Real Estate Investing Facts

How to Get Rid of a Real Estate Nuisance

Lawsuit advised as last resort

by Robert Bruss

Does a neighborhood nuisance seriously disturb you?

Examples might be a barking dog that keeps you and other neighbors awake at night; airplanes flying overhead landing or taking off at a nearby airport; perhaps a smelly sewer works or factory; maybe a neighbor’s late-night noisy parties; or a neighbor revving up his motorcycle as he departs for work at 5 a.m.

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These are typical illustrations of public and private nuisances that might affect the enjoyment of your house or condominium. Depending on the severity of the disturbance, you might have a legal remedy to have the nuisance abated.

ONE PERSON’S NUISANCE IS ANOTHER PERSON’S ENJOYMENT.

There is rarely agreement on what is a public or private nuisance.

For example, in a community not far from my home, there is a city-owned amphitheater where there are many outdoor concerts and performances by famous entertainers. Especially in the summer, this is a wonderful venue for enjoying entertainment.

But many nearby neighbors complain about the loud noise. As a result, there are now noise controls that keep the sounds at a reasonable level. What was formerly a public nuisance has become a mere inconvenience.

Another example is my neighbor who occasionally honks her car horn when she enters her driveway. I think it is to reassure her dog that she is home. I really don’t mind. However, if she arrived home at 2 a.m. every night and honked the car horn, that would be a private nuisance, which I could have abated.

THE TWO TYPES OF NUISANCES.

There are two types of nuisances that might affect your home. Often, all it takes is a request to the offending party to keep things quiet. That frequently happens to me when I visit my second-home condominium and have to ask the hard-of-hearing downstairs neighbors to turn down the TV or stereo.

Because the excessive noise only affects a small number of neighbors, that is an example of a private nuisance.

However, when a nuisance affects many property owners and residents, that is a public nuisance. The legal remedy to remove a public nuisance is much different than for a private nuisance.

1. LEGAL REMEDY TO ABATE A PRIVATE NUISANCE. If you are affected by a private nuisance that affects only you or a small number of neighbors and the offender refuses to abate the nuisance, your legal remedy is a lawsuit against the offender to abate the nuisance.

But before suing, try other measures, such as a friendly visit, a polite letter, or even a letter from your attorney.

For example, several years ago my friend Elaine told me how she abated a loud noise nuisance at her adjacent condominium. Her new neighbor insisted on playing loud rap music. Elaine’s friendly visit and polite requests to turn down the volume didn’t produce results. The condo homeowner’s association rejected her plea for help. However, a forceful letter from her attorney to the offender, which cost about $100, resulted in peace and quiet.

But sometimes the only way to get the offender’s attention is to file a lawsuit to abate the private nuisance. Hiring an attorney is advisable because, if you sue the offender in local Small Claims Court and lose, that is usually the end of you legal recourse against the nuisance offender.

Presuming the private nuisance seriously bothers you, such as keeping you awake at night due to loud noise, hiring a real estate attorney might be a cost-effective remedy.

2. LEGAL REMEDY TO ABATE A PUBLIC NUISANCE. If a disturbance affects a large number of residents, that is a public nuisance. Examples include a nearby house of prostitution, a “drug house,” a smelly factory, a rat-infested dump, and a noisy airport.

To remove or mitigate a public nuisance affecting many individuals, the customary legal remedy is for a public official, such as the city or county attorney, to bring an abatement lawsuit against the offender.

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The court might order (a) an injunction to stop the nuisance activity, (b) a partial abatement order, (c) a mitigation or a negotiated settlement, and (d) payment of monetary damages to allow continuation of the public nuisance.

For example, many public airports pay nearby homeowners for installation of sound insulation and double-pane windows.

The judge in a public nuisance abatement action has many considerations, such as the actual nuisance and the economic effect abating it might have. To illustrate, noisy major airports create employment for thousands and enhance the local economic situation while, at the same time, severely disturbing many local residents.

WHAT IF PUBLIC OFFICIALS REFUSE TO ABATE A PUBLIC NUISANCE?

Occasionally, the appropriate public officials such as a city or county attorney, refuse to act to abate a public nuisance affecting many individuals. The reasons for refusing to act are often political.

In such a situation, individuals who want the public nuisance abated must become creative to get results.

