[WSBARP] Excise Tax on QCD

nestor at pplsweb.com nestor at pplsweb.com
Fri May 11 15:50:02 PDT 2018


Doris, the reason I used the term "main borrower" is because many times the
credit is granted based upon only one owner who signs the note, but the
mortgage or DT is executed by both owners.  When one person is the "main
borrower" of borrower whose credit the loan was based upon, the other owner
is not personally liable for a deficiency, but is responsible in the sense
that they will lose their interest in the property. 

I needed to factor in whose credit was used in the lender granting the loan
and where the money was going to end up,  which would be a major
consideration on how DOR would characterize this transaction.

Thanks. 

Nestor

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Doris
Sent: Friday, May 11, 2018 1:04 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Excise Tax on QCD

Nestor, it depends on who keeps the proceeds from the refinancing that is to
take place a few months after the transfer. E.g.  A quitclaims to A and B.
2 months later A and B gets a mortgage for $500,000.  A keeps $500,000 and B
gets nothing even though B is now also responsible for the mortgage payment.
You see how this really is a sale disguised as a gift so that the transfer
should have been subject to excise tax.   I don't know that there's such
thing as a "main borrower" because each is jointly and severally liable for
the debt. 


Regards, 

Doris Eslinger
Attorney at Law
ESLINGER LAW OFFICE, PLLC
2200 112th Ave NE | Suite 200 | Bellevue, WA 98004 | Phone: (425) 451-3237 |

Fax: (425) 633-2468 | doris at eslingerlawoffice.com | eslingerlawoffice.com  

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Today's Topics:

   1. Re: Excise Tax on QCD (nestor at pplsweb.com)
   2. Re: Excise Tax on QCD (nestor at pplsweb.com)
   3. Re: Excise Tax on QCD (Eric Nelsen)
   4. Re: Excise Tax on QCD (nestor at pplsweb.com)
   5. Re: Earnest Money Deposit Issue (David Faber)
   6. Re: HOA Gurus - New Off-site Water (Paul Neumiller)
   7. UD Litigators (Paul Neumiller)
   8. Re: UD Litigators (Scott Russon)
   9. Re: HOA Gurus - New Off-site Water (Rob Wilson-Hoss)
  10. Re: Earnest Money Deposit Issue (John M. Riley III)
  11. Re: UD Litigators (Paul Neumiller)


----------------------------------------------------------------------

Message: 1
Date: Wed, 9 May 2018 12:02:50 -0700
From: <nestor at pplsweb.com>
To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD
Message-ID: <001501d3e7c8$547278e0$fd576aa0$@pplsweb.com>
Content-Type: text/plain; charset="us-ascii"

Thank you for the response. I reviewed the statute, which of course prompted
me to dig in further. In my case, the property is unencumbered and they are
not refinancing existing debt. Brother is being added because he has good
credit and will be the principal borrower.

 

I found WAC 458-61A-215. Looks like it is exempt as long as client makes all
the payments. However, if client is not a "borrower" I am not sure how that
will be affected.

 

Nestor

 

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

P Please consider the environment before printing this e-mail.

 

 

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of John McCrady
Sent: Wednesday, May 9, 2018 11:27 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD

 

See WAC 458-61A 201(4) (a) 

There is a rebuttable presumption that the transfer is a sale and not a gift
if the grantee is involved in a refinance of debt on the property within six
months of the time of the transfer.

 

I don't know whether there has been an decision construing "refinance".

 

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98467

253-476-5721

j.mccrady at pstitle.com <mailto:j.mccrady at pstitle.com> 

 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com
<mailto:nestor at pplsweb.com>
Sent: Wednesday, May 09, 2018 10:33 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >
Subject: [WSBARP] Excise Tax on QCD

 

Client has unencumbered property and wants to add brother as a gift and then
and then refinance with brother as the main borrower.  The way I see it
Excise Tax not due on the transfer. Let me know if I am wrong. 

  

I would of course have the transfer done in advance of the refinance. 

  

  

Nestor Gorfinkel, Attorney at Law 

Licensed in Washington & Florida 

Florida Civil-Law (International) Notary 

  

P Please consider the environment before printing this e-mail. 

