Thursday, April 30, 2020

Can You Just Write A Will And Get It Notarized?

Can You Just Write A Will And Get It Notarized

No. You can’t. If you do that, you will did not follow will formalities.
Why are wills written by lawyers almost always notarized? It is not the will itself that is notarized, but rather the self-proving affidavit that is attached to the will. When a person’s will is presented for probate after the person’s death, the will must be proved. The word “probate” comes from the Latin “probare”, meaning to test or to prove. In probate, we are proving the will.

How to Make Up a Simple Will and Have It Notarized

Your will designates who is to receive your possessions and assets when you pass away. If you die without leaving a properly executed will, confusion or uncertainty may arise regarding the distribution of your property and how your physical remains should be handled. A will does not have to be signed by a notary public to be legally binding, but a notary’s signature helps to establish the validity of your will.

• Handwrite or type a title for your will, such as “Last Will and Testament.” Below this title, write your full legal name, your present home address and your Social Security number or other identifying information such as your date of birth.

• Write a paragraph affirming that you are of sound mind and memory at the time of writing the will; your wishes are expressed in the document without undue duress or influence from any other person; all previous wills are now revoked; and at the time of writing the will, you are of legal age to create a will. In Utah, the minimum age to write a will is 18.

• Designate an executor for your will. You can also name an alternate executor to serve if your first choice is unwilling or unavailable. Often, the executor is either your spouse or the principal beneficiary of your will.

• Name your beneficiaries in your will. Explicitly state what possessions or assets you wish to bequeath to each person, and make sure their identities are clear – use a full name and date of birth to identify each beneficiary. If you have a spouse and do not wish to make that individual a beneficiary of your will, you should seek legal counsel for advice on how to exclude your spouse from your will.

• Specify any wishes you have as to your funeral arrangements. If you have specific desires for how your remains should be handled, state them in the will.

• Place your signature at the end of the will. Your signature should be preceded by a statement that you signed the will before designated witnesses on a particular date. Do not sign the will until your witnesses are present. Leave a signature space for a notary public.

• Secure the services of a notary public before you sign your will. Many bank branches have notaries on staff, as do most law firms. Take your will to the notary’s office and sign in the presence of the notary and your witnesses.

Where You Can Go Wrong With a Do-It-Yourself Will

It is possible to write a will all by yourself, type up on a piece of paper detailed instructions on the distribution of your worldly goods after your death, without the help of an attorney. But if you are planning anything complicated, this might have all the authority of a grocery list that has been notarized. And when there are mistakes, it is possible that the survivors of the deceased will end up in court, spending thousands of dollars to contest a will. Another complication is that each state has its own rules. Some states recognize oral wills; some don’t. In some states, you have to have the will signed at the end and witnessed by two disinterested parties. But some states require three signatures. Even if no one contests your will, the courts still have to follow the letter of the law. Many courts will not validate provisions if the will is not properly executed (with the proper notarization and number of witnesses). Courts will also balk at provisions that do not make sense. Even uncontested wills can remain in expensive probate limbo, Because of the disparate nature of do-it-yourself projects; there are no aggregate statistics on how many people across the country file their own wills each year.

Here is what can go wrong, and how to avoid it:

• Naming an executor: Designating a trusted individual to carry out your last wishes is a complicated choice. Whom you choose is the real linchpin to the proper closing of your estate. Do not simply pick someone who cares about you, but someone who either has some financial acumen or knowledge of the law or better yet, both.

• Leaving stuff to pets: If you want to make sure that your pet is taken care of, then don’t leave your pet money in your will. Instead, you need to provide for your pet’s care through a human. The individual should be sure to leave the named caretaker with all of the information he or she will need to care for the pet.

• Putting conditions on heirs to receive payouts: This can lead to problems in court. “Often the conditions aren’t spelled out with sufficient clarity,” Sometimes the courts find the conditions illegal or impractical to enforce. For instance, if a parent wants their child to lose 20 pounds or graduate from college before receiving money, someone has to stick around and make sure that the condition is enforced, and that can mean paying an executor additional fees for a long time.

• Designating unusual end-of-life decisions: The main problem here is that some consumers confuse wills with living wills. If you put in your will, for instance, that you do not wish to be placed on life support in the event of a medical emergency, that document is not likely to be read until after you die, or possibly when you are in a lengthy coma. By then, it is too late.

• Designating guardians for children: The failure to fill out a legal document designating a guardian for your children is a common error, says an expert, as is not having a backup, in case the first guardian gets sick or dies.

• Failure to coordinate beneficiary designations: You may have a life insurance policy or retirement account that has a beneficiary named as part of the process. If you have something different listed in the will, what is on the account takes precedence. So you may put in your will that you want your best friend’s son, whom you always regarded as “family,” to receive the funds from your 401(k). But if you die without having designated a beneficiary on the actual account, or have named somebody other than your best friend’s son, the money likely will not get to him. The funds will go to the named beneficiary first, and then will follow a hierarchy through your blood relatives.

• Funeral instructions: This is similar to the living will confusion. Most wills are not found or submitted to probate until after the funeral has taken place. If you are going to put your funeral instructions in a will, it’s advisable that you alert your executor, the person you name to handle the details of the will.

• Dealing with blended families: It probably won’t be contentious if the family gets along, but if you know your kids from your second marriage don’t think much of your kids from the first, you may want to consider taking inventory and being very clear about who gets what of your belongings. People will fight over scarves and jewelry, even though there’s no value to them. It isn’t the money so much as the principle over it.

Statutory Requirements for a Valid Written Will

The will must have been executed with testamentary intent;
• The testator must have had testamentary capacity:
• The will must have been executed free of fraud, duress, undue influence or mistake; and
• The will must have been duly executed through a proper ceremony.
Testamentary intent involves the testator having subjectively intended that the document in question constitute his or her will at the time it was executed. Ordinarily, the opening recital, e.g., I, Jane Doe, do hereby declare this instrument to be my Last Will and Testament . . .” will suffice.

Testamentary Capacity

In addition to testamentary intent, the testator must have the testamentary capacity, at the time the will is executed. Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must:
• Know the nature of the act (of making a will)
• Know the “natural objects of his bounty”
• Know the nature and extent of his property
• Understand the disposition of the assets called for by the will.
A common modification to the above list of requirements is that the testator be of sound mind and capable of executing a valid will. Accompanying the competency standard is a minimum age requirement, which is usually age 18.

Signature Requirements

Most courts take a liberal view as to what constitutes a testator’s signature. These standards range from the testator’s first name, nickname or even an “X” by an illiterate person. Additionally, proxy signatures (made by another person) are acceptable, as long as the signing is at the testator’s direction and in his or her presence. In order for the testator’s signature to be valid, it has to be done as a volitional act by the testator. Although someone can assist the testator in this task, the signing must still be at the testator’s direction. In most states, there is no requirement that the testator sign at the end of the will (subscribe his signature). The signature can appear anywhere, provided it was intended by the testator to be his signature. In many jurisdictions, the signature must be at the end of the will to be valid. In these jurisdictions, even deciding where the end of the will is can create uncertainty. Some jurisdictions apply an objective test requiring the testator to sign at the physical end (or last line) of the document.