For example, a few years ago the neighbors in Berkeley, Calif., became very upset with the drug dealer residents of a 36-unit apartment house. The police and city council were unable to resolve the problems. So 75 angry neighbors, very upset over the shootings and other crimes originating at the apartment building, became very creative.

They each sued the apartment building owners for the $5,000 maximum in local Small Claims Court. Faced with 75 individual lawsuits for $5,000 each, the judge ruled in favor of the 75 plaintiffs.

However, the apartment building owner appealed. The 75 plaintiffs won a total of $218,325 damages in the appellate court against the apartment building owners for refusing to abate a public nuisance that affected many neighbors (Lew v. Superior Court, 25 Cal.Rptr.2d 42).

DEFENSES TO A NUISANCE ABATEMENT LAWSUIT.

Winning a lawsuit to abate a public or private nuisance is usually not easy if the offender resists.

The defendant might raise defenses such as (a) the nuisance was tolerated for a long time, and/or (b) the plaintiff moved to the neighborhood knowing about the nuisance.

But most courts now rule the statute of limitations is not a defense to a lawsuit to abate a longtime nuisance, and each new occurrence is a separate offense that can be abated.

Other defenses, usually ineffective, are (a) there was no law violation; (b) the neighborhood has other public and private nuisances; and (c) the local ordinances and zoning allow the offensive activity.

NUISANCE LAWSUIT RESULTS ARE OFTEN UNPREDICTABLE.

Because the result of a lawsuit to abate a nuisance is often unpredictable, it is best to first try to reach an accommodation with the nuisance offender. A crafty defense attorney, or a sympathetic judge or jury, can often result in failure to abate the nuisance, allowing it to continue.

For this reason, plaintiffs in a nuisance abatement lawsuit should be very well prepared, such as with photos, witness testimony and scientific evidence, such as noise measurements, to be successful. Because court abatement of a private or public nuisance is often very difficult, a lawsuit should only be used as a last resort. For more details, please consult a local real estate attorney.

(For more information on Bob Bruss publications, visit his Real Estate Center).

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The foregoing has been prepared for informational purposes only and does not constitute legal advice. The information is summary in nature and does not address any particular situation. Readers should not act upon this information but should instead seek professional advice.

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The Top 3 Ways to Find Lease Option Tenants and Buyers
By Foreclosures.com, Wendy Patton – 2010

As you know, I’ve been doing Lease Options for many years now. I’ve seen down markets, up markets and everything in between. Having survived all kinds of markets I can tell you I LOVE doing Lease Options in down markets. Why is that? Because there are SO MANY deals just waiting for me. In a down market the motivated sellers are plentiful. The common misconception when the media is screaming about how bad the market is, is that there are no buyers out there. That is true. There are fewer buyers in a soft market. Does that mean it’s impossible to find them? Not at all.

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Let’s take a look at some ways to find Lease Option tenants and buyers in soft markets:

1. First, is the asking price. If your asking price, either the sale asking price or monthly rent asking price, is too high for your Lease Options, you’ll scare away most buyers. Yes, it’s common that on a Lease Option the rent and purchase price are marked up due to the flexibility you are offering the buyer. However, if the market is soft you’ll find these marked up margins shrink. This especially applies to the monthly rent. If you are asking too much for rent you will have a VERY hard time finding tenants. If you want to place a quality tenant quickly make sure the rent is competitive, maybe even slightly less than the competition

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2. Second, think long term. If you have structured a longer term Lease Option deal with the seller, like 3 to 5 years, consider just renting the house initially. Rent the house out for the first couple of years before you try to place a Lease Options buyer. This will give you time to weather the soft market and start moving towards rebound. If you get stuck with the mindset of only looking for Lease Options buyers you’ll be following the herd, trying to sell in a down market. Just rent the house in the down market and try to sell it when the market picks back up.

3. Third, cover your cash flow. If you put together a great Lease Option deal and have it start right away, who covers the monthly rent until you find a tenant? News flash:

What just happened? You became a motivated seller! You are much more likely to make a bad decision in Lease Optioning that house than if you didn’t have to pay the monthly payment. You are also reducing your profit margin for every month the house sits vacant. Instead, structure the deal to give yourself some time (a few months at least) to find the buyer or tenant. You could even have the Lease Option begin only once you have found a tenant. Be fair to the owner and let them continue to try to sell their home on their own during this time.

