Legal Tips
Auction Law 
15-Mar-2002
Fraud and property condition matters. Part II of II
In Anderson v. Warren (Tenn. App. Dec. 12, 2001) the trial court found liability for fraud for misrepresentation of the property’s condition by the sellers and the real estate agent and held disclaimers are not sufficient to overcome liability for fr...
14-Dec-2001
Advertising Real Estate Auction Sales
Did you know that if you are advertising a real estate sale that you must comply with the new Tennessee Auctioneer Commission regulations on advertising and the Tennessee Real Estate commission rules. TREC has recently adopted new rules which add to ...
25-Oct-2001
Sale By Auction
Auctioneers did you know that the definition of an auction is set by Tennessee’s version of the Uniform Commercial code? It also sets forth auction procedures and the legal effects of them, as well as what happens if the seller “rigs” the sell. TCA ...
Estate Planning-Elder Law
03-Apr-2009
MEDICARE PART A
Enrollment in Medicare Part A is automatic for anyone who files for Social Security Retirement Benefits or Railroad Retirement. There is no need to file a separate application for Medicare. However, if you choose to take early retirement from Social ...
20-Feb-2009
MEDICARE: AM I ELIGIBLE?
Medicare coverage is available to every individual aged 65 and older regardless of their financial resources and/or health status. There are three major parts to Medicare, Part A, Part B and Part D. Each part covers different areas of health costs ...
30-Jan-2009
That is a personal decision for the landlord to make. It has been the "norm" to charge the tenant a Security Deposit equal to one month of r
Any Will is capable of being contested, however, whether or not the person contesting the Will has the right to a contest or has grounds for a contest is the real issue.
Only individuals that would be entitled to a share of the decedent's estate i...
02-Jan-2009
A SPOUSE'S RIGHT TO ELECTIVE SHARE IN TENNESSEE
A surviving spouse in Tennessee has the right to take an elective share of their deceased spouse's estate. A spouse may elect against the Will of their spouse or they may take an elective share of an intestate estate if there is no Will. A survivin...
12-Dec-2008
CAN I DISINHERIT MY SPOUSE?
Anyone can intentionally disinherit their spouse in their Will; however, Tennessee law has provided an avenue for surviving spouses to recover from their deceased spouse's estate even if the deceased spouse left them nothing in their Will. However, ...
14-Nov-2008
Do I Have to Leave My Children Something in My Will?
Many people think that you must at least leave your children one dollar in your Will in order to keep them from contesting the Will. This assumption, however, is only a myth. You may leave your property to whomever you please in your Will, and it d...
03-Oct-2008
You Can't Take it With You: Where Will Your Assets Go When Your Gone?
(part 4 of a 4 part series)
WILL V. LIVING TRUST - WHICH ESTATE PLANNING VEHICLE IS RIGHT FOR YOU?
Wills and living trusts each have pros and cons. You should discuss these with your estate planner to determine which is right for y...
26-Sep-2008
You Can't Take it With You: Where Will Your Assets Go When Your Gone?
ERRORS AND OMISSIONS INSURANCE
What are the limits of liability for your errors and omissions insurance policy have limits of liability? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered throu...
12-Sep-2008
You Can't Take it With You: Where Will Your Assets Go When Your Gone?
Joint Ownership/Joint Right of Survivorship
Assets that are held jointly with another person or entity may pass directly to that person or entity upon your death. For example, if you and your spouse own real property as "husband and wife", ...
05-Sep-2008
YOU CAN'T TAKE IT WITH YOU: WHERE WILL YOUR ASSETS GO WHEN
After your death, any asset that has a "payable on death" or beneficiary designation will pass directly to the person or persons indicated on the designation. Such assets may include, but are not limited to, IRAs, 401Ks, other retirement accounts, c...
29-Aug-2008
What is a VA Pension for Veterans?
A VA Pension is a benefit paid to wartime veterans that have either limited or no income. To qualify, a Veteran must be age 65 or older. A Veteran who is under age 65 and permanently and totally disabled may also qualify for a VA Pension. Veterans...
22-Aug-2008
CONSIDERATIONS WHEN CREATING A WILL
When contemplating having a will drawn up in order to provide for minor children, there are a few additional things to consider aside from the standard Will considerations. 1. Who do you desire to be guardian over the minor children? One cannot conv...
31-Jul-2008
What is a Qualified Income Trust?
The State of Tennessee has an "income cap" that can result in the disqualification of Medicaid applicants whose gross monthly income exceeds $1,911.00 per month (2008). The Federal Medicaid Rules and Regulations, however, allow a Medicaid applicant'...
18-Jul-2008
Three Reasons for Not Quitclaiming Your Property
1. Medicaid Lockout: For persons that may have to apply for Medicaid benefits to cover the cost of nursing home care, whether in the near future or a few years down the road, it is never a good idea to quitclaim your interest in property without rec...
02-Jun-2008
TENNCARE'S CLAIM AGAINST AN ESTATE
The Court of Appeals in Tennessee has recently ruled that Tenncare is subject (like all other creditors) to a one year statute of limitations in making a claim against an estate. Therefore, if someone has used Tenncare in their lifetime and Tenncare...
28-Mar-2008
WHO ARE YOUR HEIRS AT LAW?
Your heirs at law are the people who will inherit your property if you pass away without a Will (intestate). The Tennessee legislature has passed laws that determines how property passes if the deceased passed away intestate.
We call these laws the...
28-Feb-2008
HOW ASSETS PASS AT DEATH
If you have a Last Will and Testament at your death (testate), most assets that you own will pass according to the terms laid out in your Will. Not all assets will pass according to your Will though. If you own any assets, such as real estate, join...
15-Nov-2007
Asset Protection Trusts and Creditors
Question: How do asset protection trusts protect assets from creditors?
Answer: Our last few tips have focused on the "Tennessee Investment Services Act of 2007" which became Tennessee law on July 1, 2007. This week we look at the dynamics between ...
04-Oct-2007
Asset Protection Trusts and Rights Reserved by the Grantor
Question: What rights may be retained in an irrevocable trust executed under the "Tennessee Investment Services Act of 2007"?
Answer: Last week we learned that the "Tennessee Investment Services Act of 2007" became Tennessee law on July 1, 2007. Th...
20-Sep-2007
Asset Protection Trusts in Tennessee
Question: Does Tennessee allow a person to set up their own irrevocable trust to protect against the possibility of future creditors?
Answer: On May 10, 2007, Governor Phil Bredesen signed into law the "Tennessee Investment Services Act of 2007" whi...
23-Aug-2007
Irrevocable Trusts and Creditor Protection
Question: Does a revocable living trust that becomes an irrevocable trust immediately upon the death of the settlor (the person establishing the trust) provide protection from creditors?
Answer: No. Tennessee Code Annotated 35-15-505(a)(3) states th...
27-Jul-2007
Living Trusts, Creditors, and Public Benefits
Question: Will my Living Trust protect my assets from creditors during my lifetime or at my death? Will my Living Trust help me qualify for public assistance benefits?
Answer: No. As we stated in our last tip, in a Living Trust you retain control o...
03-Jul-2007
Living Trusts and Medicaid Eligibility
Question: Will my Living Trust help me become eligible for Medicaid if I ever need nursing home care or protect my estate from Medicaid estate recovery after I pass away?
Answer: No. Because in a Living Trust, sometimes referred to as a Revocable T...
28-Jun-2007
Your Right to Quality Care and Reasonable Expectations in the Nursing Home
We finish our series this week on select nursing home regulations and the impact these laws have on the relationship between the facility and the Resident.
Question: Can a nursing home require me or my family to sign an agreement that allows the f...
15-Jun-2007
Can Your Family and/or Friends Become Personally Liable for Your Nursing Home Bill - Nursing Home and Third-Party Guarantors?
We continue again this week with our look at select nursing home regulations and the impact these laws have on the relationship between the facility and the resident.
Question: Can a nursing home require that a third party guarantee or "co...
25-May-2007
Nursing Home Visitation Practices and the Law
This week we continue our look at select nursing home regulations and the impact these laws have on the relationship between the facility and the resident.
Question: Can a nursing home restrict visitation hours to family members?
Answer: No. Alt...
13-Apr-2007
Reverse Mortgages (Part 4 of a series)
Question: Can the reverse mortgage lender take away my home while I am living or make me repay the loan while I live in the home?
Answer: NO. We've been discussing for the last few weeks that a reverse mortgage is a special type of home loan that le...
28-Mar-2007
Reverse Mortgages (Part 3 of a Series)
Question: Are all kinds of homes eligible for a reverse mortgage?
Answer: We’ve been discussing for the last few weeks that a reverse mortgage is a special type of home loan that lets the homeowner convert some of the equity in the home into cash an...
16-Mar-2007
Reverse Mortgages (Part 2 of a Series)
Question: How do I know if I am eligible for a reverse mortgage?
Answer: Last time, we learned that a reverse mortgage is a special type of home loan that lets the homeowner convert some of the equity in the home into cash and that unlike a traditio...
01-Mar-2007
Reverse Mortgages - Part 1
Question: What is a reverse mortgage?
Answer: A reverse mortgage is a unique type of home loan that lets the homeowner convert a portion of the equity in the home into cash. The equity that has built up from home mortgage payments can be paid to y...
15-Feb-2007
Whom Should I Choose to be My Health Care Agent?
Question: I have decided to appoint a Health Care Agent under a Durable Power of Attorney for Health Care. Whom should I choose as my Agent?
Answer: First and foremost, select someone who understands your values and beliefs, and whom you trust to ma...
26-Jan-2007
Wills, Life Insurance Policies and Beneficiaries
Question: “My will says my 3 children are to each get one-third of my estate at my death, but I have a life insurance policy that specifies that my oldest daughter is the beneficiary at my death for $50,000.00. Will this prevent everything from being...
05-Jan-2007
Notice of Death Required to be Provided to TennCare
Question: “Do I have to notify TennCare if my loved one dies?”
Answer: Effective January 1, 2007, anyone who represents an estate must provide notice to TennCare if the decedent was 55 or older, and whether the decedent was a TennCare recipient.
...
28-Dec-2006
Supplemental Needs Trust for the Disabled
Question: “How does a supplemental needs trust help my disabled child after my death?”
Answer: Last week we discussed that leaving an inheritance directly to your disabled child will usually disqualify the child from most governmental assistance pro...
22-Dec-2006
Planning for Your Disabled Child with a Supplemental Needs Trust
Question: "How can I provide for my disabled child’s financial needs when I am no longer alive?"
Answer: Leaving an inheritance directly to your disabled child will usually disqualify the child from most governmental assistance programs such as Su...
30-Nov-2006
What is an elder care coordinator? and What is an elder care coordinator’s role in an estate planning and elder law practice?
An elder care coordinator evaluates the elder client’s needs, creates and helps implement a care plan to address those needs and makes sure all available private and public resources are accessed so that the elder client’s dignity, quality of life an...
10-Nov-2006
Do I Have to Probate my Deceased Spouse’s Will?
Question: Do I need to probate my spouse’s will?
Answer: This question is fact dependent. Many factors need to be examined to determine whether probate is necessary or not. Some of the factors include: did he own separate property, are the...
20-Oct-2006
The Pour Over Will and its Relationship to a Living Trust
Question: What is a "Pour Over" Will? Do I need one?
Answer: A "Pour Over" Will is a type of Last Will and Testament that is typically drafted and executed in conjunction with the drafting and execution of a Living or Revocable Trust.
The j...
12-Oct-2006
Advance Directives such as a Living Will or Appointment of Health Care Agent are Not Just for the Aged
Question: Are advance directives such as a Living Will and Appointment of Health Care Agent (formerly know as Medical Power of Attorney) just for the aged? If I’m young with no medical problems, why do I need something like a power of attorney?
...
05-Oct-2006
Medicaid Eligibility and Giving Your Home to A Loved One
Question: In case I need nursing home care in a couple of years, should I give my home to my daughter, son, or close friend? Will this keep the state from getting my home after I pass away and still allow me to be eligible for Medicaid to pay for my...
15-Sep-2006
Elder Law and Elder Law Attorneys
Question: What is elder law and what does an elder law attorney do?
Answer: Elder law focuses on the needs of the elderly. An elder lawyer uses his or her knowledge of the law and experiences to help his or her client address problems, seize oppor...
11-Sep-2006
Veterans Benefits – The Aid and Attendance Special Pension- VA Disability Benefits
Question: What are some of the benefits under the Aid and Attendance Program, and what are the eligibility requirements?
Answer: As of January 1, 2006, this program most commonly known as "Aid and Attendance" can provide up to $1,470.00 per mont...
10-Aug-2006
YOUR HOME AND MEDICAID ELIGIBILITY
Question: Can I keep my home and still be eligible for Medicaid to pay for my nursing home care?
Answer: Yes…Your home, no matter how much it is worth, is protected during your lifetime if your spouse, dependent child or disabled relative lives t...
10-Aug-2006
YOUR HOME AND MEDICAID ESTATE RECOVERY
Question: How does TennCare-Medicaid Estate Recovery affect my home after my death?
Answer: If TennCare-Medicaid paid for long term health care, such as a nursing home for you, the Bureau of TennCare may pursue reimbursal of its payments made on ...
14-Jul-2006
Asset Preservation - Medicaid Eligibility and the Nursing Home: Protecting Your Residence
Question: Have Medicaid rules regarding my residence changed, and can I keep my home and still be eligible for Medicaid to pay for my nursing home care?
Answer: The rules regarding your residence have changed slightly; your home and the surround...
30-Jun-2006
Asset Preservation, Medicaid Eligibility and The Nursing Home
Many families, regardless of wealth, have questions about actions that should or should not be taken when attempting to preserve assets when planning for the possibility of long term nursing home care. Whether the family is planning well in advance ...
24-Jun-2006
MEDICAID ELIGIBILITY AND YOUR NON-RESIDENTIAL REAL PROPERTY
Question: Can I keep my farmland and my rental property which are located about a mile from my residence and still be eligible for Medicaid to pay for my nursing home care?
Answer: Unlike your home (up to $500,000.00 of which is generally protec...
23-Jun-2006
Medicaid Eligibility and Your Real Property
Question: Can I keep my home and my farmland which is located about a mile from my residence and still be eligible for Medicaid to pay for my nursing home care?
Answer: As for your home and the surrounding property, up to $500,000.00, is protect...
23-Jun-2006
Medicaid Eligibility and Joint Accounts
Question: I’m selling my home and moving in with my daughter and son-in-law. I am placing the $100,000.00 from the sale of the property into a joint account with my daughter. The joint account means we both own the proceeds so the money will not co...
23-Jun-2006
Medicaid Eligibility and Giving Your Home Away
Question: Can I just give my home worth $100,000.00 away to my daughter if I think I’m going to need nursing home care; that way it is out of my name and the state cannot get it after I die to reimburse them or my care through Medicaid?
Answer: T...
13-Jun-2006
Choosing a Medigap Policy – Cost of Medigap Policies: Part 2 of 2
Question: How do I choose a Medigap policy?
Answer: From our previous tips we discovered that Medigap is private insurance that covers some of the “gaps” between what Medicare pays for and what the actual medical costs are.
When pricing polic...
26-May-2006
Choosing a Medigap Policy: Part 1
Question: How do I choose a Medigap policy?
Answer: Remember from our last tip that Medigap is private insurance that covers some of the “gaps” between what Medicare pays for and what the actual medical costs are.
When searching for a Medigap...
19-May-2006
Medigap
Question: What is Medigap?
Answer: Medigap is private insurance that covers some of the “gaps” between what Medicare pays for and what the actual medical costs are. Medigap policies are highly regulated by both state and federal governments. Re...
16-May-2006
Gift Tax -- The Gift that Keeps on Costing
The gift tax that is recognized in Tennessee may keep costing taxpayers - even after death.
