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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