All Forum Posts by: Tom Gimer

From OP @Victor Valencia

Hi Tom.

It seems I need 10 votes to reply to the discussion, which feels like a significant barrier. BP should consider improving this policy to encourage more inclusive participation. I appreciate everyone's valuable feedback. Peter, I apologize for missing a setting when I started this post. Here's some context: The access to our properties used to be the main road until the 1970s when the city rerouted it to build a highway around our homes, giving this access to the landowner at that time. In our historical town, agreements were often informal and not well-documented until the county began proper recording in the 1980s.
Despite extensive record searches, we haven't found a defined easement. Local input and city planning suggest this access has been in use since the highway was built, potentially supporting a claim for a prescriptive easement.
While this access previously held little value, recent developments have increased its significance. Negotiating with the current landowner is possible, but the terms and potential costs are critical considerations. Our concern is that fencing off property lines could restrict our access.
Based on feedback from Tom and Peter, it seems prudent to involve Title Insurance to negotiate on our behalf for a favorable resolution.

So I got a private message from @Peter Walther to the effect that he was not allowed to comment on this thread.

Do you really need to be a Pro/Premium member to comment on posts? If so that is complete bullsh*t and BP may have officially jumped the shark.

Here was his message:

Apparantly I'm not allowed to comment on the question unless I upgrade to Pro. If I could, I'd first write that I don't have a disagreement with anything you wrote. I would add the OP shouldn't do anything to prejudice the insurer's ability to resolve the claim, like negotiating with the neighbor. Let the insurer take whatever steps it finds are necessary up to and including payment for the loss which may or may not be as much as or more than the amount of insurance. I would also include a link to this access story that's still playing out.

Lac du Flambeau tribe won't lower payments for residents to access reservation properties (msn.com)

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I agree with Peter that once the claim is allowed you let the attorneys retained by the title insurer take over fully... getting yourself or your own attorney involved just increases the risk of screwing things up. If the insurer denies the claim that's another story... in that case only hire an attorney experienced with title insurance claims.

If the neighbor(s) will not execute an agreement allowing access, a lawsuit would be necessary. And it's definitely NOT a given that the court would award the relief sought. All of the elements of an easement by necessity (or prescriptive easement, depending upon the facts) would need to be satisfied... read SD case law to find out what would need to be proven. At some point that land was subdivided -- how, when and by who is crucial. Also the nature of the current "access" -- whether it has been hostile or permissive.

The good news is the title insurance carrier has allowed the claim and will likely pursue an agreement with the necessary property owners OR fight the legal battle if necessary. And it could cost many, many thousands of dollars in legal to eventually win or lose. The fact that title insurance includes defense expense is a great lesson in why chosing NOT to purchase owners coverage is stupid.

Of course if the court doesn't award the easement, the title insurer would likely pay out on the title claim based upon the lack of access. I would say that's not a total failure of title so not a full policy payout. It would be a good time for @Peter Walther to chime in on this. He'll probably correct some of my analysis as well!

@Chris Kitchens You need to pull the docket for the lawsuit referenced in the notice of lis pendens. It’s not necessarily a foreclosure case.

Including as a defendant in the lawsuit someone who would likely be a superior lien holder suggests to me there is more going on than a straightforward foreclosure.

Or it could be something simple like an unreleased lien and the court is being asked to quiet title or otherwise weigh in on lien priority.

Let us know how it shakes out. 

If you walk the property can be resold at your risk and expense. Let’s say your high bid was $100,000 and you refuse to close. The property will be re-marketed and resold. Advertising expenses for the second sale are $1,200 and the high bid upon resale is $90,000. You could be sued for $11,200 and if so, you would lose. Depending on the auction terms it could be that result plus the forfeiture of your deposit, or perhaps the trustee/auction company must elect one remedy vs. the other. The answer is in the published terms of sale.

Find a title company that understands that all that matters is that the sale proceeds wire transfer goes to the correct party. Current stockholders? lol

My comment was about the specific scenario in the original post.

I love creative finance. The best investment I ever made was a long-listed property... put just enough down to get the agent paid and the owner financed the balance for 30 years.

I watched the video.

The guest spent 30 seconds dismissing the following BRAND NEW language in SC law:

The advertising and marketing of real property is to be distinguished from the advertising and marketing of a contractual position in a sales agreement to purchase real estate. An advertisement that markets a contractual position to acquire real property from a person with either equitable or legal title and does not imply, suggest, or purport to sell, advertise, or market the underlying real property is permissible under this section.

Interesting... why would he do that? Perhaps because he's a closing attorney who has come up with his own work-around (presumably for a tidy fee) which is to set up the deal as a short term land installment contract. So he claims the only way to meet the equitable interest/equitable title/equitable conversion element under the new SC law is through an installment sale. How convenient!

But alas that's just not true. Does the high bidder at a foreclosure auction obtain an equitable interest? What about a purchaser who expressly includes the right to specific performance in the sales contract? What about a purchaser with a non-contingent cash contract? Or one who assumes the risk of loss prior to settlement? What makes an installment sale the only means to obtain equitable title? Nothing. That is actually an inquiry to be determined by SC courts, not a podcast.

I am an attorney and I disagree with your analysis. You didn't read my next post where I included language in the new legislation that specifically addresses how marketing a contractual position does not run afoul of the law. Why did they include that language? To enable investors who buy and sell on their own accounts to continue to earn a living... otherwise the law gets challenged immediately on constitutional grounds.

Pretty simple, just be transparent in your marketing. I have a contract. I'm assigning my contract rights.

I'm not licensed to practice law in SC so I'm probably not the best candidate to duke it out on this topic... but I am very surprised at the knee-jerk reaction of some attorneys. I mean read the damn statute before killing deals in your pipeline.

If they were trying to ban wholesaling they did a terrible job, IMO. It actually sounds like they were trying to address how a recent wave of inexperienced investors are trying to do novations.