Escrow agents and how they protect themselves

When you choose an escrow company (or “closing agent,” the person who does the work necessary to close the transaction), you look for several qualities: competence, service, location, etc. One factor you probably don’t consider is whether the escrow company is willing to be responsible for its own significant errors.

When escrow is opened, the closing agent sends both buyers and sellers a copy of its standard escrow instructions. These instructions supplement the purchase and sale agreement and instruct the agent as to how the transaction should be closed. There appear to be only a handful of templates used by the many different escrow companies, as it is very common to see the same set of instructions regardless of the escrow company. In the vast majority of those instructions (perhaps 85-90%), there is a little-noticed sentence, typically in the “Disputes” paragraph: “The parties jointly and severally agree to pay the closing agent’s costs, expenses and reasonable attorney’s fees incurred in any lawsuit arising out of or in connection with the transaction or these instructions, whether such lawsuit is instituted by the closing agent, the parties, or any other person.” The exact language of this sentence may vary somewhat, but the gist is the same: if anyone sues the closing agent for any reason, buyer and seller will be responsible for the closing agent’s attorney’s fees and costs.

The effect of this language is to insulate the escrow company from any liability that arises out of the closing agent’s negligence. Say, for example, the closing agent neglects to pay off an existing lien on the home. When buyer takes title, the buyer will now have to deal with this lien that was incurred by the seller. A reasonably prudent closing agent would have insured that all liens were satisfied at closing, and the agent’s failure to do so probably constitutes negligence. Under normal circumstances, the agent (and escrow company) would be liable to the buyer for the harm caused by this negligence. However, if the instructions contained the above language, the agent almost certainly will avoid liability. Why? Because if buyer were to file suit against escrow in this situation, buyer would be responsible for paying escrow’s attorney’s fees and costs in the lawsuit. As anyone who has used an attorney to defend them in litigation knows, attorney’s fees can be very, very expensive. Thus, the above language is an incredibly strong disincentive to seeking compensation from escrow, even in those instances where escrow’s negligence causes harm. I believe this is simply not fair to the buyer and seller.

In my experience, most (but not all) escrow companies are willing to modify the above language so that it does not effectively bar a suit against escrow based on escrow’s negligence. It’s certainly an issue you may want to address when deciding which escrow to use in your transaction. Needless to say, an attorney can quickly negotiate a change in these instructions on your behalf. [This post does not constitute legal advice. Consult a lawyer regarding your particular situation.]

The “HOME” Stretch

[photopress:home_stretch.jpg,thumb,alignright]The final days preceding the actual closing date are often the most confusing part of the home buying process. 9 out of 10 buyers and sellers think that something actually happens that involves them, on the closing date shown in their Purchase and Sale Agreement. I am often asked by clients “Should I take off work the day of closing?”

I can see no reason why the buyer should take off the day of closing, as most times you would have nothing to do to effect the closing, and you don’t normally get the keys to your new house until pretty close to the end, or after the end, of business that day.

There are generally two days that the buyer needs to take time from work during the real estate transaction. The first is in Phase 1, the home inspection. Yes, you can do it on Saturday and sometimes in the evening, but there are only 52 Saturdays in a year and getting the best inspector is worth taking time off work. Sometimes the one who isn’t already booked for this coming Saturday, may be the one with no appointments at all. So I would say you should plan to take time off to attend the inspection the first week after you have an accepted offer.

Now for “the HOME stretch”. You need to take time off from work (in most cases) to sign your loan documents and closing papers. This usually happens no later than the day BEFORE closing. It usually takes an hour. Sometimes up to two hours if you have a lot of questions. The frustratring part is you can’t plan ahead very well. Escrow companies will not schedule the appointment until they have the loan documents in hand. Very often that happens only a couple of days before closing. While I can’t get escrow to agree with me because they won’t even talk about an appointment until they “see the docs”, I usually tell clients to be prepared the day before closing, or the day before that, to take a couple of hours off from work.

Once all of the papers are signed, the buyer pretty much just waits until they get their keys. After you sign your documents they are sent (usually by courier or fax) to the lender for review. Lender review can take 24-48 hours at which point the lender “releases the transaction to record”. This release must happen in the morning or early afternoon. Once the transaction is “released for recording” the agent gets a call and then later in the day when it actually records, everyone involved gets a call with “recording numbers”. Once the recording numbers are received, you can get the keys to your new home. That last call often happens between 4 p.m. and 5 p.m. So taking the day off from work to wait for that call and your keys is usually not a good idea.

When the documents are very late, it could be either because the escrow timeframe was short or because the loan was “difficult”. Zero down loans with stacked costs or loan amounts that are stretching the buyer slightly past the place where the lender is comfortable, usually have more “conditions to funding” and tend to be the ones where docs are arriving very late in the game. If you have a credit score of over 750 and 20% or more down, the docs may come in very early, and all you have to do at the end is wait for the keys.

More often than not, the buyer looks like the poor gal in the photo above…and very glad to be at the finish line!

New Construction Closing Dates

Further to this string of three posts, I think we need to talk about new construction closing dates. I received a call about ten days ago from a former client whose brother was pulling his hair out regarding a new construction purchase. He was TOLD that the home would be ready in July or August, or at least that is what he heard. All of a sudden he got a call telling him that closing was in 2 days.

It was a very large, well known builder of moderate priced homes in this area whose contract stated they had about 60 days to build it and then the buyer had 2 days after that to close it. The buyer’s first language was not English and relied more on what he was told and did not read the contract specifics. I jumped in and resolved the problem for him. All worked out and I won’t give the details of how I did that, as that is not the point of this post.

The point is that buyers of new construction must know that builders ALMOST ALWAYS have a condition in the contract that the buyer must close within X days after the home is completed. Unless the builder takes a contingency on the sale of your home AND a contingency on the fact that the sale CLOSES, you are required to close within 10 days or less usually of the time the home is completed. Builders often do not put close dates unless it is a spec house already built. They do not want to carry that house after it is completed, they want to close. Read your contract carefully with regard to when you will be required to close and do not rely on “proposed completion dates” or verbal representations by the sales people.

Usually there is NO PENALTY to the builder if the home is built later than expected and there is a per diem charge to the buyer if the buyer does not close within the X days of the completion date. Also the builder does not have to extend the close date, so paying the per diem may not even be a viable option for the buyer. If you cannot buy unless you sell, you need to be sure you understand the complexity of meeting these builder contract requirements. Matching a sale to a new construction purchase is extremely challenging and ridden with potential pitfalls.