Is a TV Wall Mount a fixture?

Is a TV wall mount a fixture?

Tuesday, July 30, 2013

By James L. Goldsmith, Esq.

160903390A quick trip to Google suggests that this question comes up all the time, though I am only starting to get Hotline calls on the subject. I looked to Google because I wanted to follow-up my answer, “It depends,” with the industry standard, if there was one.

What I found on the web made my head spin. Apparently there are lots of “experts” out there on all sides of the issue, some who conclude that even a TV becomes a fixture once it is bolted to a mount that is bolted to the wall!  What I found on the web also reminded me why web browsers are not the place to conduct legal research.

So, we are going to reach an answer to this “new” question by resorting to old principles of real estate law. And the most basic question to be answered on our quest is, what is real estate? (Stick with me, this will get us there.) Real estate is the land and anything annexed to the land with the intent that it is permanent. We call those permanent attachments “fixtures.” So a fixture is real estate that is sold with the land. Since a basic agreement of sale purports to convey “real estate,” it also serves to convey fixtures.

But we humans love exceptions. A buyer and seller, therefore, may agree that fixtures will not be sold with the rest of a property. But if the parties do agree that a fixture passes to the seller, so be it. Their agreement controls. As long as an item is addressed in the agreement of sale, it doesn’t matters whether the item otherwise considered a fixture or personalty.

So what about that TV mount? If the parties address it in the agreement of sale, the agreement controls its destiny.  Standard agreements usually include fixture clauses that cover the common items (lighting fixtures, plumbing, smoke detectors, garage door openers) and some more unusual ones say, radiator covers, electric animal fencing systems.  And while such clauses are modified to keep up with the times, they don’t catch everything (TV wall mounts). Years ago, the disputes were not over TV mounts but over TV antennas attached to chimneys which looked like those old-time things you hung wet laundry on.  There were as many fights over those old antennas as there are now about TV mounts.  And, yes, many Realtors® dug into their pockets to resolve those disputes, just as they do today.

Since the PAR standard agreement offers no help with regard to our TV mount, we have to apply basic real estate law to determine whether a TV mount is a fixture. Specifically, we need to determine whether the TV mount was attached to the wall with the intent that it be permanent. That, my friends, will lead to the answer.

But how does one prove intent? Ah ha! I just happen to have a video of the seller attaching the wall mount, clearly declaring his intent that it is not a permanent addition to the house, but one that will be removed when the seller leaves the property. Obviously that doesn’t exist, so how will intent be proved?

Intent is proved in courts of law every day. Intent is what distinguishes first-degree murder from other forms of homicide; it distinguishes an accident from an injustice. There is usually little direct evidence of intent and resort is made to circumstantial evidence. In our case, circumstantial evidence will include how the TV mount was attached to the wall.

It is hard to imagine a TV wall mount that can’t be removed, as can the lag bolts that attached it. A little spackle, sanding and paint will likely remove all trace that it existed. Other evidence may be whether the mounting system is proprietary to a specific TV or universal so that it will accept all TVs.

My inclination is to consider that a TV wall mount is personalty, assuming that it is relatively easily removed and the cover-up easily applied. Reasonable minds, however, may differ. A poll of the Hotline attorneys suggests that while I may be with the majority, there is indeed a difference of opinion (actually, I discontinued polling when I saw that I might lose).

The only thing I can say with complete confidence is that the best practice is to avoid these disputes altogether. Do so by adding a provision to the agreement of sale that clearly states whether TV wall mounts are included with the property or not.

So what is the next fixture/personalty controversy on the horizon? I am sure we will find out.

Source- PAR – Jim Goldmsith

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Renting a Home or Apartment : Lease and Security Deposits – from the Consumer’s Perspective

Renting a Home or Apartment: Leases and Security Deposits

Your choice of housing plays a significant role in your life and represents a major financial commitment. Understanding your rights as a consumer and a tenant will help you make informed decisions in selecting the right rental property for you. Keep these important tips in mind and don?t be afraid to exercise your rights as a tenant.

Consider the Following Before Renting:

Don?t pay for an ?apartment finder? service if the listings provided are simply vacancies taken from newspaper classifieds.