Taking all of this into account I think you’ll see why I LOVE to find Lease Option deals when the market is soft you’ll find it easy to get the kinds of deals you really want. Then if you structure the deal with strong terms and use the selling techniques I talk about, you’ll be selling when the market has improved and find it a whole lot easier to move your properties and make handsome profits.

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Deed In Lieu Of Foreclosure vs. Short Sale
by Alexis McGee –

In this article, I will explain the pros and cons of “Deed in Lieu” of foreclosure and “short sales” as alternatives to foreclosure. Because foreclosure is so devastating to a credit score, almost anything is better than foreclosure, and both of these alternatives result a much lighter impact on a credit score.

A deed in lieu of foreclosure and a short sale are very similar but there are some key differences that depend on the details of the situation. I will compare and contrast both in just a moment.

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In a deed in lieu of foreclosure, the property owner gives the property to the lender voluntarily in exchange for the lender canceling the loan. The item transferred is the deed to the property. The lender promises not to initiate foreclosure proceedings, and to terminate any foreclosure proceedings already underway. The lender may or may not agree to forgive any deficiency balance that result from the sale of the property.

An overlooked downside to a deed in lieu of foreclosure is the possible forgiveness of the deficiency balance. Under federal law, a creditor is required to file a 1099C whenever it forgives a loan balance greater than $600. This may create a tax liability for the former property owner because it is considered “income.” However, the Mortgage Forgiveness Debt Relief Act of 2007 provides tax relief for some loans forgiven in 2007 through 2012.

The key issue in a deed in lieu of foreclosure is whether the lender is willing to forgive the deficiency balance. Read the contract carefully to see how the deficiency balance issue is handled. If the document is unclear, take it to an attorney with experience in property law. An attorney’s time is not cheap, but will be a bargain compared to signing an agreement you do not understand and are surprised later to realize its implications.

Here is the typical (although by no means exhaustive) list of deed in lieu of foreclosure or short sale requirements:

a) the residence must already be on the market for a certain number of days (90 days is typical),

b) there can be no liens on the property,

c) the offer of a deed in lieu must be voluntary,

d) for a short-sale, the seller must have a hardship,

e) the house must be priced reasonably.

Is a “short sale” a better option?

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On the other hand, the property owner and lender may choose to do a short sale on the home. Through a short sale the lender agrees to accept less than the balance owed on the mortgage at sale. The deficiency balance is forgiven, typically.

However, recently foreclosures.com’s clients have reported that some mortgage companies are asking borrowers to agree to accept liability for the deficiency balance. The lesson here is if you are considering either a deed in lieu of foreclosure or a short sale you must review the terms and conditions carefully and make certain you understand whether the deficiency balance is forgiven.

Unlike a deed in lieu of foreclosure, the ownership of the property is not transferred to the mortgage holder, and remains with the owner.

Some lenders choose short sales because they do not want to own the distressed property. They would much rather see the owner sell the property and lose the deficiency balance than be forced to take the property through foreclosure, as foreclosure is a costly and time-consuming process.

Whether the lender picks a deed in lieu of foreclosure or a short sale depends on how the lender balances its risks and how it wants the distressed properties to appear on their books. Local laws may have an impact on the decision, too.

One last point regarding short sales: Like deeds in lieu of foreclosure, a lender is required to file a 1099C if the debt forgiven exceeds $600. As mentioned in the deed in lieu of foreclosure section above, The Mortgage Forgiveness Debt Relief Act offers former homeowners relief for forgiven debt.

What if the lender rejects a short sale or a deed in lieu of foreclosure?

If the lender will not allow a short sale or a deed in lieu of foreclosure, foreclosure is the last option, although it presents major problems. Foreclosure auctions tend to bring significantly less money than a normal sale would bring. If the sale brings less than the amount owed on the loan, the remaining balance of the loan is called a deficiency balance.

If the home falls into foreclosure, it is possible to mitigate the negative impact of a deficiency balance by filing bankruptcy. Generally speaking, deficiency balances are treated like any other unsecured debt in bankruptcy, meaning that they can be wiped clear by Chapter 7, and repaid over time through a Chapter 13. Although bankruptcy does not sound like a positive alternative, it may be the best solution if the mortgage lender will not allow the home to be sold through a short sale or a deed in lieu of foreclosure.