The gift tax also plays a big role in inheritance scenarios. All real and personal property which the decedent owned or has an interest in must be shown on...
24-Mar-2006
Medicare and Medicare Part A
Question: What is Medicare, and what is Medicare Part A?
Answer: Medicare is the governmental health insurance program for persons age 65 and over. Medicare is also available for those who have received Social Security or Railroad Retirement Boa...
24-Mar-2006
Medicare and Medicare Part B
Question: What is Medicare, and what is Medicare Part B?
Answer: Medicare is the governmental health insurance program for persons age 65 and over. Medicare is also available for those who have received Social Security or Railroad Retirement Boa...
24-Mar-2006
Medicare Advantage Plans
Question: What are Medicare Advantage Plans?
Answer: Medicare Advantage Plans are offered by private companies that contract with Medicare to provide you with all your Medicare Part A and Part B benefits. Medicare Advantage Plans are Health Main...
10-Mar-2006
Long Term Nursing Home Care
Question: Does Medicare pay for long term nursing home care?
Answer: No, generally it does not.
Medicare does pay for “skilled care” for the first 20 days. For days 21-100, the patient pays a daily co-payment. Beyond day 100 the patient pays...
24-Feb-2006
Social Security Benefits for Survivors
Question: Can I receive Social Security Benefits as a survivor of a family member?
Answer: Yes, you can under certain situations.
Upon the death of a worker who has earned enough Social Security credits while he or she was working, certain memb...
16-Feb-2006
Social Security Retirement Ages
When can I receive Social Security Benefits?
If you have enough Social Security credits, you can receive full benefits at age 65 if you were born before 1938. For those born after 1938 the retirement age increases incrementally until the age of 6...
02-Feb-2006
Conservatorships
What is a conservatorship?
A conservatorship is a court-ordered protection for a disabled or incapacitated adult person. A “conservator of the person” may be appointed when the individual is incapacitated and needs someone to make housing and hea...
20-Jan-2006
12 Month Bar on Creditor Claims Against An Estate
Question: My father who was a widower passed away 14 months ago at the nursing home without a Last Will and Testament. His care there was paid by Medicaid/TennCare. Isn’t it true that because it has been over a year that all his creditors are barre...
13-Jan-2006
LIFE INSURANCE
Question: I have four children, but I have my oldest daughter listed as the sole beneficiary on my life insurance policy. How can I make sure she will divide the proceeds with each child at my death?
Answer: You must first understand that upon...
06-Jan-2006
UNWILLING EXECUTORS
Question: Can a person named as executor in a will refuse to serve even if he agreed during the life of the testator (the person making the will) to serve as executor?
Answer: Yes. A person nominated as executor in a will can refuse to accept hi...
30-Dec-2005
THE DANGERS OF JOINT ACCOUNTS
Question: Should I add my child or grandchild to my bank account to help me write the bills before I become disabled or incapacitated?
Answer: No. Legally, the joint financial account would be owned equally by you and your child or grandchild. ...
22-Dec-2005
THE NEW MEDICARE PRESCRIPTION DRUG PLAN
Question: What is the new Medicare prescription drug plan?
Answer: Beginning January 1, 2006, Medicare will offer prescription drug coverage to everyone with Medicare or Medicaid. If you do not currently have prescription drug coverage, you sho...
16-Dec-2005
LEGAL OBLIGATIONS OF THE HOLDER OF A WILL
Question: What is my legal obligation as the holder of the Will of a deceased person?
Answer: One who possesses the Will must send it to the personal representative, with a copy sent to the probate clerk of the county where the decedent lived.
...
16-Dec-2005
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
Question: What is a Durable Power of Attorney for Health Care?
Answer: A Durable Power of Attorney for Health Care is a legally binding document in which the principal (person needing medical care now or in the future) chooses an attorney-in-fac...
18-Nov-2005
MEDICARE PRESCRIPTION DRUG PLAN
Question: What is the new Medicare Prescription Drug Plan?
Answer: The new Medicare Prescription Drug Plan provides that all persons with Medicare, regardless of income, good or ill health, or prescription drug usage, will have access to prescript...
18-Nov-2005
PROBATE MADE SIMPLE – SALE OF REAL PROPERTY WHEN SELLER DIES
Question: What happens when the seller of real property dies before final conveyance is made?
Answer: Tennessee Code Annotated 66-4-101 provides that in situations where there is a written agreement or contract to sell land in Tennessee and the s...
28-Oct-2005
PROBATE MADE SIMPLE PART 2
Question: If my estate needs to be fully admitted to probate, can I use my Last Will and Testament to empower my Executor to sell and convey my real estate?
Answer. Yes...This authority must come from the Last Will and Testament. Your Executor, ...
27-Oct-2005
PROBATE MADE SIMPLE PART 1
Question: If the only asset my deceased parents had was their home or other real estate and the Will leaves it to my siblings and myself, do we have to go through the entire probate process?
Answer. No...Tennessee has an abbreviated probate for tr...
25-Jul-2005
WHY YOU SHOULD NOT PUT YOUR CHILD'S NAME ON YOUR BANK ACCOUNT
A joint account owned by a parent with their child has the potential to cause major problems down the road. Each party on a joint bank account is considered to each own 100 percent of the account. This subjects a joint account to a creditor of eith...
Intellectual Property Law
03-Apr-2009
IS THE TITLE OF MY BOOK A SINGLE WORK?
Generally, the title of a single work is not protected by trademark unless it has acquired secondary meaning, even if the title is inherently distinctive. That means that the title of a book must be sufficiently well known that the public associates ...
20-Feb-2009
IS MY PRODUCT LABEL PROTECTED?
Generally a product label would be considered trade dress if the label has been used in such a manner so as to denote the product source. Trade dress is a protected form of intellectual property on a common law, state and federal level. However, as...
30-Jan-2009
TYPES OF TRADEMARK INFRINGEMENT
TRADEMARK INFRINGMENT: PALMING OFF
One popular form of trademark infringement and unfair competition is referred to as palming off or passing off. The following three situations make up this particular type of infringement:
Where an individu...
02-Jan-2009
TRADEMARKS MUST BE DISTINCTIVE
All potential trademarks are placed into one of three categories: inherently distinctive, non-inherently distinctive or no distinctiveness. Trademarks that are placed in the "no distinctiveness" category are not eligible for trademark protection.
...
12-Dec-2008
DOES MY BUSINESS NAME QUALIFY FOR TRADEMARK PROTECTION?
Generally a business name is protected under the same legal theories as a trademark. A business name is considered a trade name instead of a trademark unless the trade name is being used by the business in a "trademark" sense, i.e, attaching the tra...
21-Nov-2008
TERM OF PROTECTION FOR A COPYRIGHT
Works created after January 1, 1978, are protected by copyright from the moment of creation for the author's life plus 70 years after the author's death. If a work has multiple authors, the work is afforded protection for all of the author's lives p...
26-Sep-2008
WHAT IS PUBLICATION FOR COPYRIGHT PURPOSES?
When filing a copyright registration application, you must state whether the work has been published and if it has been published you must state the date of first publication. The 1976 Copyright Act defines publication as follows:
"Publication" ...
12-Sep-2008
Works Made for Hire
The copyright law specifically defines what constitutes a work made for hire. When considering whether a work is a work made for hire, you must first consider the relationship of the parties and whether or not the work was prepared by an employee or...
29-Aug-2008
WHO IS THE COPYRIGHT CLAIMANT?
Only the author of a work or one deriving their rights through the author can claim copyright ownership. One may derive authorship rights from the creator through a work made for hire. The most common work made for hire arrangement is the employer/...
29-Aug-2008
WHO IS THE COPYRIGHT CLAIMANT?
Only the author of a work or one deriving their rights through the author can claim copyright ownership. One may derive authorship rights from the creator through a work made for hire. The most common work made for hire arrangement is the employer/...
22-Aug-2008
CORRECT USE OF THE COPYRIGHT NOTICE
A copyright notice should be placed on all original works of authorship regardless of whether you have actually filed for a copyright registration. The copyright notice puts the public on notice that the work is protected by copyright, identifies the...
31-Jul-2008
WHAT IS COPYRIGHTABLE?
The United States Copyright Act provides copyright protection for "original works of authorship fixed in any tangible medium expression, now or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly o...
31-Jul-2008
WHAT IS COPYRIGHTABLE?
The United States Copyright Act provides copyright protection for "original works of authorship fixed in any tangible medium expression, now or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly o...
03-Jul-2008
IMPROVEMENTS TO LICENSED INTELLECTUAL PROPERTY - The Licensee's Perspective
If licensee is responsible for making improvements, then the licensee needs to give serious thought and consideration to how those improvements are going to be implemented. If the licensing agreement is a nonexclusive agreement, then the licensee wi...
27-Jun-2008
IMPROVEMENTS TO LICENSED INTELLECTUAL PROPERTY - The Licensor's Perspective
When entering into a licensing agreement, it is important to consider the likelihood of future improvements to that intellectual property either by the licensor or the licensee. This is an important aspect of a licensing agreement for both parties.
...
18-Apr-2008
PRELICENSE CONSIDERATIONS
Before entering into any licensing agreement there are several things that should be taken into consideration. I will discuss specifically the pre-license considerations dealing with trademarks, but these considerations are also highly relevant for ...
27-Mar-2008
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY: ROYALTIES
Most licenses involve some type of money payment. When negotiating a license, the licensor must decide and negotiate with the licensee what type of payment they desire, i.e., a lump sum payment or periodic payments.
Payments for use of a license ar...
29-Feb-2008
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY: PART FOUR OF AN EFFECTIVE LICENSE
The fourth main requirement of an effective license is that the licensing agreement must specifically state what rights are reserved by the licensor.
Many times a licensor will reserve rights to the intellectual property for their own use or for the...
22-Feb-2008
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY PART THREE OF AN EFFECTIVE LICENSE
The third main requirement of an effective license is that the licensing agreement must specifically state what rights to the intellectual property are being licensed. Generally a licensor does not grant the licensee the right to utilize all availab...
08-Feb-2008
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY PART TWO OF AN EFFECTIVE LICENSE
The second main requirement of an effective license is that the intellectual property must be protected by law or at least be eligible for protection by law. Therefore, if you have a trademark that you want to license to another business or individu...
11-Jan-2008
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY PART ONE OF AN EFFECTIVE LICENSE
Over the next four weeks we will look at four main requirements to have an effective licensing agreement.
The first main requirement is that the party granting the license must actually own the intellectual property and you must have valid intelle...
20-Dec-2007
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY PART II
It is very important to first determine what type of licensing agreement that you need. There are many different types of agreements involving different types of intellectual property. Once it is determined exactly what intellectual property you ar...
16-Nov-2007
LICENSING CONSIDERATIONS FOR INTELLECTUAL PROPERTY PART I
From a licensor's perspective - Licensing is an excellent way to increase your profits without having to recreate the wheel or develop new products. In the next few weeks we will look at critical points that should be included in all licensing agree...
25-Oct-2007
PROPER COPYRIGHT NOTICE - PART III
This week we are turning our attention from trademark symbols to the proper use of a copyright notice. Although the use of a copyright notice is no longer mandatory in the United States as intellectual property attorney's we highly recommend it. Th...
19-Oct-2007
CONSEQUENCES OF NON-USE OR MISUSE OF TRADEMARK SYMBOLS - PART II
Because there are federal statutes governing the use of trademark symbols, it follows that there are consequences of non-use and/or misuse of those symbols.
The greatest consequence comes with non-use of the trademark symbol ® after obtaining a fe...
12-Oct-2007
PROPER USE OF INTELLECTUAL PROPERTY SYMBOLS TRADEMARK SYMBOLS - Part I
For the next several weeks we will discuss how to appropriately use intellectual property symbols as well as any consequences for improper use and/or non-use.
The well-known federal trademark symbol, which is an R enclosed within a circle ®, may O...
27-Sep-2007
BUSINESS NAMES AND TRADEMARKS
Generally your business name, also known as a trade name, does not function as a trademark. A trade name used only to identify your company and not your particular goods or services will be denied a federal trademark registration.
However, if you u...
10-Sep-2007
THE THREE P'S OF IP - PROTECT, PROMOTE AND PROFIT FROM YOUR INTELLECTUAL PROPERTIES - PART II
Protection is an imperative component to exploiting and profiting from your intellectual property. Intellectual property is a label for different legal theories of protection being copyright, trademark, patent, trade secrets, and rights of publicity...
31-Aug-2007
THE THREE P'S OF IP - PROTECT, PROMOTE AND PROFIT FROM YOUR INTELLECTUAL PROPERTIES - PART I
Many people and small business owners only think of their intellectual property in terms of copyrights, trademarks, and patents. However, intellectual property also includes customer information, software code, databases, business models, brands, ho...
17-Aug-2007
ALL SMALL BUSINESSES HAVE INTELLECTUAL PROPERTY WORTH PROTECTING
Most small business owners spend a great deal of time figuring out how to increase the net worth of their businesses. When intellectual property is protected it becomes an asset of the business, gives the business a competitive advantage, and increa...
27-Jul-2007
THE FEDERAL ANTI-DILUTION STATUTE
The federal anti-dilution statute only applies to famous marks. In determining what constitutes a famous mark, the Court has established an eight factor test. The eight factors to be considered are:
(1) the degree of inherent or acquired distinc...
03-Jul-2007
STATE ANTI-DILUTION STATUTES
As discussed last week, anti-dilution statutes began on the state level. Many states have amended their anti-dilution statutes to conform to the federal anti-dilution statute. Tennessee for example, in 2000 amended their anti-dilution statute to re...
15-Jun-2007
THE TRADEMARK DILUTION THEORY
The trademark dilution theory is premised on the idea that ANY use of a similar trademark dilutes the original distinctive, well-known trademark already in use. The trademark dilution theory found its way into practical application through state and...
08-Jun-2007
LIKELIHOOD OF CONFUSION VS. ANTI-DILUTION STATUTES
The likelihood of confusion test prevents the registration of two confusingly similar marks within the same or similar class of goods or services. However, where the likelihood of confusion test ends, the dilution theory begins. In 1996, the Federa...
25-May-2007
Is My Mark Being Infringed?
According to the Lanham Act, one of the criteria for determining trademark infringement is whether a mark "is likely to cause confusion, or to cause mistake, or to deceive". This criteria is also considered in the examination of a federal trademark ...
11-May-2007
PERSONAL NAMES AND TRADEMARKS
Personal names and surnames may be used as trademarks; however, there is no "sacred" right to use your personal name as a trademark. The Lanham Act generally prevents federal trademark registration of a mark that is "primarily merely a surname". Th...
20-Apr-2007
IS MY FEDERAL TRADEMARK REGISTRATION PROTECTED INTERNATIONALLY?
Every country has its own trademark statutes and procedures. Generally, someone in Japan can own and use a trademark in Japan and someone else in the United States can obtain a U.S. trademark registration for the same mark without committing tradema...
13-Apr-2007
THERE'S NO SUBSTITUE FOR A FEDERAL TRADEMARK REGISTRATION
A state trademark registration provides trademark protection; however, the amount of protection provided is minimal. As you know from prior Tips of the Week, in order to be eligible for a federal trademark registration, you must participate in comme...
28-Mar-2007
WHAT IS SECONDARY MEANING? WHY AND WHEN IS IT REQUIRED?
As discussed in prior IP Tips of the Week, a trademark must be distinctive in order to acquire trademark protection. However, some marks that are initially non-distinctive may acquire distinctiveness through obtaining secondary meaning. Some of the...
16-Mar-2007
IS MY BUSINESS SLOGAN A TRADEMARK?
A slogan is capable of trademark registration so long as it is used in such a way as to identify and distinguish the seller’s good and services from those of others. When picking out a slogan, however, it is important to keep the slogan short. The ...