In contrast, some jurisdictions say that what constitutes the end is a subjective test, holding that the logical or literary end is the appropriate place for the signature. Here, the question is whether the testator subjectively thought that he was signing at the end of the will. Signing anywhere can create confusion as to the effect of provisions that may appear after the testator’s signature. Historically, if there were material provisions appearing after the testator’s signature, the entire will was void. The modern view is that everything appearing before the signature is given effect; but the provisions that follow the signature are void (even assuming they existed at the time the will was made). An exception to this view is if the provisions following the signature are so material that deleting them would subvert the testator’s testamentary plan. In such a case, the entire will is void.

Witnesses, Attestation and Self-Proving Affidavit

In addition to the testator signing the will, it also has to be signed by witnesses. Like the testator, the witnesses must possess certain minimal qualifications or their attestations may be legally insufficient to validate the will. Specifically, the witnesses must be competent, they must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act that they are witnessing and attesting to, so that, if needed, the witnesses could testify in court on these matters. A witness usually is judged incompetent to serve as a witness to the will if the person is also an interested witness. An interested witness is one who is a beneficiary under the will. At common law, the will was denied probate in those instances. Most states require only an acknowledgement to the witnesses by the testator that his signature appears on the document. Most courts are indifferent about whether the attesting witnesses or the testator signs first. Most jurisdictions define presence as the testator being conscious of where the witnesses were and what they were doing when they signed. Other jurisdictions dictate that the presence test is only satisfied if the witnesses are in the testator’s line of sight when they signed.

Absence of fraud and undue influence

• Fraud is one ground to invalidate a will. Fraud involves:
• False statements of material facts,
• Known to be false by the party making the statements,
• Made with the intention of deceiving the testator,
• Who is actually deceived, and
• That causes the testator to act in reliance on the false statements.

Fraud in the execution involves the testator being deceived as to the character or contents of the document he is signing. Fraud in the inducement involves the testator making the will or writing a provision that relies upon a false representation of a material fact made to him by one who knows it to be false.

Undue influence involves substituting another person’s will for that of the testator. The factors of undue influence are:

• a susceptible testator;
• another’s opportunity to influence the testator;
• improper influence in fact; and
• the result showing the effect of such influence.

Undue influence is difficult to prove because the evidence must be substantial, going beyond mere suggestion, innuendo or suspicion. Merely having a motive, the opportunity or even the ability to exert undue influence is not sufficient to prove it actually happened. If the elimination of a provision created under undue influence does not defeat the overall testamentary plan, it can be stricken; the rest of the will is still valid. In contrast, if this revision alters the testator’s wishes for the disposition of his property, the entire will is set aside. Yet, the existence of a confidential relationship between a testator and a beneficiary may raise a presumption (often rebuttable) of undue influence, especially if the beneficiary played an active role in procuring the will and the disposition under the will is unnatural.

Absence of mistakes

If a testator somehow signs a document purporting to be his will but it is the wrong document, most courts will hold that there is no will. Generally, if a testator omits some provision in his will it cannot be added postmortem (after death), because a will cannot be reformed or revised once the testator has died. [In the next chapter we will review when extrinsic (outside) evidence is admissible; however, that is used for to clear up ambiguities, not to add new terms to the will. Conversely, a provision included in a will by mistake may be omitted by the probate court when the will is admitted to probate, if the mistaken inclusion is separable from the rest of the will. The deletion of the provision cannot substantially alter the overall will or the intent of the testator. This type of modification is similar to one found in contracts that allows a provision that is illegal or conflicting to be eliminated; however, the contract itself still remains valid. There can also be a mistake in the inducement, when a testator is mistaken about a material fact and makes no provision in the will because of it. Unlike fraud in the inducement, a mistake in the inducement will not cause the will to be invalid. Such innocent mistakes will not adversely affect the will’s validity. In effect, no relief is granted for the injured party. Although the will may not be invalidated or changed, the intended beneficiaries might be able to hold the attorney liable for negligent drafting. Ultimately, the testator is responsible for ensuring that the will accurately reflects his intentions. This is crucial, since once the testator dies; there usually is no way to rectify any problems with the will. Courts will not step in to rewrite someone’s will.
Special consideration for attorney-draftsman as beneficiary or fiduciary
Attorneys are held to a higher standard when it comes to undue influence claims. A bequest to an attorney is particularly susceptible to a claim of undue influence because of the confidential and fiduciary nature of the attorney-client relationship. Accordingly, many courts presume there was undue influence in instances where the attorney drafted the will.

Safekeeping of Wills

A testator’s first inclination may be to keep the will in a safe deposit box, along with other important papers. This option could cause delay in locating the will because access to a decedent’s safe deposit box to search for the will requires an ex parte court order. As an alternative, the will can be deposited in a will safe or vault of the attorney who drafted it. Lastly, for a nominal fee, the will can be deposited in the will safe at the surrogate court. This last option could be inconvenient if the testator decided to change the will at a later date. In some jurisdictions, process must be served on the beneficiaries and fiduciaries named in the earlier will if their rights and interests are adversely affected by the later will.

Wills Attorney Free Consultation

When you need legal help with a will, trust or estate plan in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Discounted Payoff

Discounted Payoff

A discounted payoff (DPO) is the repayment of an obligation for less than the principal balance. Discounted payoffs often occur in distressed loan scenarios but they can also be included as contract clauses in other types of business dealings.

Understanding a Discounted Payoff

Discounted payoff is a business term that may arise in several different scenarios. Most commonly it can be part of a negotiation to pay off a lender for an amount below the total balance due. It can also be used in some business dealings as an incentive to pay off an obligation early.

Distressed Debt

A Discounted Payoff can be one alternative for resolving issues involving delinquent debt. In the case of delinquent debt, the lender will usually agree to a discounted payoff after all other options have been exhausted. In some cases a discounted payoff may also be part of a bankruptcy court settlement in which an order is delivered for a pay off amount below the obligation as part of a final agreement. In most cases of distressed debt discounted payoff, the lender takes a loss for the value of the contracted debt and interest that the borrower is no longer obligated to pay.

Collateral backed loans that end in a discounted payoff offer a special case for settlement since they have collateral which reduces the risks for the lender. With an asset-backed loan discounted payoff the lender can agree to a discounted payoff level while also exercising the right to seize the underlying asset. In some instances the lender may be able to break even or take less of a loss because of the difference in equity value vs. payoff value of the asset being levied.

In some business dealings, including loan agreements, a lender may include a contract clause that offers a borrower a discounted payoff with no repercussions. In these instances the discounted payoff serves as an incentive for the borrower to pay off their obligations sooner. Some of the benefits to the lender are more upfront cash received and lower default risks since payments are made and obligations are met in a shorter time frame. Some accounts payable contracts may also fall under the discounted payoff category. For instance, a seller may include terms like 10 net 30 which give the buyer a 10% discount for paying their bill within 30 days.