Look the properties over carefully and be sure to ask questions about any apartment or house you are considering renting. Consider the following:

Does the rent cover all utilities, or will you be responsible for paying for them yourself? If you will be paying for heat, water, or other utilities ask whether the landlord can provide an estimated monthly or annual cost for the rental property.

What kind of security does the building have? Are the doors, windows and entrances secured? Are the stairs safe and well lighted? Are the fire escapes easily accessible?

What sort of commute will you have to school or work and what is nearby in terms of restaurants, shopping, entertainment and other places you frequently visit? Also, what are the neighbors like (students, families, retirees) and is this the right setting for you?

Who is responsible for the upkeep and maintenance of common areas (stairwells, hallways, etc.) and appliances, furnace filters and other items within the property which may need to be serviced?

Is the landlord or property management readily available during nights and weekends and what are the procedures for emergency services, repairs or lock-outs?

What kind of parking is available? Is there an extra charge for a parking spot?

Are storms windows, screens and shades provided?

The Rental Application

Your new landlord may ask you to provide credit references and a list of past landlords, addresses and your employment history, including salary.

An application fee may be charged and may be nonrefundable if you are not approved. At the landlord?s discretion, the application fee may be applied to your first month?s rent or security deposit, but it is not required by law.

The Lease

A lease is a contract which legally binds both parties to terms for a specified period of time. Breach of this contract by either party can result in serious legal and financial consequences. Be sure to carefully read over the lease or rental agreement and any list of rules that the landlord will expect you to follow.

Make Sure Your Lease Contains:

  • The specific address, including apartment number of the property.
  • The length of the lease.
  • An explanation of the rent payment procedure, including late penalties and rent increases.
  • Which utilities you are responsible for paying.
  • Termination or renewal terms.
  • The amount of any security deposit.

Also:

  • Don?t let anyone rush you into signing an agreement before you understand what it says and do not sign a lease until all blanks are filled in. Be sure to keep a copy of the lease for yourself. Make a second copy and keep it in a safety deposit box or with a friend or family member for safekeeping.
  • Watch out for clauses which provide for the automatic renewal for another full term equal to the original term. To avoid automatic renewal, make sure you give notice of your intention to vacate prior to expiration of the lease and in accordance with the lease?s terms.
  • Remember that if you are sharing the property you may be responsible for nonpayment, damages or breaches caused by any roommate or co-signer.
  • Inspect the premises prior to signing. If the property is furnished, check for any defects in the furniture. Make a check list of any damages to the property or its contents along with maintenance responsibilities and get the landlord?s signature on the list along with any changes or repairs. Make sure you keep a signed and dated copy.

Security Deposit

A security deposit is money which actually belongs to the tenant, but is held by the landlord for protection against damages or unpaid rent.

During the first year of a lease, the amount of a security deposit cannot exceed two months rent.

Beginning with the second year of a lease, a landlord cannot retain a security deposit of more than one month?s rent. Any security deposit greater than $100 held by a landlord must be placed in a bank in escrow.

The Landlord Tenant Act requires that interest be paid on security deposits held over two years.

After taking out damages and unpaid rent, a landlord or property owner must send its tenants the list of damages and/or the full or partial security deposit no later than 30 days after the lease ends or when the landlord accepts the tentants? keys to vacate the premises early, whichever occurs first. The law requires landlords to pay twice the amount of the security deposit if they fail to provide consumers with the list of damages along with any refund due.

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Are you PAR compliant?

Dear Agents, as a PA Licensee, it is your responsibility to comply with the Penna. Code in association with Printed, airtime, electronic or any other form of media or advertising for your business and marketing.  It is our office policy that you assume the responsibility to have your cards, advertising and marketing approved by me or the R.E. Commission.  If you do not, and you are cited for non-compliance you will be indemnifying and reimbursing KW Realty Midway for any fees and costs for your violations.  This would result in a withholding of collecting any such fees from your compensation or commission. 

The PA Code REQUIRES you to List our office Brokerage name and phone number along with your name as the agent on any  form of advertisement.  It must be of equal or larger size than your agent name and number. 