  

  

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Message: 2
Date: Wed, 9 May 2018 12:13:01 -0700
From: <nestor at pplsweb.com>
To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD
Message-ID: <006301d3e7c9$c0ae0870$420a1950$@pplsweb.com>
Content-Type: text/plain; charset="us-ascii"

Easiest thing to do is to pick up the phone and call them.

 

Thank you all.

 

Nestor

 

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

P Please consider the environment before printing this e-mail.

 

 

 

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Jeff Davis
Sent: Wednesday, May 9, 2018 11:08 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD

 

Take a look at the attached Real Estate Excise Tax Supplemental Statement.
This must be presented to the county treasurer when you record the deed.
This asks whether you intend to refinance.  The State may treat the
refinance, with your brother as the borrower, as a purchase by him of the
property or what ever interest he gets, thereby triggering a excise tax.

 

Jeff Davis

 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
<wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of nestor at pplsweb.com
<mailto:nestor at pplsweb.com>
Sent: Wednesday, May 9, 2018 10:33 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >
Subject: [WSBARP] Excise Tax on QCD

 

Client has unencumbered property and wants to add brother as a gift and then
and then refinance with brother as the main borrower.  The way I see it
Excise Tax not due on the transfer. Let me know if I am wrong.

 

I would of course have the transfer done in advance of the refinance.

 

 

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

 

P Please consider the environment before printing this e-mail.

 

 

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Message: 3
Date: Wed, 9 May 2018 19:20:20 +0000
From: Eric Nelsen <Eric at sayrelawoffices.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD
Message-ID:
	
<8CF6ADB264BB704BB884B2ED9C1931D4019BF965BD at SBS2011.SayreLawOffices.local>
	
Content-Type: text/plain; charset="us-ascii"

But what is the money going to be used for? Any of it going to the client? I
think that would be consideration: client "gives" brother an interest in the
property, and brother takes out a loan on the property and gives money to
client.

If you use -215, then brother would be effectively receiving only a nominal
interest in the property for security purposes only.

I think I'm still not clear on the purpose of the transaction--why brother
is getting a loan, what the arrangement between client and brother is. I
think any scenario where brother gets a property interest and then client
receives anything of value (proceeds from the loan or whatever), it could
trigger REET.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com
Sent: Wednesday, May 09, 2018 12:03 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Excise Tax on QCD

Thank you for the response. I reviewed the statute, which of course prompted
me to dig in further. In my case, the property is unencumbered and they are
not refinancing existing debt. Brother is being added because he has good
credit and will be the principal borrower.

I found WAC 458-61A-215. Looks like it is exempt as long as client makes all
the payments. However, if client is not a "borrower" I am not sure how that
will be affected.

Nestor

Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary P Please consider the environment
before printing this e-mail.


From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of John McCrady
Sent: Wednesday, May 9, 2018 11:27 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD

See WAC 458-61A 201(4) (a)
There is a rebuttable presumption that the transfer is a sale and not a gift
if the grantee is involved in a refinance of debt on the property within six
months of the time of the transfer.

I don't know whether there has been an decision construing "refinance".

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com<mailto:j.mccrady at pstitle.com>

From:
wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of
nestor at pplsweb.com<mailto:nestor at pplsweb.com>
Sent: Wednesday, May 09, 2018 10:33 AM
To: 'WSBA Real Property Listserv'
<wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Excise Tax on QCD

Client has unencumbered property and wants to add brother as a gift and then
and then refinance with brother as the main borrower.  The way I see it
Excise Tax not due on the transfer. Let me know if I am wrong.

I would of course have the transfer done in advance of the refinance.


Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary

P Please consider the environment before printing this e-mail.


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Message: 4
Date: Wed, 9 May 2018 12:38:45 -0700
From: <nestor at pplsweb.com>
To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD
Message-ID: <007001d3e7cd$58cd2e30$0a678a90$@pplsweb.com>
Content-Type: text/plain; charset="us-ascii"

They haven't told me of purpose, who is making the payments or if client
will be a "co-borrower" on the loan other than joinder to encumber the
property, so I am still not clear.

Once I have all the facts I will call DOR to be safe.

