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Questions Answered by John Roland Lund

5 Answers | Asked in Business Law and Real Estate Law for Colorado on

Q: Retail Business Space Lease

I have an existing business that is an LLC and we are moving to a new location for our business. In the new lease it calls out in our addendum for both LLC members to give a Personal Guarantee, does this negate the personal property protection that our current business LLC gives us? Should we seek... Read more »

John Roland Lund answered on Nov 27, 2018

If you sign the personal guarantee then yes, at least as to the obligation to pay rent and any other lease obligations covered by the guarantee, you will not have the LLC's protection from personal liability. The LLC's protection would continue in all other respects, such as if the business were... Read more »

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3 Answers | Asked in Real Estate Law for Colorado on

Q: In CO , can a new owner deny access to a 3rd party previously allowed use of land to access 3rd party's own land

3rd party has been using subject property to access his land. I want to purchase subject property and deny access to 3rd party. There are alternate documented easements that 3rd party could use.

John Roland Lund answered on Jul 16, 2018

Such access rights can arise through various ways, contract, deed, course of dealings, etc. And they are usually consider to "run with the land." That means that the seller's conveyance of the property to you would be subject to whatever valid and enforceable rights to access existed at the time... Read more »

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3 Answers | Asked in Business Law, Contracts, Real Estate Law and Landlord - Tenant for Colorado on

Q: Question on Retail Lease

I am a small business owner that has a five year lease with two additional five year lease options. We are currently coming to an end of our first five year lease option and will expire on January 31, 2019. We have informed landlord that we would like to exercise our second five year lease option... Read more »

John Roland Lund answered on Jul 14, 2018

Your option to renew is an enforceable contract right. So long as you have complied fully with the notice requirements and are not in default on the lease, it is your unilateral right to renew at the rates set by the lease.

If your position is valid then if you remain past the end of the...
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1 Answer | Asked in Real Estate Law for Colorado on

Q: Who is responsible for an HOA assessment when selling a condo?

The assessment is not yet "on the books" but has been discussed in HOA meetings

John Roland Lund answered on Jul 13, 2018

This is a material fact which the seller must disclose, even though the assessment may not actually be made until after the closing of a sale. Best to make the buyer aware and negotiate accordingly. If the assessment is for future needs of the HOA, the seller has a pretty good case that the... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: I have had a road running across trust lands for many years. Do I not have a prescriptive right for it?

John Roland Lund answered on May 24, 2018

If your reference to trust lands means these are land owned by the government, then there is no statute of limitations on the government's ability to eject someone using the government land prescriptively. So, you may be able to use the road as long as they will allow it but you cannot establish a... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: when buying/selling a house in colorado who is responsible to get and pay for a title search... the buyer os the sellerr

John Roland Lund answered on May 24, 2018

This is something that is negotiated and can be paid by either the buyer or the seller. Typically though the seller provides the title search as part of purchasing a title insurance policy for the buyer and the lender.

1 Answer | Asked in Real Estate Law for Colorado on

Q: If a house was in a trust and the owner of the house sold it to buy another, would the new house go back into the trust?

The owner of the house also set up and controlled the trust. He did not put the house back into the trust.

John Roland Lund answered on Apr 10, 2018

If the old house was in a trust then, when the owner (actually trustee) sold it, the property moved out of the trust and to the new buyer. If you, the owner, buy a new house, then you can direct that at closing the title to the new house be made in the name of the trust. To get the new house, or... Read more »

1 Answer | Asked in Land Use & Zoning and Real Estate Law for Colorado on

Q: I live in a wildfire prone area backing up to undeveloped, bank owned land . Can I get the bank to mitigate that land?

Land has a large amount of beetle kill. The neighboring properties are all mitigated but the bank land was not sprayed for beetles and now contains a large amount of fire fuel. Is there preliminary action that can be taken, if there is a large fire, is there any negligence on the bank's part?

John Roland Lund answered on Apr 4, 2018

You could file an action for nuisance abatement. That suit would be filed against the bank on behalf of you, and other adjacent owners. You might try having a lawyer write a letter on your behalf first. If the bank responds to that, it would be less time consuming and less costly. Still, the... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: Can I buy my mother out of a loan on her house and then have her act as the bank for the remainder of its value?

I want to buy a house from my mother but have her act as the bank so she can benefit from the interest/payments. She unfortunately borrowed on the house recently. Can I take out a mortgage to pay off what she owes and then have her act as the bank for the remainder of it’s value? Is this legal... Read more »

John Roland Lund answered on Feb 19, 2018

You should be able to make this work. You would end up holding title to the house with a "first" mortgage to the bank who loans you the money to pay off the current balance. And the transaction with your mother, where you borrow the rest of the money from her, would give her "second" or junior... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: If you own a house with second husband and he signed half the house to his daughters if he died how do you keep house

My grandma has been married to her second husband for 22 years and he is 90 and has brain cancer and is not going to be here long. She just found papers in there house that they own that say he signed over half the house 20 years ago if he died. Is there anything she can do to keep the house. She... Read more »

John Roland Lund answered on Jan 27, 2018

It depends. You say that Grandpa and Grandma own the house. Does that mean they hold a deed as joint tenants with right of survivorship? This would be on the deed from when they bought the house. If so, then it next depends on what you mean when you say that Grandpa signed over half the house.... Read more »

1 Answer | Asked in Real Estate Law and Land Use & Zoning for Colorado on

Q: What legal action can I take for misrepresentation of a newly-purchased home?