Citations by the commission, if charged, start at $250-500.00 for a 1st time offense, and increase by any further citations to $750.00 then $1,000.00 up to $10,000 maximum.Fines are commensurate  with the citations. 

Any citations charged to you are logged as”disciplinary history” on your license.  What that means is that the Department of the State has to report this to ancillary companies such as Errors and omissions and agencies such as Fannie Mae and Freddie Mac.  This could not only cause your office fees to increase, but your ability to practice real estate could be limited, thus effecting your potential income.

As a fellow real estate agent who cares about your success and understands how challenging it can be to compete in our industry, I also want to protect you against any damages or unnecessary costs that could be avoided.

I welcome you to contact me with any further questions and to reach out to me should you need assistance prior to making any marketing or advertising decisions.

Very Sincerely,

Laurie Keen

Broker of Record

KW Realty Midway

 

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Criminals: The New Protected Class

Criminals: The new protected class
Tuesday, March 12, 2013
By Brett Woodburn, Esq.

121956596The Department of Housing and Urban Development (HUD) recently issued a Final Rule to formalize a national standard for determining whether a housing practice violates the Fair Housing Act as a result of the discriminatory effect. The rule goes into effect on March 18.

By HUD’s analysis, this Final Rule codifies the long-standing process authorities have used to analyze liability under the Fair Housing Act arising from facially neutral practices, having a discriminatory impact. Under this test, the party claiming housing discrimination has the initial burden of proving that a practice “results in, or would predictably result in” illegal discrimination. Once that burden is met, the accused may refute the charges by proving that the “challenged practice is necessary to achieve one or more of its substantial, legitimate, non-discriminatory” business interests. If successful, the complaining party can still succeed if they prove that the “substantial, legitimate, non-discriminatory interest could be served by a practice that has a less discriminatory effect.”

The phrase “discriminatory effect” has a specific meaning. ”Discriminatory effect” results in a disparate impact on one or more people that “creates, increases, reinforces, or perpetuates segregated housing patterns” on people who belong to a protected class. An individual accused of Fair Housing violations may successfully defend against such claims if they have a “legally sufficient justification” for the discriminatory practice. The concept of a “legally sufficient justification” arises when a practice does have a discriminatory effect on a protected class but (1) it is necessary to achieve one or more substantial, legitimate, non-discriminatory interests; and (2) those interests could not be served by another practice that has a less discriminatory effect.

Defending against allegations of discrimination by asserting a “legally sufficient justification” is not a safe harbor. Such claims must be supported by evidence and not by hypothetical situations or broad speculation. In other words, a landlord or property manager who wants to deny a prospective tenant an apartment because that tenant has a criminal or arrest record should be prepared to offer an explanation, supported by facts, why the denial is necessary to achieve the landlord’s legitimate business needs and that there is not another practice that can achieve the same legitimate needs, but that has a less discriminatory effect.

During the public comment period, HUD was specifically asked to provide that denying housing to individuals with arrest or criminal records was not a Fair Housing violation under the disparate impact analysis. HUD noted this concern, in part, as follows, “Whether any discriminatory effect resulting from housing provider’s or operator’s use of criminal arrest or conviction records to exclude persons from housing supported by a legally sufficient justification depends on the facts of the situation. HUD believes it may be appropriate to explore the issue more fully and will consider issuing guidance for housing providers and operators.

It is truly unlikely that we will have more definitive guidance from HUD on this topic before March 18. Unfortunately, landlords and property managers (actually, anyone who is conveying an interest in residential or commercial housing) should begin to compile records to support why they enforce a policy of denying housing based on a criminal or arrest record.

On the positive side, we now have official backing from HUD that the correct answer to the question of whether or not tenancy can be denied based upon a criminal record is “it depends

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Information Regarding Security Deposits

Taking Security Deposits

During the first year of a lease, a Landlord may not require a security deposit of more than two months’ rent. After the first year of a lease, this amount cannot exceed one month’s rent, and any security deposit of more than one months rent must be returned to the Tenant.  If rent is increased during the first five years a Tenant is in a Property, a Landlord may require that the amount of the security deposit be increased as well.  After five years, the security deposit cannot be increased even if the rent goes up.