 

Nestor 

 

 

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Wednesday, May 9, 2018 12:20 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise Tax on QCD

 

But what is the money going to be used for? Any of it going to the client? I
think that would be consideration: client "gives" brother an interest in the
property, and brother takes out a loan on the property and gives money to
client.

 

If you use -215, then brother would be effectively receiving only a nominal
interest in the property for security purposes only.

 

I think I'm still not clear on the purpose of the transaction--why brother
is getting a loan, what the arrangement between client and brother is. I
think any scenario where brother gets a property interest and then client
receives anything of value (proceeds from the loan or whatever), it could
trigger REET.

 

Sincerely,

 

Eric

 

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com
<mailto:nestor at pplsweb.com>
Sent: Wednesday, May 09, 2018 12:03 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Excise Tax on QCD

 

Thank you for the response. I reviewed the statute, which of course prompted
me to dig in further. In my case, the property is unencumbered and they are
not refinancing existing debt. Brother is being added because he has good
credit and will be the principal borrower.

 

I found WAC 458-61A-215. Looks like it is exempt as long as client makes all
the payments. However, if client is not a "borrower" I am not sure how that
will be affected.

 

Nestor

 

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

P Please consider the environment before printing this e-mail.

 

 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
<wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of John McCrady
Sent: Wednesday, May 9, 2018 11:27 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >
Subject: Re: [WSBARP] Excise Tax on QCD

 

See WAC 458-61A 201(4) (a) 

There is a rebuttable presumption that the transfer is a sale and not a gift
if the grantee is involved in a refinance of debt on the property within six
months of the time of the transfer.

 

I don't know whether there has been an decision construing "refinance".

 

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98467

253-476-5721

j.mccrady at pstitle.com <mailto:j.mccrady at pstitle.com> 

 

From: wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com
<mailto:nestor at pplsweb.com>
Sent: Wednesday, May 09, 2018 10:33 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >
Subject: [WSBARP] Excise Tax on QCD

 

Client has unencumbered property and wants to add brother as a gift and then
and then refinance with brother as the main borrower.  The way I see it
Excise Tax not due on the transfer. Let me know if I am wrong. 

  

I would of course have the transfer done in advance of the refinance. 

  

  

Nestor Gorfinkel, Attorney at Law 

Licensed in Washington & Florida 

Florida Civil-Law (International) Notary 

  

P Please consider the environment before printing this e-mail. 

  

  

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Message: 5
Date: Wed, 9 May 2018 12:56:36 -0700
From: David Faber <david at faberfeinson.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Earnest Money Deposit Issue
Message-ID:
	<CAKkD=whyya+SVn-C3XN_j48heWuesj4ktiREz=kb-oo6xo3HFA at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"

Thanks all. My theory was also that the transmittal of the signed Form 51 is
simply an offer of rescission and not sufficient to give grounds for
anticipatory breach, but was trying to find some authority to either support
my gut or give support to my client's preference (that it is anticipatory
breach).

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Wed, May 9, 2018 at 9:45 AM, <nestor at pplsweb.com> wrote:

