DEAR BOB: We recently sold our home. In addition to the realty agent's sales commission of 6 percent of the sales price, we had to pay a transfer tax, prorated property taxes, title insurance fee, attorney fee and several little fees for recording and documentation.
In a recent article you said closing costs average about 2 percent of the sales price. But ours were much higher. When we calculate our net sales price can we subtract all these costs from our gross sales price? -- Emily L.
DEAR EMILY: Home seller's closing costs, excluding the sales commission, usually average about 2 percent of the gross sales price. But closing costs are negotiable with the buyer and often can be shifted to the buyer if the seller needs more cash from the sale.
In some states the transfer costs are very high. But in most states they will be about 2 percent. Of course, these expenses vary widely depending on what charges the seller has agreed to pay.
Except for the prorated property taxes that qualify as an itemized personal income tax deduction, the closing costs you listed and paid should be subtracted from your home's gross sales price to arrive at the net or adjusted sales price.
From this amount you subtract your adjusted cost basis, usually the purchase price, plus capital improvements added during home ownership, to arrive at your sale profit.
If, within 24 months before or after the sale, you buy a replacement principal residence of equal or greater cost than your adjusted sales price, then you can defer tax on your sale profit. Ask your tax adviser to explain further.
DEAR BOB: When we bought our home about a year ago we thought our real estate agent was working for us. Another agent had the listing on the home we purchased. But from your recent article it appears both agents were working for the seller and nobody was looking out for our interests. Would I be correct in presuming we were on our own to find out if the home had any defects? -- Thomas H.
DEAR THOMAS: Yes. Most states now require real estate agents to disclose to buyers whether the selling agent will represent the buyer, act as a subagent of the listing agent, or be a dual agent representing both seller and buyer.
If this subject was not discussed with the selling agent, you can probably assume the selling agent did not represent you, but either represented the seller or acted as a dual agent of both the buyer and seller.
You are correct in presuming that it is up to the buyer to discover defects in the home before purchasing it. This is usually done by the buyer including a clause in the contract making the purchase contingent on a satisfactory professional inspection of the property. However, the agents and the seller should disclose to the buyer any known defects in the property.
Although the old days of "let the buyer beware" are gone, home buyers can't be too careful and should not depend on the agent to find and disclose all defects.
DEAR BOB: Three days before my brother died in a motorcycle accident, his ex-wife deeded her interest in their home to him. He never received the deed and it was returned by mail to her.
I am my brother's sole heir. The attorney for his estate says the house was owned one-half by the ex-wife and one-half by my brother at the time of his death. I realize I inherited my brother's half of the house, but what about the other half that his ex-wife agreed to deed to him in return for his cash payment to her? -- Lloyd L.
DEAR LLOYD: A deed to a dead person is void. Since your brother never received delivery of the deed, it did not become effective. The attorney for your brother's estate is correct.
However, if your late brother already paid his ex-wife for her interest in the house, she may be obligated to convey her half to his estate. As sole heir, you would then receive it. If the result is not satisfactory, you may want to retain an attorney to represent your interests.
DEAR BOB: We applied for a home loan. The loan agent called to tell us everything looked good and we should receive approval the next week.
On Monday the loan agent phoned to tell us the lender had canceled the loan program for which we applied. She tried to switch us to another plan that requires a higher down payment and has a higher interest rate.
Since the loan agent said we should receive approval on our application, do you think we can enforce our loan commitment? -- Joanne P.
DEAR JOANNE: No. An oral loan commitment by a loan agent who lacks authority to bind the lender to make a mortgage loan is not enforceable. Even if the loan agent had said your loan was approved, you probably could not enforce the oral commitment.
Mortgage lenders are notorious for not honoring their loan promises, so you shouldn't be surprised at the lender's decision not to honor your application.
DEAR BOB: We are considering buying one of two lots in a new subdivision. They both have the same square footage, but one is a corner lot and the other is an interior lot. The corner lot is priced $3,500 more than the interior lot. It is the only corner lot left in the subdivision.
The sales representative says the corner lots are very popular because they offer more light than do interior lots, which have houses adjoining on three sides. Do you think a corner lot is worth $3,500 more? -- Suzanne P.
DEAR SUZANNE: You bring up a question to which there is no right or wrong answer. The advantages are that you have a neighbor on only one side and in the back, driveway from the side street, leaving more open space and two street exposures for light and air.
However, if the side street is busy and noisy, then you will have traffic on two streets instead of just one. If you have small children, you might want to construct a fence to keep them from running into the streets on two sides of your home.
As for the issue of the corner lot costing $3,500 more than an interior lot, many people believe corner lots are not worth a premium. Personally, I don't think corner lots should sell for higher prices, but many home buyers are willing to pay extra for them.
DEAR BOB: Our mortgage note says we must pay a specified amount each month "or more." Does that mean the lender can increase our monthly payment? -- Hugo R.
DEAR HUGO: No. An "or more" clause in your mortgage promissory note gives you the privilege of prepaying your mortgage if you should wish to pay more than the minimum required monthly payment. However, if you read further you may find a prepayment penalty for paying more than the regular monthly payment.
DEAR BOB: The septic tank at our home collapsed, so a local ordinance required us to connect to the city sewer. Including the connection fees and the plumber's bill we had to pay about $6,700.
