Lawyers in Residential Real Estate Transactions

Nearly everyone who has sold or bought at least one commercial real estate property without an attorney, know to hire an attorney, the next time. However many people may undergo several residential real estate transactions and never speak with an attorney. The reasons for this touch on these factors: (1) the nature of how persons perceive buying a home versus buying investment property; (2) the typical buyer of a home versus investment property; and, (3) confirmation bias. The truth is, some of the most “unfair” rulings involve real property. Whether it is a family farm passed down through the generations, ‘taken’ by the ‘evil’ non-blood-spouse through the early death of the blood-related member (before or after children), or an ‘innocent’ mistake by a real estate broker allowing the son of a trustee sign on a purchase agreement costing the buyer hundreds of thousands of dollars, avoidable mistakes happen all the time.

In fact it is estimated, by a survey of lawyers, that 99% of real estate transactions contain ‘serious errors’ that would certainly result in serious monetary damage (below $15,000) if discovered or if not corrected, and a significant majority of those errors are considered ‘fatal errors’ that could result in the transaction being reversed or monetary damage greater than $14,999.99. Obviously the time when a lawyer is involved, the lawyer will notice the errors and correct them, and person who hire lawyers might do so when they already suspect something might not be right, but the prevalence of error is unlikely to change significantly.

But first…

Real Property
Personal property is virtually everything that isn’t nailed down to land. Real property is land and virtually everything nailed to it. In Michigan, the majority of law governing real property and personal property is common law. Common law, is essentially a combination of public policy and precedent set by judicial rulings. Common law are the pieces that hold statutes together and is the lens through-which most statutes, particularly property (real or personal) statutes, are viewed. Without getting overly technical, estates in land are possessory interests. They may be presently possessory, or they could also become possessory in the future. There are also interests that don’t give ownership (leases), and there are ownership interests that are nonpossessory interests (easements, profits, etc.).

Transfer of Real Property
Likely the largest investment/purchase any person will ever make will be owning real property. It is a huge responsibly and it is an investment that must be taken seriously. It doesn’t matter whether you are investing thousands of dollars or millions of dollars in a house that you hope will become your “home”, care and careful planning needs to be scrutinized for your legal protection.

In residential transactions, buyers and sellers oftentimes only employ real estate agents at 3-6% to help them buy or sell their home.  While it shouldn’t be argued that real estate agents don’t provide a valuable service, their licensed permits them to present documents. Non-lawyer real estate professionals are not permitted to provide anyone with legal advice, thus, they are unable to provide you with legal protection if something goes wrong in your transaction.  It is important to take note that a real estate agent simply acts to get the transaction completed; they are not there to consider the legal aspects and consequences involved in the transaction.

Attorneys have heard from some real estate persons over and over “buyer wants to buy, seller wants to sell, what’s the problem?” That is obviously a worst case scenario, and not all brokers and agents are so cavalier with their client’s assets. But it shows that these particular persons have one goal in mind, 3% at their clients expense.

How can a real estate attorney help you?
First, attorneys owe a duty to the client, their only concern is their client. If that means advising their client to back out, they will, if that means delaying they will. Also if that means making sure the purchase agreement is followed to the letter, or the settlement statement is allocated accurately, the closing lawyer advocates on behalf of their client.

In Michigan, you will need an attorney to carefully examine and review all the contracts involved. Not all real estate contracts are the same and they are all highly advanced documents that can appear quite simple. But they are controlled by common law, zoning laws, ordinances, home owners associations and they control: when closing takes place (and what happens if it doesn’t), what is a permitted or not permitted use of the property, who pays for what and when, what happens if there is something wrong with the property. And even worse through no fault of the seller or real estate person, a lurking creditor waiting in line pursuant to a lien might claim a share.

Real estate agents cannot do legal research on the property to issue spot. Occasionally real estate agents will employ lawyers, and advertise that they have lawyers looking over all the contracts. However, since this lawyer is employed by the real estate company, they owe a duty to their client (the real estate company) and not you! Never rely on the advice of a lawyer working for someone other than you.

A lawyer should represent the buyer and a lawyer should represent the seller in every transaction. Contact a lawyer in your area or the law offices of Zamzow Fabian for experience and security.

Can I Expunge a Criminal Record In Michigan?

