Change is NH Real Estate Transfer Tax

A new law has gone into effect and transfers to a Revocable Trust and to a Limited Liability Company may no longer be subject to the New Hampshire Real Estate Transfer Tax and no Tax Stamp will be required.  Certain language should be added to all deeds attempting to make this type of transfer and a PA-34 Dept. of Revenue form is required to be filed with the State of New Hampshire.

If you are contemplating a transfer of real property into a Trust for estate planning purposes or an LLC for liability protection purposes, give us a call and we will make sure your transfer is handled appropriately.

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Published in: on February 13, 2017 at 1:26 pm  Leave a Comment  

Two new mortgage disclosure forms…Will this make the mortgage process simpler? You decide.

The Consumer Financial Protection Bureau (CFPB) announced the drafting of two proposals for a combined RESPA/TILA Disclosure form and asked for feedback. The CFPB indicates that this is one of the first steps in combining the Truth in Lending form and the Good Faith Estimate into a single, simpler disclosure form.  Check out http://www.consumerfinance.gov/know-before-you-owe-go/  Let them know what your opinion is.

Published in: on May 19, 2011 at 2:25 pm  Leave a Comment  

Are you selling your home? Do you need to accept the first offer that you receive?

Q. As a seller, do I need to take the first offer that comes in?  What else can I do?

A. The simple answer is No.  Offers, even very attractive ones, are rarely accepted as-is.  Usually a Seller will be willing to accept some of the Buyer’s terms and want to modify others.  This is done by making a “counter offer.”  Counter offers, for example, may be based on:

Price — The Buyer has made an offer below what the Seller is looking for;

Deposit– The Buyer is not putting enough money into escrow to satisfy the Sellers concerns and potential losses that will be sustained should the Buyer default.

Closing Date – The Seller cannot meet the requested date;

Household Items – The Buyer has asked for items not listed  – i.e. appliances, window treatments, etc;

Most important to note is that for a contract to be binding, the initial offer, and all counter offers, must be in writing.  Any changes to a contract must be initialed by all parties.  There is no contract until all parties have initialed all changes and signed.  Until this is accomplished the property could be sold to someone else!

Published in: on April 8, 2011 at 10:18 am  Leave a Comment  

Temporary Good News for Loan Officers

Court Ruling Delays Implementation of New Rules Governing Loan Originator Compensation

The United States Court of Appeals for the District of Columbia has issued an order that stays the implementation of a new Federal Reserve Rule governing loan originator compensation. The new rule was to take effect April 1, 2011.

The Court’s order relates to a suit brought by the National Association of Mortgage Brokers, who objected to the portion of the new rule that prohibits mortgage brokers from paying their loan officers commissions that are based on fees paid by the consumer. The NAMB filed an emergency motion for expedited relief and an emergency motion to stay implementation of final rule pending appeal.

The Court’s order granting the stay was issued on March 31, 2011.

Published in: on April 1, 2011 at 1:44 pm  Leave a Comment  

NH Foreclosures: Foreclosing Bank must show possession of both the Promissory Note and Assignment of Mortgage in order to foreclose.

Belknap Superior Court: A Foreclosing Mortgagee Must Show Possession of Both the Note and an Assignment of Mortgage

On January 20, 2011, New Hampshire’s Belknap County Superior Court issued a ruling and Order on a Motion for Reconsideration of its November 1, 2010 denial of petitioner’s motion for injunction in Miroslav Zecevic v. U.S. Bank National Association, as Trustee, Harmon Law Offices, P.C., Mortgage Lenders Network, USA Inc. d/b/a Lenders Network, Wells Fargo Bank, N.A. d/b/a America’s Servicing Company and GMAC Mortgage, Docket No. 10-E-196. In its Order, the Court granted in part and denied in part Zecevic’s Motion for Reconsideration of its decision on the petitioner’s June 16, 2010 complaint seeking temporary, preliminary, and permanent injunctive relief, and seeking damages against the lender that was attempting to foreclose on his home.