 

Holding Security Deposits

If the Security Deposit is more than $100, the Landlord must keep the Security Deposit in a special bank account called an escrow account.  Landlord is required to tell the Tenant the name and address of the bank where the escrow is located, as well as the amount of the deposit in the escrow account.  After the second year of a lease, the Security Deposit must be in an escrow account that earns interest.  Interest that is earned on a Security Deposit belongs to the tenant, but each year Landlord has the right to keep some or all of that interest up to an amount equal to 1% of the Security Deposit to cover certain administrative expenses.  If the interest earned is less than 1% of the Security Deposit amount, Landlord any keep all the interest, but Landlord can NEVER take any money out of the original Security Deposit for administrative expenses.  After the second year of a lease, any interest belonging to the Tenant must be returned to the Tenant once a year on the anniversary day of the first day of the original lease term.

 

Returning Security Deposits

When a lease is ended, Landlord has 30 days to give Tenant a written list of any damage to the Property that Landlord claims Tenant is responsible for.  If the cost to repair this damage is less than the amount of the Security Deposit being held, Landlord must return the amount of the deposit not being held back to fix those damages when the list is provided, along with any additional interest that has not yet been paid to Tenant.  If damages are more than the amount of the Security Deposit plus interest, Landlord may keep the entire Security Deposit.  Landlord may not keep any of the Security Deposit to cover damages if a list of damages is not given to the Tenant within that 30 day period.  If landlord doesn’t return Tenant’s Security Deposit within 30 days of the end of the lease, Tenant may sue and Landlord may be required to pay Tenant up to twice the amount of the portion of the Security Deposit that should have been returned.  It is the responsibility of the Tenant to give Landlord his/her new address after the Lease is ended.  If the Tenant does not provide a new address to Landlord, Landlord is not liable for damages for failing to return Security Deposit monies within 30 days.

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Disposing of abandoned property: A reprieve for landlords

For decades, landlords and property managers have been looking for guidance on how long and how
carefully they have to store property that was left under (oftentimes) hostile conditions. On July 5 the
governor signed an amendment to the Landlord and Tenant Act of 1951, establishing time limits
tenants have to remove their abandoned property.
This amendment requires tenants to remove their personal property from the residence when they
have “relinquished possession.” If the tenants don’t take all of their property when they leave, can
the landlord get rid of it? Not right away…
The 10-day rule
Regardless of why tenants leave, they have 10 days to communicate their intention to the landlord
that they will retrieve their property. While the tenants are responsible for their own property, the
act requires landlords to give notice to the tenants before that 10-day clock starts to tick. How does
the 10-day rule work?
If the landlord has an order of possession from a magisterial district judge that informs the
tenants they have 10 days to communicate to the landlord their intention to retrieve their
personal property, then no additional notice need be given by the landlord.
If the order does NOT contain a notice to the tenants, then the landlord must serve the tenants
with notice that they have 10 days to make arrangements to retrieve their personal property.
The notice may be served by regular mail to the tenants’ new address, if known, otherwise to
the vacated property; or by personal service.
If the tenants move out and the lease contains a notice that the tenants have 10 days to make
arrangements to retrieve any property left behind, the landlord STILL has to give the tenants
10 days to make the necessary arrangements to get their ‘stuff.’
If the tenants move out and the lease does not contain a notice (as most existing leases will
not), then the landlord must give the tenants the 10-day notice, which can be served at the
tenants’ new address, if known, otherwise at the old address if no forwarding address was
provided; by personal delivery; AND to any emergency contact identified in the lease.
The 10-day notice period begins from the date of the postmark on the notice.
The 30-day rule
If the tenants communicate their intention to collect their personal belongings, the landlord has to
safeguard the tenants’ property for 30 days. To the landlord’s benefit, the property may be stored at
a place of the landlord’s choosing, provided it is reasonably close to the leased property, and the
actual costs of moving and storing the property may be passed along to the tenants. Throughout the
time that the landlord is holding the property, he must exercise ordinary care to safeguard the
tenants’ property.
Notice requirements
The act does not proscribe the form of the notice. Reading the act as a whole, the notice should
inform the tenants that if they do not make arrangements with the landlord to retrieve their personal
property within 10 days of the postmarked date of the notice, their property will be disposed. The
notice must also identify:
telephone number and address where the landlord can be contacted;
location where the property can be retrieved; and
the tenants will be responsible for costs of moving and storing their belongings if they are not
retrieved within that 10 day window
Getting rid of the property
If the tenants do not contact the landlord within that 10 day notice period, or if despite
communicating their intention to retrieve their property, they fail to do so within 30 days, then the property may be discarded. After the appropriate time period expires, the landlord has “no further
responsibility to the former tenant” and may dispose of the property by whatever means the landlord
chooses.
If the landlord chooses to sell the property, the landlord may only keep enough of the proceeds to
cover any outstanding obligations the tenant may owe to the landlord. This may include the costs of
moving and storing the property, as well as any judgment for damages against the tenants. If the
landlord believes the tenants owe for damages or rent, but does NOT have a judgment, then the
landlord should consult with counsel before keeping proceeds from the sale of the tenants’ personal
property.
What should the landlord do with any excess proceeds? The excess proceeds should be forwarded by
certified mail to the tenants’ new address. If the tenants did not provide a forwarding address to the
landlord, then the landlord must hold the proceeds for an additional 30 days. Once that last 30 days
has expired, the landlord may keep the proceeds.
It will take time for the practice to incorporate these changes. Landlords, property managers and
their attorneys would be wise to provide magisterial district judges with the notice at the time the
order of possession is sought so the tenants can be served with the notice when the order is issued.
(It might be wise to have a copy of the act to share in the event you are asked for authority
supporting your request.)
In the meantime, update your leases to include this new notice and implement the changes going
forward. Act 129 takes effect on September 5, 2012.

