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Tag Archives: real estate law

Styron & Shilling’s new home in Ozark


After ten years at 301 West Pacific in Branson, Styron & Shilling has relocated its Branson office to a lovely old building at 302 East Church Street, in Ozark, Missouri, a half block east of the northeast corner of the Christian County courthouse square.

With this move, Styron & Shilling’s Branson and Ozark offices are consolidated to a new location that fits the nature of our firm’s evolving Read the rest of this entry

Good luck with that foreclosure, MERS members


A Missouri appellate court, without trying, may have drawn a map to a defense to foreclosures–if borrowers can figure it out before the Missouri Supreme Court overturns the decision in Bellistri v Ocwen. The opinion shows how an assignment of a loan to a servicing company for collection can actually make the loan uncollectible from the mortgaged property. Read the rest of this entry

Eureka School District loses TIF battle


School districts are the natural enemies of tax-increment financing projects (TIFs). The TIF designation of a redevelopment area limits a school district’s share of the increases in property taxes that occur in that redevelopment area, diverting what would have been the school district’s share of property taxes to paying for a portion of the developer’s cost of infrastructure.

On February 24, 2009, Missouri’s Eastern District Court of Appeals issued its opinion Read the rest of this entry

HOA trustees can enforce covenants, even though they didn’t have annual meetings


If you want to stop a homeowners association from collecting assessments or enforcing restrictions, often the best tactic is to smear the HOA.

Here’s how the smear works. Read the rest of this entry

Maybe being married is okay, even with debts


Capital Bank asked the Taney County Sheriff to sell Rocky’s, a popular Italian restaurant in Branson, to satisfy a judgment awarded by an Arkansas court against the owner of the restaurant. Judge Orr stopped the sheriff’s sale, because the restaurant land and building were owned by Mr. and Mrs. Charles Barnes, while the Arkansas court’s judgment was against only Mr. Barnes. The Missouri Court of Appeals affirmed Judge Orr’s ruling in an opinion dated February 2, 2009.

I had a great lunch at Rocky’s on February 3, so I’m glad that a bank didn’t take over the restaurant.

In Missouri and several other states, a married couple can own property as though they were one person, in a form of ownership called “tenancy by the entirety.” In Missouri, a tenancy by the entirety is presumed to have been created when a deed to a married couple uses the words “husband and wife” after their names, if they are in fact married.  A deed is a written document, signed by the grantor(s), which is evidence of the intent of the grantor to convey property to the grantee(s).

The holding of the Barnes case does not break new ground, but it explains why careful lenders usually insist that a personal guaranty and deed of trust (mortgage) be signed by each spouse, otherwise the collateral may not be reachable. Generally, the tenancy by the entirety form of ownership will stop even the IRS from seizing the property of a married couple for taxes owed only by one spouse.

From the borrower’s point of view, holding real estate as tenants by the entirety can be a good idea. A limited liability company (LLC) or corporation is created as an operating entity for a small business,which leases real estate from the husband and wife. The husband and wife are protected from personal liability for business debts that they have not personally guaranteed. The lease income is not subject to self-employment tax.

An additional question is whether the LLC membership interests or corporate shares should be held by both husband and wife, as tenants by the entireties or whether each should own half or whether some other form of ownership is desirable. Answering this question requires careful analysis by a lawyer, estate planner and tax advisor working together.

In praise of real estate developers


Much of my work in the past decade has involved representation of real estate developers, though they are fading fast. Though my firm has other sources of revenue–municipalities, lenders and homeowner associations–I really miss the developers, because I admire their courage and enjoy their personalities and optimistic approach to life. All of them are low, and some of them are sunk. Most of them will pop back up eventually: they’re buoyant.

It bothers me to hear people talk about how bad they are and how, in this downturn, they’re getting what they deserve.

Developers are easy targets. They send in bulldozers and push over trees. They cause erosion. They would rather apologize later than ask permission. In other words, they have the energy required to plan and execute capital intensive projects, requiring personal financial risks and coordination of dozens of others–lenders, contractors, subcontractors, architects, engineers, lawyers, escrow companies, mortgage underwriters, insurance agencies, etc.

The result is that we have houses, streets, places to shop, and places to work. Read the rest of this entry

Defunct HOAs: what to do?


Outside of incorporated cities in the Ozarks, the homeowner association (HOA) is often the government for homes in subdivisions and condominiums. The clean water rules enforced by the Missouri Department of Natural Resources include HOAs as eligible “continuing authorities” to own and operate drinking water or sewer facilities, or both, in subdivisions not served by public utility companies regulated by the Public Service Commission or by governmental providers. In addition, the HOAs often have the responsibility of maintaining subdivision streets unless and until the county commission adopts an ordinance to maintain the streets.

HOAs are ordinarily established by the subdivision developer, in order to obtain permits for sewer or water facilities and to create an entity for road maintenance. An HOA’s power to collect assessments from lot owners (or unit owners, in the case of condominiums) is established by the recording of subdivision covenants (usually called CCRs or a declaration). The HOA is almost always set up as a non-profit corporation, with the developer and the developer’s associates making up the initial board of directors.

Even under the best of circumstances, the developer fails to file annual reports for the HOA with the Missouri Secretary of State, and the HOA, as a corporation, is administratively dissolved. When few lots are sold, that also happens. And there are worse omissions and consequences: Read the rest of this entry

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