Discounted Payoff Example

Each discounted payoff will have its own circumstances and terms. Discounted payoff can be beneficial when they offer a borrower or buyer an advantage. Oftentimes though they are negotiated to stop negative credit history or reach a final debt settlement. Once a distressed Discounted Payoff has been negotiated between a borrower and lender, the borrower usually has to raise the capital to pay off the loan in a lump sum payment by a specified date in the near future. One example of a situation where a discounted payoff can be especially useful in utilizing is in the involvement of a third-party bridge lender. A bridge loan involves a third party who provides the cash to the borrower to pay off the discounted payoff while also extending additional capital with new terms. This scenario can be helpful when maintaining collateral is important but it still leaves the borrower with an outstanding balance, often at a higher interest rate than previously held. The discounted payoff amount will usually form the new liability for the property. Bridge lenders may also require the borrower to pump in a substantial amount of equity into the asset, in order to have a sufficient margin of safety on the bridge loan.

Types of Default and the Consequences

Default is the failure to repay a debt including interest or principal on a loan or security. Default can have consequences for borrowers.

How Does Loan Modification Work?

A loan modification is a change made to the terms of an existing loan because the borrower is unable to meet the payments under the original terms.

Payoff Statement

A payoff statement is a statement prepared by a lender providing a payoff quote for prepayment on a mortgage or other loan.

Set-Off Clause Definition

A set-off clause is a legal clause that gives a lender the authority to seize a debtor’s deposits when they default on a loan.

Take-Out Commitment Definition

Take-out commitment is a written guaranty by a lender to provide permanent financing to replace a short term loan at a specified future date.

Non-Performing Asset (NPA) Definition

A non-performing asset refers to loans or advances that are in jeopardy of default.

Distressed Commercial Real Estate – Discounted Loan Payoffs

While the majority of commercial real estate loans scheduled to mature in the coming years are healthy and should have little trouble refinancing when they mature, distressed debt continues to present unique loan strategies and restructurings, including discounted loan payoffs. Some of these distressed loans were extended during the financial crisis of 2007/2008, offering modest pay downs and deferring their ultimate repayment.

A discounted loan payoff (DPO) is the repayment of a loan for less than the outstanding balance. DPOs are typically reserved for distressed assets that have declined significantly in value. The write-off of any portion of the loan principal is an expensive proposition to the lender. Prior to accepting any such loss, the lender determines that the borrower is unable to infuse additional equity and the prospect of foreclosing upon and selling the asset will not recover the principal. The payoff amount with the lender should approximate the value that the lender expects to recover from the asset through the foreclosure process. DPOs allow the bank in clearing troubled debt and create capital for future lending. DPOs can be financed with new debt or additional equity. A key consideration for any investor in a distressed debt transaction is identifying the cause of the distress. Pricing of distressed debt is driven primarily by loan resolution or exit strategies, loan terms, underlying cash flow and value, guarantees, capital needs and related risk and return factors. These variables are subject to due diligence. Targeted rates of return reflect the risk in the underlying property, market and loan resolution strategy. The underwriting of troubled debt typically involves cash flows for the loan resolution strategy. There are two general types of investors, namely yield or return investors and ownership driven investors. Investors who navigate these factors are presented with the opportunity to acquire interests in commercial properties at a discount. Borrowers are able to utilize any equity infusions to perform critical tenant improvements to retain and attract new tenants, thereby starting down the road of increasing the property’s value. The distressed commercial real estate market is complex. Many of these loans are intricately structured. There are also more stringent bank loan underwriting criteria and rising interest rate uncertainties. Due to these complexities, investors should consult with advisors and financiers who are experienced in distressed debt resolutions. Loan restructurings may have significant tax consequences to both the lender and the borrower. Generally, the cancellation of indebtedness by the lender results in taxable ordinary income to the borrower and the lender would reflect a corresponding loss. Investors should consult their partner to discuss these tax and other implications.

Default is the failure to repay a debt including interest or principal on a loan or security. A default can occur when a borrower is unable to make timely payments, misses payments, or avoids or stops making payments. Individuals, businesses, and even countries can fall prey to default if they cannot keep up their debt obligations. Default risks are often calculated well in advance by creditors. A default can occur on secured debt such as a mortgage loan secured by a house or a business loan secured by a company’s assets. If an individual borrower fails to make timely mortgage payments, the loan could go into default. Similarly, if a business issues bonds essentially borrowing from investors and it’s unable to make coupon payments to its bondholders, the business is in default on its bonds. A default has adverse effects on the borrower’s credit and ability to borrow in the future.

Default on Secured Debt

When an individual, a business, or a nation defaults on a debt obligation, the lender or investor has some recourse to reclaim the funds due to them. However, this recourse varies based on the type of security involved. For example, if a borrower defaults on a mortgage, the bank can reclaim the home securing the mortgage. Also, if a borrower defaults on an auto loan, the lender can repossess the automobile. These are examples of secured loans. In a secured loan, the lender has a legal claim on the asset to satisfy the loan. Corporations that are in default or close to default usually file for bankruptcy protection to avoid an all-out default on their debt obligations. However, if a business goes into bankruptcy, it effectively defaults on all of its loans and bonds since the original amounts of the debt are seldom paid back in full. Creditors with loans secured by the company’s assets, such as buildings, inventory, or vehicles, may reclaim those assets in lieu of repayment. If there are any funds left over, the company’s bondholders receive a stake in them, and shareholders are next in line. During corporate bankruptcies, sometimes a settlement can be reached between borrowers and lenders whereby only a portion of the debt is repaid.

Defaulting on Unsecured Debt

A default can also occur on unsecured debt such as medical bills and credit card debts. With unsecured debt, no assets are securing the debt, but the lender still has legal recourse in the event of default. Credit card companies often give a few months before an account goes into default. However, if after six months or more, there have been no payments, the account would get charged off meaning the lender would take a loss on the account. The bank would likely sell the charged-off account to a collection agency and the borrower would need to repay the agency. If no payments are made to the collection agency, a legal action might be taken in the form of a lien or judgment placed on the borrower’s assets. A judgment lien is a court ruling that gives creditors the right to take possession of borrowers’ property if they fail to fulfil their contractual obligations.

Alternatives to Default

A good first step is to contact your lender as soon as you realize that you may have trouble keeping up your payments. The lender may be able to work with you on a more attainable repayment plan or steer you toward one of the federal programs. It is important to remember that none of the programs are available to people whose student loans have gone into default. You may be sure the banks and the government are as anxious to get the money as you are about repaying it. Just make sure you alert them as soon as you see potential trouble ahead. Ignoring the problem will only make it worse.

Defaulting on a Futures Contract

Defaulting on a futures contract occurs when one party does not fulfil the obligations set forth by the agreement. Defaulting here usually involves the failure to settle the contract by the required date. A futures contract is a legal agreement for a transaction on a particular commodity or asset. One side of the contract agrees to buy at a specific date and price while the other party agrees to sell at the contract specified milestones.

Sovereign Default

Sovereign default or national default occurs when a country cannot repay its debts. Government bonds are issued by governments to raise money to finance projects or day-to-day operations. Government bonds are typically considered low-risk investments since the government backs them. However, the debt issued by a government is only as safe as the government’s finances and ability to back it. If a country defaults on its sovereign debt or bonds, the ramifications can be severe and lead to a collapse of the country’s financial markets. The economy might go into recession, or its currency might devalue. For countries, a default could mean not being able to raise funds needed for basic needs such as the food, police, or the military. Sovereign default, like other types of default, can occur for a variety of reasons.