> I would add that the contract does survive the death like any other 
> contractual obligation except of course a personal services contract.
>
>
>
> Nestor Gorfinkel, Attorney at Law
>
> Licensed in Washington & Florida
>
> Florida Civil-Law (International) Notary
>
>
>
> *ATTENTION - This e-mail message and any attachment to this e-mail 
> message may contain confidential information that is legally 
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>
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> *P* *Please consider the environment before printing this e-mail.*
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.
> wsbarppt.com> *On Behalf Of *Kary Krismer
> *Sent:* Wednesday, May 9, 2018 8:37 AM
> *To:* wsbarp at lists.wsbarppt.com
> *Subject:* Re: [WSBARP] Earnest Money Deposit Issue
>
>
>
> I would agree with Eric, but also point out that you should probably 
> review the offer carefully to make sure it was properly filled in and 
> enforceable before some buyer's attorney gets involved doing the same 
> thing.  Annie has been focusing a lot on Form 17 lately in her agent 
> education, and there are very few transactions that have properly 
> filled in Form 17s if you use the strictest standards and some 
> contracts don't even have valid legal descriptions.
>
> I would also question whether the contract survives the death of the 
> seller.  I don't remember the answer to that question.
>
> Kary L. Krismer
>
> 206 723-2148
>
> On 5/8/2018 4:18 PM, Eric Nelsen wrote:
>
> I don't think an offer/ask to rescind is a breach of the PSA, so 
> Seller isn't entitled to the EM. Seller just needs to reject the offer 
> to rescind and inform Buyer that the Seller Estate intends to close as 
> agreed. Unless Buyer actually says something affirmative like "I'm not 
> going to close on this," I don't think you have anticipatory breach.
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> SAYRE LAW OFFICES, PLLC
>
> 1417 31st Ave South
>
> Seattle WA  98144-3909
>
> phone 206-625-0092
>
> fax 206-625-9040
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>] *On Behalf Of *David 
> Faber
> *Sent:* Tuesday, May 08, 2018 4:01 PM
> *To:* wsbarp
> *Subject:* [WSBARP] Earnest Money Deposit Issue
>
>
>
> List:
>
>
>
> I'm representing the PR of an estate for a decedent who was under 
> contract for the sale of real property here in Jefferson County at the 
> time of death. When Buyer (B) was informed that seller had died, B 
> signed and transmitted a MLS form 51 Rescission Agreement attempting 
> to beg out of the PSA and for the refund of the earnest money deposit.
> I was, quite frankly, surprised to see B try to rescind considering 
> the closing date on the PSA is not until later June and there was no 
> notification to B that the estate would be unable to close the 
> transaction as the successor-in-interest to the decedent. PR now want 
> to boot B out of the transaction but keep the earnest money deposit as 
> liquidated damages under the theory that B signing the rescission 
> agreement is sufficient to indicate that B intends to fail without 
> cause to close the transaction. Either way, PR is quite annoyed by B 
> for
rushing to exit the PSA when their father died.
>
>
>
> I am unable to find case law on point here and wondering if anyone has 
> any thoughts or would be willing to discuss this issue with me?
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 210 Polk Street, Suite 1
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
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Message: 6
Date: Wed, 9 May 2018 23:33:56 +0000
From: Paul Neumiller <pneumiller at hotmail.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA Gurus - New Off-site Water
Message-ID:
	
<CY1PR1101MB1225F3944468F24ADFC80830D2990 at CY1PR1101MB1225.namprd11.prod.outl
ook.com>
	
Content-Type: text/plain; charset="iso-8859-1"

Rob, thank you for your ideas.  Good stuff.


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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Rob Wilson-Hoss
Sent: Tuesday, May 8, 2018 4:25 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA Gurus - New Off-site Water

Paul, I am not answering your question, I know, but if you look at the UTC
water regs, a HOA is exempt if it does not provide water to non-members,
generally. Exemption from the regs is a very good thing. So, there is that.
If you provide to nonmembers then you risk state regulation about all sorts
of things having to do with water supply. So that may be precisely why the
governing documents read the way they do - the HOA can buy water from
outside sources, but not supply water to nonmembers. But if the HOA just
buys water from an outside source, it isn't selling water or providing water
to that source, it is taking water from that source, so that may be a better
route.

Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com<https://nam03.safelinks.protection.outlook.com/?u
rl=www.hossandwilsonhoss.com&data=02%7C01%7C%7Cdabf4db675264430525f08d5b53b9
16a%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636614189799562134&sdata=%2
B569LxMlPdCgvxiF7gWtsYh90R84a0epnzeNqXKNFos%3D&reserved=0>
rob at hctc.com<mailto:rob at hctc.com>

This message is intended solely for the use of the addressee and may contain
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that any use, distribution, or copying of this message is strictly
prohibited.  If you received this message in error, please notify us by
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and immediately delete this message and any and all of its attachments.
Thank you.

This office does debt collection and this e-mail may be an attempt to
collect a debt, Any information obtained will be used for that purpose.  To
the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. ? 1692)
applies this firm is acting as a debt collector for the
condominium/homeowners' association named above to collect a debt owed to
it. Any information obtained will be used for collection purposes. You have
the right to seek advice of legal counsel.

