DEAR BOB: Several months ago, you cautioned a reader to buy a new home only from a builder offering a home owner's warranty (HOW) or other 10-year warranty. I should have known we were in trouble when the builder selling a new home we liked said he provides his own 10-year warranty. We foolishly went ahead and closed our purchase about two months ago. Now we have a list of 14 items, some major and some minor, that need correction. When we phone the builder's office we get an answering machine and he never calls us back. We went to his model home several weekends ago to protest the lack of response, but the salesman said he hadn't seen the builder. Last weekend, the salesman was gone and the new saleswoman said the S&L that was the construction lender has taken over the project. I estimate the defects in our home will cost about $5,000 to repair. Our neighbors tell us their homes have similar defects. What should we do? -- Mose R.
DEAR MOSE: Consult a real estate attorney. Your situation is a classic example of why buyers of new homes need 10-year warranty policies from independent third-party companies, such as Home Owner's Warranty Corp. Home builders often declare bankruptcy, leaving home buyers with no recourse unless the builder provided a warranty policy. When the builder can't or won't correct the defects, the warranty company performs the necessary work.
In most states, home builders must provide at least a one-year warranty against defects. Of course, reputable builders honor their obligations and correct problems immediately. But a few builders only make repairs when the homeowner insists and gets tough. However, in your situation, where the new home project has been taken over by the construction lender, you may have recourse if the lender has assumed the builder's obligations. Perhaps your attorney can exert legal pressure without having to go to court.
DEAR BOB: We have about $50,000 equity in our home and are considering refinancing with an adjustable-rate mortgage that is assumable because we plan to sell in a year or two. Would we owe any tax on the cash? Also, will all the interest be tax-deductible? -- Ravel H.
DEAR RAVEL: The 1986 Tax Reform Act still allows property owners to receive tax-free money from refinancing their properties. However, homeowners who refinance for more than their purchase price plus the cost of improvements added will have the interest disallowed on the mortgage that exceeds the adjusted cost basis unless the excess cash pays for medical or educational expenses. This will be an accounting nightmare for the IRS, but nobody feels sorry for them. Ask your tax adviser to explain further.
DEAR BOB: The deed to our property says we have a road easement over the adjoining parcel. But we haven't used this easement for many years. Recently, the owner graded over the roadway and built a small equipment repair building where our easement is. When I confronted him with our easement, he said his attorney advised him that we had abandoned our easement and if we take him to court, he will win. Is this true? -- Kevin R.
DEAR KEVIN: Possibly. In most states, an easement that is unused for the statutory number of years can be eliminated if the tenement owner uses the easement area for the period the easement holder doesn't use it. You might call the procedure extinguishing an easement by adverse possession, although that is not legally correct. Consult a real estate attorney to see if your easement has been extinguished for nonuse.
DEAR BOB: Some time ago, you suggested a home buyer obtain a professional home inspection. You went into great detail about how the buyer should accompany the inspector, who will explain what's wrong and how serious it is. But in our area, it is customary for buyers to obtain termite inspections. Do you think a professional inspection is necessary in addition to a termite inspection? -- Ronda H.
DEAR RONDA: Yes. If you have any doubt about the structural integrity of the home you are buying, put a contingency clause in your purchase offer bid, such as: "This offer is contingent upon buyer's approval of a professional inspector's report on the property, to be obtained within five business days at buyer's expense."
You'll feel much better knowing what is right and wrong with the home you are buying. Most sellers will agree to such a contingency because if you know of a home defect and go ahead with the purchase, then the seller isn't liable for repairs. For this reason, real estate agents and sellers often encourage home buyers to obtain professional inspections.
DEAR BOB: We paid $47,500 for our home and it is now worth at least $125,000. The mortgage was originally $40,000 and it is paid down to about $34,500. As we are thinking of selling, we are trying to figure out our tax situation. Also, I understand there is a way we can avoid tax if we buy another house. Please explain. -- Darrell F.
DEAR DARRELL: Your mortgage balance has nothing to do with the taxation of your home sale. All that matters is your adjusted (net) sales price and your adjusted cost basis.
The adjusted or net sales price is the gross selling price minus sales expenses, such as the real estate agent's commission. Your adjusted cost basis is the purchase price plus cost of capital improvements added during ownership minus any business depreciation and casualty losses deducted while you owned the house.
For example, suppose the adjusted sales price is $125,000 and your adjusted cost basis is $47,500. That means your profit or capital gain is $77,500. The 28 percent federal tax on such a sale will be about $21,700.
However, if you buy a replacement principal residence of equal or greater cost within two years of the sale, then federal tax on your profit can be deferred using Internal Revenue Code section 1034. Ask your tax adviser to explain further.
DEAR BOB: When I recently bought my condominium, I was told the owner's association carries fire and liability insurance so my mortgage lender does not require me to buy any insurance. But my neighbor says she carries insurance on her furnishings. Do you think this is necessary? -- Brian C.
DEAR BRIAN: Yes. A condominium owner's insurance policy is much like a renter's insurance policy. It insures your furnishings for damage by fire and water as well as theft loss. Liability coverage is also included. The condo owner's association master insurance policy only insures the structure for fire and public liability coverage but will pay nothing for damage to the contents of individual condo units. Consult your insurance agent for full details.
DEAR BOB: I am considering selling my home, so I phoned several appraisers listed in the phone book to inquire about their experience and prices. One said his fee is $225 for homes up to $300,000 in value and $350 for homes over this amount. As I think my home is worth about $300,000, I find it rather upsetting that an appraiser's fee depends on his valuation of my house. Is this ethical? -- Rudy R.