Lastly, I urge you to consult with an attorney experienced in bankruptcy law to understand all of your options to resolving your mortgage debt.

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Copyright © 2010 Foreclosures.com.
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Over the years as a foreclosure investor, I too have made many mistakes. Mistakes are just another form of learning, aren’t they? The only problem is, they can be very costly!

In working with my Coaching students I do my best to help them avoid these pitfalls. So here’s your chance to learn from my mistakes! Pay attention here — if you cut these commonly made foibles out of your life, your investing business will absolutely soar!

1. Submitting an offer without verifying you are close on price.

Gang, I am not in the offer writing business. Many times an owner will call you and proclaim that they want to sell. They’ll say all the right things. “I just want to get out. Please come over and make me an offer.” Ninety percent of you would immediately jump into full research mode (check for comparable sales, drive them, fire up their excel spread sheet) for the next few hours feeling very productive. Only to have your offer shot down.

Why? Because you forgot to ask the owner what they expected out of this deal first. How else will you know if they are realistic or not? I know you don’t’ want to waste your time. Nor do you want to get branded the cheap guy who low balls and offends owners. If the owners’ price is way out of your range, find out FIRST. Then you get to say “no thank you” without naming your price. You can then stay in good with your owner and if they become more motivated and truly do need your help then you can help them out at a later date.

2. Not working Alexis’ system the way she taught you.

I always joke and say we need to have an “Alexis is right” website. It’s just the truth and we all need to stop fighting it. I know many of you, myself included, at one point or another thought we could do it better, change it, modify it, we know what works best for us, so on and so forth. You try to take parts of her system and piece meal the things you are comfortable with, and only if you can do it “your way”.

The truth is what Alexis teaches is a complete system the way it is. When you work all the components together, the exact way she teaches you (which means challenging yourself to push past your own comfort levels), that is when your business will take off!

3. Failing to recognized — this business is not about anybody else but you.

So many people of you get caught up in trying to figure out the owner’s mindset. You think if you just understood the owner’s way of thinking, or why they act the way they do, you would be a better investor. Or you wish the owner would think more like you and just be logical.

The bottom line is if the owner thought more like you then they would not need your help and you would not have a job! You have to focus on your own personal development and how you can be better.

We all know from personal experience, what to expect from owners who are upset, angry, frustrated, and don’t want to face the situation they are in. That is the consistent. Now you need to develop into the kind of investor that handles these perceived obstacles with ease. Pretty soon these are no longer obstacles or challenges for you and you are very comfortable dealing with owners, neighbors and relatives because that is what you do.

Work on yourself first, and all of this will become second nature. This is why Alexis has her “recommended reading” list. Make sure you get through all these great personal development books NOW!

4. Analysis Paralysis.
Have you ever heard the saying “the devil is in the details”? Well, that statement has a whole new meaning if you’ve ever been addicted to the county recorders website or sitexdata.com (like your favorite soap opera). You need to stop this early research and go cold turkey NOW!

All this research does is keeping you from focusing on the stuff that really puts dollars in your pocket — contacting owners! You do not need to know everything about a person before you call them. You do not want to become a professional, unpaid researcher, right?

After many years of investing I don’t care to know what every piece of data or all those county abbreviations stand for. And guess what? It hasn’t slowed me down a bit! So you are safe! The only time I care to check the county recorders “grantor grantee index” before I make a call, is to simply check to see if my owner is in default or not (cancelled, sold or got a new loan). That’s it!

Don’t let this tool become your crutch to not calling owners!

5. Not making enough calls.

Phone calls are the life blood of the foreclosure investing business. They are the fuel that runs the engine. If you are dialing less than 200 calls a week, you are not doing enough, and you can stop wondering why your business is not booming.

You must always be working outbound phones and keeping your momentum going. If you think you can work this business without working outbound phones go back and reread #3. I know staying consistent, especially in the beginning, can be hard but it does pay off. It is especially important to keep working the phones when you get your first deal.

You want to keep your momentum going so you don’t become, as one of my coaching students put it, a one hit wonder!

6. Time mismanagement.

If you have not written out your goals stop reading and write them down NOW!!