From:
wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, May 08, 2018 3:53 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] HOA Gurus - New Off-site Water


Looking for creative solutions in an attempt to avoid having to go to HOA
annual meeting and amend the Articles and Bylaws.  Large (200+) HOA needs
more water capacity and wants to go to neighboring properties owners and ask
for permission to either tap into their existing well(s) or permission to
dig a new well(s).  As part of the compensation to these offsite owners, HOA
would like to offer free water from the well site BUT...  The HOA is from
the 1960's and the governing documents are very thin.



1.         Articles say, in part, "the purposes for which this corporation
is organized are as follows: ...To own, operate and maintain a water supply
system for its members, in compliance with health and environmental
regulations of state and local government agencies, either drawing from
wells owned by the corporation or from outside water sources, or both.  The
corporation shall not use or dispose of such water as a public utility but
solely for the use it its members."

2.         And, the Bylaws state:  "The membership of the corporation shall
consist of all owners of lots within the Plat."



So, on first reading, it appears that the HOA can provide water only to
"members" and the neighboring property owners are not within the defined
Plat so they aren't members.   Does this mean the HOA can't offer free water
to the neighboring property owners who may be granting the HOA permission to
sink a well?



The HOA is saying that it wants to amend its Bylaws to include the
neighbor's property (which, could be a 1/4 mile down the road and NOT
contiguous) so that the new property comes under the definition of being a
"member."  This does not sit well with me.  I doubt the neighbors would want
to be subject to CC&Rs for a development that is down the road.  I imagine
that the owner would argue that they have all of the burdens of the CC&Rs
but none of the benefits.  While I guess the HOA could extend use of the
HOA's swimming pool to the new member, it doesn't pass the smell test to
have a second class of member.  Everybody in the Plat versus the one guy
with the well on his property who gets free use of everything but the
restrictions (such as tall weeds) doesn't apply to him.



OK, I am probably over-thinking this.  Is it getting too cute to
characterize the provision of water to the neighbor as a water easement
payment rather than as water from the system?   Any thoughts to add to this
tumble of thoughts?  (BTW, the HOA is hiring other experts to properly guide
the HOA through the water permitting process so that its not my question
here)








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Message: 7
Date: Thu, 10 May 2018 00:07:06 +0000
From: Paul Neumiller <pneumiller at hotmail.com>
To: "wsbarp at lists.wsbarppt.com" <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] UD Litigators
Message-ID:
	
<CY1PR1101MB1225D2EA9F85719EE3430611D2980 at CY1PR1101MB1225.namprd11.prod.outl
ook.com>
	
Content-Type: text/plain; charset="iso-8859-1"

Hey, in representing a landlord, I filed an unlawful detainer against a
tenant and then the landlord worked out a deal with the tenant.  Tenant
never answered or appeared.  I have never had to do this because all of my
UD cases have been full term babies, but I need to unilaterally dismiss the
case.  How do I do this?  Do I just file a one sentence motion to dismiss
and present it ex-parte to the judge for a one sentence dismissal with
prejudice?  Do I need to cite some court rule and cases saying I have the
right to do this?  Does anyone have a simple form I can crib???  Thanks.


?

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Message: 8
Date: Thu, 10 May 2018 00:59:22 +0000
From: Scott Russon <scott at englishandmarshall.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] UD Litigators
Message-ID:
	<CACF042D1A01AA41982AEA83CFCF0A56021E2ACC5D at Blackwell.legal.local>
Content-Type: text/plain; charset="iso-8859-1"

Here is what I have successfully used for similar UD cases.  I just present
it ex-parte.

Sincerely yours,

SCOTT E. RUSSON
Attorney at Law

English & Marshall, PLLC
12204 S.E. Mill Plain Blvd., Suite?200
Vancouver, WA?98684
Phone: (360) 449-6100
Fax:????(360) 449-6111

STATEMENT OF CONFIDENTIALITY: The information in this email and
attachment(s) is legally privileged and confidential information intended
only for the use of the addressee listed on this email. If the reader of
this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this email and attachment(s) is
strictly prohibited. If you have received this email in error, please
immediately notify us by telephone at the number listed above, reply to this
email that it was sent in error, then erase the e-mail and attachment(s)
from your computer. Nothing in this message is intended to constitute an
electronic signature unless a specific statement to the contrary is included
in this message. Thank you.



