Landlocked property and your rights to an access easement in Mississippi

People have a right to get to their property in Mississippi. If your property is landlocked, i.e. it does not have direct access to a public road, you can obtain an easement under Mississippi law through the courts. 

In order to succeed in Court, you must prove:

(1) that the proposed private access road is reasonably necessary;
(2) that the property has no access to a public road; and
(3) that you have attempted unsuccessfully to secure a private easement across all of the other surrounding property owners by either contract or deed.

In the recent case of Ward v. TRIMAC Investments, LLC, decided by the Mississippi Court of Appeals on March 22, 2011, the property owner seeking access to his property proved that the private road was reasonably necessary, and that the property had no access to a public road. Additionally, it was proved that an old road bed that was used to access the property in the past still existed, and that it was the least disruptive means to the adjoining property owner. However, because the property owner failed to prove that he had contacted all of the adjoining property owners to attempt to get a private easement across their property, the Court of Appeals overturned the lower court’s ruling.

This case and other prior cases reinforce the rulings that:

(1) the easement you want does not have to be the most convenient to your property;
(2) the easement you want does not have to be the shortest distance to a public road; and
(3) the easement you want does not have to be the least expensive to acquire or to construct.

For more information, visit our website at http://www.showspowell.com/.

Surveys - The Necessary Expense

All too often, surveys are deemed an unnecessary expense. However, surveys should always be done prior to your purchase.

Why? What does a survey reveal?

A survey will tell you whether the house violates any set back requirements. A survey will locate the house on the lot and will locate all fences. It will show if there are any encroachments on the lot you are buying, and will also show all easements on the property.

If your description is by metes and bounds and not a lot in a subdivision, a survey is an absolute necessity. The record description of the property should be surveyed to see if the seller’s description is correct and can be located on the ground and is congruent with all surrounding property lines.

The survey will tell you if the property you thought you were buying is the property on the survey. The survey will tell you exactly where the home and other out buildings are located on the property to be purchased.

The expense of a survey is minimal compared to the information obtained. Additionally, if a survey is done at the time of purchase, you will know exactly where the lot corners are. If you later want to construct a fence, then you will know where the boundary is located.

For more information, visit our website at http://www.showspowell.com/.

Due Diligence in Purchasing Property in Mississippi

Due Diligence has to be done on any house being purchased in Mississippi. The Home Sale Solution© guides a purchaser regarding all “due diligence” with respect to the house being purchased.

In central Mississippi, yazoo clay can cause substantial foundation problems. Therefore, with an existing home you should always get a home inspection done by a reputable home inspector. The home inspector will know the area and will know what signs to look for with regards to foundation problems, such as cracks and breaks in the concrete, doors that do not close, windows that will not open, cracks in foundation, cracks in sheet rock and poor drainage around the house.

With new construction, the tell tale signs may not yet exist. Greater care must be taken and the builder should be required to give the purchaser his sole borings and tests of the concrete foundation. An inspection by a structural engineer is a necessity along with soil borings on all sides of the house. And if a builder has no soil borings, don’t buy the house.

The problem in central Mississippi is that foundation problems caused by yazoo clay are not really “fixable”. The various cracks and breaks can be “repaired”. The repairs and the steps to reduce the continuing damage (ie, french drains, landscaping and better drainage) are not very expensive.

A purchaser who knows what to look for can save himself lots of money and aggravation. The Home Sale Solution© provides a due diligence list that will assist you in saving money and aggravation.
 
For more information, please visit our website at http://www.showspowell.com/.

Common Problems with Buying & Selling a Home in Mississippi

The purchase of a home is often the greatest investment a couple will make in their lifetime. Yet there are a series of problems which often occur after the closing of the sale and purchase that could be avoided if the proper process is followed. I call this process the Home Sale Solution©.

