HouseLogic Articles

Friday, October 29, 2010

Divorcees get tax break on home sale

DEAR BENNY: My husband and I have a house entitled in joint tenancy, and I am filing a divorce. I left our house about two months ago. In less than two years my spouse will retire and that will give him time to sell the house.
For his convenience, I am planning to have as part of the divorce decree that the house be sold in no later than two years. My spouse can afford to pay the mortgage if he wants to stay through that period of time. We have no kids from our marriage, but I have two grown-up, married kids on their own already.
Will that be acceptable to the mortgage lender? Will this be a disadvantage to me? I am sorry if this last question is one that I should direct to a divorce attorney. --C.S.
DEAR C.S.: By all means, you have retained legal counsel and the specific advice you need should come from him or her. You have raised two questions: (1) Will the mortgage lender have any problems with your proposal? The short answer is no. So long as your ex-husband pays the mortgage, the lender will be happy.
(2) Will there be taxable consequences? From your question, I must assume that you will not transfer the house to your husband pursuant to the divorce decree, but, although you will move out of the property, you will both agree to sell it within two years.
In order to take advantage of the up-to-$250,000 exclusion of gain, the Internal Revenue Service looks to the use and ownership test. You have to have owned and used (i.e., lived) in the house for two out of the five years before it is sold.
However, according to the IRS, "If your home was transferred to you by your spouse (or former spouse if the transfer was incident to divorce), you are considered to have owned it during any period of time when your spouse owned it."
Additionally, "you are considered to have used property as your main home during any period when you owned it, and your spouse or former spouse is allowed to live in it under a divorce or separation instrument and uses it as his or her main home." (See IRS Publication 523, "Selling Your Home," available from
So, although you should confirm your situation with your divorce attorney, my reading of the law is that you and your ex would be able to sell the house and both of you would be eligible for the up-to-$250,000 exclusion of any profit you will make.
Keep in mind, however, that this does not mean you can exclude all of the $250,000; it allows you only to exclude that much of your profit, subject to the cap of $250,000.
However, to be completely safe, I would insist that the house be sold no later than two years after you have left the house. Another IRS publication you should look at is 504, entitled "Divorced or Separated Individuals."
DEAR BENNY: We have a big problem with one of our absentee homeowners who lives out of state and is an attorney. We recently reworked our covenants as homeowners after the developer turned over the property to us. Basically, all we did was take out the word "developer" and inserted "the homeowners association."

We sent out ballots to all the homeowners, which had a seal on it (notarized impression) as well as a return envelope with a code on it to prove it was an original ballot. Well, the attorney is challenging the favorable vote based upon the fact that the ballot didn't require a signature. --Norm

DEAR NORM: Does your association have an attorney? Presumably, the lawyer assisted you (or should have) in preparing the amendment to your covenants.

Every community association has legal documents. In a condominium, they are usually called the declaration and the bylaws. In a homeowners association, they are called covenants, conditions and restrictions (or CC&Rs). In cooperative housing, co-op owners rely on the articles of incorporation and bylaws.

Each of these documents will contain language as to how they can be amended. While I can't give you specific legal advice, in my opinion, the other attorney's position makes no sense.

If you followed the legal procedures for amending your documents, what difference does it make if there are or aren't signatures on the ballot? Actually, the signatures help you in determining the validity of the owner who submitted the ballot.

DEAR BENNY: Regarding timeshare owners, let's say they owe $45,000 and association dues are $1,000 a year. You have advised they could donate it to several organizations. How do you donate an obligation (mortgage) to anyone? Owning it debt-free and "donating" it makes sense, but not donating it when you owe $45,000.

Incidentally, I own four timeshares, which I bought on the secondary market for as little as $100, and not more than $1,500 each. They are a great deal if you use or trade them. I agree that buying timeshares from developers is almost always a stupid action, but there are many good things about timeshares.

By trading timeshares through one of the timeshare programs, I have had many weeks in different places. I am not a time share salesman or the representative of any developer. The best source for cheap timeshares is from timeshare homeowners associations where owners have stopped paying their monthly fees and deed the units back to them. Another simple way is a classified ad in the local paper offering to donate a timeshare. --Tom

DEAR TOM: You are correct that it will be difficult to donate a timeshare that has an underlying mortgage. Actually, from my readers who currently own timeshares, I have been learning that it is difficult to get rid of one regardless of whether there is a mortgage.

You have been lucky with your purchase, and I know that there are many happy timeshare owners. However, I believe you are in the minority; most of my readers are very unhappy and are desperate to rid themselves of that financial burden.