-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Wednesday, May 09, 2018 5:07 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] UD Litigators

Hey, in representing a landlord, I filed an unlawful detainer against a
tenant and then the landlord worked out a deal with the tenant.  Tenant
never answered or appeared.  I have never had to do this because all of my
UD cases have been full term babies, but I need to unilaterally dismiss the
case.  How do I do this?  Do I just file a one sentence motion to dismiss
and present it ex-parte to the judge for a one sentence dismissal with
prejudice?  Do I need to cite some court rule and cases saying I have the
right to do this?  Does anyone have a simple form I can crib???  Thanks.


?

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------------------------------

Message: 9
Date: Thu, 10 May 2018 08:17:20 -0700
From: "Rob Wilson-Hoss" <rob at hctc.com>
To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA Gurus - New Off-site Water
Message-ID: <02d501d3e871$fdf5f6e0$f9e1e4a0$@com>
Content-Type: text/plain; charset="iso-8859-1"

Any time, Paul. I always appreciate your contributions to the listserve.

 

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999

www.hossandwilson-hoss.com
 <mailto:rob at hctc.com> rob at hctc.com

 

This message is intended solely for the use of the addressee and may contain
information that is privileged, confidential, and exempt from disclosure
under applicable law.  If you are not the addressee, you are hereby notified
that any use, distribution, or copying of this message is strictly
prohibited.  If you received this message in error, please notify us by
reply e-mail or by telephone (call us collect at the number listed above)
and immediately delete this message and any and all of its attachments.
Thank you.

 

This office does debt collection and this e-mail may be an attempt to
collect a debt, Any information obtained will be used for that purpose.  To
the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. ? 1692)
applies this firm is acting as a debt collector for the
condominium/homeowners' association named above to collect a debt owed to
it. Any information obtained will be used for collection purposes. You have
the right to seek advice of legal counsel.

 

From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Wednesday, May 09, 2018 4:34 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] HOA Gurus - New Off-site Water

 

Rob, thank you for your ideas.  Good stuff.  

 

 



 

IMPORTANT NOTICE:  This e-mail message is intended to be received only by
persons entitled to receive the confidential information it may contain.
E-mail messages to clients of Paul A. Neumiller presumptively contain
information that is confidential and legally privileged; e-mail messages to
non-clients are normally confidential and may also be legally privileged.
Please do not read, copy, forward or store this message unless you are the
intended recipient of it. If you have received this message in error, please
forward it back to the sender and delete it completely from your computer
system.

 

E-mail communication on the Internet may NOT be secure. There is a risk that
this confidential communication may be intercepted illegally. There may also
be a risk of waiving attorney-client and/or work-product privileges that may
attach to this communication. DO NOT forward this message to a third party.
If you have any questions regarding this notice, please contact the sender.

 

 

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Rob Wilson-Hoss
Sent: Tuesday, May 8, 2018 4:25 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA Gurus - New Off-site Water

 

Paul, I am not answering your question, I know, but if you look at the UTC
water regs, a HOA is exempt if it does not provide water to non-members,
generally. Exemption from the regs is a very good thing. So, there is that.
If you provide to nonmembers then you risk state regulation about all sorts
of things having to do with water supply. So that may be precisely why the
governing documents read the way they do - the HOA can buy water from
outside sources, but not supply water to nonmembers. But if the HOA just
buys water from an outside source, it isn't selling water or providing water
to that source, it is taking water from that source, so that may be a better
route. 

 

Rob

 

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999

 
<https://nam03.safelinks.protection.outlook.com/?url=www.hossandwilsonhoss.c
om&data=02%7C01%7C%7Cdabf4db675264430525f08d5b53b916a%7C84df9e7fe9f640afb435
aaaaaaaaaaaa%7C1%7C0%7C636614189799562134&sdata=%2B569LxMlPdCgvxiF7gWtsYh90R
84a0epnzeNqXKNFos%3D&reserved=0> www.hossandwilson-hoss.com
<mailto:rob at hctc.com> rob at hctc.com

 

This message is intended solely for the use of the addressee and may contain
information that is privileged, confidential, and exempt from disclosure
under applicable law.  If you are not the addressee, you are hereby notified
that any use, distribution, or copying of this message is strictly
prohibited.  If you received this message in error, please notify us by
reply e-mail or by telephone (call us collect at the number listed above)
and immediately delete this message and any and all of its attachments.
Thank you.