01-Mar-2007
TRADEMARKS AND DOMAIN NAMES
Owning a trademark includes owning the rights the use the domain name bearing the same name as the trademark. There are currently two main avenues to resolve disputes among domain name owners and trademark owners. The first solution is ICANN which ...
26-Jan-2007
WHAT IS A STRONG TRADEMARK?
The strength of a mark is measured by its distinctiveness. In fact, the Second Circuit Court of Appeals has stated that “distinctiveness” and “strength” are synonyms. The strength of a mark measures the degree of that distinctiveness for the purpos...
05-Jan-2007
RIGHT TO PUBLICITY
The right to publicity is the inherent right of every person to control the commercial use of his or her identity. The right is considered property therefore it is properly categorized as intellectual property.
The right to publicity is derived f...
28-Dec-2006
WHAT IS TRADE DRESS?
Trade dress focuses on the total image of one’s product or packaging. It is not just a single word or phrase that denotes your product; it is the overall appearance or look of the packaging.
The Eleventh Circuit Court has defined trade dress as i...
22-Dec-2006
SECTION 8 & 15 AFFIDAVITS
Once you receive your trademark Registration Certificate, there are two Affidavits that must be filed between the fifth and sixth year from the date of registration. The Section 8 Affidavit is proof that the mark is still being used in commerce. Yo...
15-Dec-2006
TRADEMARK REGISTRATION CERTIFICATE
Once the Opposition Period is completed and no oppositions have been filed to your trademark application, you are finally ready to receive your trademark registration certificate. This entire process generally takes about 12 months to complete barrin...
08-Dec-2006
STATEMENT OF USE AND EXTENSION OF TIME FOR INTENT TO USE TRADEMARK APPLICATIONS
Every intent-to-use application must file a Statement of Use within six months of the date that the Notice of Allowance is issued proving that the mark is actually being
used in commerce. If within six months, the mark has not been used in commerce,...
30-Nov-2006
THE TRADEMARK PROCESS – PART V REGISTRATION
If no opposition is filed against the trademark application during the opposition period, then a Registration Certificate is issued for the use-based application. If you have filed an intent-to-use application, then a Notice of Allowance is issued wh...
10-Nov-2006
THE TRADEMARK PROCESS – PART IV - THE OPPOSITION PERIOD
Once an application has been approved by the Examining Attorney, it is then published in the USPTO Official Gazette for public opposition. This allows others who believe they may be harmed by the proposed registration to file an opposition proceeding...
27-Oct-2006
THE TRADEMARK APPLICATION PROCESS - THE EXAMINATION - PART III
Once the trademark application is filed, it is assigned to an Examining Attorney with the United States Patent and Trademark Office. The Examining Attorney reviews the application for a variety of legal issues and/or defects.
The Examining Attorney...
20-Oct-2006
THE TRADEMARK PROCESS – PART II
Once your mark has been through the preliminary screening process, then you are ready to move forward with your trademark application. If it is a use-based application, you must provide your attorney with a specimen showing the mark affixed to the go...
12-Oct-2006
DESCRIPTIVE TRADEMARKS
Common law has determined that marks must be distinctive so that they serve the purpose of distinguishing the producer of goods or provider of services from others.
Marks that describe the goods are inherently non-distinctive because they do not dis...
05-Oct-2006
THE TRADEMARK PROCESS - PART I – SEARCHING FOR SIMILAR TRADEMARKS
Before filing a trademark application, a preliminary search should be conducted in order to be certain that another mark has not been filed or registration obtained that is likely to be confused with your mark. There are two searches that should be...
22-Sep-2006
INTENT-TO-USE TRADEMARK APPLICATIONS
You may file an intent-to-use federal trademark application when you have not yet used the mark on goods shipped in commerce or in connection with services that span across the state line. This is a relatively new innovation in the United States trad...
15-Sep-2006
USE-BASED TRADEMARK APPLICATION
You may file a use-based federal trademark application when you have already adopted and are using the mark on goods shipped in commerce or in connection with services that span across the state line. If you are filing a use-based application, you m...
08-Sep-2006
THE PURPOSE OF A TRADEMARK
The main purpose of a trademark is to promote the goodwill of an individual or company by recognition of the quality of the product or service through a trademark. A good mark distinguishes the level of quality of products or services. In doing so, c...
01-Sep-2006
DATE OF FIRST USE - SERVICEMARK
The date of first use for a servicemark is determined by the date the mark is used or displayed in the sale or advertising of services AND the services are rendered in commerce. For a servicemark, you must sell or advertise your services and then ac...
25-Aug-2006
DATE OF FIRST USE - TRADEMARK
The date of first use is an extremely important factor in a use-based trademark application. The date of first use is determined by the date that goods are first shipped in commerce with the mark affixed to the goods. This date, in an opposition or...
18-Aug-2006
THE #1 RULE IN TRADEMARK LAW
When two individuals or businesses discover that they are both using a confusingly similar mark, there must be a way to determine who has senior rights to continue using the mark. Under common law, the individual or business that is the first to shi...
14-Jul-2006
THREE LEVELS OF TRADEMARK PROTECTION
There are three levels of protection available for your existing or desired trademark. All individuals or businesses that have adopted and are using a mark are automatically protected by common law against anyone else that may subsequently begin usi...
23-Jun-2006
What is a Trademark?
According to federal law, a trademark is “any word, name, symbol or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” A service...
19-Jan-2006
GENERIC TERM VS. TRADEMARK?
A word or phrase that is deemed generic can never serve as a trademark. The function of a trademark is to identify and distinguish the goods or services of one seller from those sold by all others. A generic term is one that is used as the name of ...
25-Jul-2005
BENEFITS OF BEING A COPYRIGHT OWNER
Copyright protection is available for original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works regardless of whether they are published or unpublished.
The owner of a copyright is afforde...
IP in the News
03-Apr-2009
POPEYE GOES PUBLIC
In January, the Popeye copyright expired in Britain, which only restricts copyright rights to 70 years after the author's death. This means that anyone in Britain can print and sell Popeye t-shirts, posters, comic strips, etc. without first getting a...
20-Feb-2009
APPLE vs. THE BIG APPLE
In 2007, New York City applied for trademark protection with the United States Patent and Trademark office for a logo that consists of an apple with a stem and leaf. In 2008, Apple, Inc. filed an opposition to that application claiming that there wo...
30-Jan-2009
WHO STOLE MY BUD®?
WHO STOLE MY BUD®?
Anheuser-Busch recently filed a domain name dispute against Pen Media LLC claiming that Pen Media's registration of the domain names BudRacing.com and BudweiserRacing.com infringes on Anheuser-Busch's BUD and BUDWEISER tradema...
02-Jan-2009
WILL THE REAL JACKASS PLEASE STAND UP?
Viacom, the parent company of MTV, has filed a domain name dispute petition with the World Intellectual Property Organization (WIPO) in an attempt to obtain the rights to www.jackass.com. Right now, MTV owns the domain name www.jackassworld.com, whi...
12-Dec-2008
TYLER PERRY RULED ORIGINAL BY THE COURT
Tyler Perry was recently engaged in a copyright infringement lawsuit in Texas with a woman who claims that he stole material from her play for his 2005 movie "Diary of a Mad Black Woman".
Donna West, the Plaintiff, asked the court to award her f...
26-Sep-2008
THE DOLL FIGHT: BARBIE VS. BRATZ
After a long court battle, Mattel, the maker of Barbie, was awarded a $100 million verdict against MGA, the maker of Bratz dolls. Mattel sued MGA claiming copyright infringement and breach of contract. The copyright infringement allegedly occurred ...
29-Aug-2008
JAMAICA TAKES ACTION TO SQUASH CYBERSQUATTERS
The Jamaica Intellectual Property Office has stated that it will block internet domain name registrations containing the names of its Olympic winners. The JIPO organization will block all sales from any .com domain that is not owned by the Jamaican ...
22-Aug-2008
SMALL COMPANIES MAKE BIG PROFITS THROUGH LICENSING
The T-shirt maker, C-Life Group Ltd. figured out a way to increase their profits from $10 million a year to an expected $100 million a year. Their secret? Licensing famous characters such as Spider-Man, Betty Boop and G.I. Joe and putting them on i...
31-Jul-2008
WHAT IS COPYRIGHTABLE?
The United States Copyright Act provides copyright protection for "original works of authorship fixed in any tangible medium expression, now or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly o...
03-Jul-2008
META TAG TRADEMARK INFRINGEMENT
The Eleventh Circuit Court recently ruled that using another's trademark in meta tags on a website could cause a likelihood of confusing thus constituting trademark infringement despite not displaying the trademark directly on the site.
The Defend...
27-Jun-2008
APPLE TRADEMARKS THE IPOD SHAPE
In January, the United States Patent and Trademark Office granted a trademark to Apple for the three dimensional shape of the iPod mp3 player.
This allows Apple to not only protect the iPod name but also its shape.
While this nontraditional trade...
02-May-2008
DID VICTORIA'S SECRET STEAL THEIR SECRET?
A woman named Katerina Plew has filed a lawsuit against the mega retailer Victoria's Secret claiming that the retail chain stole her idea for a bra that hides the bra straps. Ms. Plew created the bra in 1999 and received a patent for the design in 2...
18-Apr-2008
CYBERSQATTERS AND CYBERSQUABBLES
Federal trademark owners have rights to the domain name of their federally registered trademark. Cybersquatting is the art of buying a domain name of a trademarked product or service and then selling that domain name for a profit to the trademark ow...
27-Mar-2008
MICROSOFT BUYS LICENSE FROM ADOBE FOR MOBILE PHONES
Microsoft has recently purchased a license from Adobe for software used for viewing online videos and other files on cell phones. All cell phone makers who use the Windows Mobile software will now be provided with the Adobe Flash Lite and Reader pro...
28-Feb-2008
ITALY REJOICES IN THEIR CHEESY VICTORY
A European Court recently ruled that PARMESAN is the proper and legal brand name of ONLY the tasty, crumbly cheese that is made near the Italian city of Parma. The Court ruled that Germany could not create imitation cheese and call it PARMESAN becau...
25-Jul-2005
EBAY SHINES IN COURT OVER TIFFANY & CO.
EBay who was sued by Tiffany & Co. for trademark infringement came out on top in the court battle. Tiffany claims that eBay is and should be held responsible for trademark infringement by sellers selling counterfeit Tiffany goods. The court ruled t...
Real Estate Law - Commercial
05-Dec-2009
Is there a different Title Policy for Commercial Properties?
Yes and No...
The title policy that is issued to the purchaser of a commercial piece of property is typically the same type of policy as a policy issued to a purchaser of a residential piece of property. However, there may be differences in the fi...
19-Oct-2009
Incidental Use Can Violate Restrictive Covenants
In Kerney v. Endres (Tenn. App., July 2009), the Court held that a home based business violated residential- only restrictions even though the business was incidental to residential use.
The plaintiffs in this case sued their neighbor to stop her ...
20-Jul-2009
My Business is leasing a commercial space and due to the economy I am going to have to move out early or sublet the space. But, my lease states that s
First, you need to speak with your landlord regarding your situation. He/she may have some options for you. However, if the lease agreement states that subletting is not permitted and the landlord will not change their mind, then this is the rule. Th...
13-Mar-2009
I am quitclaiming my property over to my sister and myself, each 50% ownership. However, she has a few judgments against her stemming from an accident
Yes... you both should be concerned about the potential ramifications from this transfer. If she has judgments against her, these judgments will attach to the property. Judgments follow the debtor to any property that the debtor purchases or has titl...
20-Feb-2009
I want to Quitclaim a piece of property to my new LLC. Will there be a gift tax?
It depends on several factors. My first suggestion would be to consult an accountant with that question. The Tennessee Department of Revenue can enforce a gift tax to certain transfers and there is the potential for a federal gift tax in certain tran...
06-Feb-2009
How much do I need to charge my tenant for a security deposit?
That is a personal decision for the landlord to make. It has been the "norm" to charge the tenant a Security Deposit equal to one month of rent. However, some landlords are attempting to entice tenants with a "No Security Deposit Required" sales pit...
30-Jan-2009
My LLC is renting office space in a complex. Will the landlord require my personal guarantee on the lease?
Probably yes... Typically in this type of setting, landlords will require that the principals of the LLC or other type of company personally guarantee the terms of the lease agreement. There is a risk of the entity going out of business and the landl...
09-Jan-2009
Do banks typically care if there is a survey exception in the policy because I really do not want to pay for an ALTA survey?
Typically yes...
Most lenders require the attorney's office issuing the policy to remove the survey exception. Then in turn, the attorney's office will let the borrower know what needs to be done in order for the exception to be removed. This may...
19-Dec-2008
Is there a different Title Policy for Commercial Properties?
Yes and No...
One of the main differences in a policy that is issued to a buyer in a residential piece of property versus the policy that is issued to the buyer of a commercial piece of property may be the exceptions in the title policy. Like any...
28-Nov-2008
What does "Potentially Commercial" mean on a FOR SALE sign?
This term is used in the commercial arena when a property is not currently zoned commercial. It may be zoned residential, agricultural or any number of zoning classes. Please be aware that this term of "potentially commercial" does not promise anythi...
21-Nov-2008
Mechanics Liens -What You Need To Be Aware of
By not being aware of potential mechanics' and materialmen's liens issues, it can leave a buyer with liens on their "dream home." What this means is that the buyer could be stuck with liens after closing that they would either have to pay or could p...
31-Oct-2008
Mechanics Liens -What You Need To Be Aware of
It is of the ultimate importance to be aware of mechanics' and materialmen's liens issues. If you or your client is purchasing a new home or a remodeled home, speak with an attorney so that this transaction is done correctly and you are fully aware o...
17-Oct-2008
Mechanics Liens -What You Need To Be Aware of
After the Notice of Completion document has been completed in full, it has to be recorded at the Register of Deeds Office in the county where the property is located. After recording, most attorneys require the document to be recorded for 10 days. P...
03-Oct-2008
Mechanics Liens -What You Need To Be Aware of
A Notice of Completion is a document that gives a multitude of information. It states the owner of the property and the contractor of the property and the property address. It also gives the date of full completion of the project and an address for p...
26-Sep-2008
Mechanics Liens -What You Need To Be Aware of
Different title insurance underwriters require different steps to be taken in order for title insurance to be underwritten on a certain real estate transaction. Please consult with your closing attorney for specific information on a particular deal. ...
12-Sep-2008
Mechanics Liens -What You Need To Be Aware of
With a changing real estate market, it is very important to protect your clients when dealing with the potential for mechanics' and materialmen's liens. This is obviously more important when purchasing a new construction home. However, one also needs...
29-Aug-2008
Mechanics Liens-What you need to be aware of
Mechanics' and Materialman's lien laws are very important concepts for anyone in the real estate or construction industry to be aware of. The concept behind these laws is that the laborers and suppliers need special protection from general contractor...
22-Aug-2008
Commercial Disclosures and Practices-Are Most Properties sold "AS IS"?
Yes, most commercial pieces of real estate are sold "AS IS". That is not to say that negotiations cannot be made otherwise. Sellers are not as legally obligated to make repairs and disclose items as are legally required in residential real estate tra...
15-Aug-2008
Commercial Disclosures and Practices
There are much fewer required disclosures when dealing with commercial real estate. There is a Commercial Real Estate Property Disclosure that exists. However, few transactions require it. However, this is something that can be a condition to the pur...
31-Jul-2008
Financial Analysis- Is this real estate transaction "feasible?"
Some of the items that are to be considered for the feasibility of the real estate transaction are as follows:
(f) Copies of existing appraisals, environmental reports (g) Copies of existing leases and any lease proposals for vacant space or matur...
15-Feb-2008
Part two of a multi-part series Are there many differences between dealing in commercial real estate and residential real estate?