Consequences of Default

When a borrower defaults on a loan, the consequences can include:
• Negative remarks on a borrower’s credit report and lowering of the credit score, which is a numerical value or measure of a borrower’s creditworthiness
• Reduced chances of obtaining credit in the future
• Higher interest rates on existing debt as well as any new debt
• Garnishment of wages and other penalties. Garnishment refers to a legal process that instructs a third party to deduct payments directly from a borrower’s wage or bank account.
When bond issuers default on bonds or exhibit other signs of poor credit management, rating agencies lower their credit ratings. Bond credit-rating agencies measure the creditworthiness of corporate and government bonds to provide investors with an overview of the risks involved in investing in bonds.

Loan Modification

Loan modification is a change made to the terms of an existing loan by a lender. It may involve a reduction in the interest rate, an extension of the length of time for repayment, a different type of loan, or any combination of the three. Such changes usually are made because the borrower is unable to repay the original loan. Most successful loan modification processes are negotiated with the help of an attorney or a settlement company. Some borrowers are eligible for government assistance in loan modification.

How Loan Modification Works

Although a loan modification may be made for any type of loan, they are most common with secured loans such as mortgages. A lender may agree to a loan modification during a settlement procedure or in the case of a potential foreclosure. In such situations, the lender has concluded that a loan modification will be less costly to the business than a foreclosure or a charge-off of the debt. A loan modification agreement is not the same as a forbearance agreement. A forbearance agreement provides short-term relief for a borrower with a temporary financial problem. A loan modification agreement is a long-term solution. A loan modification may involve a reduced interest rate, a longer period to repay, a different type of loan, or any combination of these.

There are two sources of professional assistance in negotiating a loan modification:
• Settlement companies are for-profit entities that work on behalf of borrowers to reduce or alleviate debt by settling with their creditors.
• Mortgage modification lawyers specialize in negotiating for the owners of mortgages that are in default and threatened with foreclosure.

Payoff Statement

A payoff statement is a statement prepared by a lender providing a payoff quote for prepayment on a mortgage or other loan. A payoff statement or a mortgage payoff letter will typically show the balance a borrower must pay to close their loan. It may also include additional details such as the amount of interest that will be rebated due to prepayment by the borrower. Payoff statements provide clear disclosure for a borrower on the total amount they must payoff to close a loan account. They can also include other important loan details such as the remaining payment schedule, rate of interest and money saved for paying early. A borrower can request a payoff statement on any type of loan.

How a Payoff Statement Works

Requesting a payoff statement is commonly the first step in paying off a loan. Different types of lenders will have varying formats for payoff statements. Online lenders will generally provide borrowers with a payoff quote that details the exact amount a borrower will need to pay on a specific day to repay the loan early. In loans issued by traditional financial institutions, a borrower may need to contact a customer service representative directly rather than obtaining a payoff quote online. What is a payoff quote? It is the amount of money left to pay off a loan.
Traditional financial institutions will usually create a more formal payoff statement that comprehensively details payoff information regarding the loan. Generally, payoff statements will base their prepayment quote on the next forward payment date. Some lenders may have certain penalties or fees associated with a payoff so borrowers should check their loan agreements prior to requesting a payoff statement to understand the terms. Payoff statements can be used in collection actions for all types of loans. If a borrower is negotiating a consolidation loan with a new lender they can request payoff statements from the creditors which they seek the proceeds of their new loan to go towards. In a consolidation loan deal, a financial institution may choose to pay off each loan with proceeds of the consolation loan according to the information provided in the payoff statements. A borrower may also be presented with a payoff statement from a creditor if collection action has been taken on a specific debtor account. Generally, payoff statements will be associated with serious collection action usually involving a lien.

Discounted Payoff Lawyer Free Consultation

When you need legal help with a discounted payoff, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Wednesday, April 29, 2020

ATV Accident Lawyer American Fork Utah

ATV Accident Lawyer American Fork Utah

Among all community, no community catches the Spirit of America more than the City of American Fork. Tenderly balancing the small-town charm it was founded upon with big-city retail and opportunity, American Fork enjoys steady growth in industry and population. More than 30 percent of American Fork residents have a bachelor’s degrees or higher. The State of Utah has an unmatched number of bilingual residents of all ages. Utah Valley University, Brigham Young University, Mountain land Applied Technology College, and Provo College are just minutes away. The City is served by the Alpine School District and is also home to a number of private, charter and vocational schools. The community is enriched by the American Fork Arts Council, which presents a variety of programs throughout the year. The City also enjoys the talents of the American Fork Symphony and the Utah Regional Ballet. The American Fork High School Bands have established a reputation for excellence. The American Fork High School Marching Band finished as a Semi-Finalist in the Grand Nationals competition in 2008 and 2013, and have been State Champions for more than 20 years.

The City is popular for its outdoor trails, biking, hiking and outdoor recreational opportunities. Recreational and camping opportunities abound, from the American Fork Boat Harbor at Utah Lake to Timpanogos Cave National Monument and the Alpine Scenic Loop, located in beautiful American Fork Canyon. The City’s central location puts it within a half day’s drive of Utah’s 15 spectacular national parks, monuments, and recreation areas. Utah offers three unique ways to enjoy life. You can take advantage of the urban environment in Salt Lake City and the mountains that surround the area, enjoy world-class skiing, and have all of the amenities that you’d expect with big-city life. You can choose the suburbs if you wish to save a little money without sacrificing too much of your access. More people are moving away from the city center; however, so prices are rising rapidly. You’ll want to establish your home quickly to avoid another potential 9% increase in the next year. There is also the rural life waiting for you in Utah. You can start farming, ranching, or manage a longer commute to create the home of your dreams. It is the perfect solution for some freelancers or those who are self-employed too if a data connection is available. The pros and cons of living in Utah are essential to review because there can be some unexpected surprises with this decision. You can build a nice life for yourself here, but it might come at a steep price.

Pros of Living in American Folk Utah

• The cost of living in Utah is competitive with the rest of the country. You can find pockets of space in Utah were the cost of living is exceptionally competitive. There are places of natural beauty like Moab that receive support from the tourism and hospitality industries. Green River offers centralized access to the state without charging an arm and a leg for real estate like you can find in Salt Lake City. If you want to live in a rural area, there are extensive land parcels that can give you your own patch of paradise. Even if you decide to live in one of the cities, the combination of high wages and low real estate, utilities, and grocery costs makes it an inviting place to live.

• The rental market in Utah offers competitive pricing as well. Rental prices in Utah tend to match what the average costs are in the United States at all sizing levels.

• The climate in Utah is supportive in ever season. You will discover that Utah offers a dry, continental climate that supports all four seasons throughout most of the state. The only exception to this advantage would be in the southwestern desert areas where many of the national parks are located. You will enjoy warmth in the summer, reasonable winters, and low precipitation levels except for the mountain locations.

