Frequently Asked Questions
If you are considering buying property or selling property you should consult with an Attorney, such as McLeod & Associates, about any questions or concerns. Buying property should be a careful and thought out process. You will need to consider a variety of issues such as, exactly what property is included in the purchase of real estate, real estate taxes, the inspection report, and how to protect yourself before you sign. There are plenty of issues you will need to understand when buying real estate such as options, contingencies, zoning ordinances, a satisfactory inspection, deeds, and title chains. Real estate lawyers know how to protect real estate buyers from being taken advantage of, especially if you are a first time property buyer. This may be, financially, one of the largest transactions of your life, and you need to make sure you have consuted a real estate attorney before proceeding.
At McLeod & Associates, LLC, you will find our service better than elsewhere in the area, and oftentimes, you will find our price structure less than elsewhere in the area.
* Purchase Closing - $800.00 to $850.00 (w/courier fees)
* Refinance Closing - $650.00 (w/courier charges)
Prices may vary.
Please inquire about Commercial Real Estate closings!
A mortgage is an interest in land which provides security for a lender to the performance of a duty or payment of a debt.
Most people purchasing property will need the assistance of a mortgage loan in order to come up with the necessary funds. A mortgage is an extremely important agreement that essentially grants the lender a right to possession of the property as security for the loan used to make the purchase. When deciding on a mortgage, keep in mind there are many different types of mortgages, with varying interest rates, repayment terms, loan durations, etc. Mortgage options can be overwhelming and complicated, but every borrower should make a strong effort to understand the essential repayment requirements, the amount of interest, the repayment schedule, what conditions can cause the repayment requirements or schedule to change, and what happens if a borrower falls behind in mortgage payments. Defaulting on a mortgage is a very serious and undesirable outcome, and should be avoided at the outset. Borrowers will likely have mortgage questions and should make an effort to consult a mortgage attorney prior to any agreements.
There are many types of property ownership depending on the interest in the property the buyer has purchased. A buyer's interest in property can be as a sole owner, or it can be split among others in a joint property ownership agreement. If an interest in property is split among owners, the owners are usually considered joint tenants or tenants in common. The difference between joint tenants and tenants in common is slight; when a joint tenant dies the other owner gets the property in full, but when a tenant in common dies, that owner may assign the interest in property to someone else. Whether joint tenants or tenants in common, a joint property ownership arrangement allows multiple owners to have a percentage interest in property. If considering purchasing property, particularly if part of a joint property ownership group, understand the types of property ownership available and consult a real estate attorney with questions and concerns.
A major advantage to owning real property comes from the availability to deduct the interest of a home mortgage and a home equity loan.
The interest that you pay on a mortgage for your home, your vacation home, and for a home equity loan can be deducted from your income. In order to take the deduction, Schedule A (Itemized Deductions) must be completed and attached to your 1040 Federal Income Tax Return. Alabama enables you to take a deduction from your taxable income for interest paid on your home, qualified vacation home and qualified home equity loans.
Real estate taxes are also deductible on your federal return. Deductible real estate taxes are any state, local, or foreign taxes on real property levied for the general public welfare. The taxes must be based on the assessed value of the real property and must be charged uniformly against all property under the jurisdiction of the taxing authority. Deductible real estate taxes generally do not include taxes charged for local benefits, trash and garbage pickup fees, transfer taxes, homeowners' association charges and rent increases to higher real estate taxes.
There are some risks inherent in owning real property. Some of the more common include:
1. liability for violation of zoning ordinances;
2. liability for environmental hazard clean-up;
3. liability to others who are injured on the property;
4. liability to others who are injured by the property (such as an uphill landowner being responsible when his land slides onto a downhill landowner's property);
5. liability to third parties pursuant to contract (such as responsibility to make mortgage payments to the lender);
6. liability to a purchaser when the property is sold (and there is a problem in transferring title, interest, or possession);
7. If you fail to maintain your property or knowlingly create a condition on your property that causes injury to someone's property or person without taking steps to eliminate the hazard or provide a proper warning, you could be determined to be negligent and thus responsible for the harms and injuries that result from your negligence. To reduce your exposure to risk from owning real property, you have an affirmative obligation to maintain your property so as not to cause harm or injury to others.
