Maatuka Law Office Real Estate Newsletter

Tuesday, February 26, 2008

Know Your Rights in the Eviction Process

By Shayla Maatuka and Juanmanuel Garcia-Sanchez

If you rent your home or apartment, you need to know your rights if your landlord wants you out. This is an eviction. First, you can only be evicted for:

failure to pay rent,
violation of the lease agreement, or
the lease term has ended.

Before a Landlord can force you out of the rental property, the Landlord is required to give you written notice and reasonable time to cure the default. In Illinois, a Landlord is required to give you:

5-day Notice of Termination of Tenancy for failure to pay rent;

10-day Notice of Termination of Tenancy for a lease violation;
30-day Notice of Termination of Tenancy for end of lease termination; and
30-day Notice of Termination of Tenancy if a month-to-month verbal lease exists.

If you dispute the Notice of Termination, you can fight for your rights! The Landlord must wait the complete number of days required by the Notice of Termination for you to cure the default. If you do not cure the default and do not leave the property, the Landlord must then file for eviction in court. The Landlord cannot change your locks, move your belongings out, or threaten you in any way in order to force you to leave the property. A Landlord who does may be liable for damages.

Once you are served with Summons and Complaint, you must appear in court to fight for your rights. If you fail to appear in court for the scheduled court hearing, you will lose and a default judgment will be entered against you, and the Landlord can move ahead with the eviction process. (See below –if you admit to complaint)

At court, you can admit or deny the Complaint. If you admit, the Landlord may be given a monetary judgment {such as the amount of money owed for rent, plus attorney fees (if the written leases calls for them), and costs} and will be able to evict you by having the local sheriff remove you from the premises (usually takes about a week). If you deny, a trial will be set within one week.

At trial, the Landlord must prove

that you did not pay, you violated the lease agreement, or that the lease term has terminated;

Landlord served you the required Notice of Termination; and
Landlord allowed the complete amount of time required by the Notice of Termination to elapse prior to filing for eviction. For example, where the notice is for failure to pay rent, the Landlord has to allow you the complete 5 days to pay. If you pay within 5 days, the Landlord cannot evict you! If the Landlord does not wait the complete 5 days, the eviction case will be thrown out and the Landlord will have to begin again.

The laws apply to all people equally; your status as an immigrant DOES NOT MATTER. Know your rights!

Call the Maatuka Law Office for more information or if you believe you are involved an illegal eviction.

If you have legal questions that you would like to have addressed in future columns, please send them to our office at 306 W. Green St., Urbana, IL 61801.

Copy right 2008 Maatuka Law Office

Conozca sus derechos en el proceso de Desahucio

Por Shayla Maatuka, Juanmanuel Garcia-Sanchez

Si usted alquila una casa o apartamento, primero necesita saber cuales son sus derechos en caso de que el dueño de la propiedad lo intenta desalojar. Esto es un Desahucio.

Solamente lo pueden Desahuciar por las siguiente razones:

Incumplimiento en el pago del alquiler o arrendamiento;
Violación del contrato de arrendamiento; o
Cuando el contrato de arrendamiento ha terminado.

Antes de que el dueño lo pueda obligar a desalojar la propiedad, el propietario tiene la obligación de entregarle una notificación por escrito y otorgarle al inquilino un periodo de tiempo razonable para remediar la falta. En el estado de Illinois, el propietario tiene la obligación de hacerle llegar:

Notificación de Terminación de Arrendamiento en 5 días, por incumplimien to en el pago del alquiler;
Notificación de Terminación de Arrendamiento en 10 días, por violación del contrato de arrendamiento ;
Notificación de Terminación de Arrendamiento en 30 días, si el contrato de arrendamiento ha terminado; y
Notificación de Terminación de Arrendamiento en 30 días, si existe un acuerdo verbal de arrendamiento mes a mes.

Si usted no esta de acuerdo con la Notificación de Terminación de Arrendamiento o cree que se esta cometiendo un abuso en su contra, usted puede reclamar y luchar por sus derechos. El propietario tiene que respetar y acatar el tiempo y fecha establecida en la Notificación de Terminación de Arrendamiento para que usted pueda reparar la falta. Si no repara la falta y no desaloja la propiedad en el tiempo establecido por la ley, el dueño esta obligado a interponer en una corte de ley el proceso de Desahucio. El propietario no puede cambiar las cerraduras, mover sus pertenencias fuera de la propiedad o amenazarlo de cualquier forma en un intento por forzarlo a usted a que salga y desaloje la propiedad. El dueño que lo haga podria ser obligado a pagar una multa.