• The crime rate in Utah is one of the lowest in the country. Salt Lake City sees the highest levels of crime in the state, which can push the average statewide levels above the national median in some years. Most of the incidents involve property crime. Violent crime in Utah is almost 40% lower than it is across the rest of the country. If you don’t mind moving to one of the rural communities, then the crime rates are up to 80% below average. Utah is frequently rated as one of the top 10 safest places to live in the United States. With its robust religious background and rural nature, you can hang your shingle without really worrying about what might happen in the middle of the night.

• The educational opportunities in Utah are excellent. Most of the school districts throughout the state receive average or above average grades for the quality of education that the provide to students of all ages. There are several higher-learning institutions present in Utah as well if you wish to pursue an undergraduate, graduate, or doctoral degree after moving here. Many of the schools receive national recognition for the quality of education they provide.

• Utah is an outdoor paradise. You will find that most of Utah is covered with mountains. There are numerous opportunities to go hiking, cycling, and fishing throughout the state. It offers beautiful rivers that you can explore, whitewater rafting destinations, climbing, backpacking, horseback riding, and skiing all at world-class levels Utah is also home to five national parks: Arches, Capitol Reef, Bryce Canyon, Canyon lands, and Zion. If you can make life happen in Green River, then you will have a base camp to all of them. Add Goblin Valley into the mix (which is a state park), and you could spend an entire summer exploring what is available in your backyard.

• The economy of Utah is stable and thriving. Utah is a wonderful place to consider relocation because it has such a thriving economy. The unemployment rate is below 3% overall, with some areas seeing even less than that. The number of high-tech jobs has grown by over 70% in recent years, with many of the positions located in or around the Salt Lake City region. The SLC metro area has had one of the fastest-growing labor forces in the country for nearly a decade. That means you will also have plenty of opportunities to start your own business or begin freelancing if you want to live in Utah. The entire economy thrives because of the innovative approach of so many here in the state.

• Utah is a relatively young state from a demographic standpoint. The average age of a Utah resident right now is a little over 30 years old. Over 90% of the population graduates from high school each year, with about 30% of students deciding to pursue an undergraduate degree at one of the state’s schools. That means you are joining a community that is young, educated, and ready to be productive. When you combine these attributes with what is available throughout the rest of the state, and then it is easy to see why so many people want to call this area home.

• The transportation networks in American Folk Utah are supportive and well-built.

• Utah offers an emphasis on equality. Even though there is a strong religious presence in the state because of its history, you will also find that people tend to feel equal when they live in Utah.

Cons of Living in Utah

• Home prices are a lot higher on average when compared to the rest of the United States. The average price of a home in Utah is above $302,000, which places the state in line with a high-demand city like Denver if you’re looking to purchase a starter home. The in-demand neighborhoods and suburban communities around Salt Lake City can have an average which is $100,000 higher than that figure. Some of this disadvantage is a little misleading because homes in the SLC region are 90% more expensive than they are across the country. If you don’t mind a little bit of a commute, then you can usually find something in your price range.

• There can be a lot of nothing between communities in Utah. If you are taking the east-west route between Green River and Salina, then you’d better check your fuel gauge before making the journey. There are 106 miles that you’ll need to drive before you can reach the next service facility. That is 106 consecutive miles of no towns, meaningful exists, or even a legal way to turn around if you need something. It is the longest stretch of emptiness in the entire U.S. interstate network.

• Like it or not, religion is a way of life for many in Utah. Surveys that look at the spiritual demographics of Utah find that about 60% of the population identifies as being Mormon. If you only look at the southern counties of the state, the figure climbs to more than 80%. Although there is a certain acceptance that exists here, especially if you can support yourself and respect differences, you can encounter the occasional zealot who demands compliance with their specific religious beliefs – and this disadvantage is not confined to just the Mormons.

• Taxes can be a challenge when you start living in Utah. If you look at the current tax structure of Utah and compare it to the rest of the United States, you’ll find that it hits the exact median of what to expect. The state is the 25th highest in the country for its overall rate of taxation. There is an income tax of almost 5% that applies to your income, a sales tax that can be up near 9% in some communities, and a property tax rate of 0.66%. Then there are the alcohol, cigarette, and gasoline taxes that you’ll need to pay when living in the state. If your plans involve business ownership when moving here, there is additional taxation issues that you’ll want to review before finalizing your plans.

• Home prices are rising rapidly in the state. The average price of a home in Utah has risen by over $100,000 in just five years. Zillow states that the median rate in 2015 was $229,000. By the end of 2019, the expected valuation is $332,000. Although the cost of housing in the state is reasonably affordable, especially if you can be outside of the City metro area, the prices are continuing to rise at one of the fastest rates in the country. If you are trying to keep costs down, that means you’ll be living somewhere that is outside of the normal pattern of traffic. The rural communities can be 100+ miles from where you plan to work, so your commute (and the wear and tear on your vehicle) could be extensive.

• Driving can be problematic when living in Utah. When you can go for over 100 miles without running into another town, then there is a desire to drive a little bit faster. You’ll find that the wide-open spaces encourage a heavy foot on the accelerator, even if you’re not the biggest fan of speeding. If you live in a community like Delta, then you could be an hour away from the next significant town. There are a lot of places, especially in the western part of the state, where you are literally in the middle of nowhere. That means there are a lot of desert climate challenges that you can face when living in the state as well. Sandstone dominates Utah, especially in the southwest where the weather is hot and dry. You’ll have insect issues to manage, water access problems in some regions, and a lot of open space where it could be miles before you reach your neighbor.

• There are times when you will need to deal with the inversion layer. The only problem is that they do this in the winter months too, which means the smog from the city can become part of an inversion layer that can sit over your home for days. If you have asthma, allergies, or other health issues that impact your breathing, then this disadvantage could be problematic enough that moving here may not be the best idea. You will find less of an emphasis on sustainability here than in other parts of the country as well. Long stretches of empty highway are a temptation to create litter for some drivers. Shooters go into the desert and leave their casings behind. Even something simple, like using a reusable shopping bag, seems like a waste of time to some in the state.

• If you like baguettes don’t purchase the ones you can find here. For the record, a baguette is a thin, long loaf of French bread that comes from lean dough. It has a crisp crust to it with a diameter that is 6cm maximum. What you can find in Utah is something closer to a traditional loaf that requires slicing, although the shape of it is somewhat similar. There are a lot of imposters. And this disadvantage only serves as an example. You will find Utah versions of a lot of foods that may not seem quite “right” to you. If you’re a traditionalist who wants certain items, then you may need to shop at specialty stores to get what you need. It can be quite the inconvenience at times.

• Utah still uses a 3.2% definition for liquor. Although Utah has taken recent steps to modernize their liquor laws, the state is far behind the times when compared to the rest of the country. Taverns, bars, nightclubs, and anyone else who sells beer, wine, or spirits shut down at 1am in the state. You can purchase packaged beer at the grocery store, but the maximum alcohol content is 3.2% by weight for beer sold there and at restaurants. That means you must go to a liquor store (unless it is Sunday, because the store will be closed), to stock up on your favorites.

When you have been injured in an ATV Accident in American Fork Utah, please call Ascent Law for your Free Consultation. We want to help you.

