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Ask the Real Estate Lawyer: Real Estate Law Q&A


By Ilyce R. Glink and Samuel J. Tamkin

Q. You received a letter from some folks who had lived in their primary residence from 1980 to 1994 and then converted it to a rental. They wanted to know if they could avoid paying capital gains tax on its sale if they let their son live in the rental rent free for two years.

Your reply was no, and you wrote that even if the owners moved back into the home, they might still owe some taxes on the gain from the years in which the house was a rental property.
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Could you please clarify that? And also, what happens to the depreciation that was taken while the house was being rented? Don't they have to account for that?

A. You are correct that the homeowner upon the sale of the home will have to pay taxes on the gain and, in addition, may have to pay taxes on any depreciation taken on the property over the years.

The only way to defer the payment of any of these taxes is for the homeowner to sell this investment property and purchase another one in a like-kind exchange, also known as a “Starker exchange” or a “1031 exchange.”

In this like-kind exchange the seller sells his first property and generally buys a second investment property of equal or greater value with financing that is less than or equal to the financing in place on the place being sold. Through this exchange, the seller “transfers” his tax situation from the first property to the second.

This doesn’t eliminate any taxes owed, it just defers them until this new property is sold.

Q. I purchased a single family home in a 60-unit development nine years ago. We have a homeowner's association for the maintenance of the road, the pool, the pool house and the fence surrounding the development. This association is known as the "Condominium Association" and the legal description of each individual home includes the word "condominium.” Each home is built on its own lot. When I purchased my home neither the Realtor nor the mortgage company nor the title company requested a survey.

A few years after my purchase my neighbor attempted to refinance her property and the survey taken at that time showed an encroachment of my home onto her property. No survey had been done on her property at the time she purchased it.

She brought this to my attention and I spoke with my real estate agent, the title insurance company and the president of our condominium board, all of whom declined any knowledge of the problem or any ability to resolve it. Some time later a lawyer contacted me on my neighbor's behalf and I informed him of my willingness to cooperate fully in resolving this matter. I never heard from him or my neighbor again regarding this matter.

Several years later I had retired and wanted to put my affairs in order so I spoke with several lawyers and finally retained a real estate attorney recommended by a friend. He contacted my neighbor's attorney and many phone calls and letters were exchanged over the next seventeen months to no avail. Last year I paid my lawyer's final bill and dismissed him.

My neighbor has moved but cannot sell her home, and I cannot sell mine. Is there anything I can do to resolve this matter and clear both our titles?

A. I cannot understand why you and your neighbor have not been able to move things along and make sure the title to each of your homes is in proper order.

First of all, it is not uncommon to have some discrepancies in a large development. Frequently, mistakes are made, and it happens in all types of associations. To correct the mistake, the developer can re-record some of the association documents.

In other instances, homeowners can record documents to rectify the situation. Most condominium documents contain provisions to allow for and permit encroachments of one property onto another without creating a major exception to the owners’ titles to their homes.

If the developer is unwilling to modify the condominium documents to correct the error, your neighbor can grant you an easement over that portion of your neighbor’s land to permit your continued use of the encroachment area. In limited circumstances, another possibility might be to transfer title of the land in question from your neighbor to you.

Any of these methods generally can fix your problem. However, in certain circumstances condominium law may require more extension documentation to correct your problem.

You should consult another attorney that may have more experience in condominium and community development law issues.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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