Una vez que usted sea notificado con el aviso judicial de desahucio, usted tiene que presentarse ante una corte para exponer su caso, velar y defender sus derechos. Si no se presenta a la audencia programada por la corte , usted perderá y un juicio de desacato será abierto en su contra y el propietario podrá continuar con el proceso de desahucio.

Durante la audiencia en corte, usted puede admitir o negar la Queja.

Si usted admite la Queja, el propietario sera compensado monetariamente por los gastos incurridos por el para efectuar el desahucio, como por ejemplo los honorarios del abogado, mas los meses de renta adeudados entre otros. (si esta estipulado dentro del contrato de arrendamiento), seguidamente el propietario podrá recurrir al Sheriff local para desalojarlo de la propiedad a usted y a sus pertenencias (este proceso demora por lo general una semana).

Si usted niega la Queja, una cita de la corte será programada dentro de un periodo de una semana.

Durante el ensayo de corte, el propietario tiene que probar que:

usted no cumplio con su pagó, violó el contrato de arrendamiento o que el contrato de arrendamiento ha terminado;
el propietario le hizo llegar a usted la Notificación de Terminación de Arrendamiento; y
el propietario cumplio con el tiempo establecido por la ley para la Notificación de Terminación de Arrendamiento antes de entablar ante la corte de ley, el proceso de Desahucio. Por ejemplo, cuando la notificación es por falta de pago del alquiler el propietario tiene que darle a usted 5 días completos por ley, para que usted pueda reparar la falta y pagarlo. Si usted paga dentro de esos 5 días el propietario no le puede iniciar el proceso de desahucio. Si el propietario no espera los 5 días completos, el caso de desahucio será descarta do y el propietario tendrá que empezar todo el proceso de nuevo.

Recuerde, las leyes son aplicadas a todos por igual, su estátus legal como inmigrante NO IMPORTA. ¡Conozca sus derechos!

Llame a los abogados de Maatuka Law Office al número 337-0700 para mas información.

Copy right 2008 Maatuka Law Office

Fee Tail

Elgin had two sons and two daughters. In drafting his will, Elgin decided that he wanted to limit the succession of his estate to his male lineal descendants. Thus, Elgin included a provision in his will that his estate should pass to his "two sons and the male heirs of their body."

The fact scenario set forth above describes the creation of what is known as a "fee tail" estate. A fee tail estate is one that is restricted by the grantor to lineal descendants, as opposed to collateral heirs. In order to create a fee tail estate, the grantor was required to use specific words of indefinite succession, such as "heirs of the body" or "issue of the body." Any limitation on the technical wording required to create the fee tail defeated the goal of the grantor in creating a fee tail.

In the fact scenario described above the estate is further limited to the male descendants of the creator. Such a restriction is known as a fee tail special, as opposed to a fee tail general. Based on the provision set forth above, Elgin's two sons would share Elgin's estate upon Elgin's death. In the event both of Elgin's sons predeceased Elgin, the estate would revert and be distributed according to applicable law.

The fee tail estate was based on English law and carried forward to the colonies. It served as a mechanism by which a person who held property could keep the property in the family. It also served the additional function of safeguarding the property from descendants who might squander the property. The fee tail estate existed in many variations, including such provisions as:

to "A" and the heirs of his body
to "A" and the female heirs of his body
to "A" and the male heirs of his body

Following the American Revolution, courts called upon to construe such provisions regarded the provisions with extreme hostility. Today, the law of most states provides some type of mechanism to defeat the succession of a fee tail estate or to preclude the creation of a fee tail estate. In some states, the law provides for the conversion of a fee tail estate into a fee simple estate. In other states, the law changes a fee tail estate into a life estate. Still other states continue the fee tail to the first beneficiary and then provide for a fee simple estate in favor of the lineal descendants of the first beneficiary. Only a few states continue to recognize the fee tail estate as it existed at common law.