Despite the risks inherent in owning real property, most people agree that owning real property is desirable. Should any of these concerns or others occur, contact McLeod & Associates, LLC, for a full assessment of your remedies.
Ther is a myriad of federal, state, county and local laws which restrict what you can do with the real property that you own. Enforcement of these laws typically resides with the various governmental agencies which are responsible for keeping you in compliance with these laws. For example:
1. zoning - restriction on the use of the property as to residential, industrial, agricultrual, et.al., in addition to the nature of the property are likewise subject to restriction;
2. environmental hazards - what materials can be stored on the real property as well as who is responsible for hazards from real property (such as asbestos, lead paint, petro-chemicals, radon and toxic wasts).
3. public easement and right of way - a portion of the real property may have to be left open for others, and are used to allow access to other property, to provide for roads and sidewalks, and to enable electicity to be installed.
Violation of government law can result in fines, penalties, injunctions and even criminal prosecution.
The two most common forms of insurance for real property include liability insurance and title insurance.
Liability insurance provides coverage if someone is injured or harmed on your property. Typically it is sold in a package policy (renter's, homeowner's, business liability, etc.) which bundle a variety of coverages to include: property contents, theft, and defense against lawsuits - to cover the risks that most owners face. Some carriers offer personal excess or "umbrella" liability policies to protect you from exposure to liability risks beyond the standard limits of homeowner or business liability policies. Also, check your policy to see if flood, earthquake, tornado, hurricanes, et. al, are covered. You may need or want additional protection if those adverse weather conditions are prevalent in your area.
Title insurance provides coverage to a homeowner if it is discovered in the future that there was a defect in title and there is not clear title to the property. Generally required by the mortgage lender, this type of policy coverage covers the cost of defending against the claims of another.
Commercial property insurance is more specifically tailored to the type of property, loan, kind of business, et. al.
When purchasing property one of the most important documents in the process is the title to the property. The title is the document that grants the holder the right to use and control the property, and a defective title could result in expensive consequences to the purchaser. A property title search will provide the buyer with a title report detailing the history of the title. A title report will allow a purchaser to see if they have a defective title, and they can react accordingly prior to finalizing a sale. Before finalizing any purchase, buyers should consult a title attorney and conduct a property title search to ensure they are not purchasing a defective title. A defective title does not necessarily mean a buyer should not purchase the property. It just means there are added risks to the purchase. A buyer faced with a defective title should consult a title attorney for advice on the risks associated with the purchase.
If you default on a payment, your lender can begin foreclosure proceedings. If you are unable to pay the default amount, the title to your property is transferred to the lender who will re-sell the property to recoup its loan. If there is a difference between the sale price of the property and the outstanding balance under the loan, the lender can sue you to recover the difference. If successful, your wages can be garnished or your other assets seized to pay the deficiency amount. However, not all states allow the lender to institute such action.
A residential foreclosure occurs when a homeowner has defaulted on the mortgage payments and the lender claims possession of the home to sell in order to satisfy the mortgage debt. A residential foreclosure is a stressful and difficult process for a homeowner; consult McLeod & Associates, LLC if served with notice of foreclosure. Many homeowners fall behind on mortgage payments, but residential foreclosure will generally not occur until the homeowner is more than one or two months behind on mortgage payments. If a homeowner is seriously behind on mortgage payments they will receive notification of a lender's intention to declare the mortgage defaulted and pursue a residential foreclosure to satisfy the mortgage debt. Upon receiving notice of foreclosure, homeowners often consider filing for bankrupcy to avoid foreclosure, but bankruptcy is not a get out of jail free card. If considering bankruptcy to avoid foreclosure, be aware of local bankruptcy laws and the consequences of the decision, as the long term impact may be serious.
Filing a Chapter 7 bankruptcy temporarily stalls your lender's right to foreclosure, until it gets permission to go forward wtih the foreclosure proceedings. However, doing so could have other very serious consequences. If bankrupcy seems to be an option, consider a Chapter 13 or "wage earner" repayment banruptcy as an alternative to a Chapter 7 straight bankruptcy. Under a Chapter 13 plan, it is possible to make up the missed payments out of your income through the repayment plan.
