Do you own a home in NH? Do you know what Homestead Rights are?

Q. I own a property and will be getting married.  What are “Homestead Rights”?

A. Under New Hampshire law, Homestead Rights refer to the right of ownership a spouse has in the primary place of residence of the married couple.  It doesn’t matter whether the property was purchased before or after the marriage.  This right protects the spouses interest in the property against creditors and ensures that they maintain an interest in the premise and cannot have the property sold out from underneath them without their consent.

Even if the spouse of a property owner is not a record owner (they are not named on the deed), the spouse may still have a $100,000 homestead interest in their husband’s or wife’s property.  This is a lifetime right that can only be terminated by an affirmative release by the spouse – by signing a “Release of Homestead Right”.

The Homestead Right is inferior to tax liens and certain mechanic’s liens.  Conveyances of the particular property to a third party will not terminate the homestead right, unless both parties are named in the granting clause of the deed.

Homestead Rights in the property are released when spouses convey the property through a correctly prepared deed.  No separate release is required.  In your case, if and when you sell your property, your spouse’s signature will be required on the deed.

Buying Property in the name of a Trust

Q. I would like to purchase property in the name of my trust. Will my lender allow me to do this?

A. The number of people purchasing property in the name of a family or revocable trust is increasing. Before applying for a mortgage, you should be upfront with your loan originator as to what your plans are and you must provide a complete copy for review by your lender as not all lenders allow you to take title in the name of the trust.  Lenders who allow trusts to own properties may require additional documentation for your loan.  A revocable trust can be a very useful tool for estate planning purposes as the assets owned by the trust skip the probate process and are immediately available to the beneficiaries upon your death.  This can be very helpful for families with young children.  Revoclable Trusts can also be fashioned to help maximize the amount of money you can pass to your children tax free.

See our website at http://www.nhclosings.com

As with any legal issue, the advice of a trained professional is always beneficial.  Our firm is a full service law firm covering such legal matters as personal injury and estate planning.  If we can assist you, please call or visit our website.

Is your Real Estate or Mortgage Company thinking of starting a joint venture? Read this first.

HUD has listed the following factors that it will consider and balance in determining whether a joint venture created by two existing settlement service providers, is a bona fide provider of settlement services, or a sham entity designed to facilitate payment of illegal fees and thus not entitled to the benefit of the affiliated business arrangement exemption:

(1)  Does the new entity have sufficient initial capital and net worth, typical in the industry, to conduct the settlement service business for which it was created? Or is it undercapitalized to do the work it purports to provide?

(2)  Is the new entity staffed with its own employees to perform the services it provides? Or does the new entity have “loaned” employees of one of the parent providers?

(3)  Does the new entity manage its own business affairs? Or is an entity that helped create the new entity running the new entity for the parent provider making the referrals?

(4)  Does the new entity have an office for business which is separate from one of the parent providers? If the new entity is located at the same business address as one of the parent providers, does the new entity pay a general market value rent for the facilities actually furnished?

(5)  Is the new entity providing substantial services, i.e., the essential functions of the real estate settlement service, for which the entity receives a fee? Does it incur the risks and receive the rewards of any comparable enterprise operating in the market place?

(6)  Does the new entity perform all of the substantial services itself? Or does it contract out part of the work? If so, how much of the work is contracted out? (7)  If the new entity contracts out some of its essential functions, does it contract services from an independent third party? Or are the services contracted from a parent, affiliated provider or an entity that helped create the controlled entity? If the new entity contracts out work to a parent, affiliated provider or an entity that helped create it, does the new entity provide any functions that are of value to the settlement process?

(8)  If the new entity contracts out work to another party, is the party performing any contracted services receiving a payment for services or facilities provided that bears a reasonable relationship to the value of the services or goods received? Or is the contractor providing services or goods at a charge such that the new entity is receiving a “thing of value” for referring settlement service business to the party performing the service?

(9)  Is the new entity actively competing in the market place for business? Does the new entity receive or attempt to obtain business from settlement service providers other than one of the settlement service providers that created the new entity?

(10)  Is the new entity sending business exclusively to one of the settlement service providers that created it (such as the title application for a title policy to a title insurance underwriter or a loan package to a lender)? Or does the new entity send business to a number of entities, which may include one of the providers that created it?

Thinking of buying a new home? Read this!

Q. I want to make an offer on a home but the seller is concerned about my contract being subject to financing.  What kind of incentive can I give the seller so that he/she will take my offer?

A. You can provide a pre-approval letter from a reputable mortgage lender to help him/her with his comfort level.  Another way to entice the seller would be to make your deposit non-refundable if you don’t close. In that case, he would be compensated for the time expended.  Be careful how much money you put down as a deposit as you will lose it if you cannot complete the sale.  As always, see the advice of a professional before signing a contract.

If you need a referral to a mortgage lender let me know.  I work with some of the best and rates are low.  Now is the time to buy!

As with any legal issue, the advice of a trained professional is always beneficial.  Our firm is a full service law firm covering such legal matters as personal injury and estate planning.  If we can assist you, please call or visit our website.

When is the best time to involve an attorney in the purchase of my new home?

Q. When is the best time to involve an attorney in the purchase of my new home?

A. Right from the start! As a purchaser it is important to involve your own attorney before you execute the Purchase and Sales Agreeement. The P&S is a contract. At this stage, an experienced real estate attorney can help you avoid pitfalls that may be in the contract. Your real estate attorney will continue to assist you with the completion of the contract right through closing.

As with any legal issue, the advice of a trained professional is always beneficial. Our firm is a full service law firm covering such legal matters as personal injury and estate planning. If we can assist you, please call or visit our website.

6 Manchester Street, Nashua, NH 03064
603-883-0711