Posted by RickG on August 27, 2003 at 09:25:34:
John,
Thanks for the prompt, detailed and professional response. We appreciate all that you do.
Recording option… - Posted by Scott T.
Posted by Scott T. on August 25, 2003 at 12:13:42:
I have a quick question for all of you RE Investors. Can I record an option even though I did not have it notarized in front of the seller? The reason I ask is because now the seller wants to back out of a lease with option to purchase contract that he had with me because he has found a buyer. It is my understanding that legally I have to have a Memorandum of Option notarized in front of both myself and the seller in order to record it “legally”. Can someone please shed some light on this issue for me??
Thanks in advance for all of your replies,
Scott T.
Re: Recording option… - Posted by John Merchant
Posted by John Merchant on August 25, 2003 at 17:17:42:
States have varying recording rules.
A one party doc might be recordable in the particular state, so you could just record your Memo or Notice of Equitable Interest, without having to have the other guy’s signature.
DON’T do this, however, if you don’t at least have his written & signed agreement to grant you the option, as it might be an illegal “slander of title” that could subject you to liability for illegally clouding his title.
Any recording clerk in the state ought to be able to tell you over the phone if a one-party affidavit is recordable.
Re: Recording option… - Posted by RickG
Posted by RickG on August 27, 2003 at 06:45:33:
I am reading the posts with little sleep so I confuse easily…
But (1) should the written and signed agreement (by the property owner) to grant the option be notarized? and (2) MUST the written and signed agreement (by the property owner) to grant the option be notarized?
Thanks, in advance, for your reply.
Re: Recording option… - Posted by John Merchant
Posted by John Merchant on August 27, 2003 at 09:05:17:
Answer to your “notarized” question is to be found in your State’s statutes.
Whereas generally, a P&S Agreement is not notarized/acknowledged, and is never-the-less completely valid and binding, there are certain contracts that either are notarized, or they’re NG by specific state statute…e.g., in WA State, if a lease agreement for 12 months or longer is not signed and notary acknowledged, it’s voidable at the discretion of either lessor or lessee, i.e., NG.*
So tell us what state the RE is in, and probably somebody on this board will know the pertinent law there. And if not, it’s a simple matter to find, on one of the search engines, say Google, the statutes in the particular state. 30 minutes research and you’ll have the law in that state.
*I didn’t realize this until I had the opportunity to buy a property that allegedly had a 20 year lease at a ridiculously low monthly rental. The seller was an old person who appeared, to me, to have been really taken advantage of, by the lessee. And the old person had tried, without success to sell, but the existence of the long term “lease” at that ridiculous rental had killed all prospective buyers’ interest.
On checking, I discovered that 1. The “lease” was in writing, had been signed by both LL & tenant, but was NOT notarized, and 2. In WA State, because the agreement was for 12 months or longer, it was voidable at the discretion of owner or tenant if it was NOT notarized.
I proceeded to buy the RE, gave the tenant 30 days written notice, as required by WA LL/Tenant law on m-t-m rentals, and watched to see what would happen.
Within 24 hours of her receipt of my certified w receipt USPO letter, the tenant called and left message on my phone machine that not only was she NOT moving out, her attorney was planning to sue us all for violating her long term lease…but within the 30 days, she was gone! Obviously her lawyer discovered what I had-that his client had no right to stay there and she had no case.