American Fork Utah ATV Accident Attorney Free Consultation

When you need legal help with an ATV injury in American Fork, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Chapter 11 vs Chapter 13 Bankruptcy

Chapter 11 vs Chapter 13 Bankruptcy

There are some notable differences between Chapter 11 and Chapter 13 bankruptcy, including eligibility, cost, and the amount of time required to complete the process. Both bankruptcies give debtors the opportunity to stay in business and to restructure their finances.

Barring some limitations, both bankruptcies allow filers to modify their payment terms on secured debts, provide time to sell assets, and eliminate obligations the filer cannot pay over the plan’s term. While both allow the discharging of debts.

Chapter 11 Bankruptcy

Nearly everyone can file for Chapter 11 bankruptcy, including individuals, businesses, partnerships, joint ventures, and limited liability companies (LLCs). There is no specified debt-level limit, nor required income. However, Chapter 11 is the most complex form of bankruptcy and generally the most expensive. Thus, it’s most often used by businesses and not individuals, where companies can use Chapter 11 bankruptcy to restructure their debts and continue operating.

Filing Chapter 11 bankruptcy allows businesses to stay open and continue operating while reworking their financial obligations. Filers are able to put forth a reorganization plan, which can include downsizing and expense reduction plans. Many large businesses have filed Chapter 11 bankruptcy and came out of bankruptcy later to continue operating, including General Motors and Chrysler, which both filed for bankruptcy in 2009.

Chapter 13 Bankruptcy

Chapter 13 bankruptcy can only be filed by individuals with a stable income. Debt limitations are also part of Chapter 13 eligibility, and the limits change regularly. As of 2019, limits are approximately $419,275 in unsecured debt and $1,257,850 in secured debt. Chapter 13 differs from Chapter 7, where individuals can use Chapter 7 to wipe out all their debt entirely. Chapter 7 does have income limits that vary by state.
For Chapter 13, individuals must submit and implement a repayment plan for debts to be paid within three to five years. The filer can generally keep some assets, such as a home. It’s also called a “wage earner’s plan,” where individuals pay a monthly amount to a trustee, who in turn pays the individual’s creditors. The payback to creditors is usually required to be equivalent or better than what they’d receive under other bankruptcy proceedings.

Key Differences

Chapter 13 involves the appointment of a trustee, while with Chapter 11, this is optional and not usually done. The trustee’s role includes reviewing the bankruptcy proposal, making recommendations to the court, and the collection and distribution of creditor payments.

Chapter 11 bankruptcy often has complex and expensive proceedings. There are provisions, however, that help to streamline cases involving small business owners. If a debtor meets all the requirements, there’s no limit to a Chapter 11 plan’s duration, though typical plans are structured for three to five years. The court can extend the time frame of the plan for debtors who need more time to make the required payments.

The approval process for a Chapter 13 bankruptcy is generally much more expedient. There’s a set commitment period, however, of three to five years, during which a debtor must relinquish essentially all disposable income to the appointed trustee for distribution among creditors. The commitment period can be shortened, but never extended.

Both Chapter 11 and Chapter 13 bankruptcy provide a way for people struggling with debt to keep their property while reorganizing their debt. Chapter 11 bankruptcy works well for businesses and individuals whose debt exceeds the Chapter 13 bankruptcy limits. In most cases, Chapter 13 is the better choice for qualifying individuals (and sole proprietors).

Choosing the Right Type of Bankruptcy

In many cases, the type of bankruptcy filed will be contingent on two things: Your income and your assets. Your income is important because it may preclude you from filing a simple Chapter 7 case, and your assets are important because if you have nonexempt property, you might lose it in Chapter 7, but can protect it in Chapter 13.

Here are a few scenarios that explore which bankruptcy strategy would be best:

Unemployed Debtors with Few Assets – Chapter 7

Loss of income combined with a large amount of debt is the number one reason people file for bankruptcy. Compounding factors like divorce, medical emergencies, or the death of a family member are also common. Assume that in this scenario the debtor has no income other than unemployment benefits, does not own a home, and has one car with a loan against it.

In cases like this, a Chapter 7 bankruptcy is the fastest, easiest, and most effective means of getting rid of debt. As a matter of fact, this is the most common bankruptcy case, often called a “no asset” bankruptcy.

Unemployed Homeowners – Upside-Down Mortgage – Chapter 7 or Chapter 13

Homeowners who are experiencing a loss of income also have options under bankruptcy law. For those homeowners whose property value has fallen below the value of the loan against it, Chapter 7 is probably still the best option. Since the value of the home is less than the value of the lien against it, the homeowner has no equity in the bankruptcy estate, so the house is protected from liquidation. A Chapter 7 bankruptcy can quickly relieve them of their obligations to repay unsecured debts, making monthly bills much more manageable.

Unemployed Homeowners – Significant Equity – Chapter 7 or 13

If a homeowner has a significant amount of equity in property, then Chapter 7 may or may not be the best option. If the homeowner’s state exempts a generous amount of home equity, then the home may be safe. But if the state homestead exemption doesn’t cover the equity, the homeowner may lose the home in a Chapter 7 bankruptcy. The homeowner can keep the home in Chapter 13 bankruptcy if he or she keeps current on the mortgage. Keep in mind though, there must be enough income available from the petitioning household to fund a repayment plan.

Employed Homeowners Facing Mortgage Delinquency or Foreclosure – Chapter 13

For homeowners who have fallen behind on mortgage payments, Chapter 13 offers a way to catch up or “cure” past due mortgage payments while simultaneously eliminating some portion of dischargeable debt. This means they can save the home from foreclosure and get rid of a lot of credit card debt, medical debt, and possibly even second and third mortgages or HELOCs. Chapter 7 bankruptcy does not provide a way for homeowners to make up mortgage arrears.

5

Wealthy Petitioners with a Large Amount of Debt – Chapter 11

Very wealthy debtors often need to file under Chapter 11 due to the debt and income limits of Chapter 7 and Chapter 13 bankruptcies.

What Is Chapter 11 Bankruptcy?

Chapter 11 allows debtors to reorganize their finances–including reducing payments–while keeping assets. Both businesses and individuals can file for Chapter 11 bankruptcy. Once started, most collection efforts will stop as a result of bankruptcy’s automatic stay provision. In a Chapter 11 proceeding, a bankruptcy trustee is not appointed to oversee the case. Instead, the debtor handles most duties handled by a trustee in other chapters.

You’ll create a plan of reorganization which explains how you will repay your debt. Unless your case qualifies as a small business case, the plan must be voted on by your creditors and confirmed by the court in order for it to go forward. (Learn more about the Chapter 11 plan of reorganization.) In a business filing, your dischargeable debt (debt that you are no longer responsible for) will be erased once the court confirms your plan. However, you must still act in accordance with any terms set forth by the plan itself. An individual filing for Chapter 11 won’t get the discharge until you have made all payments under the plan. (Learn more about how Chapter 11 bankruptcy works.)

What Is Chapter 13 Bankruptcy?