Another difference between residential versus commercial real estate are the lien and title issues. The bigger the development, the more tenants in the leasehold, the risk become greater and there may be bigger problems that have to be dealt with. Fo...
05-Feb-2008
Part one of a multi-part series…Are there many differences between dealing in commercial real estate and residential real estate?
Yes. There are huge differences in residential real estate versus commercial real estate. One of the differences is as follows: (1) Risks- Any real estate transaction has the potential for problems or unforeseen risks. However, in a commercial real e...
01-Feb-2008
What is Commercial Real Estate?
Commercial Real Estate can be defined as dealing with any real property in a business context. It can vary along a broad spectrum of business dealings. It can involve the leasing or selling of office space, owning an apartment complex, or selling rea...
28-Dec-2007
Partnerships--- How do they compare to an LLC?
In the event of death of any partner, the partnership is deemed to be terminated. This is even if the remaining partners wish to continue the partnership. For instance, if there are three partners in the partnership and one passes away, the partnersh...
12-Dec-2007
Partnerships--- How do they compare to an LLC?
There are also vast differences in how a partnership and an LLC can be terminated. A partnership can terminate by the intent of any partner. Upon the death of any partner, the partnership automatically dissolves.
...
15-Nov-2007
Partnerships--- How do they compare to an LLC?
A similarity between partnerships and LLC's is the tax treatment. If the LLC qualifies as a flow through entity, both the LLC and partnership will be treated the same for federal income tax purposes. However, please consult with a licensed tax attorn...
09-Nov-2007
Partnerships--- How do they compare to an LLC?
Likely, the greatest difference between partnerships and an LLC is the partner's or member's personal liability for the debts and obligations of the entity. In a general partnership, all partners are jointly and severally liable for the partnership's...
25-Oct-2007
Partnerships--- How do they compare to an LLC?
Partnerships are usually operated and managed equally by its partners.
However, an LLC does not have to be operated by its members or owners and can be managed by elected officers.
...
12-Oct-2007
Partnerships--- How do they compare to an LLC?
Partnerships and LLC's have characteristics that are similar. However, there are many differences between the two also. A Partnership does not require an agreement. However, some partnerships do have a Partnership Agreement, but it is not required. ...
04-Oct-2007
Partnerships--- How do they compare to an LLC?
Limited liability companies (LLC's) are comparable in many ways to general partnerships due to the fact that they can be structured and operated similarly to a general partnership. Both entities can be operated by their partners/ members and can be t...
27-Sep-2007
Sole Proprietorships- I have a Sole Proprietorship.. Can I convert it to an LLC?
Yes, a sole proprietorship can be converted to an LLC. The sole owner of the sole proprietorship can transfer the sole proprietorship's assets to the LLC.
Along with this transfer, there may be tax consequences. This should be discussed with a licen...
14-Sep-2007
Sole Proprietorships- How is the Tax treatment and Termination different from an LLC?
There are differences in the tax treatment between a sole proprietorship and an LLC. These differences would need to be discussed with a licensed accountant or tax attorney.
There are also differences in the termination of an LLC versus a sole pro...
07-Sep-2007
Sole Proprietorships- How is the liability different from an LLC?
Likely, the greatest difference between a sole proprietorship and an LLC is the liability. In a sole proprietorship, the owner is personally liable for the business's debts and obligations.
However, in an LLC, there is protection available for the...
31-Aug-2007
Sole Proprietorships- How are they different from an LLC?
A Sole Proprietorship is generally operated and managed by its owner. An LLC can be operated several different ways, dependent upon the setup of the LLC.
For instance, the LLC could be operated by the managers, members or other ways specified in the...
17-Aug-2007
Sole Proprietorships- How are they different from an LLC?
The first main difference between a sole proprietorship and an LLC is the way that they are set up. A sole proprietorship does not require any paperwork to be filed. It can be created just by one's spoken words. It only takes one person to form a sol...
27-Jul-2007
Sole Proprietorships- What are they?
Sole proprietorships are usually operated and managed by the sole owner.
However, the sole owner can hire managers to run the company. They are similar to LLC's in some ways including the tax treatment and the operation and management of the 2 entit...
29-Jun-2007
What you need to know about LLC's.. Continued
Generally, any individual, corporation, partnership (general or limited), trust, business trust, association, estate, or other LLC can be a member of an LLC. Previously, LLC statutes required at least two members to form an LLC.
This requirement ens...
15-Jun-2007
What you need to know about LLC's.. Continued
LLC's have a flexible organizational structure. The owners can adopt an Operating Agreement which allows owners to determine, with some limitations, how the LLC will be managed, controlled and structured. The LLC can be board managed, member managed ...
08-Jun-2007
What you need to know about LLC's.. Continued
An LLC is typically formed to accomplish two things:
(1) Limit Liability and (2) to provide Pass- Through Tax Treatment
LLC...
18-May-2007
What you need to know about LLC's
A Limited Liability Company (LLC) is a noncorporate business entity formed pursuant to a state statute that provides owners protection against unlimited personal liability from creditors and third parties. Other business entities provide protection ...
13-Apr-2007
BEWARE of how you are signing if you are signing on behalf of an entity
Recent cases have reflected that the courts are looking closely at exactly how documents are signed when an entity (LLC, corporation, partnership etc.) is involved. When an entity is a party to a real estate transaction, whether it be a contract or a...
05-Jan-2007
Duty to Mitigate Damages in Commercial Lease
There is a common law duty on the part of the landlord to mitigate their damages in the event that the tenant does not fulfill their lease obligations.
What this means is that the landlord still has a duty to attempt to find a replacement tenant f...
28-Dec-2006
Commercial Evictions -- Can the Landlord recover for future rent?
Maybe yes.. Maybe no...
Many leases provide a clause similar to an acceleration clause in a Deed of Trust. This is a clause where if the tenant defaults on his/her obligations under the rent, the landlord can recover the remainder of the rents due...
22-Dec-2006
Commercial Evictions for Non- Payment.
If a commercial landlord is successful at trial when suing the tenant for non-payment, he/she will not only be awarded legal possession of the premises, but also recover a monetary judgment. This can include past due rent, general damages, interest a...
30-Nov-2006
Commercial Evictions and Self Help Cont...
The exception to the rule that landlords cannot use “self help” to evict tenants is that the tenant has clearly and unequivocally abandoned the property. The problem in making this determination is that it is a judgment call. It depends entirely on t...
10-Nov-2006
Commercial Evictions
Tennessee holds that if a landlord resorts to self-help (taking matters into your own hands), the damages recoverable by the tenant for a wrongful trespass/eviction can include not only punitive damages, but the difference between the market value of...
27-Oct-2006
In a Commercial Lease–Can I physically evict my tenant if they are not paying?
No.... Some landlords believe in the “old school” way of evicting their tenants if they are not paying or if they are exhibiting some other undesirable behavior for the landlords. This is not allowed under the laws of Tennessee. Some believe it to be...
02-Aug-2006
Real Estate Agency Law Basics: When do I “shift gears” and change agency status? Part V of VI
This issue of changing agency status comes up in a number of different contexts. For example, one common situation is when you are working with a buyer as a buyer’s agent and show the buyer your own listing. Assuming that you are the seller’s agent...
22-Jun-2006
Construction Contracts-Forms
There are many different forms for construction contracts. In commercial jobs, the developer or owner will generally decide which form to use. Forms are published by the American Institute of
Architects (AIA), the National Society of Professional En...
16-Jun-2006
Commercial Real Estate Issues 101-Construction Loans Part 4 of a Multi-part tip
Constructions loans are another tool that are used frequently in the commercial and residential world of real estate. There are issues that arise in a construction loan that do not exist in other forms of lending. At the time that the lender makes th...
09-Jun-2006
Commercial Real Estate Issues 101-Ground Leases Part 3 of a Multi-part tip
SMITH.SHOLAR.ASSOCIATES.PLLC
REAL ESTATE LEGAL TIP OF THE WEEK
Commercial Real Estate Issues 101-Ground Leases
Part 3 of a Multi-part tip
TIP 250
An example of where a ground lease would be useful is with a hospital. A hospital would...
30-May-2006
Commercial Real Estate Issues 101 Part 2 of a Multi-part tip
SMITH.SHOLAR.ASSOCIATES.PLLC
REAL ESTATE LEGAL TIP OF THE WEEK
Commercial Real Estate Issues 101
Part 2 of a Multi-part tip
TIP 249
Our first topic covered real estate financing. Leases are used in commercial real estate as an alte...
19-May-2006
Commercial Real Estate Issues 101
For the next few weeks, we are going to briefly address commercial real estate issues. Some will relate to residential transactions also. However, for the most part, commercial transactions exist in a world of their own.... a world that is much diffe...
19-Jan-2006
Commercial Evictions -- What actions can the tenant take to stop the Eviction?
The tenant may have some defenses when it comes to their being evicted from the commercial property. If the landlord files a bankruptcy petition, the automatic stay will prohibit the landlord from proceeding with the eviction.
The landlord will ha...
08-Dec-2005
Installment Contracts- “Are they enforced?”
The Tennessee Court of Appeals has said “Yes”, installment sales contract for real estate are enforceable in Kafozi v. Windward Cove, LLC (Tenn. App., August 2005). In this case, the court allowed a seller to terminate an installment sales agreement...
12-Jul-2005
Greenbelt change must be challenged promptly or you may lose your right to challenge it
In Metropolitan Government v. Cain (Tenn. App., March 31, 2005), the Court of Appeals held that a taxpayer could not contest the loss of greenbelt status in a delinquent tax suit. The taxpayer in Cain owned a 37.25 acre parcel of commercial property ...
02-Jun-2005
Part II of a multi-part series on “As Is” contracts and sales: How to protect a Buyer in an “As Is” sale.
Some agents and buyers are skeptical about properties being sold “As Is,” fearing that the owner has something to hide. This is probably not the case, however, because there are many reasons to sell property “As Is.” If the Buyer likes the location ...
02-Jun-2005
Real Estate Agency Law Basics: Do the Tennessee Real Estate Agency statues apply to commercial transactions? Part VI of VI
Yes The Tennessee statues that govern agency laws and representation by real estate agents does apply, for the most part, to commercial transactions. For example, the duties owed to all parties in 62-13-403 and the duties owed to the licensee’s cli...
02-Jun-2005
Real Estate Agency Law Basics: What duties do I owe my client? Part IV of VI
T.C.A. Sec. 62-13-404 sets forth the duties you owe to your client. These duties are in addition to the ones you owe all parties covered in our last Tip of the Week. The statute states:
62-13-404 Duty owed to licensee’s client. Any licensee who a...
02-Jun-2005
Real Estate Agency Law Basics: What duties do I have all parties to a transaction, even if I am just a facilitator? Part III of VI
T.C.A. 62-13-403 sets forth the duties all licensees have to all of the parties involved in the transaction.
The statues provides:
62-13-403 Duty owed to all parties- A licensee who provides real estate services in a real estate transactio...
02-Jun-2005
Real Estate Agency Law Basics: When do I tell the buyer/seller who I represent? When do I get this in writing? Part II of VI
Tennessee Code Ann. Section 62-13-405 provides as follows:
Written disclosure:
(a) If a licensee personally assists a prospective buyer or seller in the purchase or sale of a property, and such buyer or seller is not represented by this or an...
02-Jun-2005
Real Estate Agency Law Basics: Part I of VI
When first meeting a prospective buyer or seller, you must first ask yourself “Who do I represent in this transaction?” The answer to this can be found first by consulting your Broker’s office policy for agency relationships. Remember, there are dif...
12-May-2005
IT’S MAY- CLOSE EARLY & SAVE THE SUFFERING!
Here’s a word to the wise about closings in May, June and August-close early in the month! These are the three busiest closing months of the year and all of them have a three day weekend at the end. Since Buyers want to move on Memorial day weekend...
Real Estate Law - Residential
22-May-2013
Enhanced Title Insurance Coverage: Post - Policy Protections
Protect your clients, protect yourself!
Enhanced Title Insurance Coverage:
Post - Policy Protections
Part 6
The expanded coverage of the Eagle title policy now provides coverage for post-policy issues. The specific protections include:
Post...
15-May-2013
Real life illustration of how enhanced protection has paid off - Part 5
Protect your clients, protect yourself!
Enhanced Title Insurance Coverage:
Real life illustration of how enhanced protection has paid off
Part 5
In 2000, Pan and Kim Lee brought their two sons from China to live in the United States and purc...
08-May-2013
Enhanced Title Insurance Coverage: Automatic Coverage Increases & Continuous Coverage
Protect your clients, protect yourself!
Enhanced Title Insurance Coverage:
Automatic Coverage Increases & Continuous Coverage
Part 4
The Eagle policy provides greater peace of mind to you and your clients who are making the largest financi...
01-May-2013
Real life illustration of how enhanced protection has paid off
Protect your clients, protect yourself!
Enhanced Title Insurance Coverage:
Real life illustration of how enhanced protection has paid off
Part 3
John and Mary Homeowner own 9 acres of land in Rutherford County, Tennessee. As John and Mary aged...
24-Apr-2013
6 Key Advantages of Enhanced Policies
Protect your clients, protect yourself!
Enhanced Title Insurance Coverage:
6 Key Advantages of Enhanced Policies
Part 2
Survey coverage for encroachments
Property appreciation coverage up to 150% in first 5 years
Protection against violations o...
17-Apr-2013
Enhanced Title Insurance Coverage: Why Bother?
Protect your clients, protect yourself!
Enhanced Title Insurance Coverage: Why Bother?
Part 1 of a multi tip series
The enhanced policy covers items that have not traditionally been covered under title insurance policies. Some of the coverage p...
10-Apr-2013
Landlord & Tenant Law: Due Dilligence
Who should execute the lease?
It is very important to determine who the "tenant" will be and have the lease drafted and executed accordingly.
For example, if a Corporation is named as the tenant, then it is imperative to determine ...
03-Apr-2013
Landlord & Tenant Law: Due Dilligence
Fair Housing Compliance
In the Sale and Rental of Housing, no one may take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:
Refuse to rent or sell housing
Refuse to negotiate fo...
27-Mar-2013
Landlord & Tenant Law: Due Dilligence
Fair Housing Compliance
Discrimination can be avoided when the landlord establishes reasonable qualifications that are consistently applied to ALL applicants, regardless to membership in a protected status such as race, color religion, gender, f...
20-Mar-2013
Landlord & Tenant Law: Due Dilligence
The landlord should establish clear and consistent criteria for candidates for a lease. The key to avoiding discrimination and Fair Housing issues is to maintain consistency among the approval/disapproval for ALL candidates. The application should ha...
13-Mar-2013
Landlord & Tenant Law: Due Dilligence
Due diligence on the front end may be the most important part of the leasing transaction. A landlord cannot forecast everything. But, as they say, "You cannot manage what you do not measure". So, having said that, the Rental Applications an...
12-Mar-2013
Landlord & Tenant Law: Due Dilligence
Due diligence on the front end may be the most important part of the leasing transaction. A landlord cannot forecast everything. But, as they say, "You cannot manage what you do not measure". So, having said that, the Rental Applications an...
06-Mar-2013
What Sellers are good candidates for a Short Sale?
(1) Motivated Seller
(2) Credit worth saving
(3) A seller who is in a real position of “hardship”
(4) There is time to facilitate a short sale- The foreclosure is not scheduled yet!
...
26-Feb-2013
What is the Process and Requirements for a Short Sale?
It has been likened to applying for a loan in reverse. You are now applying to the bank/lender in order for them to deem you "not able topay the note". There are several documents that are typically required for the "Application Packag...
29-Apr-2011
Why do sellers agree to a short sale?
Following are a few of the reasons that the sellers might agree to a short sale:
(1) Effects on credit score might be less.
(2) Avoid the embarrassment of the foreclosure
(3) Potential for negotiating a release for the deficiency from the bank/l...
