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Questions Answered by Peter H. Westby
1 Answer | Asked in Real Estate Law for Arizona on
Q: If two people own a home and one wants to sell and the other one doesn’t, what is the law?
Peter H. Westby
Peter H. Westby answered on Jul 23, 2021

In Arizona the owner who wants to sell can force a sale by filing a Partition Action against the other owner. In a Partition Action the court will appoint a special commissioner to sell the home. The court will also decide how the net sales proceeds are to be divided if this becomes an issue.

1 Answer | Asked in Arbitration / Mediation Law and Civil Litigation for Arizona on
Q: I'm the defendant in a civil suit filed by a former auto finance company. If they prevail, could my wages be garnished?

Loan was in default December 2018. Car was totaled in a very bad accident, and had no insurance coverage at the time. Lender charged off debt as "due to natural disaster" according to my credit report. They didn't file until December 21, 2020. We weren't served until June 18, 2021.

Peter H. Westby
Peter H. Westby answered on Jul 12, 2021

Yes, if the plaintiff prevails and a judgement is entered against you it is possible that your wages will be garnished. I recommend that you consult with an attorney immediately to review this matter and get assistance to defend or settle this claim.

2 Answers | Asked in Divorce and Real Estate Law for Arizona on
Q: Can a mortgage be refinanced against divorce decree agreement with both parties in agreement to do so?

Decree says I get the house once I'm financially able to refinance. Ex decided he wanted the house and I agreed he can have it. He tried refinancing but was having issues because of the decree. Is there a way to change the decree?

Peter H. Westby
Peter H. Westby answered on May 29, 2021

Your Decree can be modified by stipulation provided both former spouses agree. I recommend that one of you hire a family law lawyer to assist with this modification.

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1 Answer | Asked in Real Estate Law and Civil Litigation for Arizona on
Q: I am looking to file a partition motion. Can a partition motion be contested or delayed?

No contract between parties. We are siblings. 20,000 mtg bal. My sister vowing to fight it and hold it up for years until the value is ate up with legal and court costs. She does not pay anything towards mtg or property upkeep or repairs or taxes or insurance. For 9 years. I am almost 60 and want... Read more »

Peter H. Westby
Peter H. Westby answered on May 12, 2021

A partition action is a lawsuit and is commenced by filing a complaint, not a motion. A lawsuit can be contested and can be delayed. Reaching a negotiated settlement that is fair is a better option. I understand that you have tried this but, once a lawsuit is filed, you will have additional... Read more »

1 Answer | Asked in Civil Litigation for Arizona on
Q: Is Rule 60(b) of the Arizona Rules of Civil Procedure applicable to proceedings in the Arizona Court of Appeals?
Peter H. Westby
Peter H. Westby answered on May 3, 2021

No. The Rules of Civil Appellate Procedure govern proceedings in the Court of Appeals.

1 Answer | Asked in Real Estate Law and Landlord - Tenant for Arizona on
Q: I'm owner financing a home that i own outright in my trust. Can I request a balloon payment after 10 of the 30 year term

Arizona

Peter H. Westby
Peter H. Westby answered on Mar 9, 2021

Yes, it is not uncommon to amortize a loan over 20 or 30 years but provide for a balloon payment after 3-10 years. This allows a buyer to purchase and, if needed, provides time to build equity and improve his or her credit so it may be possible to refinance conventionally when the balloon payment... Read more »

2 Answers | Asked in Probate for Arizona on
Q: Can I be evicted from a family home by sibling exsecuter after 11 years of long term care of parents

House is payed for

Peter H. Westby
Peter H. Westby answered on Feb 7, 2021

Yes, this is possible. The home might need to be sold in order to administer the estate. I strongly recommend that you consult with a probate attorney to learn your legal rights and best options.

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1 Answer | Asked in Civil Litigation for Arizona on
Q: I was served a summons for small claims as contracted sale dated January 29th 2015. Doesn't this fall under time barred
Peter H. Westby
Peter H. Westby answered on Jan 24, 2021

Plaintiff's claim might be time barred depending upon many factors including your contract. If dealing with an oral contract or open account the statute of limitations, ARS 12-543, is three years from the time the cause of action accrues. If you are working with a contract in writing, the... Read more »

4 Answers | Asked in Estate Planning and Real Estate Law for Arizona on
Q: My mom died and her husband died 10 months later. The home they had was in both names.

I found out that the husbands son has been paying the mortgage and taxes on the property. Am I entitled to anything?

Peter H. Westby
Peter H. Westby answered on Dec 16, 2020

Maybe. It depends upon how your mom and her husband held title to their home and what estate planning was done by them. Did they have Wills? A Trust? Was the home titled in their trust? Or in their personal names? If so, did they take title as tenants in common? Or as Joint Tenants with... Read more »

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1 Answer | Asked in Real Estate Law for Arizona on
Q: Can a co-owner of a house in Arizona make the other co-owner sell the house?
Peter H. Westby
Peter H. Westby answered on Dec 15, 2020

Yes, a co-owner can force a sale in Arizona by filing a partition action. The court will order that the property be sold and can decide how the net sales proceeds will be divided between the co-owners if needed.

1 Answer | Asked in Contracts and Real Estate Law for Arizona on
Q: Is it legal to create a retroactive contract for a rent-to-purchase agreement in Arizona?