In Chapter 13 bankruptcy you keep your property in exchange for paying creditors your disposable income through a three- to five-year repayment plan. Dischargeable debts get erased upon successful plan completion. Many Chapter 13 debtors end up repaying only a small portion of their unsecured debt through the plan, however, it isn’t always the case. The amount of your plan payment will largely depend on your income and the value of your assets. (Learn more about how Chapter 13 bankruptcy works.)

In order to file for Chapter 13, your unsecured debts must be less than $419,275 and your secured debt less than $1,257850 (as of April 1, 2019; $394,725 and $1,184,200 for cases filed after April 2016 but before April 2019). Only individuals (or sole proprietors) can file for Chapter 13 bankruptcy. Corporations and limited liability companies are not eligible because they are considered separate legal entities. (Read about other eligibility requirements for Chapter 13.)

Once filed, the automatic stay will stop any collection efforts against. Also, a trustee will be appointed to oversee your case. If you are a small business debtor, you can continue to run your business, but you must provide periodic financial and operations reports to the trustee.

Eligibility for Chapter 11 or Chapter 13 Bankruptcy

Virtually anyone can file for Chapter 11 bankruptcy, whereas many small businesses are ineligible to file for Chapter 13.

• Chapter 13 eligibility. Chapter 13 is available to individuals with regular income. If you operate your business as a sole proprietorship, you can take advantage of Chapter 13 by filing a petition in your name. Your business debts will be included in your plan. Small companies formed as corporations, partnerships or other entities aren’t eligible for Chapter 13 relief. However, that’s not to say that someone who owns a business can’t file an individual Chapter 13–sometimes it helps. Chapter 13 is also subject to debt limitations, which change periodically. As of April 2019, a filer’s debt can’t exceed $1,257,850 in secured debt and $419,275 in unsecured debt. Learn more about eligibility for Chapter 13 bankruptcy by calling Ascent Law LLC today.

• Chapter 11 eligibility. Almost anyone can file bankruptcy under Chapter 11. Individuals, corporations, partnerships, joint ventures, and limited liability companies are all eligible to be Chapter 11 debtors. There are no debt or income requirements or limitations for filing bankruptcy under Chapter 11.

Why Should I Choose Chapter 11 Over Chapter 13?

Chapter 11 typically makes sense for businesses or individuals who have debt levels that are greater than those allowed in Chapter 13 bankruptcy. Some small business owners can take advantage of streamlined Chapter 11 procedures. To learn more see Nolo’s article Chapter 11 Bankruptcy for Small Business Owners.

Why Should I Choose Chapter 13 Over Chapter 11?

If you qualify to file for Chapter 13 bankruptcy, you’ll likely want to file it rather than a Chapter 11 bankruptcy. Some of the advantages of a Chapter 13 bankruptcy over Chapter 11 include:
Co-Debtor Stay in Chapter 13, But Not in Chapter 11
The protection of the automatic stay in a Chapter 13 bankruptcy extends to codebtors. This means that if you and another person are both liable for an account, loan, or other debt, creditors cannot pursue your codebtor for payment during your bankruptcy case. While collection can resume once your Chapter 13 case is over, this will at least give codebtors a reprieve from collection actions for three to five years. Chapter 11 does not provide the same protection to codebtors.

More Debts Are Wiped Out in Chapter 13

You can wipe out additional debts in Chapter 13 than in Chapter 11 which may mean you will ultimately have less debt to repay. For instance, some of the debts you can discharge in a Chapter 13 bankruptcy (but not in a Chapter 11 bankruptcy) include certain marital debts from divorce or settlement agreements and condominium, cooperative and homeowners association fees incurred after the bankruptcy filing date depending on your jurisdiction.

Hardship Discharge Available in Chapter 13

If circumstances prevent you from complying with your plan, you can request a hardship discharge. If granted, you’ll get a discharge without having to complete your plan (not all types of debts will be wiped out, however). You must meet certain criteria in order to qualify. To learn more, call us about a chapter 13 Hardship Discharge.

A hardship discharge is not available in Chapter 11 bankruptcy. If you cannot complete the terms of your reorganization plan your Chapter 11 case will either be dismissed or converted to a Chapter 7 bankruptcy.

Chapter 13 Is Cheaper Than Chapter 11

Chapter 13 is usually less expensive than Chapter 11. This is because:
• the filing fee for Chapter 13 is less costly
• the Chapter 13 process requires less work, and
• the maximum Chapter 13 plan is five years, as opposed to a lengthier Chapter 11 plan.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. From Chapter 7, 11, 12 to chapter 13, we want to help you. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Tuesday, April 28, 2020

Commercial Property

Commercial Property

Commercial real estate (CRE) is property used exclusively for business purposes or to provide a workspace rather than a living space. Most often, commercial real estate is leased to tenants to conduct business. This category of real estate ranges from a single gas station to a huge shopping center. Commercial real estate includes retailers of all kinds, office space, hotels, strip malls, restaurants, and convenience stores.

The Basics of Commercial Real Estate

Commercial real estate along with residential real estate comprises the two primary categories of property. Residential includes structures reserved for human habitation and not for commercial or industrial use. As its name implies, commercial real estate is used in commerce.

Some zoning and licensing authorities further break out industrial properties—sites used for the manufacture and production of goods, especially heavy goods—but most consider it a subset of commercial real estate.

Commercial real estate is categorized into four classes, depending on function: office, industrial, multifamily, and retail. Individual spaces are also categorized. Office space, for example, is characterized as class A, class B or class C.

• Class A represents the best buildings in terms of aesthetics, age, quality of infrastructure, and location.
• Class B buildings are usually older and not as competitive—price-wise—as Class A buildings. Investors often target these buildings for restoration.
• Class C buildings are the oldest, usually over 20 years of age, located in less attractive areas, and need for maintenance.

Commercial property refers to real estate property that is used for business activities. Commercial property usually refers to buildings that house businesses, but it can also refer to land that is intended to generate a profit, as well as larger residential rental properties. The designation of a property as a commercial property has implications on the financing of the building, the tax treatment, and the laws that apply to it.

Breaking Down Commercial Property

Commercial property includes malls, grocery stores, office buildings, manufacturing shops, and much more. The performance of commercial property, including sales prices, new building rates, and occupancy rates, is often used as a measure for business activity in a given region or economy. For the United States as a whole, Moody’s provides the Moody’s/RCA Commercial Property Price Indices (CPPI), which measures the price changes in commercial real estate across the country.

Investing in Commercial Property vs. Residential Property

From an investment perspective, commercial property has traditionally been seen as a sound investment. The initial investment costs of the building and the costs associated with customization for tenants are much higher than residential real estate, but the overall returns are also higher, and some of the common headaches that come with tenants aren’t present when dealing with a company and clear leases. Commercial property investors can also utilize the triple net lease, where the risks are passed on to the leasing business to the extent that is not available to residential real estate investors. In addition to more control over lease terms, commercial property tends to have more straightforward pricing considerations. A residential property investor has to look at a number of factors, including the emotional appeal of a property to prospective tenants. In contrast, an investor in commercial properties will have an income statement that shows the value of the current leases, which then can easily be compared to the capitalization rate for other commercial property opportunities in the area.

