Questions Answered by Peter H. Westby

Q: I am currently engaged and purchasing a house in AZ. My name is solely on the mortgage. I will close on the house 2

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Feb 7, 2019
Peter H. Westby's answer
To protect yourself in the event of a divorce, it would be good to take title in your name alone as an unmarried man and then follow up with a well drafted ante-nuptial agreement that is negotiated and signed before your marriage takes place. I recommend consulting with an attorney prior to your marriage. Once your attorney knows all the facts there may be other action to be taken that will be of help.

Q: In Arizona can I kick a house guest out? I've hear after 3 day the law has to be involved...

1 Answer | Asked in Real Estate Law and Landlord - Tenant for Arizona on
Answered on Jan 15, 2019
Peter H. Westby's answer
You can ask a guest to leave at any time. If the guest refuses, you can have law enforcement assist. This can become complicated if the guest has lived with you for a lengthy period of time or has assisted you with living expenses. Then the "guest" may claim to be a tenant and you may need to follow the eviction procedures set forth in the Arizona Residential Landlord Tenant Act, ARS 33-1301 et. Seq.

Q: Sold AZ house as trustee via broker, now buyer want money for non-permitted construction, Should broker handle?

1 Answer | Asked in Family Law and Real Estate Law for Arizona on
Answered on Jan 7, 2019
Peter H. Westby's answer
I recommend speaking with a real estate attorney about this matter. You were acting on behalf of the the seller trust and the trust may have liability. Your position should be evaluated by an experienced attorney before you make any decisions.

Q: Are creditors suppose to send you proof after paying off a garnishment?

1 Answer | Asked in Civil Litigation for Arizona on
Answered on Jan 7, 2019
Peter H. Westby's answer
When a judgment is paid in full, the judgment creditor is required to file a satisfaction of judgment with the court. Usually a copy is sent to the judgment debtor. Completion of a garnishment should result in the judgment being paid in full but there is no guarantee that this is so. I would investigate with the judgment creditor to learn the status. If needed, the judgment creditor can be compelled to issue a satisfaction of judgment upon receiving payment in full. See ARS 12-1598.12....

Q: can ARS 44-1376.03 be used in small claims court

1 Answer | Asked in Civil Litigation for Arizona on
Answered on Jan 7, 2019
Peter H. Westby's answer
Arizona Statutes can be used in any Arizona court.

Q: What's the chances the court case they're attempting to bring in the state of arizona will be thrown out

1 Answer | Asked in Civil Litigation for Arizona on
Answered on Dec 20, 2018
Peter H. Westby's answer
A choice of jurisdiction clause in a contract can be enforceable, so there is a good chance that the lawsuit may need to be transferred to the agreed upon jurisdiction. However, this will not happen automatically. Your attorney will need to raise the issue properly so your Judge can decide it. If not raised in a timely fashion, this issue could be waived.

Q: Arizona- my mom has passed-left me with titles to mobile home signed and notorized-part of estate ?

1 Answer | Asked in Probate for Arizona on
Answered on Dec 17, 2018
Peter H. Westby's answer
Since your Mom gave you the signed and notarized titles to her home, it appears that she may have intended a gift to you before she died. If so, the mobile home would not be part of her estate. I recommend discussing Mom's estate with a probate attorney. A probate attorney will be able to let you know if your Mom's estate requires administration and, if so, what should be done.

Q: An ex attorney as a resident agent was served a summons on a llc that i had i have not been served. Do I need to respond

1 Answer | Asked in Civil Litigation for Arizona on
Answered on Dec 15, 2018
Peter H. Westby's answer
I recommend that you consult with new counsel immediately. In most cases you will want to respond to the summons to protect yourself--even if service may be questionable. I would definitely respond unless your new lawyer advises that a response is not needed.

Q: Father passed and life insurance beneficiary died prior.

1 Answer | Asked in Probate for Arizona on
Answered on Dec 12, 2018
Peter H. Westby's answer
Since the policy beneficiary predeceased your father, in order to collect the policy benefits you will need to either probate your father's estate or use a small estate affidavit if the estate is small enough (less than $75,000.00) to make the affidavit procedure applicable. See ARS 14-3971

Q: Is it wrong for a company to hire a replacement before I even sign any paperwork saying I'm leaving or transferring

1 Answer | Asked in Employment Law, Business Law and Employment Discrimination for Arizona on
Answered on Dec 10, 2018
Peter H. Westby's answer
No, Arizona is an "at will" employment state and, unless you are working under an employment contract, your employer is free to make staffing changes at any time.

Q: We are representing a seller whose property is 0.5 acres & is bounded by Salt River Project and two other properties.