 

This office does debt collection and this e-mail may be an attempt to
collect a debt, Any information obtained will be used for that purpose.  To
the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. ? 1692)
applies this firm is acting as a debt collector for the
condominium/homeowners' association named above to collect a debt owed to
it. Any information obtained will be used for collection purposes. You have
the right to seek advice of legal counsel.

 

From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, May 08, 2018 3:53 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] HOA Gurus - New Off-site Water

 

Looking for creative solutions in an attempt to avoid having to go to HOA
annual meeting and amend the Articles and Bylaws.  Large (200+) HOA needs
more water capacity and wants to go to neighboring properties owners and ask
for permission to either tap into their existing well(s) or permission to
dig a new well(s).  As part of the compensation to these offsite owners, HOA
would like to offer free water from the well site BUT...  The HOA is from
the 1960's and the governing documents are very thin.  

 

1.         Articles say, in part, "the purposes for which this corporation
is organized are as follows: ...To own, operate and maintain a water supply
system for its members, in compliance with health and environmental
regulations of state and local government agencies, either drawing from
wells owned by the corporation or from outside water sources, or both.  The
corporation shall not use or dispose of such water as a public utility but
solely for the use it its members." 

2.         And, the Bylaws state:  "The membership of the corporation shall
consist of all owners of lots within the Plat."

 

So, on first reading, it appears that the HOA can provide water only to
?members? and the neighboring property owners are not within the defined
Plat so they aren?t members.   Does this mean the HOA can?t offer free water
to the neighboring property owners who may be granting the HOA permission to
sink a well?  

 

The HOA is saying that it wants to amend its Bylaws to include the
neighbor's property (which, could be a 1/4 mile down the road and NOT
contiguous) so that the new property comes under the definition of being a
?member.?  This does not sit well with me.  I doubt the neighbors would want
to be subject to CC&Rs for a development that is down the road.  I imagine
that the owner would argue that they have all of the burdens of the CC&Rs
but none of the benefits.  While I guess the HOA could extend use of the
HOA?s swimming pool to the new member, it doesn?t pass the smell test to
have a second class of member.  Everybody in the Plat versus the one guy
with the well on his property who gets free use of everything but the
restrictions (such as tall weeds) doesn?t apply to him.

 

OK, I am probably over-thinking this.  Is it getting too cute to
characterize the provision of water to the neighbor as a water easement
payment rather than as water from the system?   Any thoughts to add to this
tumble of thoughts?  (BTW, the HOA is hiring other experts to properly guide
the HOA through the water permitting process so that its not my question
here)

 

 

 

 

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Message: 10
Date: Thu, 10 May 2018 18:12:13 +0000
From: "John M. Riley III" <JMR at witherspoonkelley.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Earnest Money Deposit Issue
Message-ID:
	<E2BDBB9A9C11724E8B46A60B618A971F012F1DE3F6 at EX01.WKLAW.LOCAL>
Content-Type: text/plain; charset="utf-8"

Had this case a couple of years ago.   The contract does survive the death
of the seller or buyer.   I had to look nationwide but that is the clear
answer.  I obtained a court order awarding my client seller the earnest
money because the deceased buyers estate  did not perform the PSA.

John Riley


John M. Riley III
Attorney | Witherspoon ? Kelley
JMR at witherspoonkelley.com<mailto:JMR at witherspoonkelley.com> | Attorney
Profile <http://www.witherspoonkelley.com/john-riley-1> |
vCard<http://www.witherspoonkelley.com/s/jmr.vcf>

[WK]

422 W. Riverside Ave, Ste 1100
Spokane, WA 99201
(509) 624-5265 (office)
(509) 458-2728 (fax)
witherspoonkelley.com


Confidentiality Notice: The information contained in this email and any
accompanying attachment(s) is intended only for the use of the intended
recipient and may be confidential and/or privileged. If any reader of this
communication is not the intended recipient, unauthorized use, disclosure or
copying is strictly prohibited, and may be unlawful. If you have received
this communication in error, please immediately notify the sender by return
email, and delete the original message and all copies from your system.
Thank you.
From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kary Krismer
Sent: Wednesday, May 09, 2018 8:37 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Earnest Money Deposit Issue


I would agree with Eric, but also point out that you should probably review
the offer carefully to make sure it was properly filled in and enforceable
before some buyer's attorney gets involved doing the same thing.  Annie has
been focusing a lot on Form 17 lately in her agent education, and there are
very few transactions that have properly filled in Form 17s if you use the
strictest standards and some contracts don't even have valid legal
descriptions.

