owner’s share of the property may be sold, conveyed or transferred without prior permission from the other owners. Creditors may also come after one owner’s share of property for debts owed.

There is no “right of survivorship” for tenants in common. If one owner dies, his or her share of the property will be transferred according to that owner’s will or by the intestacy statute. Without a will, the owner’s heirs or beneficiaries will become the new owners of that share.

Joint Tenants

Joint tenants are different from tenants in common in the fact that they acquire equal shares of the property on the same property deed at the same time. The terms of joint tenants are stated specifically in the deed to the property.

A joint tenant agreement can be broken if one tenant sells his or her interest to someone else. This will change the ownership to tenants in common for all parties involved. Keep in mind that a tenancy in common agreement can be broken if one or more of the tenants buys out the other tenants, or if a partition action is filed with the court. A partition action allows an heir to sell his or her share.

Joint tenancy is the title that is usually held between spouses and other family members. It allows for the property to pass to the survivors of that person without having to go through probate court, saving both money and time.

Survivorship Rights

One of the biggest differences between these two tenancies is what can happen to the property when one of the owners passes away. With a joint tenancy agreement, the interest belonging to the owner that passed away usually gets transferred to the surviving owner. For instance, if three people own the house jointly, the share of the person that passed away is divided equally among the surviving tenants. That is the right of survivorship.

Things to Keep in Mind

Married couples should carefully review their title when buying a home if they want the right of survivorship to be included. If a tenant in common passes away, their entire estate, including their share of the house, must be divided according to probate court rules.

Despite the benefits of joint tenancy, there are financial aspects you need to consider. In a joint tenancy, if one of the tenants owes money, creditors are able to attach the interest of the debtor to the property and force a foreclosure. They could do this even if the other tenant had nothing to do with the debt in question.

For any real estate transaction or questions about a deed, we highly recommend that you seek the guidance of an experienced real estate attorney.

CONTACT the Law Offices of Barbara Sherer to schedule a consultation.