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Nov 27, 2018
Peter H. Westby's answer
A buyer would need to obtain an access easement from one of the adjoining landowners. In many cases, there is access that has been used over the years and turning this into legal access by obtaining an easement can often be done with the cooperation of an adjoining landowner. If there is no cooperation, legal access can be obtained by opening a private way of necessity per ARS 12-1201, et. seq. by legal action in the Superior Court.

Q: I bought a 4plex, found mold and water leaks were not disclosed. Inspections proved covered/hidden mold. Next steps?

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Nov 7, 2018
Peter H. Westby's answer
This is a serious matter. If you have tenants living in the property you must re-mediate the mold immediately and take steps to protect your tenants. Based upon your tenant's comments, you appear to have a good claim against your seller and his agents for the active concealment of this issue. I recommend speaking with a real estate attorney to discuss in more detail. Your attorney will be able to let you know your legal rights and help you recover all of your damages. In addition, I...

Q: I just moved in an apartment in Arizona and there is a roach infestation. Can I break the lease and move out

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Oct 24, 2018
Peter H. Westby's answer
What you describe sounds like it might amount to a breach of your lease by your landlord. I recommend speaking with your property manager and negotiating an early lease termination if possible. If this is not possible, you can unilaterally break your lease and leave, but this may result in a cost. You might be sued by management. Then a judge will decide if your leaving was justified or not. But, in the meantime, you will be living in a home that is not roach infested. You have to decide...

Q: We signed a contract for a new build and would like to get out of it. We gave them a $30,000 earnest deposit.

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Oct 22, 2018
Peter H. Westby's answer
You can usually cancel your contract. Obtaining your earnest money deposit can be difficult. Builder contracts often provide that earnest money deposits are non-refundable. Sometimes you can negotiate a partial refund. Sometimes the reason for cancellation can give you some help, such as the inability to obtain financing. I recommend reviewing your contract with a real estate attorney and get advice as to your legal rights and best options.

Q: How much notice to vacate my apartment is required when purchasing a home?

1 Answer | Asked in Contracts, Real Estate Law and Landlord - Tenant for Arizona on
Answered on Oct 12, 2018
Peter H. Westby's answer
You must give the notice required by your lease or rental agreement. If you are on a month to month tenancy, you must give 30 days notice--if you plan to be out by the end of December, you must give your 30 days notice before the end of November.

Q: Can I now legally leave a property to someone (as of my death) if the property has not yet been distributed to me?

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Oct 4, 2018
Peter H. Westby's answer
You can provide in your estate planning documents that any real property obtained from this trust pass to the person you designate. However, the more immediate concern seems to be obtaining the property from the Trust. I recommend reviewing the language of this Trust with an attorney to verify that the trustee is acting in accordance with the instructions of the Trustor(s). If he is not, he can be compelled to act or, in some cases, he can be removed. Your attorney will let you know your...

Q: how do we get a deed to a house after the owner died

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Oct 3, 2018
Peter H. Westby's answer
If the deceased owner was the only person on title, the owner's estate may need to be probated. I strongly recommend that you discuss this with an attorney before taking action. Your attorney will be able to inform you of your legal rights after learning the facts and reviewing any documents you have.

Q: Is a deed legal in AZ if one of the signers used a fictitious name. Ie. my brothers ex girlfriend used our name.

1 Answer | Asked in Real Estate Law for Arizona on
Answered on Sep 21, 2018
Peter H. Westby's answer
It is possible that the deed may be valid. This would depend upon all of the facts and circumstances. I strongly recommend that you have the deed in question reviewed by a real estate attorney. Once your attorney knows all the facts, he or she will be able to let you know if the deed is valid and what to do if the deed is not valid.

Q: How can I gain entrance into my deceased father's rental property to obtain his belongings?

1 Answer | Asked in Probate for Arizona on
Answered on Sep 19, 2018
Peter H. Westby's answer
You could open an informal probate and become appointed as personal representative of your Father's estate. This procedure can be done quickly and will give you legal authority to take possession of your father's property. But, if your Father's estate is modest, the affidavit procedure would be the remedy of choice.

Q: There are 4 surviving siblings of a deceased brother. One brother preceeded him in death.

1 Answer | Asked in Probate for Arizona on
Answered on Sep 18, 2018
Peter H. Westby's answer
Possibly. This would depend upon how the estate planning documents were drafted. The children might take if the estate planning documents show an intent that the share of a deceased person would pass to his or her survivors. If there are no estate planning documents, then Arizona law controls. In this event, the children of the deceased person might divide the share of the deceased person. I strongly recommend that you consult with an attorney concerning this matter. When your attorney...

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