My question is regarding the purchase of our new condo. The realtor told us on two separate occasions that the fenced-in yard was shared between us and the owner next door. Last night, the renter of that unit abrasively told me that is not a shared space, it belongs to her unit only. Had we known... Read more »

John Roland Lund answered on Jan 14, 2018

It appears the broker is the listing broker as opposed to someone you retained specifically to represent you as the buyer? Assuming that is correct, the listing broker is not your fiduciary and not responsible for your best interests. Rather they represent the seller. They are nevertheless... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: We own a townhome in Frisco, CO that is technically a condo. Can you divide the properties to separate townhomes?

There is a 4-plex and a duplex and each has a parcel of "private use" outdoors. We want to see if its possible to separate the units into townhomes, where you own your unit individually, including the dirt, siding and roofs. There is one shared large driveway accessing all 6 garages, it would be... Read more »

John Roland Lund answered on Nov 29, 2017

It's possible but there would be several challenges. First, there is the question of government constraints. What do the Frisco and Summit County codes permit or restrict in terms of zoning, occupancy, etc.? You are talking about redefining property boundaries in a way that triggers such... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: We have rural property where there has been a road for over 50 years. The neighbor had his property surveyed

and about 20 feet cross into our land. Do I have any recourse?

John Roland Lund answered on Nov 26, 2017

Easements, which are rights to use certain portions of another person's land for limited purposes such as a road, can be established through use, through necessity or through contract. Is it 20 feet of the road that crosses onto your land? If that road is necessary to your neighbor to get his... Read more »

1 Answer | Asked in Real Estate Law and Small Claims for Colorado on

Q: Neighbors burned down part of our fence with fireworks and now they're trying to get me to pay for half.Do I have to?

John Roland Lund answered on Jul 27, 2017

No. While under some circumstances there might be a shared obligation for regular maintenance of a boundary fence, that would not include having to repair damage carelessly caused by a co-owner. They should consider turning it in to their homeowner's insurance company.

1 Answer | Asked in Real Estate Law for Colorado on

Q: Is a property that's been passed via quit claim deed eligible for the $250,000 gain exemption on primary residences?

Basically, I have a condo that is legally titled in my parents name. I have occupied the condo as my primary residence for almost 4 years, and now that we are looking to sell I was hoping to find out the tax consequences. One option we've been discussing is the use of a quit claim deed to pass... Read more »

John Roland Lund answered on Jul 17, 2017

The problem is that you must own the property for two years. The title is going to the primary if not sole determinant of who has owned the home. Unless you have some basis for claiming you hvae been the owner, I don't this this is going to work. See Publication 523 of the IRS for details.... Read more »

1 Answer | Asked in Probate for Colorado on

Q: What happens to my fathers business and properties since he has passed and didn't leave a will

John Roland Lund answered on Jan 13, 2017

When a person in Colorado dies without a will the distribution of the estate is governed by statutes concerning what is called "intestate succession." If he owned property in joint-tenancy, then that property may simply pass to the remaining joint-tentant. It sounds as though he had business... Read more »

3 Answers | Asked in Car Accidents, Insurance Bad Faith and Personal Injury on

Q: My car has been hit by a employee of the carpark. I also have suffered some damage. Need legal advice.

On my way to work i parked my car owned by secure carpark. When i returned i saw that a tow truck hit my car and while i was approching the front office i got struck by the tow truck as well. The tow truck was driven by the employee of the car park. I need some advice on what action can i take... Read more »

John Roland Lund answered on Jan 2, 2017

Secure Carpark, like any employer, is responsible for the careless acts of its employees while they are doing their job. So, if there was damage to your car and to you personally from the actions of the tow truck driver, Secure Carpark should be expected to compensate you. Depending on what state... Read more »

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2 Answers | Asked in Real Estate Law for Colorado on

Q: I am in the process of selling a property and I have been advised to get a Real Estate Lawyer. Do I need one?

Why do I need one?

How much will it cost?

How quickly can I obtain a Lawyer?

John Roland Lund answered on Dec 12, 2016

Simple real estate purchases, like those of a private home, are commonly completed without legal representation. The real estate agents and bankers are familiar with the contracts and if there is nothing complex it often works fine. To be clear though, none of those "experts" are lawyers and none... Read more »

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1 Answer | Asked in Real Estate Law for Colorado on

Q: Does an express easement allow use over a private road that is owned by adjacent landowners?

A landowner has 60 acres he wants to subdivide into a minor development. It has been zoned AG for 21 years. The other landowners own and maintain the private road which he uses for access. He wants to have the property re-zoned to AR for a subdivision. The road is not county maintained. The... Read more »

John Roland Lund answered on Nov 10, 2016

As a condition to approval of the rezoning and subdividing, the planning department and/or zoning officials will have to assess whether there is adequate and legal access to the proposed lots. In addition to a primary access point, most development plans also must have a secondary access for... Read more »

1 Answer | Asked in Real Estate Law for Colorado on

Q: Am I responsible for leaves, branches and twigs that fall from my tree into my neighbors yard?

This tree is in my yard that is approximately 60-80 feet high. A good portion of the tree encroaches my neighbors yard (airspace) which consequently drops leaves and small branches into her yard. I intend on trimming tree soon but the constant harassment from my neighbor by throwing leaves,... Read more »

John Roland Lund answered on Oct 18, 2016

Here is a rather complete discussion of the issue.

Hope it helps.

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