As Posted By Caldwell and Kearns On July 18, 2012

 

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VETERANS ADMINISTRATION SERVICES EASE AGING BURDENS

 

Monthly Newsletter – May 2012

www.seniorsrealestate.com

 

 


Veterans Administration Programs Ease Aging Burdens

By Elyse Umlauf-Garneau

Maybe you’ve never tapped U.S. Department of Veteran Affairs (VA) benefits because you’ve never needed them. Or because you forgot that they’re available to you.

But if you or your family member is retired from the military, you may be overlooking a host of health and financial benefits.

Thought the VA won’t deliver the high life, some of its services can ease some of the burdens and costs associated with aging.

The most well-known VA benefits are associated with health care, but the package is more extensive than many realize. It includes:

Preventative services, such as:

  • Immunizations
  • Health care assessments from a team that includes doctors and a social worker
  • Health and nutrition education

Medical care, including: 

  • Outpatient and inpatient hospital, medical, surgical,  mental health care, and substance abuse care
  • Prescription drugs
  • Rehab services
  • Durable medical equipment, such as hearing aids and glasses.
  • Respite and adult daycare. If you’re a full-time caregiver to a Veteran, you can get 30 days per year off. Adult day care services, says Carlotta Katra, are especially helpful if, for example, you’re caring for someone with dementia and that person can’t be left alone safely. Katra is president of Aging Avenues Eldercare Consulting, Indianapolis, Ind., a fee-only consulting company with an expertise in VA benefits.
  • Hospice care. The service is for Vets with a terminal condition and who have six months or less to live.

Easier aging in place

Other benefits that aren’t linked to health care and some that are lesser known have the power to ease day-to-day aging challenges and, in some cases, transform lives by allowing for greater independence.

Keep in mind that not all veterans qualify and some program benefits vary depending on what state you live in. And one rule of thumb to keep in mind is that disabled veterans typically receive the deepest benefits.

Some non-medical benefits include: 

  • Home loans: Qualified Vets can use VA loans to buy or build a home and renovate an existing one. See http://www.benefits.va.gov/homeloans for more information.
  • Home modifications: Grants are available for small modifications, such as for installing universal design elements like shower grab bars. Others address more extensive renovations to create barrier-free living. For more information, see http://www.vba.va.gov/VBA/benefits/factsheets/homeloans/homemods.doc
  • Vehicle modification: Vets with disabilities connected to their military service  may qualify for money for buying or modifying a car to accommodate those injuries. For information, see www1.va.gov/VHAPUBLICATIONS/ViewPublication.asp?pub_ID=340
  • Dependents and Survivors Benefits: If you’re a low-income widow of a Vet who did wartime service, you may be eligible for some pension money and some other services. See www1.va.gov/opa/publications/benefits_book/benefits_chap12.asp and http://www.vba.va.gov/bln/21/pension/spousepencalc.htm for more information.