DEAR RUDY: Professional appraisers used to say their fee should not depend on the home's market value. But that rule didn't recognize the reality that larger, expensive homes usually require more time and work to appraise.
A percentage appraisal fee based on the home's market value would be clearly wrong since the appraiser then has a financial incentive to raise the appraised value. But an appraisal fee schedule based on fixed home value amounts seems reasonable.
However, before hiring the appraiser, check his or her credentials carefully. Professional designations such as MAI (member, Appraisal Institute), RM (residential member), SRA (senior residential appraiser) and SREA (Society of Real Estate Appraisers) are generally considered the best. Don't hesitate to ask if the appraiser carries errors and omissions insurance.
DEAR BOB: We plan to sell our home in March or April. A friend of a friend is a landscape designer who recommends improving our landscaping at a cost of about $3,500. But he recommends waiting until next spring to do the work. I am concerned this is too close to our scheduled sale period and wonder if the cost would make our home much more saleable. I think our yard is fine but, I admit, professional landscaping would look nice. -- Adolph P.
DEAR ADOLPH: Spring is the best time of year to sell your home. If the landscaping is in bad condition, spending $3,500 might add far more in market value to your home. Good landscaping usually returns several times its cost in increased property value. Although the landscaping will look new when you are ready to sell, that should add to the desirability of your home. Since you have several months to decide, talk to local real estate agents to find out if they think new landscaping will add more to your home's value than the landscaping will cost.
DEAR BOB: Recently, I inherited a house worth $150,000. How much rent should I charge? -- Maye H.
DEAR MAYE: The traditional formula for home rentals is that the monthly rent should be 1 percent per month of market value. In your situation, a $1,500 monthly rental would meet this formula. However, because of inflated home values in many communities, it is not possible to rent houses for this amount. I find most of my houses renting for about 0.75 percent per month of the home's market value.
Another rental criteria is the monthly rent should not exceed 25 percent to 30 percent of the tenant's gross monthly income. To illustrate, a tenant earning $3,000 per month should pay not more than $750 to $900 rent. DEAR BOB: We plan to sell our home in early 1988 so we can build a larger one. But I heard from a friend that Congress plans to wipe out the tax deferral for home sellers who want to avoid tax by purchasing a larger home. If this is true, can we defer our profit tax if we sell our home in 1987 and contract now to buy a larger one in 1988? -- David J.
DEAR DAVID: The bad news is Congress is threatening to eliminate tax-deferred exchanges of investment and trade or business real estate. The good news is the IRC 1034 tax deferral for principal residence sellers will not be changed. You can still buy a replacement home of equal or greater cost within two years of the sale and defer the sale profit tax.
As of this writing, the new tax bill in Congress may cut off or greatly limit tax-deferred exchanges of property other than your principal residence. For more than 50 years, property investors have been able to exchange one investment or business property for another such property and defer the tax. But unless real estate investors persuade their congressional representatives to modify the proposed new law, tax-deferred exchanges may become extinct. This would greatly stifle the real estate market and cause owners not to sell because of the high capital gains tax.
It's shameful the way Congress changes the tax law every year. But home sellers like you who want to sell and buy a more expensive replacement home will still be able to defer your profit tax. Consult your tax adviser for more details.
DEAR BOB: About a year ago, we bought a condo that has proven to be a disaster. More than half of the units are owned by the developer and about half of the units that were sold are occupied by renters. The maintenance is very poor and we moved out because of all the noise and unpleasant neighbors. We talked to several real estate brokers about listing our condo for sale and they told us it is a hopeless cause because the developer has reduced the prices on his remaining units below what we owe on our mortgage. If we rent out our condo, since our share of the nondepreciable land is one-200th of the land's value, how much of our $90,500 purchase price can we depreciate? -- Marla T.
DEAR MARLA: I'm sorry to hear about your bad condominium investment. Now you know why I do not recommend condo purchases, especially in new complexes where there are so many uncertainties.
If you rent your condo for income tax purposes, your $90,500 cost basis must be allocated between the depreciable condo unit and your share of the nondepreciable land value. Making this allocation for condos in large complexes is not easy. Your property tax assessment bill might provide a land-building ratio allocation. Or it might not. With the help of your tax adviser, perhaps you will decide to depreciate 90 percent to 95 percent of your purchase price.
However, if your condo has declined substantially in market value, the tax law says you can depreciate only the lesser of either the structure's purchase price or its value on the date of conversion from personal to rental use. Ask your tax adviser which value to use.
DEAR BOB: We bought a home from a man who inherited the house from his mother about a year ago. It has been vacant since then. He disclosed there was a slight drainage problem in the back yard, but said he didn't know of any other defects. The seller and the real estate broker gave us a "seller's disclosure form" on which the seller answered that he didn't know of any other defects in the property. Both the disclosure form and the purchase contract state: "This home is being sold 'as is' and the seller or agent shall not be responsible to pay for repairs for any defects, disclosed or undisclosed." Shortly after moving in, we discovered that the gutters are hopelessly rusted and must be replaced at a cost of about $750. Also, the water pressure is very weak and new plumbing will cost at least $2,500. Do we have any recourse against the seller or real estate agent? -- Lynea R.
DEAR LYNEA: Consult your attorney. The seller and real estate agent did everything possible to limit their liability to you for any defects in the home. In my opinion, you will have difficulty proving liability.
The "as is" clause limits the liability of the seller and agent to the buyer. However, if the seller or agent are to be held liable to you for costs of repairing the gutters and plumbing, you would need to prove they knew or should have known of the defects. That could be very difficult since neither the seller nor the agent lived in the house.
Readers with questions should write Bruss directly at P.O. Box 6710, San Francisco, Calif., 94101.