Mortgage Loans With Balloon Payment Provisions

Jed needed money to make some home improvements. His plan was to update the kitchen and to add a garage. Jed didn't have enough money in savings to pay for the improvements outright, so he decided to apply for a home equity loan. Jed's mortgage loan offered him a loan with very low monthly payments. However, the mortgage lender said that, at the end of five years, there was a balloon payment due. Jed is unsure what the mortgage lender means.

Generally, when a borrower obtains a mortgage loan, the borrower repays a portion of the principal, as well as interest, with each monthly payment. In addition, the borrower pays taxes and insurance as part of the monthly payment. During the early stages of repayment of a traditional mortgage loan, the borrower repays very little principal and quite a bit of interest. A mortgage loan with a balloon payment provision is very different from a traditional mortgage loan. Usually, mortgage loans with balloon payment provisions are second mortgages as opposed to first mortgages (also known as purchase-money mortgages). With such a loan, the borrower may be required to pay interest only or may be required to pay some combination of principal and interest, plus the customary costs of taxes and insurance. The significant difference between a traditional mortgage loan and a mortgage loan with a balloon payment provision is that the latter loan requires that the loan be repaid in full at the end of some specified period.

The main reason borrowers opt for mortgages with balloon payment provisions is that such loans usually require smaller monthly payments during the initial repayment period. The risk of obtaining such a loan is that the borrower will not be able to repay the balloon payment at the end of the loan term and may, as a result, lose the home.

A borrower considering a mortgage loan with a balloon payment provision may wish to ask the following questions:

How long do you plan to stay in the home?
What is the current interest rate?
Are there any indications that the interest rate will increase sharply in the future?
What is the maximum monthly payment you can afford?
What is your plan for repaying the balloon payment?
Can you convert the mortgage into some other type of mortgage?
What is the cost of the loan to you, including closing costs?
Are there other financing options available?

Escheat

Fact Scenario I

Leonard lived to the ripe old age of 102. He died without a will. Leonard's parents died years ago, as did his siblings. His only cousin also died before Leonard. Thus, Leonard died without heirs. After Leonard's death, the state claimed Leonard's house, as well as the property on which it was situated.

Fact Scenario II

Josephine grew up during the Great Depression. She was nervous about putting all of her savings in just one bank. Therefore, Josephine scattered her savings in numerous banks. After Josephine's death, the executor of Josephine's death made a diligent attempt to locate all of Josephine's bank account. The executor missed one account: a savings account at State Street Bank with a balance of $2,500. Years and years passed by after Josephine's estate was closed. Each year, State Street Bank advertised the account in the local newspapers, along with other accounts, as unclaimed property. No one ever came forward to claim the account. Eventually, the state claimed the funds in the account.

Law of Escheat

Briefly stated, the law of escheat mandates the reversion of an individual's property to the state in the event the individual dies without heirs or when the property is abandoned by the individual. The law of escheat applies to both real property and personal property.

The law of escheat finds its roots in ancient law. It is premised on the principle that land owned by an individual with no heirs or abandoned by the individual should revert to the state for the benefit of others.

For the most part, individuals prepare wills before their deaths. It is unusual for an individual to die without any heirs. Thus, escheat is not a frequent method by which the state obtains title to property.

The law of escheat varies somewhat from state to state, but may be found in the state constitution and/or the state statutes. In some jurisdictions, title to the property at issue vests in the state immediately upon the death of the individual or the abandonment. Other states require the state to undertake some type of formal procedure before title to the property vests in the state. Generally speaking, the law of escheat is not favored by courts. Thus, courts strictly construe the statute.

Reverse Mortgages

During recent years, the topic of reverse mortgages has received extensive coverage in the news. In order to determine whether a reverse mortgage is right for you, it is important to learn as much as you can about the nature of reverse mortgages and to make a full consideration of the advantages and disadvantages of reverse mortgages.

What Is a Reverse Mortgage?