I would also question whether the contract survives the death of the seller.
I don't remember the answer to that question.

Kary L. Krismer

206 723-2148
On 5/8/2018 4:18 PM, Eric Nelsen wrote:
I don't think an offer/ask to rescind is a breach of the PSA, so Seller
isn't entitled to the EM. Seller just needs to reject the offer to rescind
and inform Buyer that the Seller Estate intends to close as agreed. Unless
Buyer actually says something affirmative like "I'm not going to close on
this," I don't think you have anticipatory breach.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From:
wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Tuesday, May 08, 2018 4:01 PM
To: wsbarp
Subject: [WSBARP] Earnest Money Deposit Issue

List:

I'm representing the PR of an estate for a decedent who was under contract
for the sale of real property here in Jefferson County at the time of death.
When Buyer (B) was informed that seller had died, B signed and transmitted a
MLS form 51 Rescission Agreement attempting to beg out of the PSA and for
the refund of the earnest money deposit. I was, quite frankly, surprised to
see B try to rescind considering the closing date on the PSA is not until
later June and there was no notification to B that the estate would be
unable to close the transaction as the successor-in-interest to the
decedent. PR now want to boot B out of the transaction but keep the earnest
money deposit as liquidated damages under the theory that B signing the
rescission agreement is sufficient to indicate that B intends to fail
without cause to close the transaction. Either way, PR is quite annoyed by B
for rushing to exit the PSA when their father died.

I am unable to find case law on point here and wondering if anyone has any
thoughts or would be willing to discuss this issue with me?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110




_______________________________________________

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http://mailman.fsr.com/mailman/listinfo/wsbarp

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------------------------------

Message: 11
Date: Thu, 10 May 2018 18:42:41 +0000
From: Paul Neumiller <pneumiller at hotmail.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] UD Litigators
Message-ID:
	
<CY1PR1101MB12259A7BD434F7F1BEC4955CD2980 at CY1PR1101MB1225.namprd11.prod.outl
ook.com>
	
Content-Type: text/plain; charset="iso-8859-1"

Thanks Scott.  The only difference for Island County is our local court
rules where a motion and order must be two separate documents so I'll just
split it up.  -Paul Neumiller?

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Scott Russon
Sent: Wednesday, May 9, 2018 5:59 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] UD Litigators

Here is what I have successfully used for similar UD cases.  I just present
it ex-parte.

Sincerely yours,

SCOTT E. RUSSON
Attorney at Law

English & Marshall, PLLC
12204 S.E. Mill Plain Blvd., Suite?200
Vancouver, WA?98684
Phone: (360) 449-6100
Fax:????(360) 449-6111

STATEMENT OF CONFIDENTIALITY: The information in this email and
attachment(s) is legally privileged and confidential information intended
only for the use of the addressee listed on this email. If the reader of
this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this email and attachment(s) is
strictly prohibited. If you have received this email in error, please
immediately notify us by telephone at the number listed above, reply to this
email that it was sent in error, then erase the e-mail and attachment(s)
from your computer. Nothing in this message is intended to constitute an
electronic signature unless a specific statement to the contrary is included
in this message. Thank you.



-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Wednesday, May 09, 2018 5:07 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] UD Litigators

Hey, in representing a landlord, I filed an unlawful detainer against a
tenant and then the landlord worked out a deal with the tenant.  Tenant
never answered or appeared.  I have never had to do this because all of my
UD cases have been full term babies, but I need to unilaterally dismiss the
case.  How do I do this?  Do I just file a one sentence motion to dismiss
and present it ex-parte to the judge for a one sentence dismissal with
prejudice?  Do I need to cite some court rule and cases saying I have the
right to do this?  Does anyone have a simple form I can crib???  Thanks.


?

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------------------------------

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End of WSBARP Digest, Vol 44, Issue 10
**************************************



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