This case is important because it indicates that even though New Hampshire is a non-judicial foreclosure jurisdiction, the county Superior Courts are adopting the view that a foreclosing mortgagee must show possession of both the promissory note and a record Assignment of Mortgage in order to have standing to foreclose a mortgage. While presentation of such evidence is not a requirement to commence foreclosure in New Hampshire, Zecevic indicates that a mortgagor in default may successfully enjoin a foreclosure if the mortgagee is unable to show evidence to a court of competent jurisdiction that it is both the holder of a promissory note and an Assignee of record at the time foreclosure is begun.

In his original complaint, Mr. Zecevic alleged that the servicer of his mortgage failed to respond to his demand for proof that it had credited $45,109.51 in mortgage payments to U.S. Bank National Association. The complaint further alleged that foreclosure was improper, given that U.S. Bank National Association had failed to respond to his demand for proof that it was the holder of the promissory note evidencing his indebtedness under the mortgage loan.

Even though U.S. Bank National Association, as Trustee, was an Assignee of record under an instrument executed by Andrew S. Harmon, Esq. on behalf of MERS, the Court enjoined the foreclosure of Mr. Zecevic’s home, finding that U.S. Bank National Association, as Trustee, “failed to demonstrate that it ha[d] proper standing to foreclose on the petitioner’s property due to missing evidence of the assignments of the underlying promissory note and mortgage.” Citing U.S. Nat’l Ass’n, as Trustee for SG Mortgage Securities Asset Backed Certificates, Series 2006-FRE2 v. Emmanuel, 27 Misc. 3d 1220 (N.Y. App. Div. 2010) [quoting Kluge v. Fugazy, 145 A.D. 2d 537, 538 (N.Y. App. Div. 1988)], the Court clarified its view that “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity.” (emphasis in the original.)

Stating that Mr. Zecevic’s request for production lists a number of documents that speak directly to the foreclosing lender’s standing to conduct a foreclosure, the Court granted Zecevic’s Motion to Compel Production of Documents from U.S. Bank National Association, as Trustee. The Court also granted Zecevic’s Motion to Enter a Final Decree Against Mortgage Lenders Network, USA Inc, d/b/a Lenders Network and GMAC, both of whom had failed to file appearances in the matter. The Court denied the foreclosure attorney’s motion to dismiss and motion to award attorney’s fees.

Published in: on March 4, 2011 at 8:36 am  Comments (4)  

Do you own a home or a condo, like it or not you may be part of an association.

Q. What is a “Homeowner’s Association” or a “Condo Association”? What does it mean to a buyer?

A. Some new subdivisions and Planned Unit Developments have a Homeowners Association and all Condominiums and “Condex’s” have Condominium Associations. You will find it referred to in the deed you received when you purchased the premise. When you purchase this property, like it or not, you are automatically a member of their Association, as are all homeowners in the development. It is not a choice, you cannot opt out.  Sometimes, not always, there are annual dues involved.

An association is meant to help the neighborhood maintain its value by putting restrictions on future looks and function. Some rules may be fairly general, but often they are very detailed. Be sure you understand the documents as some Homeowners Associations can have power over many aspects of daily life.

However, should you find yourself in a dispute with a neighbor, you may find your association to be a godsend!  They have authority over anyone violating the rules and will often mediate such disputes.

You might want to consider becoming an active member of this group, as they have authority over modifying the rules.

My suggestion would be to make your Purchase & Sale Agreement subject to your Attorneys review of any covenants, conditions or restrictions pertaining to the property you are purchasing.  You would be well advised to have a clear understanding of these documents before entering into a contract.

 

Published in: on October 26, 2010 at 10:48 am  Leave a Comment  

A new loan program that may be able to help you save your home?

Purportedly there will be a new loan program available to you, even if you are unemployed, that may help you save your home.  Check out his article at CNN.com  http://money.cnn.com/2010/10/05/news/economy/unemployed_mortgage_help/index.htm

Published in: on October 7, 2010 at 10:06 am  Leave a Comment  

Some Banks are suspending foreclosures. Could yours be one of them?