If you face foreclosure, bankrupcy may or may not make sense, depending on your other obligations and income sources, and the advice of an attorney will be very helpful.
If a homeowner finds themselves in a serous arrearage with their mortgage company, the option of "Loan Modification" may be available to them. Lenders are incentivized by the Government to assist by "modifying" the existing mortgage. Such remedies may include the restructuring of the interest rate; a forebearance of arrearage charbges; lengthening the term; obtaining a current status; and changing an adjustable rate to a fixed one. Contact McLeod & Associates today for assistance in a Loan Modification.
A short sale is another remedy for the homeowner in distress. This is where it is negotiated with the lender to accept less money than is owed for the payoff of the seller's existing mortgage.
Another remedy for the homeowner in distress is the "deed-in-lieu of foreclosure". This is the negotiated acceptance by the lender for the homewoner to deed the property back to the lender. This terminates all monies owed, and saves the homeowner from their property being foreclosed.
A quitclaim deed is a document that allows a property owner to release his property interest to another. A quitclaim deed transfer is a means of exchanging interest in property, but differs from a standard property grant deed in the sense the person granting the property gives no guarantees about their interest in the land. This means that if a person releasing their rights to another using a quitclaim deed has no rights to begin with, then the quitclaim deed transfer gives the receiver no recourse against the grantor. Filing a quitclaim deed is a final and critical step in a quitclaim deed transfer. Using a quitclaim deed in lieu of a standard grant deed can be a risky process, and any receiver of a property interest via a quitclaim deed should do significant research to determine the transferor's interest is legitimate. Consult McLeod & Associates, LLC before agreeing to a quitclaim deed transfer.
Condominiums and other homes, such as those included in PUD developments, will often have homeowner associations to conduct the business of managing the homes. Whether renting or purchasing, residents will pay fees and follow rules as they are established. Should disputes arise, it is always prudent to contact a Real Estate Attorney.
A property easement gives the holders of the easement the right to use another's property in a limited manner as described by the easement agreement. The most common easement grants parties to cross over another's property using a designated path or road. When discussing a property easement it is critical to fully understand the easement rights and limitations that the parties must respect. If an easement is being used improperly, the injured party must take timely action by contacting a real estate attorney. Property easements can and often will attach to the property and therefore a buyer will have to abide by existing easements. It is critical to search for property easements that existed prior to purchasing real estate. Easement agreements should specify the type of easement, the specific easement rights granted, whether or not the easement attaches to the property or grants easement rights to specified people, wheterh or not the easement can be transferred, and how to modify or terminate the easement.
States and localities and the federal government have the right of "eminent domain", which means they can condemn and force the sale of private property for public purposes. For example, the government condemns a block of homes because they need the property to build an interstate highway. An individual's rights are subordinate to the government. When private property is taken by the government, the owner is entitled to receive just compensation for his property.
Traditional common law provided a method for someone to obtain title to land through use. The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see. For example, your neighbor built a fence on your land with the intention of taking the property, paid property taxes, and you knew about it but did nothing. If this continued for the staturtory time, your neighbor may be able to claim this property as his/her own. The theory is that, by not disputing your neighbor's use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. There are several elements needed for adverse possession to result in title.
The length of time required for adverse possession in title varies - it could be as short as a few years or could run for twenty years or more. Typically public entities must establish a longer period of possssion than individuals.
The possession must be open for all to see.
The possession must be exclusive to him or her (e.g., the fence in the above example, a driveway, road, etc.)
The possession must be hostile for the actual owner of the land.
To gain title to land through adverse possession requires strict compliance with the law, but can have dramatic impact upon land ownership rights.
An encroachment could result in title to your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbor frrom getting title to your land through adverse possession.
If you own land, it is important that you do not "sleep on your rights" since you could lose ownership of the land.
Landlord/tenant disputes are primarily governed by the laws of the State of Alabama. The requirements for eviction and other matters of collection are statutory and must be strictly followed.