It occurred to me this loss might qualify as a tax-deductible casualty loss. My tax adviser says "no." What do you think? -- Lucy T.
DEAR LUCY: I think you could argue the collapse of your septic tank was a "sudden, unusual or unexpected" event that qualifies as a casualty loss income tax deduction. However, the IRS might argue this was not a casualty loss, but a capital improvement that adds to the value and useful life of your home.
A casualty loss is deductible only to the extent the loss exceeds 10 percent of your adjusted gross income. For example, if you have $50,000 adjusted gross income, the first $5,000 of your casualty loss is not deductible and only $1,700 would be deductible. But if you have a low adjusted gross income then most of your loss would be deductible.
DEAR BOB: When we bought some rural property about two years ago the seller told us we could drive across his adjoining farm to reach the paved highway. This is much shorter and better than our other access to a dirt road that is often in bad condition.
A few weeks ago the farm across which we drove to get to the highway was sold. The new owner erected a fence to stop us from driving across his land. When I drove up to his house to explain that the previous owner had said we could drive across his land, the new owner claimed ignorance of the agreement and was very nasty about throwing me off his property.
What can I do to enforce my legal rights? -- Miles R.
DEAR MILES: Oral property agreements are usually not enforceable because the statute of frauds requires real estate contracts to be in writing to be enforced in court.
Since you have other access to your land, although it is not as convenient, you do not have a right to an easement by necessity. Similarly, since you had only been driving across the neighbor's land for two years you had not yet acquired a prescriptive easement nor was there adverse and hostile use of the neighbor's driveway.
Unless you have some written proof of your easement across the neighbor's land, it appears you have no legal right to continue that access. Consult a real estate attorney for details.
DEAR BOB: About three years ago when a tenant moved into a rental house I own he wanted me to upgrade the wall-to-wall carpets I was planning to install. He agreed to pay $700 toward the cost of the carpets.
Now his lease expired and he will be moving out next month. He says the carpets belong to him and he is entitled to remove them since he paid part of their cost. Is this true? -- Ethel E.
DEAR ETHEL: No. The general rule is tenant improvements that are permanently attached to the structure become fixtures that belong to the landlord. In the absence of any agreement that the carpets belong to the tenant, they became your property when they were attached to the building. For further details consult your attorney.
DEAR BOB: I know a real estate investor who acquires property by lending money to homeowners. She makes second mortgage loans for up to 90 percent of the home's market value. She told me she winds up owning most of the houses on which she makes loans. Do you think this is a good way to acquire houses at discount prices? -- Victor P.
DEAR VICTOR: No. What you describe is called "loan-to-own" program in which the lender makes high loan-to-value ratio loans that are almost certain to wind up in foreclosure. Since there is very little equity, no bidders show up at the foreclosure sale and the lender winds up owning the house.
But a discount of only 10 percent below the market value of the home is no bargain. If there are any foreclosure delays, such as the borrower filing for bankruptcy protection, the lender's equity can be quickly wiped out. I do not recommend you follow your friend's loan program.
DEAR BOB: We recently bought an apartment building. Before the purchase the realty agent obtained written "estoppel certificates" from each tenant stating the amount of their monthly rent, security deposit and length of lease.
One tenant, an elderly woman, now claims she has a five-year lease at a rent lower than on the estoppel certificate she signed. But she says she can't find her copy of the lease or perhaps the landlord never gave her a copy.
The seller was the executor of an estate and he says he can't find any copy of the leases. What should we do? -- Alicia H.
DEAR ALICIA: Consult your attorney. Although it is possible the woman has a five-year lease, if she is to enforce it she must produce a copy. I suggest your attorney write her a letter requesting a copy of the lease within 15 days. If she fails to supply one, you can probably assume it doesn't exist. Since she signed the estoppel certificate she may be estopped to deny the accuracy of her signed statement.
DEAR BOB: Why don't you warn home buyers about mortgages obtained by real estate agents for their buyers?
After the home seller accepted our purchase offer, the agent asked us if we wanted her firm to arrange our mortgage. The agent's secretary took our loan application, punched a few buttons on a computer terminal and offered us several different mortgages.
The fixed-rate loan seemed very expensive, so we took the adjustable-rate mortgage, which the agent assured us was a good deal.
The sale closed within a few weeks. Only then did we realize we were paying more in loan points than if we had shopped for a mortgage on our own. Also, our margin above the index is higher than we could have obtained elsewhere. -- Rodney P.
DEAR RODNEY: Many real estate brokers offer mortgage placement services to speed the closing of their sales. Some realty brokers charge a fee for this service, others offer it as a free service.
You are correct the loan terms are often not as desirable as the borrower can obtain elsewhere. Buyers should compare the mortgage terms offered through a real estate broker with those that can be obtained by the borrower by going directly to local lenders.
DEAR BOB: We recently sold our apartment building for a profit of about $175,000. If we reinvest this money into fixing up another apartment building we own can we avoid paying tax on our profit? -- Eddie R.
DEAR EDDIE: No. The only way to avoid tax on the sale of property other than your principal residence is to make an IRC 1031 tax-deferred exchange.
You could have avoided tax by trading for another investment or business property of equal or greater cost without receiving any taxable "boot" such as cash or net mortgage relief. For details, consult your tax adviser.
Readers with questions should write Bruss directly at P.O. Box 280038, San Francisco, Calif. 94128.