GMAC suspended foreclosures in 23 states last week.  For the full story check out http://news.firedoglake.com/2010/09/20/gmac-suspends-all-foreclosures-nationwide/

Published in: on October 1, 2010 at 9:35 am  Comments (1)  

Are you in a Flood Zone…Possible good news on the horizon.

The United States Congress recently voted in favor of S. 3814, “The National Flood Insurance Program Reextension Act of 2010.” President Obama is expected to sign this legislation in the next few days. The law will extend the coverage of the National Flood Insurance Program from September 30, 2010 to September 30, 2011.

Since 2008, the National Flood Insurance Program has been operating under a series of short-term extensions. Congress already has allowed the program to lapse four times since the start of the year.

Published in: on September 24, 2010 at 10:57 am  Leave a Comment  

I am selling my property, what is a transfer tax and what will it cost me.

The Real Estate Transfer Tax is a tax on the sale, granting, and transfer of real property or an interest in real property.  The statute imposing the tax is found at RSA chapter 78-B and the Department’s administrative rules are at N.H. Code of Admin. Rules, Rev 800.  The tax is imposed on both the buyer and the seller at the rate of $.75 per $100 of the price or consideration for the sale, granting, or transfer.

What types of transactions are taxable? All contractual transfers are subject to tax unless specifically exempt under RSA 78-B:2.  Examples of contractual transfers include:

  • Sales of land and buildings.
  • Transfers between a business entity and its owners.
  • Transfers between related business entities.
  • Transfers from the state of NH, a county, municipality, or other political subdivision of the state. In such circumstances the tax applies only to the buyer.
  • Transfers with the U.S. government or with any of its agencies, instrumentalities or any government corporation that is specifically exempt from state tax per federal law. In such circumstances, the tax only applies to the counterparty, and not to the U.S. government.
  • Sale or granting of a right-of-way or an easement on property.
  • Transfers through foreclosure or by deed in lieu of foreclosure.
  • Leases of real estate for 99 years or longer, inclusive of renewal rights whether exercised or not.
  • Transfers through deed issued as a result of a sheriff’s sale.
  • Transfers of standing timber or exclusive rights to extract soil, gravel, minerals or other like materials from the land of another.
  • Transfers of interests in time-share properties.
  • Transfers of interests in real estate holding companies.
  • IRC § 1031 like-kind exchanges and other real estate for real estate swaps.

On what is the tax based? For most arms length transactions, the tax is based on the actual price or consideration agreed to by the parties.

  • For transactions in which the consideration paid is $4,000 or less, the minimum tax is due ($20 from the buyer and $20 from the seller).
  • For transactions between related parties in which the consideration stated is unsupported, the tax will be assessed on the fair market value of the property.
  • For exchanges involving property or services, the tax is based on fair market value.
  • For transfers of interests in holding companies, the tax is based on the fair market value of the interest attributable to New Hampshire real estate.

What is fair market value? Fair market value is the price the property would command in an arm’s length transaction between a willing buyer and a willing seller.

What are related parties? The term “related parties” encompasses individuals related by blood or law, individuals and the entities they own, and interrelated entities.

What is a real estate holding company? A real estate holding company is a business organization, which is engaged principally in the business of owning, holding, selling, or leasing real estate and which owns real estate or an interest in real estate within the state.

Are there exceptions to the Real Estate Transfer Tax? Yes, among the exceptions are:

  • Non-contractual transfers.
  • Transfers between spouses pursuant to a final decree of divorce or nullity.
  • Filing of a deed or other instrument that correct a deed.
  • Transfers to the state of NH, or a county, a municipality, or other political subdivision of the state of NH.
  • Transfers of cemetery plots.
  • Transfers that occur by devise, by intestate succession and descent, or by the death of a joint tenant.

In the State of New Hampshire there is a transfer tax that gets paid at the time of recording the deed at the county registry of deeds.  The fee is based on the sales price of the property and is equal to $15.00 dollars per $1,000.00 dollars of the that figure.  By statute this amount is to be split by the Buyer and Seller unless negotiated differently in the Purchase and Sales Agreement.

There are time when a transfer tax does not have to be paid.  They include.

Published in: on September 3, 2010 at 12:10 pm  Leave a Comment