15-Apr-2011
Why do banks allow short sales?
Following are a few of the reasons that banks might allow a short sale:
(1) Typically, the bank can net more money in a short sale versus a foreclosure.
(2) Liability by having to "hold" the property after foreclosure.
(3)...
08-Apr-2011
What is a Short Sale?
The property being sold cannot net the proceeds necessary to pay the mortgage(s) in full....
25-Mar-2011
What Contract terms are necessary when discussing whether Owner Financing is an option for a transaction?
There are several items to consider when discussing owner financing as an option in a transaction. A few of the items that are “crucial” to financing in general are as follows:
(1) Interest Rate
(2) Term of Note/Maturity Date
(3) Payment structu...
18-Mar-2011
Is title insurance typically purchased when there is owner financing?
Typically, yes… Most all lenders require mortgagee’s title insurance. An owner providing financing personally is in the same “risk” position as a traditional lender. Therefore, I would always recommend that it be purchased.
...
25-Feb-2011
What MLS members need to know about the MLS and home photographs
Copyright and intellectual property laws are obtuse and rarely known and understood outside of the creative industries and intellectual property attorneys. At the risk over oversimplifying very complex legal issues, I am going to give you the basics...
18-Feb-2011
Who prepares the paperwork for a transaction with Owner Financing?
An Attorney’s office can help with the preparation of all the documents necessary to facilitate a transaction with Owner Financing....
11-Feb-2011
When Can an Owner Provide Owner Financing for the Buyer?
Typically, the seller’s property must be free from encumbrances (mortgages, other types of liens).
If the property is not fully paid for or free from encumbrances, the Seller could owner finance the property IF the Seller had the ability to bring...
04-Feb-2011
What is Owner Financing?
Owner financing is a transaction where the Seller of a property acts as a lender for the Buyer in providing financing for the purchase....
21-Jan-2011
What are the risks involved with a Contract for Deed?
1. The property is not vested in the Buyer.
2. If the Seller has any liens or judgments, they will attach to the property and may affect the ability to transfer title to the Buyer.
3. If the Buyer gets behind on the payments, the Seller could f...
28-Dec-2010
Lease Purchase: What are the Risks for the Buyer?
1. Seller not making their mortgage payments and the home going into foreclosure.
2. Seller getting into a position of financial distress and having judgment liens placed against them and therefore encumbering the property.
3. Seller not keep...
03-Dec-2010
Why are the forms for a Lease Purchase not readily available for Agents?
These transactions can be very risky for all parties involved. The known risks need to be disclosed and reviewed by all parties. Having an attorney with specific knowledge regarding these transactions to prepare these documents and review them with c...
23-Nov-2010
What is the process for having a Lease Purchase drawn up?
Once all the parties have come to an agreement on the terms for the lease and the purchase, contact an attorney to draw up the proper documentation for the transaction. The attorney will then draw up the Lease Agreement and the Purchase and Sale Agre...
18-Nov-2010
What is a Lease Purchase?
A Lease Purchase is a transaction where a buyer contracts to lease a property for a certain amount of time (timeline specified in the lease agreement) and after the lease period is over (or before if the parties agree), the buyer will proceed to purc...
29-Oct-2010
Owner Financing Just Became Problematic
A Tennessee Attorney General's opinion interprets new legislation to prevent owner financing of investment residential properties
Under the Tennessee Residential Lending, Brokerage and Servicing Act a property owner who provides a purch...
22-Oct-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: May a loan originator i...
15-Oct-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: What are processing and...
08-Oct-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: If the borrower is taki...
30-Sep-2010
What's a RE-professional to do? - 5
Re-train - Time to learn! Learn how to use new gear and software. Learn how to prepare and implement a new marketing plan based on the internet, social media, blogs, videos, and the fact that 85-90% of consumers are starting their search for real ...
22-Sep-2010
What's a RE-professional to do? Part 4
What's a RE-professional to do?
RE-up, RE-new, RE-equip, & RE-train!!!!! Part 4
Authored by: Attorney Brian Smith
In the last 2 tips we talked about a decision to RE-up for another tour of duty in the Real Estate world, and RE-new...
14-Sep-2010
What's a RE-professional to do? - 3
<B>What's a RE-professional to do?
RE-up, RE-new, RE-equip, & RE-train!!!!! Part 3</B>
Authored by: Attorney Brian Smith
Re-new - your enthusiasm! Renew your commitment to do your very best and your commitment to work...
14-Sep-2010
What's a RE-professional to do? - 3
What's a RE-professional to do?
RE-up, RE-new, RE-equip, & RE-train!!!!! Part 3
Authored by: Attorney Brian Smith
Re-new - your enthusiasm! Renew your commitment to do your very best and your commitment to working hard everyday. ...
01-Sep-2010
What's a RE-professional to do? - 2
<B>What's a RE-professional to do?
RE-up, RE-new, RE-equip, & RE-train!!!!! Part 2</B>
Authored by: Attorney Brian Smith
So what's an RE professional to do? Here's part two of the plan to get you back into th...
27-Aug-2010
What's a RE-professional to do? RE-up, RE-new, RE-equip, & RE-train!!!!!
<B>What's a RE-professional to do? RE-up, RE-new, RE-equip, & RE-train!!!!!</B>
Authored by: Attorney Brian Smith
This has been a really hard last three years for all of our friends and colleagues in the RE (Real Estate) ...
30-Jul-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
<B>Q: At what poin...
23-Jul-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
<B>Q: Is a GFE a l...
16-Jul-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
<B>Q: Can the Brok...
09-Jul-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
<B>Q: What fees can ...
30-Jun-2010
Deals not closed by the stimulus deadline...
Deals not closed by the stimulus deadline...
Authored by: Attorney Brian Smith
If a transaction does not close by midnight of June 30th, 2010 and the Buyer was planning on receiving stimulus funds that now they are not eligible for..... what ...
23-Apr-2010
Q&A on RESPA, cont...
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: When does a loan origin...
23-Apr-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: When does a loan origin...
09-Apr-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
<B>Q: What happens if...
26-Mar-2010
Q & A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: How can I contact HUD i...
26-Mar-2010
Q&A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
<B>Q: How can I con...
19-Mar-2010
Q & A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained within that report.
Q: If I suspect someone...
29-Oct-2009
Q&A on RESPA
The Department of housing and Urban Development (HUD) has released a 16 page frequently asked questions report on August 13. Following is information contained within that report.
<B>Q; What happens if a GFE (Good Faith Estimate) is not pro...
19-Oct-2009
Is a commission due to the real estate agent if the owner does not accept the contract?
In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to the table that he felt was a very good offer. Th...
19-Oct-2009
A Zoning for Agricultural Use may be difficult to change
Municipalities are precluded from rezoning land that was used for agricultural purposes as of May 10, 1998 and continues to be used for agricultural purposes. See T.C.A. 6-54-126 for more information regarding this. The key to this rule is that the p...
19-Oct-2009
Fannie Mae has implemented Anti- Flip Language
Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language may vary but will be included. Stay tuned next week for the language that will be...
19-Oct-2009
Fannie Mae has implemented Anti- Flip Language
Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds.
The language that will be included is as follows: (This language may vary)
Grantee (Buy...
19-Oct-2009
Protecting Tenants at Foreclosure Act
Under this Act, a tenant’s lease survives foreclosure and the tenant is allowed to remain on the property for the remainder of the lease. There, however is one big exception…
If the immediate successor in interest in the property is purchasing the...
19-Oct-2009
Protecting Tenants at Foreclosure Act
Under this Act, a tenant’s lease survives foreclosure and the tenant is allowed to remain on the property for the remainder of the lease. There are also other stipulations in addition to the immediate successor in interest not purchasing the property...
19-Oct-2009
What Amount do I have to pay in order to redeem my property after a tax sale?
In Home Funds Direct v. Garrett, 34 TAM 24-4 (Tenn. App., May 5, 2009), the Court of Appeals held that the Owner (delinquent tax payer) only had to deposit the amount of the bid at the tax sale, plus interest on the purchase price to redeem their pro...
19-Oct-2009
What Amount do I have to pay in order to redeem my property after a tax sale?
In Home Funds Direct v. Garrett, 34 TAM 24-4 (Tenn. App., May 5, 2009), the Court of Appeals held that the Owner (delinquent tax payer) only had to deposit the amount of the bid at the tax sale, plus interest on the purchase price to redeem their pro...
20-Jul-2009
Fannie Mae Has Implemented Anti- Flip Language
Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language may vary but will be included. Stay tuned next week for the language that will be...
03-Apr-2009
Is a commission due to the real estate agent if the owner does not accept the contract?
In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to the table that he felt was a very good offer. Th...
20-Mar-2009
Is a commission due to the real estate agent if the owner does not accept the contract?
In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to the table. In this case, the owners entered into ...
13-Mar-2009
Is a commission due to the real estate agent if the owner does not accept the contract?
It depends on how the listing agreement reads. In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to th...
27-Feb-2009
I just found out that a house that I am doing a lease/purchase on is about to be in foreclosure. What about my deposit and all of my money that was t
This situation is a very real risk involved in doing a Lease/Purchase transaction. Contractually, if your landlord is in default of the contract, you are entitled to a refund of your deposit (unless your contract states otherwise). Having said that.....
20-Feb-2009
I am doing a lease/purchase and I am the buyer. What if we get down to closing time and the property does not appraise for the sales price?
If the contract reads that the deposit given under the Lease/Purchase was NON-REFUNDABLE in any event, then the Buyer would not be entitled to their deposit back. This is a very common provision in Lease/Purchase contracts.
The moral of this sto...
13-Feb-2009
I am doing a lease/purchase and I am the buyer. What if we get down to closing time and the property does not appraise for the sales price?
This depends on how the contract reads. If there is a contingency in the contract for the property to appraise at or above the sales price and the property does not appraise at that value, you could be released from the purchase contract based upon a...
06-Feb-2009
My landlord that I am doing a lease/purchase with is being sued for injuries from an automobile accident. Should I be worried ?
This is a potential issue with lease/purchases transactions. If the seller/landlord has a judgment placed against him... this judgment is recorded as a lien against any real property that he owns. So, in this scenario, if a judgment is obtained in co...
30-Jan-2009
What if my LANDLORD files bankruptcy during the lease period?
If your landlord files for bankruptcy protection during the lease period or even during the purchase period... this is an issue. When someone files for bankruptcy protection, there is somewhat of a freeze (automatic stay) put on their assets by the ...
09-Jan-2009
What if my tenants damage my property while they are under the Lease?
First, you need to go back to the contents of the lease agreement and see what the lease states. Most leases state that the tenants will be responsible for any damage that is done to the property while they are under the lease. There may also be a p...
19-Dec-2008
How do the agents get paid with a Lease/Purchase?
There are several ways that the agents can be paid when doing a Lease/Purchase. One way that the agents can be paid is at the beginning of the deal. In this case, the agent would be paid their commission or a portion of their commission at the closin...
12-Dec-2008
How Can I Minimize My Risks Associated with a Lease/Purchase?
Lease/Purchase transactions definitely have risks. However, these risks can be minimized by being fully informed by a lawyer and by having a lawyer draw up the documents associated with the Lease/Purchase transaction. By having this full disclosure t...
05-Dec-2008
ARE THERE RISKS INVOLVED IN DOING A LEASE/PURCHASE?
Yes Yes and Yes.
There are risks. However, they can become calculated risks when entering these agreements with the correct information. Some risks that the Seller could encounter are as follows:
(1) The Buyer could decide that they do no...
03-Oct-2008
EDUCATION, EDUCATION, EDUCATION
As a real estate licensee, the more educated you are, the better level of service you can provide to consumers. You should not limit your education to "continuing education" classes. Here are several suggestions:
1. Attend Continuing Ed...
12-Sep-2008
When Must a Tennessee Residential Property Condition Disclosure or Disclaimer be Delivered to a Buyer?
According to Section 66-5-203 of the Tennessee Residential Property Condition Disclosure Act, a Disclosure or Disclaimer must be delivered to the buyer prior to the "acceptance" of a purchase and sale agreement OR an exchange or lease with an option ...
05-Sep-2008
How should real estate licensees handle clients' or customers' requests for referrals of service providers?
When your clients or customers ask you for a referral for a service provider such as a home inspector or a mortgage broker, be sure to recommend more than one person or business. You should refrain from making any statements as to the quality of the...
22-Aug-2008
Three Reasons for Not Quitclaiming Your Property:
1. Medicaid Lockout: For persons that may have to apply for Medicaid benefits to cover the cost of nursing home care, whether in the near future or a few years down the road, it is never a good idea to quitclaim your interest in property without rec...
11-Aug-2008
New FACT Act Rules and Regulations - Part 2 of a 2 Part Series
New rules and regulations under the Fair and Accurate Credit Transactions Act of 2003 will go into effect this Fall.
The Identity Theft Red Flags and Address Discrepancy Rules go into effect on November 1, 2008. These rules require any users of c...
31-Jul-2008
New FACT Act Rules and Regulations - Part 1 of a 2 Part Series
New rules and regulations under the Fair and Accurate Credit Transactions Act of 2003 will go into effect this Fall.
The Affiliate Marketing Regulations go into effect on October 1, 2008. These regulations, issued by the Federal Trade Commission a...
14-Jul-2008
ERRORS AND OMISSIONS INSURANCE - PART 3 OF A 4 PART SERIES
What are the limits of liability for your errors and omissions insurance
policy have limits of liability? For those real estate licensees who carry
the Errors and Omissions Insurance Policy offered through Continental
Casualty Company and adminis...
03-Jul-2008
ERRORS AND OMISSIONS INSURANCE - PART 2 OF A 4 PART SERIES
What is not covered by your policy? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and administered by Rice Insurance Services Company, LLC (RISC), the policy will gen...
27-Jun-2008
ERRORS AND OMISSIONS INSURANCE - PART 1 OF A 4 PART SERIES
What does your policy cover? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and administered by Rice Insurance Services Company, LLC (RISC), the policy will generally ...
16-Jun-2008
MANAGING BROKER'S SERIES - BUSINESS ADDRESS
TREC Rule 1260-2-.05 prohibits the use of a P.O. Box as the sole business address for a real estate brokerage firm. A physical address must be used instead. You may, however, include a P.O. Box in a business address for the purpose of receiving mai...
10-Jun-2008
Municipal Ordinances– The “Substantial Effect” Test is to be used
In Cherokee Country Club, Inc. v. City of Knoxville, the Tennessee Supreme Court invalidated a municipal ordinance that temporarily disallowed demolition permits. This was a zoning ordinance and the court found that it did not comply with the applica...
30-May-2008
MANAGING BROKER'S SERIES - TELEPHONE ANSWERING SERVICES
TREC RULE 1260-2-.04 permits "reasonable use" of a telephone answering service by a real estate broker. Posting a license at a telephone answering service or conducting the major part of one's real estate business through a telephone answering servi...
12-May-2008
Legal Duties of Managing Brokers Series: ADVERTISING Part 2
SECTION 62-13-310(b) of the Brokers' Act requires that signs posted on a property by a licensee must contain the firm's name and that the firm's name must be the same size or larger than the name of the licensee.
SECTION 62-13-312(4) of the Discipli...
02-May-2008
Legal Duties of Managing Brokers Series: ADVERTISING Part 1
All advertising, regardless of the medium used, must comply with TREC Rule 1260-2-.12. Section (2)(b) of this rule provides as follows: all licensees shall advertise under the firm name offers to purchase, sell, rent, or lease any property; all adv...
17-Apr-2008
MANAGING BROKER'S SERIES - BUSINESS LOCATIONS
Section 62-13-309 of the Brokers' Act requires each real estate office to have a real estate firm license, a principal broker, and a "fixed location"
for affiliate brokers. Branch locations must meet this requirement as well.
This Section of the B...