My advice if you happen to have an interest in buying a timeshare: Don't fall for the representations of the smooth-talking salesman. Get a copy of all documents that you will have to sign and have them carefully reviewed by your attorney.
If the salesman says you can't take the documents with you (as happened to me once when I was doing some hands-on research in this area), just say "thank you" and walk away.
DEAR BENNY: In a recent column, you answered a question from a woman who needed to find affordable housing. I suggest that she contact her local Habitat for Humanity organization. They will work with her and her fiancée to build a home for her that is handicapped accessible.

Yes, she will have to put in some "sweat" equity, but it doesn't have to be "hammer and nails" type of work. Habitat will allow both of them to work on fundraising projects like bake sales or social events, etc. --Norm
DEAR NORM: Thank you for writing and for your suggestion. I cannot (and will not) endorse any particular organization, since there are many such programs out there that assist people with housing needs. You have mentioned Habitat for Humanity, and I will let my readers do their own research and make up their own mind as to whether that program fits their individual needs.

DEAR BENNY: If a new appraisal of real estate is done at the time of the death of one of the owners, my husband, will that give a stepped-up basis for computation of capital gains taxes rather than the original purchase price when the property is eventually sold? Our house has more than doubled in value since we first bought it. --Billie

DEAR BILLIE: Congress is currently struggling with major tax issues, one of which involves the "stepped-up" tax basis. Basis is generally the price you paid for the house. To determine your profit (called "gain"), you take your basis, and add any major improvements you made over the years. That is called the adjusted basis.
You take your sales price, deduct such things as real estate commissions, and get the adjusted sales price. Your gain is the difference between the adjusted sales price and the adjusted basis.
Up until the end of 2009, the tax law said that on the death of a property owner, the basis of the inherited property was its value as of the date of death. In other words, the basis was "stepped-up." However, for year 2010, this "step-up" is not applicable.
Instead, heirs assume (or carry over) the basis of the deceased owner, but can elect to increase that basis up to $1.3 million. In your case, since you would be a surviving spouse, the basis can be increased by an additional $3 million.
This really does not impact middle-class Americans, unless your house is extremely valuable. But depending on what Congress does this year, the old stepped-up basis should be back on the books in 2011.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to

Funny Dog

I had an credit left that was expiring today so I had to quickly download an image.  I thought this was a cute dog. 

A haunting visit by a spooky character

Dear Barry: You never do columns that recognize holidays. Even at Christmas time and the Fourth of July, your articles are always about property defects, real estate disclosure, and home inspections. Now that Halloween is here, how about a spooky house story. Something in keeping with the season. Surely you've inspected a few creaky old houses. How about it? --Bram

Dear Bram: Home inspections tend to be business-as-usual events: checking the foundations, roofing, plumbing, electrical wiring, etc.
But there was one inspection that I recall with dread and discomfort; an inspection where property defects ceased to be of concern, where routine was overshadowed by fear, where disclosures were eclipsed by a frenzied struggle to flee the premises.

And it just so happened that this inspection occurred on the eve of Halloween.
The house was an old, neglected, two-story Victorian, with leaning fences, tangled vegetation, and dense vines engulfing the walls, windows and roof. The property, in escrow as a probate sale, had been the subject of headlines when the owner was found hanging from the rafters of the foyer.
The police investigation had not determined whether death was from suicide or foul play, and the body's subsequent disappearance from the local mortuary had unsettled the community.
The buyers and agent were unable to attend the inspection, but the agent had left a key under the mat. Bracing myself, I pressed open the massive door, entered slowly, and commenced what I had hoped would be a routine inspection.

But then, beneath the lofty ceiling of the dark interior, I beheld the silhouette of the noosed rope, still attached to a high, dusty beam. A foul odor of decay permeated the stagnant air, and I recalled reading that the man had spent many days at the end of that rope before the neighbors had found him.
The prospect of working alone in those dim, silent rooms unsettled me, and my foremost thought was to complete the job and get out of that ominous place.
A steep stairway descended to the unpaved basement, where I proceeded to inspect the old stone foundations, but the sounds of creaking timbers echoed throughout the building, disrupting my attention.