Benefits bonanza

Perhaps the single most overlooked benefit is Aid & Attendance, which is an Improved Pension Benefit for Vets and their surviving spouses who need assistance with basic self-care.

A doctor has to qualify a candidate and a person must be legally blind or need assistance with one or more of the following:

  • Bathing
  • Dressing
  • Transferring
  • Walking
  • Medications
  • Personal care

The tax-free money, ranging from $1,094 to $2,020, can be used for care at home, in an assisted living facility, or at a nursing home.

There are stringent qualification guidelines. For instance, the Vet or spouse must be spending at least 5 percent more than their gross income on medical and care expenses to get the maximum benefit. 

In addition, those who qualify must have limited–typically the VA says $80,000 or less per couple–assets, though Katra says that’s not a hard and fast rule.

And since the VA, unlike Medicaid, doesn’t have a lookback period, you can do some advance planning to qualify for the benefit without incurring a penalty.

“You could have $1 million today and, with proper planning, get approved for Aid & Attendance tomorrow, ” says Katra. “They do look at assets, but right now there’s no penalty for repositioning assets, but that probably will change this year.”

That’s why Katra suggests planning early and meeting with an attorney schooled in elder law and who understands VA benefits. After all, no one really knows when the VA will close the loophole.

6 things to know

1. Snowbird benefits. If you have dual residences, you need to register at hospitals in both places. This is especially important for snowbirds who spend six months in Chicago, for example, but pass the winter in Florida or Arizona.

2. Know your benefits.  Don’t overestimate benefits. It’s important to really understand what the VA does and doesn’t provide when you’re doing your long-term planning. For instance, many assume that they get cradle-to-grave care. But for funerals, for instance, the VA typically provides only a $300 burial allowance. For more about burial benefits, see http://www1.va.gov/opa/publications/benefits_book/benefits_chap07.asp.

3. Be patient. Be prepared to wait for appointments and when you’re picking up medicine, suggests Katra.  The VA isn’t known for speed.

4. Pre-screen facilities.  If you’re looking for nursing care and you or your relative qualifies for a VA facility, visit the facilities in your area and take a close look at them. Not all are created equal. Some are lovely and state-of-the art and others are just the opposite, according Katra.

5.  Agent Orange exposure: Katra says exposure to Agent Orange likely will affect everyone who went to Vietnam. Among the ailments are early heart attacks, prostate cancer, and Parkinson’s disease. Veterans who filed a claim years ago and who thought they had symptoms, can return to the VA for treatment. “Because they filed a prior claim, they’re eligible for 100 percent disability. That can be worth a huge amount of money because a Vet who is fully disabled gets a monthly payment,” she says.  “They also pay that amount all the way back to their original claim date.” For more information on Agent Orange exposure and for information about making a claim, see http://www.publichealth.va.gov/exposures/agentorange and http://www.vba.va.gov/bln/21/benefits/Herbicide/AOno3.htm.

6. Hire an expert.  Don’t go it alone, especially if you’re applying for Aid & Attendance, says Katra. It’s a complex process and not all the details, exceptions, and updates are easy to find for the average consumer. So someone, an eldercare attorney or consultant with VA expertise, can decipher the legalese and fine print and guide you through the process.

Resources:

Enroll: 

Apply for VA benefits online https://www.1010ez.med.va.gov,  by  calling  1-877-222-VETS (8387), or in person. To find VA facilities, see www2.va.gov/directory/guide/home.asp.

Consultants and eldercare lawyers:

VA benefits basics:

Aid & Attendance:

 

 

Real Estate Matters: News & Issues for the Mature Market

(Keller Williams Realty Midway-

Team Matrix)

(200 Municipal Drive)

(Thorndale, PA  19372)

(The Team of Laurie Keen and Associates)

 

 
 

 

 

 

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