28-Mar-2008
Legal Duties of Managing Brokers Series: Termination of Affiliation
When the relationship between a principal broker and an affiliate broker is terminated, regardless of the reason, Section 62-13-310 of the Brokers' Act requires the principal broker to sign and date the TREC change of affiliation form immediately. A...
28-Feb-2008
Legal Duties of Managing Brokers Series
Section 62-13-112 of the Real Estate Brokers' Act requires all principal and affiliate brokers to maintain errors and omissions insurance coverage. If a licensee fails to maintain the required insurance, TREC will deny the renewal of his/her license...
22-Feb-2008
Legal Duties of Managing Brokers Series
TREC Rule 1260-2-.01 (Supervision of Affiliate Brokers) states that a licensee may be affiliated only with a principal broker who is involved primarily in the real estate business and accessible during normal daytime working hours. In other words, a...
19-Feb-2008
Legal Duties of Managing Brokers Series
TREC Rule 1260-1-.04(1) provides that "No principal broker shall permit an affiliate broker (or broker) under his supervision to engage in the real estate business unless the affiliate broker (or broker) has been issued a valid license."
In order ...
08-Feb-2008
Legal Duties of Managing Brokers: Escrow Accounts -- Part 3
Pursuant to TREC Rule 1260-2-.09(5), a broker may disburse funds from an escrow or trustee account upon: (1) a reasonable interpretation of the contract pursuant to which the broker is holding said funds; (2) securing a written agreement allowing di...
01-Feb-2008
Legal Duties of Managing Brokers: Escrow Accounts -- Part 2
TREC Rule 1260-2-.09
When must earnest money or other such funds be deposited into an escrow account? TREC Rule 1260-2-.09(8) provides that earnest money must be deposited "promptly upon acceptance of the offer, unless the offer contains
a state...
25-Jan-2008
Legal Duties of Managing Brokers: Escrow Accounts -- Part 1
Section 62-12-321 of the Tennessee Real Estate Brokers' Act requires every broker to keep an escrow or trustee account of funds deposited with the broker that are related to real estate transactions.
This Section of the Act also requires brokers t...
17-Jan-2008
LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING
Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded.
Because the statute of limitations for the various types of lawsui...
17-Jan-2008
LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING
Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded.
Because the statute of limitations for the various types of lawsui...
17-Jan-2008
LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING
Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded.
Because the statute of limitations for the various types of lawsui...
11-Jan-2008
Hot Topic - A Real Estate Broker's Duty to Adequately Supervise Licensees-Part I
Editors Note: The Tennessee Real Estate Commission has raised the issue of whether Principal Brokers are meeting their duty to adequately supervise the licensees in their firms. We will be running a series of tips regarding the legal duties of super...
11-May-2007
Change in the Law regarding Restrictions on Mobile Homes/Modular Homes Continued
In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Supreme Court held that unlike a mobile home or house trailer, a modular home is...
27-Apr-2007
Change in the Law regarding Restrictions on Mobile Homes/Modular Homes Continued
In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Supreme Court ruled that unlike a mobile home or house trailer, a modular home i...
20-Apr-2007
Change in the Law regarding Restrictions on Mobile Homes/Modular Homes
In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Court of Appeals had decided that there was not a distinction between modular ho...
28-Mar-2007
Repairs made within the 1 year redemption period on a tax sale property may not be reimbursed
The Tennessee Court of Appeals held in State of Tennessee v. Delinquent Taxpayers (Tenn. App., Nov. 2, 2006) that the purchaser at a tax sale is not automatically entitled to be reimbursed for repairs made to the property prior to redemption. In Tenn...
09-Mar-2007
One Must be a Licensed Real Estate Broker in order to receive a commission
The Tennessee Court of Appeals held in Burks v. Elevation Outdoor Advertising, LLC (Tenn. App. July 24, 2006) that unlicensed individuals who were paid a commission in connection with the sale of an outdoor advertising business violated the Tennessee...
01-Mar-2007
Notice Requirements to become a purchaser of property
The Tennessee Court of Appeals held in Williams v. Title Guaranty & Trust Co.,
212 S.W. 2d 897, 901 that notice of a prior contract that interest will be effective to charge a subsequent purchaser with knowledge of its existence may be either direct...
16-Feb-2007
Can I buy a property when there is already a contract on that property?
The Tennessee Court of Appeals recently ruled in Aslinger v. Price (Sept. 1,
2006) that a purchaser with "notice" of another contract on the same property must honor the seller's prior contract. The facts in this case surround a tract of land that t...
26-Jan-2007
If a Purchaser has notice of the existence of another contract on the same property- Are they bound by that contract?
Maybe yes...
The Tennessee Court of Appeals has ruled in Aslinger v. Price (Tenn. App., Sept. 1, 2006) that a purchaser with notice of another contract on the same property must honor the seller’s prior contract. The facts in this case surround a ...
15-Dec-2006
NEW LAW PASSED RE: SEPTIC SYSTEMS
The State of Tennessee has passed an amendment that is vital to real estate as we know it. Under TCA 66-5-212 known as Disclosure of known percolation tests or absorption rates, the laws surrounding the Tennessee Residential Property Disclosure have ...
05-Oct-2006
Murder of a Spouse-What happens to your Real Estate?
What happens to the title to the property when it is vested as tenants by the entirety (husband and wife as an indivisible unit) and one spouse murders the other? Can the surviving spouse sell the family home and collect on the proceeds?
The Supre...
22-Sep-2006
Square Footage- How to Avoid "Intentional Misrepresentation" when dealing with square footage
The Tennessee Court of Appeals determined that the listing agent "estimated"
the square footage in the home. Therefore, the agent did not negligently or intentionally misrepresent the square footage of the home.
Under Tennessee law, a person is d...
15-Sep-2006
Square Footage- How to Avoid "Negligent Misrepresentation" when dealing with square footage
The Tennessee Court of Appeals determined that the listing agent "estimated" the square footage in the home. Therefore, the agent did not negligently misrepresent the square footage of the home.
The square footage that was provided designated the ...
11-Sep-2006
Square Footage- How Agents Can Avoid Liability
The Tennessee Court of Appeals has ruled in The Cadco, LLC v Barry (2006 Tenn. App. LEXIS 37) that a real estate agent was not responsible for an alleged misrepresentation of the square footage in a listing on MLS. Even though the square footage was ...
25-Aug-2006
Square Footage- How Agents Can Avoid Liability
The Tennessee Court of Appeals has ruled in The Cadco, LLC v Barry (2006 Tenn. App. LEXIS 37) that a real estate agent was not responsible for an alleged misrepresentation of the square footage in a listing on MLS. Even though the square footage was ...
14-Aug-2006
Will Bankruptcy Affect My Real Estate Lease?
Maybe yes... Maybe No....
Real property leases have special treatment under the Bankruptcy Code. A lease that is not expired must be either assumed by the debtor or rejected by the debtor completely. If the debtor wishes to assume the lease, the d...
26-Jul-2006
Why the Court determined that Modular Structures violate Mobile Home restrictions
The Tennessee Court of Appeals has held in Williams v. Fox, (Tenn. App., March 20, 2006) that a restriction against mobile homes also included a restriction against modular housing. There was proof brought to the case that manufactured homes were dis...
05-Jul-2006
Restrictions against Mobile Homes include Modular Homes
Many subdivisions include restrictions today. One of the most common restrictions may be the restriction against mobile homes. The Tennessee Court of Appeals has held in Williams v. Fox, (Tenn. App., March 20, 2006) that this restriction also include...
28-Jun-2006
Agreement to Agree to Option Sales Price in a Lease is Not Enforceable
The Tennessee Court of Appeals has ruled in Four Eights, LLC v. Salem (Tenn. App., Nov. 29, 2005) that an option in a lease agreement to purchase the property for its fair market value , as agreed upon by the parties, is not enforceable. The Court he...
28-Jun-2006
Agreement to Agree to Option Sales Price in a Lease is Not Enforceable
The Tennessee Court of Appeals has ruled in Four Eights, LLC v. Salem (Tenn. App., Nov. 29, 2005) that an option in a lease agreement to purchase the property for its fair market value , as agreed upon by the parties, is not enforceable. The Court he...
09-Jun-2006
Part II: How do the tax assessor and an appraiser measure the square footage in a home?
There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and when the Tax Assessor’s office appraises the p...
17-May-2006
Part II: How do the tax assessor and an appraiser measure the square footage in a home?
There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and when the Tax Assessor’s office appraises the pro...
17-May-2006
Gift Tax—The Gift that Keeps on Costing
The gift tax that is recognized in Tennessee may keep costing taxpayers– even after death.
The gift tax also plays a big role in inheritance scenarios. All real and personal property which the decedent owned or has an interest in must be shown on th...
03-May-2006
Beware of Zoning Changes to the Subject PropertyDuring the Negotiation of a Real Estate Contract
The Tennessee Court of Appeals has ruled in Westchester Co. , LLC v. Metropolitan Government, (Tenn. App. , Dec. 20, 2005) that a landowner did not have a vested right
in an existing zoning classification.
The Court utilizes the term “vested ri...
21-Apr-2006
Beware of Zoning Changes to the Subject Property During the Negotiation of a Real Estate Contract
The Tennessee Court of Appeals has ruled in Westchester Co. , LLC v. Metropolitan Government, (Tenn. App. , Dec. 20, 2005) that a landowner did not have a vested right
in an existing zoning classification.
The defendant municipality in We...
07-Mar-2006
Mobile Home assessed as Real Property
The Tennessee Court of Appeals has held in CMH Homes, Inc. v. McEachron, (Tenn. App., Sept. 29, 2005) that the purchaser at a tax sale did not acquire the mobile home that was located on the property that was being auctioned.
The Tennessee Co...
10-Feb-2006
Tax Sale does not include mobile home
The Tennessee Court of Appeals has held in CMH Homes, Inc. v. McEachron, (Tenn. App., Sept. 29, 2005) that the purchaser at a tax sale did not acquire the mobile home that was located on the property that was being auctioned.
A piece of land was t...
30-Jan-2006
Is the Seller responsible for not disclosing item on Property Disclosure if it was apparent to the buyer?
Maybe not.... The Tennessee Court of Appeals has held in Daniels v Basch, (Tenn. App., October 27, 2005) that the seller of real property cannot be held liable for failing to disclose an items that is obviously apparent to the buyer with common obse...
19-Jan-2006
Is the Seller responsible for not disclosing item on Property Disclosure if it was apparent to the buyer?
Maybe not.... The Tennessee Court of Appeals has held in Daniels v Basch, (Tenn. App., October 27, 2005) that the seller of real property cannot be held liable for failing to disclose an items that is obviously apparent to the buyer with common obse...
13-Jan-2006
Do I owe the people who pass in front of my home a duty even if they never enter my property?
The Supreme Court of Tennessee ruled in Hale v. Ostrow, 30 TAM 28-1, that a property owner owes a duty of care to a passerby to ensure that brush or foliage on his property do not obstruct the sidewalk. According to Hale, that duty attaches regardles...
30-Dec-2005
Do I owe the people who pass in front of my home a duty— even if they never enter my property?
Maybe yes. In Hale v. Ostrow, 30 TAM 28-1, the Tennessee Supreme Court held that a property owner owes a duty of care to a passerby to ensure that brush or foliage on his property do not obstruct the sidewalk. According to the Hale court, this duty a...
16-Dec-2005
Installment Contracts- “Are they enforced?
The Tennessee Court of Appeals ruled that an in favor of the sellers and found that an installment sales contract was enforceable in Kafozi v. Windward Cove, LLC , (Tenn. App., August 26, 2005) The Court agreed that the ruling was harsh due to the ...
03-Nov-2005
Mortgages
Public Chapter (PC) 16 extends the maximum duration of an open- end credit agreement made pursuant to an open- end mortgage from 20 years to 30 years from date of original execution.
Public Chapter (PC) 273 enact “Residential Closing Funds Dist...
26-Oct-2005
Four Types of Warranties given in a General Warranty Deed
The warranties found in a General Warranty Deed read as follows:
TO HAVE AND TO HOLD the said tract or parcel of land, with the appurtenances, estate, title and interest thereto belonging to the said GRANTEES, their heirs and assigns, forever, and...
26-Oct-2005
I have been deeded the property– does it really matter what kind of deed was conveyed to me?
Yes, it does matter. There are several types of deeds that convey ownership. This is very important in determining the warranty that was conveyed in the closing. The three types of deeds are as follows:
(1) Quitclaim Deed- This type of deed convey...
26-Oct-2005
Quitclaim deeds and gift taxes The gift that keeps on costing? Part I of a multi-part tip
Here’s a common scenario. Mom and Dad decide to start giving away real estate before they die (a little pre- death estate planning so to speak), and they start asking for quitclaim deeds to effect the transfers.
Pause a second and reflect on fede...
26-Oct-2005
Tennessee Residential Property Disclosure– Seller: “ What if I did not know that the problem existed?”
The Tennessee Court of Appeals has held in Robinson v. Currey, 29 TAM 33-9 (Tenn. App. June 29, 2004) that sellers cannot be liable under the Tennessee Residential Property Disclosure Act for problems they knew nothing about.
The Tennessee Residen...
26-Oct-2005
Tennessee Residential Property Disclosure– Seller: “ What if I did not know that the problem existed?”
The Tennessee Court of Appeals has held in Robinson v. Currey, 29 TAM 33-9 (Tenn. App. June 29, 2004) that sellers cannot be liable under the Tennessee Residential Property Disclosure Act for problems they knew nothing about.
In this case, the pur...
26-Oct-2005
More 2004 Legislation that could affect You.....Landlord and Tenant
Public Chapter (“PC”) 683 amends the Tennessee Uniform Residential Landlord and Tenant Act to give a landlord ten business days after lease termination(rather than three business days) to inspect the premises and compile a list of repair expenses to ...
26-Oct-2005
More 2004 Legislation that could affect You.....Loans and Mortgages
Public Chapter (“PC”) 657 requires that deeds of trust securing certain low or zero interest homes from non-profit lenders prominently state that the loan cannot be refinanced without the prior, written approval of the local board of directors of the...
26-Oct-2005
During the 2004 session, the Legislature passed several statutes relating to real estate. Following are some the changes that were made:
Recording
Public Chapter (“PC”) 497 allows the recording of affidavits relating to title, including affidavits correcting scrivenor’s errors and any other affidavits in furtherance of title.
Construction
PC 741 requires those asserting clai...
26-Oct-2005
Could I be liable for negligent misrepresentation?
Negligent misrepresentation is defined as one who, in the course of business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transact...
26-Oct-2005
Tip 206 Part IV of a multi-part tip on square footage “It was no big deal... I only added the extra square footage for advertising purposes. I never
Unfortunately in Tennessee, the answer is NO!! The Tennessee Real Estate Commission will likely refer you to the old saying, “You should have known better.”
Tennessee forcefully upholds contracts. In order to have a contract, there has to be mutu...
26-Oct-2005
Part III “ Does the square footage advertised have to be exact?”
There may never be an exact square footage measurement. You can have two appraisers measure the same house and come up with two different square footage amounts. This is going to happen. A small margin of error is almost expected in dealing with an ...
26-Oct-2005
Part II: How do the tax assessor and an appraiser measure the square footage in a home?
There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and when the Tax Assessor’s office appraises the pro...
26-Oct-2005
Part I of a Multi- Part Series regarding legal and ethical issues surrounding representation about square footage of buildings
Our office was presented with the following question regarding making representations in advertising about the square footage of a house for sale:
Q: I recently approached TREC with a question that I had regarding square footage. I’ve been seeing...
21-Oct-2005
Liens
Public Chapter (PC) 306 provides that judgments and decrees obtained by governmental entities after July 1, 2005, in any court in Davidson County will be a lien upon the debtor’s land from the time a certified copy of the judgment or decree is regist...