The following are problems which can be avoided:

1. Foundation breaks - doors do not shut, walls crack, windows do not close and brick cracks.
2. House is built over subdivision set back lines and too close to the lot line.
3. Termite damage is found after the closing/no termite inspection report at closing.
4. At closing seller’s net proceeds are substantially less than expected.
5. Water gets in house from flooding or heavy rain on a regular basis.
6. Purchaser walks away from (defaults on) contract before closing.
7. Unreleased liens after closing that hinder refinancing.
8. Uncompleted punch list and uncompleted landscaping.
9. Hidden Damage/or damage repair that’s not disclosed.
10. Unpaid Homeowner’s Assessments or special assessments.
11. Mortgage payment increases because of inadequate escrows.
12. No Survey.
13. Property located in a flood zone.

These problems can be avoided. Future Blogs will address this list of problems and their solutions. This process is the Home Sale Solution©.

Non-Traditional Methods of Buying Property in Mississippi - and the Risks

During this time when credit is difficult, Sellers and Buyers often enter into “Contract for Deeds” or “Lease to Purchase.” The desire of the Seller is to avoid having to foreclose on a note and deed of trust if the buyer fails to pay Seller as agreed. The desire of the Buyer is to purchase a home and acquire title upon the payment in full of the contract.

Such arrangements have pitfalls for both Seller and Buyer, but the Buyer is subject to the most risk in this type of transaction. The Buyer must have a written agreement which accurately describes the property being purchased. The Buyer must also record such written agreement in the land records for the county where the property is located. If the Buyer has no written contract and does not record the contract in the proper county, then the Buyer is very likely to lose his investment.

For example, a Seller could sell the property to someone else who is unaware of the original agreement between Seller and Buyer. A Seller could take out a mortgage on the property and such mortgage would be a lien on the property ahead of the Buyer’s claim to the property. Additionally enforcing the contract for deed can also be difficult, even when the agreement is recorded. If the Seller is deceased, the problem of enforcement becomes even more difficult.

Nearly all Buyers would be in a much better legal position if they actually acquired title and gave the Seller a promissory note for the purchase price secured by a deed of trust.

Both Buyer and Seller should consult their own attorney for any type of sale of real property.

To learn more visit our website at http://www.showspowell.com/.

More Mississippi Real Estate Terms - Part 3

Seller's Disclosure Statement - Required disclosure by the Sellers when a licensed real estate agent lists the property for sale and which (supposedly) truthfully indicates the condition of the major components of the home, including the age, type and condition of the structural and mechanical components, the water and sewer/septic systems, and various other matters such as yearly average costs of electricity, taxes, homeowners' dues, etc. It is supposed to give all potential buyers a truthful snapshot of any and all known conditions of the home which a reasonable buyer would want to know. It must be signed by the sellers.

Survey - A map or plat prepared by a land surveyor or engineer showing the boundaries of the property, the location of any structures or other improvements, any easements, encroachments, or set-backs, size of the property, and legal description of the property.

Title Defect - Any defect in the title to real estate which impairs marketability.

Title Insurance - An indemnity contract which can be purchased at closing that insures the policy holder from a financial loss as a result of title defects. It pays the fair market value of any loss that the policyholder suffers as a result of a title defect, and provides the policyholder with attorneys at no cost who will defend the policyholder's title in the event a claim is made against the policyholder for a title defect (even after the policyholder no longer owns the real estate).

No - A difficult, two-letter word that most people have a hard time saying when they absolutely know they should. This word is often the hardest word in the English language to say.

More Mississippi Real Estate Terms (Part 2)

Real Estate Terms to Know – Part 2

Deed - Written instrument conveying title from the seller ("grantor") to the buyer ("grantee").

Deed of Trust - Written instrument from the borrower to the lender granting title to the property to the lender, to hold in trust, to secure the repayment of the debt. Once the loan is paid in full, the deed of trust is normally cancelled of record.

Homeowners' Assessments - The amount of money assessed by the Homeowners' Association to each property owner, usually on an annual basis, which can become a lien on the property if not timely paid.

Homeowners' Association - An association whose membership is composed of all homeowners in a subdivision and which membership is generally required by virtue of owning a home within the subdivision.

Home Inspection - An on-site inspection of the interior and exterior of the home, normally performed by a licensed professional, to evaluate the structural, mechanical and electrical condition of the property.

Pest Inspection - An on-site, visual inspection of the interior and exterior of the home, performed by a state certified consultant, to evaluate the presence of wood destroying insects and/or organisms in readily accessible areas of the home.