How do you know what you are trying to accomplish, if you have not written it down? Think of yourself as a missile. You may have “lift off” but you don’t know where you are going! Missiles go off course, but they continue to correct themselves until they hit their target!

Rein Canada

Plan your goals, write them down, do them and then review them! You will need to measure where you are on a regular basis, so you can make corrections when you do get off course. Once you know where you are going lay out a plan to get there. That means scheduling! I would be a terrible time waster if I didn’t schedule my time. Schedule your phone calls, schedule your door knocking and schedule your time to research, the same way you would any appointment.

Block out time and put it on your daily schedule so things get done!!

7. Not making the most of your owner contact.

We all know how much work it takes to actually get an owner on the phone or catch them at their door. You owe it to yourself to make the most of that moment!

As Alexis taught me, your first goal with the owner should be to find out “HOW did this happen?” We know from your lists where they are right now (in default). The trick is to get the owner to roll back the clock and fill in the blanks for us.

Once we get to the beginning, now we can truly offer solid solutions. You need to first understand what caused their default, so you can offer the best solution based on their personally situation. Once you have the big picture figured out, it will be easy to move forward onto solutions. You will set yourself apart from all the “other investors” by showing you care, and you listen to what the owner has to say.

The worst thing you can do is just read off all the owner options without knowing their situation clearly. It would be like going to the doctor with a head ache and the doctor saying we can fix that with surgery right now, and he doesn’t even exam you.

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Avoid investor malpractice! There needs to be a lot of diagnosis FIRST before you ever offer a solution!

8. Loosing control of the conversation.

If you are answering the sellers’ questions; or asking “yes or no” questions; or you are unable to overcome the sellers’ common objections; you are going to be verbally beat up A LOT!

We’ve all had an owner fire questions at us that we answered. Why did we answer them? — Because we don’t want to be thought of as rude.

Now you need to learn how to take control, by asking the questions!

How do you do this? First you must realize that people have a natural desire to want to be compliant. Either the owner is going to figure that out with you; or you are going to figure it out with them.

Gaining control starts by asking open ended questions (they start with who, what, when, where, why, how). Even if you get an objection, you serve the ball right back to them and ask another question; open ended of course. If you get asked a question back, you may answer it briefly (or not all) but quickly move on to asking the very next question.

Are you seeing the pattern? The person asking the questions is in control!

9. Poor follow up.

Deals are rarely done in the first, second or third contact. In fact, it takes many contacts, sometimes even months (especially if you are in a long foreclosure timeline state). Therefore it is very important to follow up consistently over time.

Have you ever heard the saying “the fortunes in the follow up”?

Well in this business it is true. Very few deals will be done in the first few contacts. You need to build the relationship and be consistent over time. Many people give up too soon. I am always asked “when do I stop trying to contact an owner”?

My answer is “I stop when I see on the county recorders “grantor grantee index” a canceled default, a deed showing it sold to a third party, or a new mortgage/deed of trust. Otherwise, this owner still needs my help and I will continue to contact them!”

Follow up, follow up, and follow up!

10. Not finding out if there is a prepayment penalty.

This mistake can be very expensive, and will ruin your profit margin. Always find out if there is a prepayment penalty on the owners’ mortgages, from your owner. Sometimes they do not know, so you will need to get on the phone with them and call their lender together. You want to hear with your own ears if one does or does not exist. Sometimes lenders will waive a prepay penalty while the owner is in default, and then enact it again once you have reinstated the loan and it is performing. FYI, if a loan is less than two years old, you should just plan on it having a prepayment penalty. If you can not get a response from the lender plan on 6 months worth of interest payments and budget that into your offer price.

Do you see any of these pitfalls rooted in your investing business?

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If so, change them now. All my Coaching clients have done these, one time or another, but when they stopped, they increase their success ten fold!

You can do the same too.

If you have not already done so, you really need to get to Alexis’ 3 day Lab, where we teach, roll play and practice with you, every single one of these pitfalls side by side with Alexis and two of us Coaches. You won’t want to miss this critical learning experience!

Happy investing!

Sarah

Lab Graduate, Investor and Coach

ForeclosureS.com

This article is available for free distribution under the following terms:

a) You may not edit, delete or add any content to this article.
b) You must maintain all links to Foreclosures.com.
c) This article must be distributed free of charge.

Copyright © 2010 Foreclosures.com.

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