There is also an implied warranty of inhabitability whereby a landlord must maintain a safe, decent, and habitable housing. When in the prepartation of contracts, lease, et. al, or their enforcement, or their interpretation, McLeod & Associates, LLC may be able to assist.
A "Power of Attorney" is a document allowing an appointed individual to handle your affairs in the event of being incapacitated or unavailable.
It often is very expensive for your estate where one does not have a will.
At McLeod & Associates, please contact us and inquire of our very reasonably priced package of a Will/Living Will/ and Power of Attorney.
Oftentimes, we can handle all of the set up work online.
"Probating" a will is the administration of a deceased party's estate to ensure that all of their assets are distributed properly.
A will must be probated to have legal effect.
Wills should be probated in the County where the deceased party lived.
In Alabama, a will must be filed within five years from the Party's death to be valid.
The complexity of handling an estate often requires an Attorney. A Probate Judge cannot advise you of the law. McLeod & Associates, LLC is experienced in making the process as easy as possible for the petitioner.
If someone dies without writing a Will, they have died intestate. Each state has specific laws governing the distributrion of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are shown below, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, "issue" means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.
* Property going to the surviving spouse:
- Entire estate if no surviving issue or parents of decedent
- first $100,000, plus of balance of estate if there is no surviing issue but there is surviving parent(s);
- first $50,000, plus of balance of estate if there are surviving issue all of whom are also issue of surviving spouse; or,
- of estate if there are surviving issue who are not issue of the surviving spouse.
* Property not going to surviving spouse:
If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If none, all passes to the parents. If neither parent is living, the estate passes to siblings, and so on under this priority:
- brothers and sisters
- aunts and uncles
A conservator is an individual appointed by the Court to manage the property or assets of a minor or incapacitated person.
A guardian is an individual appointed by the Court responsible for personal care of a minor or incapacitated person.
A Conservator or Guardian may be appointed only after petitioning the Court, and in most cases, a Hearing. Contact McLeod & Associates, LLC
In a will, a parent may appoint a guardian for a minor or an unmarried, incapacitated child. A person may appoint a guardian for his or her incapacitated spouse in a will.
Involuntary commitment is a procedure where a person is involuntarily placed in the custody of the Alabama State Department of Mental Health.
The procedure for having a person involuntarily committed requires a filing with the Probate Court. It will follow with a hearing, where the path for treatment is ascertained.
Adoption is the legal procedure through which a minor receives recognition by the law as to being the son or daughter of the adopting parents.
Adoption typically includes the following steps:
- Preplacement investgation
- All necessary consents and/or relinquishments concerning the adoption are obtained
- Guardian ad litem is appointed when either natural parent of the adoptee is a minor or in case of a contested hearing
- Petition Court for authority to pay fees or expenses
- Placement of child with petitioners
- File petition for adoption 30 days after placement
- Serve notice or obtain wiaver of notice on or from all parties entitled to notice of the adoption
- Post placement investigation
- Affidavits of non-payment
- Accounting of disbursements
A Prenuptial Agreement is an agreement entered into by a couple contemplating marriage, which will control how certain financial matters will be handled during the marriage, or in the event of divorce or death, after the marriage.
A Postnuptial Agreement is an agreement between a married couple, during the marriage, to specify how certain matters will be handled following the marriage, should there be a divorce or death of one of the spouses.
In Alabama, the maker of a will must be over the age of 18 years old; of sound mind; free from outside duress; be written; and with proper witnessing.
A will is a document that estabishes how a person's property and assets will be distributed upon death.
There is no requirements that an individual consult an Attorney in preparing a will. However, such a document carries great weight and importance and should be treated with careful diligence. At McLeod & Associates, we can also assist in constructing the will with a strategy toward establishing a cost effective and valuable Estate.
A properly constructed will maintains its validity until it is charged or revoked. Writing a second will, with proper language, will revoke the prior will.
A Living Will is a document that a person utilizes to make known his or her wishes regarding life prolonging medical treatments. In many instances, it is required by hospitals prior to undergoing surgery. McLeod & Associates, LLC may assist you with this important document.
