Vermont Bar Association

134th

Annual Meeting

Year in Review – Real Estate Law

Seminar Materials

Faculty

James E. Knapp, Esq.

September 21, 2012

Lake Morey Resort, Fairlee, VT

2012 Real Estate In Review

Vt. Bar Association Annual Meeting

September 21, 2012

Prepared By Harland L. Miller, III

Presented By

James E. Knapp .

LEGISLATIVE UPDATE

A BUSY YEAR

Copies of all Acts and Bills can be found at:

WWW.LEG.STATE.VT.US/

Go to: “Research the Acts, Resolves

Calendars and Journals”

Bills that Passed

1. Act 70 (H.515) Holding public agencies

harmless for disclosing personal tax

information

2. Act 85 (H.565) Licensed Lender/SAFE

Act modification (owner financing)

3. Act 91 (H.752) Stormwater (New

sunset date)

4. Act 102 (H.403) Foreclosure rewrite

(Cont.)

5. Acts 105 and 106 (S.128 & 129) Indian

recognition (but see 1 VSA Section 853(h))

6. Act 117 (H.577) Isolation distance

notification

7. Act 118 (H.179) Amendments of

perpetual conservation easements

8. Act 123 (H.272) Private road

maintenance agreements

(Cont.)

9. Act 126 (H.523) State highway

condemnation

10. Act 143 (H.782) Tax Bill – Includes

exemptions for certain person to obtain tax

prebate information

11. Act 163 (S.183) Private well testing

12. Act 144 (S.116) Powers of attorney –

validity of pre-2002 provisions.

Act 70 (H.515)

In response to In re: H.S. 122 (Vt. Dec. 22,

2011

Holds Public Agencies harmless for any

violation of Public Records Act prior to In re:

H. 122

(effective upon passage)

Act 85 (H.565)

Amendments to SAFE ACT.

- Defines “Engage in the business of a

mortgage loan originator”

HABITUALNESS or REPETITION

Act 85 (cont.) Expands exemptions for some private

financing:

Aunt, Uncle, Nephew Niece, Step Parents,

Step Children, and Ex-spouses in a divorce

Housing Finance Agency

Vacation homes and inherited property

Act 91 (H.752)

Stormwater Management

Renewed and extended the sunset provision

for the deferral of permit in 27 VSA Section

613. (prior provision expired on January 15,

2012 – OOOOPS!)

New Date is JUNE 30, 2016

Act 102 (H.403)

Foreclosure rewrite ( and a little extra stuff)

(Foreclosure provision effective 7/1/2012)

ad hoc committee working since 2008

Goal was to reorganize and clarify

No substantive changes (unless all parties

were in agreement)

Act 102 (cont.)

4 Sections to Foreclosure

Definitions

Strict Foreclosure

Judicial Sale

Non-Judicial Sale

Act 102 (cont.)

Strict Foreclosure (12 VSA Section 4941 et

seq.)

4941 (c) – Court shall include a summary of

the evidence for the finding of no substantial

value.

4941 (g) and (h) – Recording of certificate of

non-redemption (new) and certified copy of

judgment wipes out post-complaint interests.

Act 102 (cont.)

Judicial Sale (12 VSA Section 4945 et. seq.)

Section 4946(d) – Writ of Possession

Farmland or dwelling house

– Court approval

Other property

– automatic after (first) redemption

period

Act 102 (cont.)

Judicial Sale (cont.)

Section 4948 – Reinstatement procedure

Section 4949 – Mortgagor’s special

redemption rights (allows stipulated

redemption for a lesser amount)

Section 4951 – Judgment Vacated

(Retroactive provision)

Note: Any redemption returns all parties to

their pre-foreclosure positions.

Act 102 (cont.)

Judicial Sale (cont.)

Section 4952 – Waiver of Notice of Sale

except for farmland or a dwelling house

unless approved by court

Section 4953 – Conduct of Sale –

Adjournment provision

Section 4954(d) – Deficiency is waived if not

requested at Confirmation.

Act 102 (cont)

Non-Judicial Sale (12 VSA Section 4961 et.

Seq.)

Not available for farmland or a dwelling

house.

Section 4969 – Failure of Sale

Section 4970 – Form of Deed signed by

Mortgage Holder.

Act 102 (cont.)

Extra Stuff ! (effective on passage)

1. Action to renew Judgment Lien must be

recorded in land records within 8 year

period to get relation-back priority

2. Technical correction of enforcement

section in 27 VSA Section 612(b)

Act 117 (H.577)

(Section 5 of Act) – 10 VSA Section 1973

Notification to adjoining landowner when

seeking a permit with an Isolation distance

encroaching on to the adjoining land must

be sent certified mail.

(effective date September 1, 2012)

Act 118 (S.179)

Perpetual conservation easements

27 VSA Section 604(a)(8) added to include

conservation rights or interests created

under 10 VSA Chapter 155.

Creation of Working Group to address

amendment issue. (Big group)

Act 123 (H.272)

Private Road Maintenance Agreements

Codifes Hubbard v. Bolieau 144 Vt 373 (

1984)

Purpose was to allow FNMA to purchase

Vermont loans on property served by a

private road with no written agreement.

Act 123 (H.272)

In the absence of an express agreement or

requirement governing maintenance of a

private road, when more than one person

enjoys a common benefit from a private

road, each person shall contribute

rateably to the cost of maintaining the

private road, and shall have the right to

bring a civil action to enforce the

requirement of this section.

Act 126 (H.523)

State Highway Condemnation Procedure

No longer a bifurcated hearing – Both

necessity and Compensation are now in one

action in Civil Division.

Necessity is presumed in the absence of

bad faith or abuse.

Title can pass to the State before

compensation issue is resolved.

Act 143 (H.782)

Omnibus Tax Bill

Includes a provision that attorneys and

paralegals and assistants can obtain State

Education Prebate tax information for real

estate closings. (CPAs and Realtors, too)

32 VSA Section 3102(k)

Act 163 (S.183)

Private Well Testing

For P&S Contracts executed after January

1, 2013, Seller must provide within 72 hours:

(1) the potential health effects of the

consumption of contaminated groundwater;

and

(2) the availability of test kits provided by the

department of health.

Act 144 (S.116)

14 VSA Section 3516(b)

If a power of attorney executed before July

1, 2002 was valid under common law or

statute existing at the time of execution, any

exercise of authority under the power of

attorney, whether before or after July 1,

2002,shall be deemed valid if the exercise

complies with common law or statute

existing at the time of execution.

Bills That Did NOT Pass!

H.522 – Priority of Condo lien over

mortgages

H.600 – Foreclosure Mediation

H.763 – State collection of Education tax

H.783 – Private Railroad Crossings

No energy audit upon the sale of real

property (No consensus in Act 56 Study

Committee)

ACT 250 Clean Slate

WW Clean Slate effective January 1, 2007

did not apply to Act 250 Permits

See POLICY ON “CLEAN SLATE” ISSUES

Issued by Vermont Natural Resources

Board Land Use Panel on March 27, 2012