I have had great tenants for 3 years renting my home. I am selling my house, and I would be interested in offering it to them (they have expressed interest previously). As agent fees usually run about 6%, I was wondering if I could write a retroactive contract wherein a portion (equal to that 6%)... Read more »

Peter H. Westby
Peter H. Westby answered on Oct 8, 2020

I do not recommend using any kind of retroactive contract. A normal residential real estate purchase contract should be used to document this transaction. But your intention is fine. There is no problem in reducing the purchase price of the home in any amount that you and your tenants agree... Read more »

2 Answers | Asked in Divorce and Family Law for Arizona on
Q: Am I entitled any part of the family owned business.

I was the bosses daughters boss at another job. We ended up getting married but before we got married, the dad asked me to come work for him. I worked there for 16 yrs and ran the place for 10-12 yrs. Parents of wife said that I would always have job if we ever got divorced. Part of the business... Read more »

Peter H. Westby
Peter H. Westby answered on Sep 19, 2020

You may be entitled to a portion of any community interest in this business. But from the information you provided, it is not possible to tell. I strongly recommend that you discuss this with your divorce lawyer. Once your lawyer knows the facts, he or she will be able to let you know your legal... Read more »

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1 Answer | Asked in Real Estate Law for Arizona on
Q: I have been letting my wifes nephew live in my Mobile home rent free. I want to start charging rent. Can I?
Peter H. Westby
Peter H. Westby answered on Sep 14, 2020

Yes, you can start charging rent. But you will first need to terminate the current tenancy according to the terms of the Arizona Residential Landlord Tenant Code and any rental agreement or lease that may exist. Once the existing tenancy is terminated, you will be free to negotiate a new tenancy... Read more »

1 Answer | Asked in Business Law and Employment Law for Arizona on
Q: if i have a non compete with a former employer and that owner sells the company is the non compete still valid?
Peter H. Westby
Peter H. Westby answered on Aug 11, 2020

It might still be valid. This depends upon how the sale was structured and the agreements made with the buyer. I recommend that you discuss with an employment law attorney before you make any decisions.

1 Answer | Asked in Real Estate Law for Arizona on
Q: My brothers & I own a home & one of them wants to add my 1/2 brother onto the deed. Can he do this w/o our consent?

He wants to sell & my other brother & I don't. He's trying to get a my 2 other half bro's on so he can take us to court & make us sell. My father just passed in Feb. & The others just want their cut & to move on. But the property was never in my dad's name.... Read more »

Peter H. Westby
Peter H. Westby answered on Aug 9, 2020

If your brother wants to sell and the other owners do not, your brother can often force a sale by filing a partition action in the Superior Court. The Court will appoint a special commissioner to sell the home and the Court will decide how the sale proceeds will be divided if the brothers cannot... Read more »

1 Answer | Asked in Real Estate Law for Arizona on
Q: Does AZ. Have a legal time frame for right of ingress and egress being grandfathered ?

Neighbor says my driveway is on his property. Current configuration has been established for 17 years. I have owned for 3 years. No mention of this until 7/28/20 .

Peter H. Westby
Peter H. Westby answered on Aug 9, 2020

Arizona has statutes of limitation for recovery of real property that has been appropriated and used exclusively by another--such as your driveway. If action is not taken to recover such property, the user of the property can apply to the court to become its owner under the doctrine of adverse... Read more »

1 Answer | Asked in Civil Litigation, Intellectual Property and Divorce for Arizona on
Q: Our car was in both of our names. She trade in our car for a car in her name only. Can she do this without my signature.

I'm without a car.Is there anything I can do to get my car back from the dealer.

Peter H. Westby
Peter H. Westby answered on Jul 29, 2020

She can and did do this without your signature. It sounds like your car title was an "or" title. This type of title would allow either one of you to trade or sell the vehicle without the signature of the other. It is very unlikely that you will be able to get the car back from the... Read more »

3 Answers | Asked in Probate for Arizona on
Q: My mom died without a will Dec 2, 2019. Her only major asset is the house, located in Park Scottsdale.

There is a reverse mortgage and credit debts, as well as this year's property tax, probably totalling a little over $300,000. This area is being re-developed- a teardown was bought across the street and the new build sold for 1,150,000. Our lot is about 1/4 acre, to be sold as is. How do I... Read more »

Peter H. Westby
Peter H. Westby answered on Jul 27, 2020

If you believe that the equity value (fair market sales price less the amount of the mortgage loans) of Mom's home exceeds $100,000.00 then I would recommend filing an informal probate. If less than $100,000.00 a small estate affidavit could be used. A realtor with listings in your area can... Read more »

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2 Answers | Asked in Probate for Arizona on
Q: Dad died w/o a will. Only has a home with $50k in equity, and $8-10k in debt. Would I be required to sell to pay debt?

I have 3 siblings that do not want anything from estate. I have lived in the home for the last 6 years, and cannot afford to rent another home or apt. I would like to stay in the home and take over payments if possible. Would I be able to do just a small estate transfer, or informal probate?

Peter H. Westby
Peter H. Westby answered on Jul 24, 2020

This estate appears to be small enough that it could be administered by using the small estate affidavit process provided all estate heirs cooperate. However, under Arizona law, provision must still be made for debt. Since the estate is small, perhaps some of the debt might be forgiven by the... Read more »

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2 Answers | Asked in Probate for Arizona on
Q: When my father died, with a will he left me some things. My brother, the executor, never transferred anything to me nor

Told me I was due anything. He closed the will notifying the judge that I had received the property. He has since died. Can I recover this property? Is the will still valid?

Peter H. Westby
Peter H. Westby answered on Jul 24, 2020

This is a complicated issue and you have provided insufficient facts to determine what your best options may be. I recommend reviewing this matter with a probate attorney. Your probate attorney can learn all of the facts and let you know what can be done at this time.

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