Ordinarily, we think of a mortgage as a type of loan which will help a home buyer purchase a new home. A reverse mortgage is entirely different. With a reverse mortgage, the homeowner obtains a loan based on the equity in the home. Instead of the homeowner making payments to the lender, the lender makes payments to the home owner. The payments may be in many different forms in order to suit the home owner's needs. A reverse mortgage allows a homeowner to convert the equity in the home into cash, while the homeowner retains ownership of the home. Furthermore, a homeowner can use the funds obtained as a result of a reverse mortgage for any purpose, including: monthly living expenses, home repairs, and taxes.

You might consider a reverse mortgage if you live on a fixed income, you wish to stay in your home, and you require additional funds for your monthly living expenses. It is extremely important, however, for you to consider all of your options, because other alternatives may better suit your needs.

How Do I Qualify?

In order to qualify for a reverse mortgage, you must be age 62 or older. You must own your home or the mortgage on your home must be nearly paid in full. The amount you qualify to borrow is based on the value of your home, the amount of your equity in the home, and your age.

Factors to Consider in Determining Whether to Obtain a Reverse Mortgage

It is important to note that there are three types of reverse mortgages: FHA-insured, lender-insured, and uninsured. Each type of reverse mortgage differs from the other. It is important that you consider the nature of each type of reverse mortgage in relation to your needs.
A reverse mortgage may affect your eligibility for certain public benefits, such as Supplemental Security Income (SSI) and Medicaid, even though the proceeds of a reverse mortgage are not taxable.
A reverse mortgage, like any other mortgage, has a cost attributable to the transaction itself. The cost may vary widely, depending on the type of reverse mortgage you choose. Consider the expense to you and whether another option may be more cost effective.
A reverse mortgage is a significant financial transaction. It can be confusing.

It is advisable that you consult with others in order to determine whether a reverse mortgage is right for you. You may wish to talk the matter over with your family, friends, a financial advisor, or a reverse mortgage counselor approved by the Department of Housing and Urban Development (HUD).

Further Information

As with any major financial transaction, it is important that you obtain as much information as possible. Ask as many questions as you feel necessary. Don't sign any document if you don't fully understand what the document says. Additional information on reverse mortgages is available by contacting:

U.S. Department of Housing and Urban Development

451 Seventh Street, SW

Washington, DC 20410

1-888-466-3487 or 1-800-569-4287 (to obtain the name of a HUD-approved reverse mortgage counselor)

www.hud.gov

Lastly, to report suspected fraud or to make a complaint, you can contact the Federal Trade Commission (FTC). The FTC is a government agency that functions to prevent fraud, deceptive schemes, and unfair practices. The contact information for the FTC is as follows:

Federal Trade Commission

Consumer Response Center

600 Pennsylvania Avenue, NW

Washington, DC 20580

1-877-FTC-HELP (1-877-382-4357)

www.ftc.gov

Dog Law - Landlord Liability for Tenant's Dogs

John owned an apartment building. Some of his tenants had pets, including dogs. Jake, one of John's tenants, had a friendly little dog. One day, however, Jake's little dog bit a construction contractor hired by John. The injury wasn't serious, but the construction contractor required some medical treatment. Can John be held liable?

In residential real estate leases, it is not uncommon to find some type of pet restriction. Some leases contain a standard "no pets" clause, which prohibits tenants from keeping any pets whatsoever on the leased premises. Other leases contain variations, such as restrictions on the size of a pet a tenant may keep or on the number of pets a tenant may keep. Some landlords require tenants with pets to make an additional security deposit as a condition of keeping pets on the leased premises. Generally speaking, such restrictions are legal. Many landlords, however, allow tenants to keep dogs on the premises.

What is a landlord's liability in the event a tenant's dog inflicts an injury?

Typically, a landlord cannot be held liable for an injury inflicted by a tenant's dog. In the fact scenario described above, John had no reason to know that Jake's dog would inflict an injury on the construction contractor. Jake may be liable for his dog's actions, but it is unlikely that John would be liable.

There may be certain circumstances, though, when a landlord will be liable for injuries inflicted by a tenant's dog, such as:

if the landlord knew or had reason to know that a tenant's dog was unreasonably dangerous
if the landlord maintained the dog for the tenant; in essence, a landlord may be liable if the landlord acted as the owner of the tenants' dog

In most circumstances, if a landlord is found liable for injuries inflicted by a tenant's dog, the landlord's general liability insurance will cover the loss, at least in part.