The honest answer is . . . maybe. Let me explain:

Effective January 2015, the Michigan legislature made some pretty significant changes to the law pertaining to the expungement of convictions; that’s right, convictions – plural. In Michigan before this modified statute took effect, an individual could only expunge (or “set aside”) a single misdemeanor conviction. And that’s only if they had nothing else on their record. Under the newly modified law, MCL 780.621, an individual could now expunge up to two misdemeanors or even a felony. That’s not say everything can be expunged. For example, certain offenses like OWI (operating while intoxicated), CSC (criminal sexual conduct), felony domestic violence, or felonies with a potential life sentence, cannot be expunged at all, regardless of circumstance. That’s the bad news. The great news is that there are a far greater number of convictions that can be expunged from your public record. Obviously, this is an incredible opportunity to essentially erase a mistake or two you’ve made in the past. And undoubtedly, a clean criminal history can be incredibly beneficial when applying for jobs, housing, etc. 

Before you jump for joy, there are a few requirements. First, the conviction date, probation or parole discharge date, whichever occurred last, must be at least five years old. As an example, if you were convicted or pleaded guilty in January 2010, were put on probation, and later discharged in January 2011, you could not apply to expunge until January 2016 – assuming the underlying offense was one you could expunge at all (briefly explained above). If the conviction is old enough and it qualifies, there’s a numbers issue to determine. That is to say you cannot have more than two misdemeanors and one felony in total; three misdemeanors disqualifies you from applying, as would two felonies. The key to remember is that this law, although pertaining to expungement of Michigan offenses, totals all convictions from all states in its equation. So, if you have two qualifying misdemeanors in Michigan, but a separate misdemeanor conviction in Ohio, you’ve exceeded the total allowed and can expunge nothing. No third misdemeanor conviction in Ohio? You can expunge both

If you check all of the boxes and the conviction(s) qualifies for expungement, you must still go through a fairly lengthy application process, including fingerprinting, background checks, and at least one court appearance. 

If you’re not certain whether you qualify or want to skip the rigamarole of going through the expungement process alone, the attorneys at Zamzow PLLC are highly skilled and knowledgable in this expungement law and can assist you in securing a successful outcome; at the very least, the attorneys at Zamzow PLLC can save you a lot of time, effort, and money by doing the necessary due diligence and letting you know early on if you do not qualify. 

Advances in the White-Collar Overtime Proposal

As previously discussed the FLSA White Collar Exception will be expanded to millions of currently exempt Americans by December 2016. White-Collar exception will be expanded from the 2004 – $23,660 per year – threshold (in 2004 $23,660 was equivalent to approximately $30,000 today) to $47,476. The original proposal drafted in 2015 would have been the largest increase since 1975 – 2004, proposed at $50,440 per year. The Department of Labor likely decided on the $47,476 threshold to reach the largest group of American workers without seeing great resistance from employers.

As a reminder, the white collar exception, is a threshold that federal law is triggered requiring employers to pay their employees time-and-a-half for working beyond 40 hours per week. In addition to requiring a salary of at least $23,660 the employees must preform managerial, administrative, or professional duties. For a detailed analysis of exactly what those “managerial” “administrative” or “professional” duties entail, consult a local attorney (local rules apply).

The Labor Department does not need congressional approval to enact the changes, but congress may review the changes within 60 legislative days after it is finalized by the department. If by joint resolution both the House and Senate rejects the proposal the President may sign its rejection. It is possible a newly elected 2017 president might sign the rejection.

Summary

  • The salary threshold for the executive, administrative, and professional exemptions is increased to $47,476 ($913 per week). This number includes the 40th percentile of full-time salaried workers in the South (the lowest-wage region in the country).

  • Highly compensated employees subject to a ‘minimal duties’ test will increase from $100,000 to $134,004, which nationally includes the 90th percentile of full-time salaried workers.

  • The salary threshold ($47,476) for the executive, administrative, professional, and highly compensated employee exemptions will be automatically revised every three years (December 2019) to maintain the 40th percentile in the lowest-wage census region.

  • The salary basis test allows employers to use commissions, incentive payments, and non-discretionary bonuses to satisfy up to 10 percent of the salary threshold.

 

FTC: Deceptive Advertisements and Native Advertisements

The FTC has issued enforcement policies regarding the new wave of advertising to his America. And whether you are aware of it or not, you have been subjected to deceptive advertising and native advertisement in an increasing frequency since 2010 (although it began decades ago). The FTC believes that “advertising and promotional messages that are not identifiable as advertising to consumers are deceptive if they misleading consumers into believing they are independent, impartial, or not from the sponsoring advertiser itself.” (FTC statement entitled: “Enforcement Policy Statement on Deceptively Formatted Advertisements“)

What are these deceptively formatted advertisements?
These are the messages integrated into written (social media, blogs, mortgage relief solicitations from governmental-sounding companies), video, and audio broadcasts that is presented as non-commercial content. The FTC considers the ‘net impression’ of the advertisement in determining whether it misleads the consumer (including its format).