A Corporation is a legal entity filed with the Secretary of State, granting certain powers, rights, priviledges, protections, and liabilities.
An S Corporation is a corporation where the income generally is taxed to the shareholders rather than to the corporation itself. However, certain tax obligations may still exist for the corporation.
An LLC, or Limited Liabilty Company is a structure filed with the Secretary of State that blends elements of a partnership and a corporation. It has certain tax advantages. It is oftentimes seen as more flexible than a corporation and is well suited for a single owner.
The board of directors of a corporation shall adopt initial bylaws for the corporation unless the right ot adopt the initial bylaws is reserved to the shareholders in the articles of incorporation. The bylaws of a corporation may contain any provision for managing the business and regulating the affairs of the corporation that is not inconsistent with law or the articles of incorporation.
Yes. The Alabama code provides that either entity may consist of a single individual.
A registered agent is a business or individual designated to receive service of process on behalf of a business entity.
A corporation shall hold a meeting of shareholders annually at a time stated or fixed in accordance with the bylaws. Annual shareholders' meetings may be held in or out of Alabama, at the place stated in or fixed in accordance with the bylaws. If no place is stated in or fixed in accordance with the bylaws, annual meetings shall be held at the corporation's principal office. The failure to hold an annual meeting at the time stated in or fixed in accordance with a corporation's bylaws does not affect the validity of any corporate action.
Corporations must have a name reservation with the Secretary of State. McLeod & Associates can take care of this for you. No reservation is necessary for an LLC.
The FEIN is the Federal Tax ID of the business entity, also known as the Employer Identification Number. It is a nine digit number, valid in all states for banking, tax filing, and other business purposes. McLeod & Associates handles this essential step for you.
If a collector contacts you about a debt, you may want to talk to them at least once to see if you can resolve the matter - even if you don't think you owe the debt, can't repay it immediately, or think that the collector is contacting you by mistake. If you decide after contacting the debt collector that you don't want the collector to contact you again, tell the collector - in writing - to stop contacting you. here's how to do that:
Make a copy of your letter. Send the original by certified mail, and pay for a "return receipt" so you will be able to document what the collector received. Once the collector receives your letter, they may not contact you again, with two exceptions: a collector can contact you to tell you there will be no further contact or to let you know that they or the creditor intend to take a specific action, like filing a lawsuit. Sending such a letter to a debt collector you owe money to does not get rid of the debt, but it should stop the contact. The creditor or the debt collector still can sue you to collect the debt.
If an attorney is representing you about the debt, the debt collector must contact the attorney, rather than you. If you don't have an attorney, a collector may contact other people - but only to find out your address, your home phone number, and where you work. Collectors usually are prohibited from contacting third parties more than once. Other than to obtain this location information about you, a debt collector generally is not permitted to discuss your debt with anyone other than you, your spouse, or your attorney.
Every collector must send you a wrtitten "validation notice" telling you how much money you owe within five days after they first contact you. This notice also must include the name of the creditor to whom you owe the money, and how to proceed if you don't think you owe the money.
If you send the debt collector a letter stating you don't owe any or all of the money, or asking for verification of the debt, that collector must stop contacting you. You have to send that letter within 30 days after you receive the validation notice. But a collector can begin contacting you again if it sends you written verification of the debt, like a copy of a bill for the amount you owe.
If you don't pay a debt, a creditor or its debt collector generally can sue you to collect. If they win, the court will enter a judgment against you. The judgment states the amount of money you owe, and allows the creditor or collector to get a garnishment order against you, directing a third party, like your bank, to turn over funds from your account to pay the debt.
Wage garnishment happens when your employer withholds part of your compensation to pay your debts. Your wages usually can be garnished only as the result of a court order. Don't ignore a lawsuit summons. If you do, you lose the opportunity to fight a wage garnishment.
A court case ends with the judge's written decision as to who won. If you win a judgment that says someone owes you money, you are called the judgment creditor. The person who owes the money to you is called the judgment debtor.
You may collect the money owed you in one of two ways: either the debtor pays you voluntarily or you can execute on the debtor's property by getting a writ of execution from the judge.