Investing in Commercial Property through REITS

If you want to invest in commercial properties but don’t have the capital or the desire to purchase a whole building, real estate investment trusts (REITs) can achieve the same end in more manageable portions. REITs operate like mutual funds in that they pool investment dollars to purchase assets, and the shares of the REITs themselves become the trading instruments representing the underlying assets. REITs that specialize in commercial properties offer shares to investors to raise the capital to purchase a portfolio of income-producing properties. Investors can buy and sell those shares on exchanges. Buying shares in a commercial property REIT gives you exposure to commercial property without requiring you to buy a building on your own.

How real estate zoning works

If a live/work property is really your goal, it helps to understand what could be standing in your way. Most of the time, that means understanding your local zoning laws.

Zoning in some form or other has been around for hundreds of years. In most towns, zoning simply means dividing up land into sections and earmarking it for a certain kind of development. This helps communities maintain property values, ensure safety, and keep traffic in check.

The most common zoning types include:
• Residential
• Commercial
• Industrial
• Agricultural
• Rural
• Historic
• Combination
But even then, these designations can be broken down further. There are several different kinds of residential zoning, covering single-family homes, apartments, trailer parks, and so on, and they can’t always be intermingled. Each type has limits on what the property can be used for—you probably won’t be allowed to start a dairy farm in your backyard, for example.

Buying commercial property…and then living in it

It’s tough to give specific advice on what you need to do to live in a property not zoned for residential use, given that the rules vary so greatly from state to state, and even from town to town. Some areas do have plenty of mixed-use zones where you’ll have no problem finding what you’re looking for. In others, though, you will have to apply for a mixed-use permit, first.

One important thing for buyers to keep in mind? Just because you see a commercial listing that advertises an included apartment or living space doesn’t mean that space is legal. Before you buy, check with the local planning office to make sure all permits are in place.

Real Estate Zoning Laws

Real estate zoning laws are often difficult to understand, but you should know that they are set up to keep people safe, to set construction standards, and to maximize profit capabilities for a town or city. There is a big difference in definition between residential and commercial property:

• Residential property is meant for building houses, apartments, and other homes,
• Commercial property is meant for building businesses that generate income.
• Industrial property is separate from these two properties as well.

This distinction can be difficult to understand, though, since real estate zoning laws are different throughout different towns, counties, and states. You might realize that some jurisdictions have different positions on the differences between what can be considered commercial and what can be considered residential. One example is as follows: in some cases, a residential home is not commercial property even if part of it is rented to others for profit. Apartment buildings can also be considered commercial property, even though they are residential in nature since many people live there.

The Dangers of Living on Commercial Property

You can find stories of individuals that have successfully lived on commercial property for months for free, since in some cases, it is illegal for landlords to collect rent from those living on this property. These stories are told by individuals who lived in metropolitan areas with high residential property rent, so they squatted on commercial property to save money. However, consider the consequences: you will live in spaces that are not inspected to be safe and fitting for humans to live in.
You might find yourself in rooms that do not have a quick escape in an emergency, or in a loft that is not inspected and has leaks, rodents, and pests that can cause your health problems.

Renting commercial property…and then living in it

For those of you playing with the idea of living in rented commercial space, expect to run into different hurdles. Even if you live in an area that has fairly relaxed zoning laws, odds are pretty good that your landlord will have their own rules, which you will agree to in signing the lease. All in all, that makes sneakily living in your rented office or studio space not a great idea.

There are plenty of tales on the internet of people who have worked around the law and made it work, though. In some instances, their neighbors were happy to keep quiet in exchange for the free after-hours security.

What happens if you get caught?

Alright, so you ignored all our advice and went about this the less-than legal way. What happens if the wrong people find out?

Well, again, this depends a lot on where you live and what your specific situation is. Your best bet will be to talk to a legal professional or real estate expert, but in general terms, this is what you can expect.
If you’re caught with an illegal apartment in a commercial property you own, you will in all likelihood be fined and either be required to remove the unit or legalize it by getting the correct permits. In the event that there’s a fire, flood, other dangerous situation, though, you can expect your insurance company to refuse coverage, and a death in one of those situations could lead to civil or criminal charges.

If you’re caught living in a rented commercial property, you will either be warned or evicted, depending on your landlord.

How to find live/work properties

Now that you’ve checked out your local zoning laws (right?), it’s time to start looking for the right place.

There isn’t exactly a box you can check on Zillow for commercial properties, and you probably won’t find that option on your local MLS, either. If you know the area you’d like to live in, you can kick the process off by driving around and looking for signs. Vacant commercial property is usually well-advertised, with plenty of signage and prominent contact information. Pay special attention to older areas of town—they’re more likely to be zoned for mixed use.

Ultimately, though, your best bet is going to be getting in touch with a realtor or broker who knows the local market well. Many specialize in either residential or commercial properties, but some do work with both. Happy hunting.

Is it legal to purchase commercial property and use it as your residence?
Other answers are correct with respect to zoning. You may also want to evaluate if you acquire the property using a commercial loan and live in it you may actually have defrauded your lender which is a federal crime. If living in the building is your primary purpose and you obtained a loan for commercial purposes it is fraud. However, if your primary purpose is to use it for commercial purposes and it also happens to double as a residence in compliance with local zoning then I don’t think it would be considered fraud. When in doubt, disclose your intentions. Would you be be charged and end up in jail for it? Very unlikely. However, it would be a really stupid reason to end up with a criminal record. It would change the trajectory of the rest of your life. Get an opinion from a criminal defense attorney who specializes in “white collar” crimes.

Converting commercial buildings into residential

Perhaps one of the most accessible examples of commercial premises that have been converted successfully to residential living spaces has been played out on our television screens.

Channel Nine’s the Block has run with this concept on more than one occasion, producing excellent financial results for both the network and the contestants. In 2014, Dux House in the Melbourne suburb of Albert Park – whose previous incarnations had been as a cinema, a church and office space – was transformed into four glamorous residential apartments through innovative renovations. This ‘commercial to residential’ renovation formula was also applied to an office block in inner-eastern Prahran in the next series.

Finding the right property

Converting commercial buildings into residential developments can be an attractive prospect, but there are a few things to consider before launching into your own project. Firstly, find the right commercial property. As an investor, look for the usual attributes – a great location, access to all the desirable amenities including public transport, cafes, schools and arterial roads. A trusted commercial real estate agent will be able to supplement your own research with advice and provide property options that meet your brief.

Zoning Real Estate

For any commercial premises you have earmarked, the next step is to find out if there are planning or zoning constraints, which will affect whether a building can be re-used, demolished or redeveloped. Contacting the local council will help you understand what is and isn’t permitted regarding change of use.

Commercial properties, including offices, shops and warehouses, all have the potential to be transformed into contemporary living spaces. They may offer character and features that newer buildings can’t, making them attractive commercial investments. The cost of converting and renovating can vary hugely, so it pays to do the research and try to source information from comparable conversions.

Finding, converting and making money from a ‘commercial to residential’ project is not only possible, it’s exciting. It can bring out the character of a building and create something extraordinary. But as with all investments, nothing replaces research and experienced, trusted advice.

Free Consultation With A Commercial Property Attorney

When you need a lawyer for commercial property in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506