For example: You have encountered a product review or two on your favorite fashion or technology blog. Sometimes they are difficult to distinguish (format, native) from the rest of the blog, since they are written like the other articles within the blog. The authors have been paid and/or given the product free. This example can stretch to audio broadcasts and video broadcasts as well, how often have you listened to a radio program that discusses the release of a tv show or movie (interviews with the lead actress or actor), or watched your favorite morning news show and the hosts are reviewing the latest fashion or gadget? They appear as ‘news stories’ but they are not.

The issues: For the same reason, but probably for significantly lower stakes, that people feel skeptical when large campaign contributions are made to a political candidate (usually ones you disagree with) in a race to an electable position; the FTC feels these ‘advertorials are biased and are likely to mislead consumers. After all, a blog author is incentivized to write neutral or positive reviews so manufacturers continue to send money and products.

Deception is deception: Although this advertorial strategy isn’t now, Consumers have increasing power to block, skip, or avoid advertisements; thus, advertisers are turning more frequently to this method of slipping in undetected. However, irrespective of the reasoning or justification, to the FTC, deception is deception.

The new policy release by the FTC doesn’t particularly change anything. Rather, it is released as a reminder to advertisers and a ‘heads-up’ to new media publishers (blog authors) that the FTC has taken notice and believes that some activities are deceptive. This is usually a sign that the FTC is preparing to target the practice in several ‘easy-to-win’ cases to make an example, set a precedent and create a deterrence in the future.

If you are an advertiser or more particularly blogger or social media specialist, take notice of this new advisory writing of the FTC. Contact your attorney to discuss how you may remedy or avoid a potential violation.

Changes to the housing law of Michigan: Senate Bill 0394

Public Act number 14 of 2016, becomes effective May 16, 2016. Last amended in 2008 (MCL 125.401 and MCL 125.526) the current amendment changes sections 1, 125, and 126 (MCL 125.401, MCL 125.525, MCL 125.526). Where the previous act, as amended, was a floor (minimum requirements) the new changes to this act creates a vaulted ceiling.

MCL 125.401 as amended applies to municipal populations of 10,000 or more, excluding private and 2-family dwellings located in municipalities of 100,000 or less.

MCL 125.525 as amended requires an owner of a multiple dwelling or rooming house (rooms for rent such as certain AirBnB hosts) to register within 60 days, with an enforcing agency if such a registry exists. Property management companies are required to also register with the owner of such properties.

MCL 125.526 as amended no longer requires a local government agency to inspect the multiple dwelling or rooming house unless a complaint is received from a lessee (priority to dwellings and rooming houses with children). Inspection periods for multiple dwelling or rooming houses must not be longer than 4 years, unless a local ordinance that requires an inspection finds no violations and the ownership has not changed, and in that case then the maximum can be 6 years between inspections. Houses that do not fall within multiple dwelling or rooming houses may be inspected at reasonable intervals (undefined). An inspection by the federal government through the Housing and Urban Development agency may be accepted by local municipalities as substitute for inspections (municipalities may also delegate inspections to other agencies).

Prior to entering a property the agency conducting the inspection must request and obtain permission to enter, except in cases of emergency. The agency may require the owner/landlord to:

(a) provide access if the lease allows the owner to have access;
(b) provide access to all other areas of the property (not just rented spaces or common areas); or,
(c) notify the lessee that the agency wants to make an inspection (i) make a good faith effort to get permission and (ii) arrange for the inspection (unclear but this likely means scheduling). If the lessee vacates the property after the agencies request, the owner must notify the agency within 10 days.

The enforcing agency and owner may not discriminate against an occupant for refusing entry to the leasehold. The enforcing agency may not discriminate against an owner who has been unable to obtain permission to enter (a-c above). Obviously if the lease allows the owner to enter, the agency may as well.

The agency may charge a reasonable fee, and may not exceed the actual, reasonable cost of providing the inspection. An inspection fee does not have to be paid until 6 months or less before the inspection is to take place (think yearly fee).

No fee is payable if the inspection is not performed and the agency is the direct cause of the failure to inspect. Thus, if the tenant refuses that is not the agencies fault and the owner must pay.

For a complete reading of the act see MCL 125.401 to MCL 125.543). The remaining portions of the act are unchanged. Between February 16, 2016 and May 16, 2016 municipalities may begin changing its ordinances to reflect the amendments, if no changes are made to the ordinances in your municipalities (of 10,000 or more) then it remains enforceable as written.