So I busied myself and tried to dismiss my uneasiness. But then there seemed to be a different sound, somewhere upstairs. At first, it blended with the incessant creaking of the structure, but the difference was unmistakable.
This was not the sound of timbers. It was the slow but steady cadence of footsteps. Someone was in the house. Hoping to hear the voice of the real estate agent, I called out, "Hello, is someone upstairs?"
No one answered, but the footsteps continued down the hallway and stopped at the dark entrance to the basement stairwell. I called again, "Hello, who's there?" Again, no answer. Then, a shadow appeared on the stairs and moved slowly, silently downward.
A dark, disfigured form gradually took shape, the head laid awkwardly against the left shoulder. Yet my attention was drawn from this to some shadowy, indistinct object that dangled from his left hand.
As he reached the basement floor, a putrid foulness filled the room, so that breathing became forced and repugnant. Gripped with horror and disbelief, I was unable to move.
But then, the eyes of that disjointed head found me, the lips formed a sardonic grin, dripping with thick gray saliva, and my mobility was wakened by a wave of terror.
Clawing my way up the basement wall, I squeezed into the narrow space between the ground and the floor framing, seeking desperately for any way of escape. But the advancing form appeared atop the foundation wall and steadily pursued me into the dark crawlspace.
Scrambling breathlessly past rows of old piers, I reached a dead-end corner where the foundation walls joined, and I realized with desperate finality that I could flee no further.
Somewhere in the nearby darkness I could hear that half-dead form crawling toward me. Clutching at my flashlight, I found the switch and was startled by the impending nearness of the face: the glare of cold eyes, the glint of gray teeth, the viscous fluid that dripped from grimacing lips -- and that mysterious object gripped in his left hand.
Terror pounded in my chest as I faced those final, hopeless, remaining seconds. The feet between us became inches. His right hand gripped my ankle with frightful force as he drew forward.
Then his left hand extended the old gunny sack that he held, and the acrid smell of cold breath filled my face, as he cried, "Trick or treat!"
Happy Halloween.

Solving mystery of fair market value

Q: I am a single woman and first-time homebuyer. I am totally new to all this. I found a property I like and it appears the selling price is matched up to the tax base value. If I want to make an offer, where/how do I find out the true "market value"? I do not want to insult the owners, but at the same time I want a good deal.
How does one find out what the fair market value of a house is? Is it in the MLS data or at the county court house?

A: Fair market value is the holy grail of real estate mysteries. It is nebulous, slippery and always changing, and actually only able to be estimated except at a precise point in time when the stars align and a set of conditions exists, which arise only a few times in the life of a property.

First things first -- here's what fair market value is not. In most cases, it's not the same as the tax assessor's value or assessment. It is rarely found in the multiple listing service information (although most listing agents will argue that the list price is near or below the fair market value), nor in a file at the county courthouse.

That's because the definition of a home's fair market value is the price a qualified buyer would pay for the home in an open-market, arm's-length transaction between strangers. I'd argue that this is the case when the property has been well-marketed, listed with an MLS, a buyer's broker commission has been offered, and a buyer who is both willing and able to buy the home comes forward and makes an offer to buy it (though listing a property with broker representation and in an MLS isn't essential to meet the definition of "fair market value").

The price of the best such offer in such a situation? That's the fair market value of the home.

So, that means that the fair market value is not necessarily the listing price, although it may be. It also means there's no rule of thumb about how much above or below the listing price the fair market value may be. Sometimes the assessor's value comes close to the fair market value, especially when the home has been sold or assessed fairly recently. However, there is a way to estimate a home's fair market value, and that is to analyze the recent comparable sales data.

If this sounds like what you think a home appraiser does, that's because it is. If you're not buying a home or otherwise engaged in a decision that warrants paying $500 for a formal appraisal, you can also do this yourself or in partnership with your real estate broker or agent.

What you need is the sales prices of three to five recently sold homes in close proximity to the home you're trying to value. The closer in time and geography, the better. Also, the more similar the homes are, the better.

Once upon a time the standard practice was to look at homes within a one-mile radius that had sold within the last six months; on today's volatile market, you'd do best to look at what homes have sold for in the last couple of weeks or months.

Keep in mind that you're looking at the prices these homes sold at -- not the list prices. The listing prices of homes that have not been sold can be informative -- especially if they are very similar and have lagged on the market a long time, which can educate you about what value is too high for the home -- but to pin down an actual value estimate, you'll want to look at the prices of closed sales, which are public in most places. Where do you get this information?

Many real estate listing websites offer this sales data (although the estimated values some offer vary widely in accuracy), and virtually every real estate agent would be happy to help a prospective buyer or seller conduct a comparative market analysis to help determine a home's fair market value, especially in the context of deciding what price to set or offer for a home.

Once you have the sales data, you'll want to mimic an appraiser by deciding how comparable the comparable homes actually are, and adjusting your estimated value of the home at issue upward if it is bigger and/or better than the comparable homes, and vice versa.

This can get somewhat tricky to do, and the process can be corrupted if you have subjective motives or biases, like you really want the place to be cheaper, or it's your home and you subconsciously (or consciously) want to list it much higher.

For this reason, and because you may not be able to make objective, accurate decisions about how much to adjust your estimate of the home's value upwards or downwards based on its differences from the comparable homes, I'd encourage you to work with a local real estate agent familiar with the neighborhood to pin down an estimated value.

If you have trouble finding one, or you are at a stage where you don't want to connect with an agent just yet, there are many online discussion forums and communities where local agents will chime in and help you get a reality check as to the value of a home.
Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Tara is also the Consumer Ambassador and Educator for real estate listings search site Ask her a real estate question online or visit her website,