23-Sep-2005
Disclosures
Public Chapter (PC) 171 requires owners of residential property in transfers involving the first sale of a dwelling, to furnish to purchasers a statement disclosing the amount of any impact fees or adequate facilities taxes paid to any city or count...
31-Aug-2005
Residential Closing Funds Distribution Act of 2005
The changes that have been brought about by the Residential Closing Funds Distribution Act of 2005 will apply to the following:
(a) This chapter applies to transactions involving loans made by mortgage lenders utilizing settlement agents, which lo...
30-Aug-2005
Residential Closing Funds Distribution Act of 2005
The changes that have been brought about by the Residential Closing Funds Distribution Act of 2005 may have major implications for closing agents and Realtors. The Act states that... (a) No settlement agent shall disburse any funds from an escrow or ...
05-Aug-2005
Residential Closing Funds Distribution Act of 2005 and How It May Affect Your Closings
Tennessee Code Annotated, Title 47 has been amended and this section affects Residential Real Estate Closings. One of the big changes is the disbursement of funds. T.C.A. defines the disbursement of funds as the delivery of the funds by the mortgage ...
25-Jul-2005
RESIDENTIAL REAL ESTATE TIP OF THE WEEK ERRORS AND OMISSIONS INSURANCE - PART 4 OF A 4 PART SERIES
E & O Reminders: (1) Make sure your policy is renewed timely every year so that there is no gap in coverage; (2) READ your policy so that you know what is and is not covered; (3) Contact the insurance carrier if you have any questions regarding you...
22-Jun-2005
Disposal of Consumer Report Information and Records
The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. In part the Act amends the Fair Credit Reporting Act by imposing a new requirement on persons who possess or maintain, for a business purpose,...
03-Jun-2005
FHA Eliminates MIP Refunds for Loans Issued on or After Dec 8th, 2004
FHA refunds to borrowers who pay off their federally insured mortgages have been eliminated!! This was an approval by Congress that took place effective in January of 2005. This is a change that will not be welcomed by many borrowers who have been t...
02-Jun-2005
Involuntary Liens Part IV: Lien Lis Pendens
A lien lis pendens is a type of lien that is provided for by statute in Tennessee. It attaches to the real estate described in the lien when an abstract of the suit against the property owner is recorded at the Register of Deeds office.
A lien ...
02-Jun-2005
Limiting Real Estate Licensee liability for property condition matters under the Tennessee Property Condition Disclosure Act-Part III of III: A Checkl
Below is a great reference chart for you and your clients. It is a chart explaining Buyer’s and Seller’s rights and obligations under the Tennessee Property Condition Disclosure Act. You may feel free to make copies for your own distribution and ma...
02-Jun-2005
Exclusive Buyer Representation Disclosures Part 1
Irate Buyers, dazed and confused about exclusive buyer representation arrangements, have besieged Tennessee Real Estate Commission with complaints, thus leading to a policy statement by TREC.
This tip contains Tennessee Real Estate Commission Poli...
02-Jun-2005
Exclusive Buyer Representation Disclosures Part 2
Here is a form for your Buyers under exclusive Buyers Agency agreements to sign to comply with the new TREC policy.
Dear Buyer,
Thanks for choosing our firm as your Exclusive Buyers Agency. The Tennessee Real Estate Commission requires that yo...
02-Jun-2005
Federal Law Alert: HUD publishes Amended Anti-Flipping Rules
The Department of Housing and Urban Development recently finalized its amended regulations related to the “flipping” of properties financed by FHA mortgage loans. Under the new rules, which became effective June 2, 2003, only the record owner can sel...
02-Jun-2005
Tennessee Courts and “Procuring Cause” Part 1 of a Multi-Part Series
What constitutes a “procuring cause” is always a hot topic with realtors. It comes up in the context of Board arbitration and Broker vs. Broker as to who was the procuring cause to be paid split commission.
Agent:“I introduced the buyer and sell...
02-Jun-2005
Why was the Broker in Whitten v. Smith not entitled to a commission?
The Court looked at the language in the listing agreement that stated “If within 12 months after the termination of this agreement I sell or transfer this property to a prospect procured by you prior to its termination, I shall pay you your commissio...
02-Jun-2005
Anti-Flipping Rules and Real Estate Investors (Forewarned is Forearmed)
Do you “bird dog” property for a real estate investor who is looking to buy distressed property, fix it up and make a quick resale? This used to be the quintessential model of capitalism- buy low/sell high and don’t waste any time doing it so as to...
02-Jun-2005
Agent May Accept Service under the URLTA Part I of a multi-part series
The Tennessee Court of Appeals have ruled in Boone v. Gibson (Tenn. App., Feb. 27, 2004) that under the Uniform Residential Landlord Tenant Act, T.C.A. § 66-28-101, et.seq., a tenant may acquire personal jurisdiction over his landlord by serving proc...
02-Jun-2005
Why did the Tennessee Court of Appeals hold that a Landlord’s former wife qualified as “ a person authorized to enter into a rental contract?” Part I
The Court looked at the authority that she had or purported to have. “Apparent authority of an agent must be determined by the acts of the principal and not those of the agent.” Edmond Bros. Supply Co. v. Boyle and Adams, 44 S.W. 3d 530, 534 (Tenn. C...
02-Jun-2005
RESPA Continued....Prohibited Practices under RESPA and Enforcement of RESPA: Section 8: Kickbacks, Fee-Splitting, Unearned Fees
Section 8 of RESPA prohibits anyone from giving or accepting a fee, kickback or anything of value in exchange for referrals of settlement service business involving a federally related mortgage loan. In addition, RESPA prohibits splitting and receivi...
02-Jun-2005
RESPA (Real Estate Settlement Procedures Act) Continued....More Information about RESPA
The Real Estate Settlement Procedures Act (RESPA) is a consumer protection statute, first passed in 1974. The purposes of RESPA are:
(1) to help consumers become better shoppers for settlement services
(2) to eliminate kickbacks and referral fees...
02-Jun-2005
RESPA and Kickbacks–What You Need to Know Part 1 of a Multi-part Tip of the Week
We have been asked on numerous occasions to address the topic of referral fees, otherwise known (when improperly paid or received) as kickbacks.” What law applies? What if the referral fee is disclosed - doesn't that cure the problem? (Not if the pa...
02-Jun-2005
Part 2 of a multi part tip of the week on kickbacks and RESPA Questions and Answers Regarding RESPA
The following are excerpts from questions presented to the RESPA enforcement division at the HUD regional office in Atlanta. The answers are straight from the HUD investigator who pursues RESPA complaints.
(1) Can a title company give the real est...
02-Jun-2005
Part I of a multi-part series on Conservation easements
What is a conservation easement and can it benefit my client?
A conservation easement is a negotiated agreement between a landowner and certain governmental entities that are qualified to monitor and enforce restrictive land use easements, all pursu...
02-Jun-2005
Part II of a multi- part series on Conservation easements
What is a conservation easement and can it benefit my client?
How will a conservation easement affect my property?
The restrictions in a conservation easement generally prohibit any uses of the land that may adversely affect those resources that th...
02-Jun-2005
Part III of a multi- part series on Conservation easements
Tax consequences of Conservation easements
There are several benefits available to a landowner who donates a conservation to a qualified organization. These benefits are:
(1) A charitable income tax deduction equal to the value of the donated ...
02-Jun-2005
Landowners and Tree Liability
Landowners can be liable for damage caused by healthy trees
Trees are a great form of adornment for one’s home. However, your neighbor may have a differing opinion about your trees. Healthy trees grow and may grow over the property line or prevent...
02-Jun-2005
Home Inspector’s Liability Limitation is not Enforceable
The Tennessee Court of Appeals has ruled in Russell v. Bray (2003) that a provision in a home inspection contract limiting the inspector’s liability to the fee paid is void. The plaintiffs (home buyers) in Russell entered into a contract to purchase ...
02-Jun-2005
Contracts limiting liability- Enforceable or not?
As a general rule, Tennessee courts have recognized that parties may contract that one shall not be liable for his negligence to another. However, this is not without exceptions. The Tennessee Supreme Court has also held that an exculpatory clause in...
02-Jun-2005
Non Use of an Express Easement is not Abandonment
The Tennessee Court of Appeals held in Moore v. James Devault, et al (2002) that necessity is not a prerequisite to establishment of an express easement. Therefore, the principle that an easement ceases with lack of necessity has no application. Mere...
02-Jun-2005
Part III of a multi-part series on Building Permit Basics “Call before you build”–Getting a Property Address
You cannot get a building permit without first having an address. This is one of the very first steps that you need to take after purchasing a lot to build on. Some lots will already have an address. However, if they do not and are listed only as Lot...
02-Jun-2005
Family Real Estate Deals...Don’t Find Yourself in a Family Feud
Some real estate deals are tough, but family deals always seem to be tougher.
The Courts have a reasonable amount of understanding when a contract to purchase real estate falls through. However, the Tennessee Court of Appeals has decided that con...
02-Jun-2005
For Your Protection: Get a Home Inspection, Which Now Includes Radon Testing
Most realtors are very familiar with home inspections. For several years, FHA has required that the buyer sign a disclosure form entitled “For Your Protection: Get a Home Inspection.”
A home inspection gives the buyer more detailed information abou...
02-Jun-2005
Part III of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
You’ve also got to love the last sentence of T.C.A. section 66-5-208 (d)(1). It is poetry to the ears of real estate agents seeking to limit liability for property condition matters. The statute reads:
A real estate licensee may not be the subje...
02-Jun-2005
Part IV of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads:
Nothing in this subsection shall be construed to exempt or excuse a real estat...
02-Jun-2005
Part V of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads:
Nothing in this subsection shall be construed to exempt or excuse a real estat...
02-Jun-2005
Part VI of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads:
Nothing in this subsection shall be construed to exempt or excuse a real estate...
02-Jun-2005
Part VII of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
Summary
Over the last six tips we examined the new law in Tennessee which limits Real Estate licensee liabilities for property condition matters. Because the statute also states that it does not
excuse a licensee from other agency and property ...
02-Jun-2005
A Recipe for Success in 2004
The attorneys and staff at Smith.Sholar.Associates wish you and yours a very happy, healthy, and wealthy New Year
Here’s a few ideas for New Year’s resolutions. Studying biographies of successful people led to this recipe for success in 2004....
02-Jun-2005
Meth Lab Busts Impact Real Estate Community
The scourge of “home brewed” methamphetamine is impacting realtors, landlords and property owners, and creating environmental clean up sites, costly remediation, and disclosure issues for real estate agents. This problem is here, it’s now, and it ex...
02-Jun-2005
Part I of a multi-part series on Building Permit Basics
One of the questions Realtors and Real Estate Attorneys are asked frequently is “How do I get a building permit?” The procedure and requirements on obtaining building permits and inspections vary- each county or municipal building, community, or plan...
02-Jun-2005
Part II of a multi-part series on Building Permit Basics
Once the permit has been obtained, there are several government inspections required during the building process. Using Sumner County, Tennessee inspection requirements as an example, here’s how they go.
Inspections for Residential Structures with...
02-Jun-2005
Part V of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft
Here are a few more ways fraudsters get personal information so they can steal your identity: “red flagging” and “dumpster diving.”
“Red flagging” refers to the practice of stealing outgoing mail from residences. Think about it- a mail thief can g...
02-Jun-2005
SSA Most Requested Hits
We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a form to give to your Buyer and Seller clients and cus...
02-Jun-2005
SSA Most Requested Hits
We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a form to give to your Buyer and Seller clients and cus...
02-Jun-2005
SSA Most Requested Hits
We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a form to give to your Buyer and Seller clients and cus...
02-Jun-2005
SSA Most Requested Hits
Here’s a form that you will want to use. It is a complete list of all of the exemptions under the Tennessee Property Condition Disclosure Report Act. Just have the Seller check the appropriate box and sign it so that you can document for the TREC aud...
02-Jun-2005
New USA Patriot Act Identification Requirements
As of October 1, 2003, The USA Patriot Act requires lenders to collect information from borrowers to confirm their identity.
The Patriot Act requires:
Borrower’s name(s)
Borrower’s date(s) of birth
Address(es)
-For an individual, collect a s...
02-Jun-2005
Part I of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
Rejoice In June of 2003 an amendment to T.C.A. section 66-5-208 became the law of the land and serves to further limit Real Estate licensee (and Broker) liability for property condition matters, but like most laws the new statute takes a bit of stud...
02-Jun-2005
Part III of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft
Virtually the only way you can protect yourself from identity theft is to annually obtain copies of your credit reports from the three major credit reporting agencies. Then scrutinize the reports to see if there are any new credit application...
02-Jun-2005
Part IV of a multi-part tip on identity theft and fraud in real estate transactions: Home equity theft
Another way to protect yourself and your clients is to do business with mortgage companies and closing attorneys that you know and trust. Beware of transactions that totally take place “by mail,” where you have never actually met any or a large numb...
02-Jun-2005
Part I of a multi-part series on fixtures: Singlewides and doublewides–When is manufactured housing a fixture?
In Tennessee, manufactured housing (single and doublewide) is considered personal property and has a “title” document issued by the state which is virtually identical to a car title. Manufactured housing can become a fixture, and real estate agents ...
02-Jun-2005
Part II of a multi-part series on fixtures. Practical problems and limitations on financing.
Last week we addressed manufactured housing as fixtures and what documents must be filed for the housing to be deemed affixed to the land. Why is this important? Freddie Mac and Fannie Mae (and probably FHA and VA in the near future) require the s...
02-Jun-2005
Part III of a multi-part series on fixtures: What are “Trade Fixtures”?
We’ve already discussed what classifies property as a “fixture.” So what is a “trade fixture”? Definitions vary, but most agree that a trade fixture is personal property used in a trade or business (such as display counters, shelves, special equip...
02-Jun-2005
Part I of a Multi-Part Series on HUD Regulations: Addressing “Flipping.”
Do back flips over “flipping” – FHA targets fraudulent multiple transfers.
Though “flipping” has been present for quite some time, it has become especially prevalent lately. Essentially, “flipping” is purchasing a property and reselling it with...
02-Jun-2005
Part II of a Multi-Part Series on HUD Regulations: Addressing “Flipping.” FHA targets fraudulent multiple transfers.
Here are the new rules you need to know:
1. If the seller has acquired the property within the past ninety days, it is not eligible for an FHA-insured mortgage.
2. If the current owner has acquired the property within ninety-one to 180 days,...
02-Jun-2005
“Why should I buy title insurance?” - Part I of a Multi-Part Series
Buyers are often confused by the various title insurance policies available to them. The following are a few of the most frequently asked questions.
“Why should I even purchase title insurance?”
A title insurance policy protects the insured’s...
02-Jun-2005
“Why should I buy title insurance?” - Part II of a Multi-Part Series
Buyers may question the likelihood of an incident arising in which they would even need title insurance, but title problems are very real. The buyer has little say in the purchase of lender’s title insurance, as lenders recognize title issues are a...
02-Jun-2005
Part I of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft
Identity theft is the largest and fastest growing category of crime in America, and the Internet has certainly facilitated this. Now a version of identity theft is impacting real estate loans and sales in what is being referred to as “home equity t...
02-Jun-2005
Part II of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft
A second form of “home equity theft” involves the fraudulent purchase and sale of a victim’s property and works like this: Two “fraudsters” steal the identities of two victims. One con person then poses as the “Seller” and the other poses as the “B...
02-Jun-2005
Part III of a multi-part series on “As Is” contracts and sales: How to draft a true “As Is” contract
In order to draft a true “As Is” contract where the Seller has no obligation to make repairs, several contract drafting areas must be addressed. Here are three points to consider:
1. You must remove all warranty language and all provisions that ...
02-Jun-2005
Part IV of a multi part series on “As Is” contracts and sales: Using appropriate disclaimers to disclaim any UCC warranties
The Uniform Commercial Code in Tennessee governs the sale of items of personal property in Tennessee and creates two types of implied warranties: implied warranty of fitness for a particular purpose, and an implied warranty of merchantability. The ...
02-Jun-2005
Part VI of a multi-part series on “As Is” contracts and sales: What are the Real Estate Agent’s duties to disclose known defects?
Even if a property is being sold “As Is,” a real estate agent has several affirmative duties to disclose known defects. They are found in Tennessee agency laws and the Property Condition Disclosure Report Act.
T.C.A. Section 62-13-403 sets fort...
02-Jun-2005
Limiting Real Estate Licensee liability for property conditions under the Tennessee Property: Condition Disclosure Act-part II of III: Duties of rea
The Property Condition Disclosure Report statute limits your liability if you live up to your duties under the act. What are they? Here you go
In order to eliminate liability for property condition matters under the Tennessee Property Condition ...
02-Jun-2005
Three new Compliance Forms from Smith.Sholar.Associates for the Tennessee Property: Condition Disclosure Report Act-part I of III
This three-part series delivers to you three new forms designed by the attorneys at Smith.Sholar.Associates to help you comply with the Tennessee Property Condition Disclosure Report Act.
The first form is a complete list of all exemptions availab...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 15B
1260-5-.14 Repetition of Course Content is amended by deleting the text of the rule in its entirety and replacing it with the following language so that as amended the rule shall read:
1260-5.14 Repetition of Course Content. Effective January 1, 200...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 15A
1260-5-.01 Purpose is amended by deleting the text of the rule in its entirety and replacing it with the following language so that as amended the rule shall read:
1260-5-.01 PURPOSE. The Tennessee Real Estate Broker License Act of 1973 (as amended)...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 14 of 15
1260-7-.03 BRANCH OFFICES.
(1) A firm will be deemed to maintain a “branch office” if it utilizes an office or business location other than that which is on file with the Commission and:
(a) Advertises the office in any manner for the purpose of ...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 13 of 15
1260 -7.02 Escrow/Trust Accounts.
(1) Escrow/trust accounts shall be established and held in a federally insured and properly licensed financial institution within the state of Tennessee.
(2) The licensee shall execute with each owner a written...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 12 of 15
1260-6.15 Conduct. It shall be improper dealing within the meaning of T.C.A. 66-32-121(f) for a developer or sales agent to retain the services of an individual or entity required to be registered with or licensed by the Commission where such indivi...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 11 of 15
1260-2-.38 Limitations of Liability. It shall be improper conduct for a licensee to enter into or request or require a party represented by said licensee to enter into any agreement which attempts to waive the licensee’s liability for the performance...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 7 of 15
1260-2-41 UNLICENSED EMPLOYEES. Utilization of unlicensed employees or independent contractors by a licensee shall be subject to the following guidelines:
1. Unlicensed individuals who are employed by or under the direction of a licensee may:
a. ...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 8 of 15
The new advertising regulations contain the newest changes to existing law. Also, they are the most likely of the new regulations to have portions postponed and delayed for implementation, particularly the new signage rules. Read the new Internet ad...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 9 of 15
The Tennessee Real Estate Commission has added new teeth to existing regulations, adding penalties for licensee violations of Real Estate Commission regulations.
Rule 1260-2-.32 CIVIL PENALTIES is amended by deleting the text of the rule in its ...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 10 of 15
This tip contains two of the shortest new regulations.
1260-2-.39 Comparative Market Analysis and Broker Opinions. Where a licensee provides a comparative market analysis or a broker opinion the licensee shall comply with the following requirements:...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 6 of 15
This amended section has to do with the principal broker’s duties as broker. Note that the biggest new requirement is that the broker must provide 10 hours of mandatory new education to new affiliate brokers. Check out the list of education topics b...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 5 of 15
Note that the big changes in this section have to do with using model homes and modular buildings as offices and whether their use constitutes a branch office that would require a principal broker’s presence.
Rule 1260-2-.03 Offices is amended by...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 4 of 15
Rule 1260-2.11 Personal Interest is amended by adding a new paragraph (3) which shall read as follows:
(3) (a) In any transaction where a licensee provides real estate services and where the licensee proposes to recommend or refer any party to the ...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 3 of 15
New Rule 1260-2.09 deals with deposits and earnest money. The new rule reads as follows:
Rule 1260-2.09 Deposits and Earnest Money is amended by deleting the text of the rule in its entirety and by substituting instead the following new language so ...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 2 of 15
The proposed regulation changes from the Tennessee Real Estate Commission contain new requirements for record retention. These regulations have not been enacted at this time, but may be coming your way soon. The new regulation mirrors the old law ...
02-Jun-2005
Termite Letter Problems
It seems we discover new and unique termite letter problems every day. Recently a closing was briefly put on hold due to the following termite letter notation. The pest control inspector noted that an outbuilding had “wood to soil” contact, and the ...
02-Jun-2005
Fair Housing Advertising Requirements
Complying with the Fair Housing Act regarding advertising can be a challenge. For example, is it required that all of your advertising contain the fair housing logo (the house with the = sign)? According to information received from N.A.R., it is...
02-Jun-2005
Property Lying in Two Different Counties
Often one parcel of property will be split by a county boundary and thus be in two different jurisdictions.
The best practice is to search the title and record the documents in both counties.
Tennessee Code Ann. Sec 66-24-103 has this to sa...
02-Jun-2005
Unclaimed Property Escheat to the State
In order to enhance revenue to state government, the State of Tennessee Treasury Department Division of Unclaimed Property is becoming more aggressive in seizing unclaimed property. This would include unclaimed funds in broker escrow accounts. Tennes...
02-Jun-2005
No Contract? No Commission
A recent Tennessee Court of Appeals decision affirmed prior Tennessee case law and ruled that without an express agreement, buyers are not liable to real estate brokers for a real estate commission, even if the buyer works with the agent and a sale ...
02-Jun-2005
Fraud and Property Condition Matters: Part II of III
In Anderson v. Warren ( Tenn. App. Dec 12, 2001) a trial court found liability for fraud for misrepresentation of the property’s condition by the sellers and the real estate agent, and held that contract disclaimers are not sufficient to overcome li...
02-Jun-2005
Fraud and Property Condition Matters: Part III of III
The past two tips of the week examined Anderson v. Warren ( Tenn. App. Dec. 12, 2001). This case deals with seller liability for fraudulent misrepresentations and with property condition issues.
As a fact in the case, the buyers asserted that the ...
02-Jun-2005
Fraud and Property Condition Matters: Part I of III
A recent Tennessee Court of Appeals decision sheds light on the interaction of fraud, the Tennessee Property Condition Disclosure Report laws, contract condition disclaimers and property acceptance forms signed at closing.
Here’s the short story: I...
02-Jun-2005
The VA Loan
This continues a series on basic types of loan financing. We will address conventional loans, FHA loans, FHA/THDA loans, and VA loans, and their ability to meet your clients' unique financial needs.
One of the benefits of serving in the United Stat...
02-Jun-2005
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- Part 1 of 15
The Tennessee Real Estate Commission has adopted 23 pages of new and amended administrative regulations that highly impact real estate brokers and licensees and affect exactly how they conduct business.
This series of the SSA Real Estate Tip of ...
02-Jun-2005
Statute of Frauds
Contracts for the sale of real estate must be in writing and signed by all parties to be enforceable in the state of Tennessee. This is due to the “statute of frauds,” which in Tennessee holds that, in order to be enforceable, the promise or agreem...
05-May-2005
Payoffs are a key element in determining a listing price– Especially if the property is in foreclosure
There are many factors that an agent takes into consideration when determining a listing price. One of those factors is the payoff. Typically, the owner gives you a ballpark figure for the payoff and this is a big factor in the listing price. However...
25-Apr-2005
FHA MIP Refunds – “ Do I get any money back?- How?”
Q: I had an FHA mortgage, and I think that I may be due a refund of my mortgage premium. How can I find out?
A: A homeowner can check the website for the U.S. Department of Housing and Urban Development at http://www.hud.gov/faqs/faqrefund.cfm. to...
25-Mar-2005
Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your Purchasers
There are many different exemptions to the Interstate Land Sales Act. The below exceptions would exempt a developer from being under ANY of the rules and regulations of the Act.
(1) The sale or lease of lots in a subdivision containing less tha...
18-Mar-2005
Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your Purchasers
The Interstate Land Sales program protects consumers from fraud and abuse in the sale or lease of land.
Following is a continuation of questions and answers in purchasing land:
Q: Can HUD take action against a developer who is not enforcing t...
11-Mar-2005
Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your Purchasers
The Interstate Land Sales program protects consumers from fraud and abuse in the sale or lease of land. In 1968 Congress enacted the Interstate Land Sales Full Disclosure Act, which is patterned after the Securities Law of 1966 and requires land deve...
04-Feb-2005
Landlords– “Self Help” evictions are costly– Obtain a court order first!!
The Tennessee Court of Appeals has ruled in 94th Aero Squadron v. Memphis-Shelby Co. Airport Authority (Tenn. App., Nov. 2, 2004) that a lessor may not reclaim leased premises without complying with T.C.A. § 29-18-101 ,which outlines the forcible ent...
14-Jan-2005
Quitclaim Deeds, Special Warranty Deeds and General warranty Deeds–All Deeds are not created equal!!
There are several types of deeds that convey ownership. The difference between them are the contractual warranties of title given by the seller. The three types of deeds are as follows:
(1) Quitclaim Deed- This type of deed conveys all interest of...
05-Jan-2005
Exclusive Buyer Representation Disclosures: Part 2
Here is a form for your Buyers under exclusive Buyers Agency agreements to sign to comply with the new TREC policy.
Dear Buyer,
Thanks for choosing our firm as your Exclusive Buyers Agency. The Tennessee Real Estate Commission requires that yo...
05-Jan-2005
Exclusive Buyer Representation Disclosures: Part 1
Irate Buyers, dazed and confused about exclusive buyer representation arrangements, have besieged Tennessee Real Estate Commission with complaints, thus leading to a policy statement by TREC.
This tip contains Tennessee Real Estate Commission Poli...
05-Jan-2005
Why did the Tennessee Court of Appeals hold that a Landlord’s former wife qualified as “ a person authorized to enter into a rental contract?” Part I
The Court looked at the authority that she had or purported to have. “Apparent authority of an agent must be determined by the acts of the principal and not those of the agent.” Edmond Bros. Supply Co. v. Boyle and Adams, 44 S.W. 3d 530, 534 (Tenn. C...
05-Jan-2005
Agent May Accept Service under the URLTAAgent May Accept Service under the URLTA: Part I of a multi-part series
The Tennessee Court of Appeals have ruled in Boone v. Gibson (Tenn. App., Feb. 27, 2004) that under the Uniform Residential Landlord Tenant Act, T.C.A. 66-28-101, et.seq., a tenant may acquire personal jurisdiction over his landlord by serving proc...
05-Jan-2005
Tennessee Courts and “Procuring Cause” : Part 1 of a Multi-Part Series
What constitutes a “procuring cause” is always a hot topic with realtors. It comes up in the context of Board arbitration and Broker vs. Broker as to who was the procuring cause to be paid split commission.
Agent:“I introduced the buyer and sell...
29-Dec-2004
Part III of a multi-part series on Building Permit Basics
“Call before you build”–Getting a Property Address
You cannot get a building permit without first having an address. This is one of the very first steps that you need to take after purchasing a lot to build on. Some lots will already have an addr...
12-Jun-2003
Part I of a multi-part series on “fixtures.” What is a fixture?
This is the first in a series of tips dealing with real estate fixtures. Oftentimes, confusion arises regarding exactly what qualifies as a “fixture.”
Definitions vary and abound, but the Encyclopedia of Real Estate Terms defines a fixture as “...
03-Feb-2003
"AS IS" Contracts and Sales
Part II of a multi part series on "As Is" contracts and sales - How to protect a Buyer in an "As Is" sale.
Some Agents and Buyers are skeptical about properties being sold "as is," fearing that the owner has something to hide. Maybe yes, pr...
28-Feb-2002
The Conventional Loan
Conventional loans are defined as any loan made by a lender aside from an FHA or VA loan. Most mortgage loans are designed to comply with Federal National Mortgage Association requirements so that the loans can be sold by the lender on the secondar...
21-Feb-2002
The FHA/THDA Loan
THDA stands for the Tennessee Housing Development Agency, a branch of the State government that assists in public housing programs. THDA underwrites an FHA loan programs whereby THDA is the lender for FHA first mortgage loans made to qualifies firs...
15-Feb-2002
The FHA Loan
This continues a series on basic types of loan financing. We will address conventional loans, FHA loans, FHA/THDA loans, and VA loans, and their ability to meet your clients' unique financial needs.
FHA loans are loans which meet Federal Housing A...
01-Feb-2002
Earnest Money-Can You Do Without It?
A recent Tennessee Court of Appeals decision ruled that a Buyer could not enforce a contract that allowed the Buyer to unilaterally terminate the contract without a penalty. The contract failed for “lack of mutuality of obligation” in that there was...
18-Jan-2002
Trees
A recent Tennessee Court of Appeals case illustrates that a landowner is generally not required to trim or remove healthy trees that cause damage to the property of a neighbor. In this case, the defendant landowner’s large trees overhung the plainti...
31-Dec-2001
The Secrets to successful Real Estate Deals
Buy low, sell high. Treat people the way you want to be treated. Be honest and ethical- the good guys win one often enough to make it worth while! Happy Christmas and Merry New Year and Thank you for a Great 2001!
...
13-Dec-2001
Fair Housing Act
This week we begin a multiple part series concerning the Fair Housing Act. The Act protects persons who fall within seven classifications: Race, Color, Religion, Sex/Gender, Handicap, Familial Status, National Origin. Need an easy way to remember the...
06-Dec-2001
Fair Housing Part III
When crafting your listing advertisements, try to avoid words which can trigger scrutiny under the Fair Housing Act. Some examples of “catch words” to avoid: restricted, integrated, exclusive, private, traditional, or “membership approval required”...
29-Nov-2001
Divorces and Closings-Part 1
Americans change houses, spouses, and jobs once every seven years, so says the demographers and statisticians. Because lots of housing changes take place due to divorce, we are faced with many practical and legal problems in real estate transactio...
07-Nov-2001
Absolute Auction -- What is Wrong with this Picture?
What is Wrong with this Picture?
An inquiry from a licensed auction broker asked "what is wrong with this picture?" Are there any legal problems with the following facts:
An auction is advertised as being "absolute." The auctioneer has cut...
21-Oct-2001
Property Condition Report and Disclosure issues-Mold, Fungus, and other “Allergy” problems.
We have received a number of calls regarding mold, fungus, and other property conditions that Buyers are literally allergic to. Usually this is not discovered until the Buyer has taken possession of the property and then finds it to be virtually unin...
18-Oct-2001
An overview of the Closing Process: Part V of VI
Once the loan is approved, the lender froward “closing instructions” to the attorney or closing agent. These instructions usually contain the following information:
1.) The names of the borrowers and the property address;
2.) The loan amount;
...
18-Oct-2001
An overview of the Closing Process: Part III of VI
Real estate contracts are executory in nature. That is, they are agreements to close a transaction at a later date. They are often made contingent upon future events, such as the buyer being able to arrange suitable financing to purchase the home, ...
27-Sep-2001
The Closing Process: Part II of VI
The process begins when the owner of a home decides to sell his property. He may sell it himself, but more often than not he engages the services of an experienced real estate agency. The home owner will sign a listing contract with the real state ...
27-Sep-2001
An Overview of the Closing Process: Part I of VI
The largest financial transaction the average American will ever enter into is the purchase and sale of their residence. In past years, Americans owned but one or two homes in their lifetimes. However, with increasing mobility and rising economic e...
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