Toll Brothers Comes to Seattle

CamWest announced, via email to its clients and prospective clients, that they have been purchased by Toll Brothers.camwest The CamWest logo now says “A Toll Brothers Company”. I’ve long been a huge fan of Toll Brothers since my early days in Real Estate back in Bucks County, PA.

Toll Brothers made the announcement back on November 21st, and I found the comments made by Toll Brothers CEO to be interesting, spot on and less “fluffy”.

CEO Douglas Yearley Jr. said the CamWest acquisition does not represent the start of a broader expansion push by Toll, which operates in 20 states.

“We have been looking at Seattle for a decade, so this was a bit of a long time coming, and we found the right opportunity,

New Condo Buyers Seeking Out of the Contract: “Whiners” or Respectable Citizens?

There’s been some “buzz” lately about buyers of new construction condos who purchased pre-construction now wanting out of the deal with a return of their earnest money. Motivations vary: they are no longer able to get financing (“WHAT? I need a down PAYMENT!? Since when??”); their life situations have changed (baby + one bedroom condo = problem); or they simply don’t want to be under water the moment they close (those 2007 prices are not so attractive now…). Regardless of the motivation, though, the developer’s response is almost always the same: “Go pound sand. The earnest money is mine.”

Luckily for buyers, there are various federal and state laws designed to protect consumers that may give the buyer a right of rescission (and thus the right to a full return of the earnest money). For example, several decades ago the federal government enacted the Interstate Land Sales Full Disclosure Act (known to its afficionados as “ILSA”), 15 USC 1701 et seq. specifically to protect buyers of new construction. Generally speaking (its a complex statute), a developer must register the project with the Dept of Housing and Urban Development (HUD) and provide buyers with a comprehensive set of disclosures. However, the developer is exempt from the registration and disclosure requirements if it contractually obligate itself to complete the building within two years.

For reasons unknown, many of the new condo developments in the area decided to structure the purchase and sale agreements to fall within this “two year” exemption. Unfortunately for the developers, it is more difficult than first appears, and most of the contracts at issue at least arguably fail to qualify for the exemption. Thus, the buyers of those condos arguably have the right, under ILSA, to rescind the contract and receive a full return of their earnest money. (My partner Marc Holmes and I recently prevailed in an action against WA Square on this basis, so in at least one case its no longer “arguable” — the developer failed to comply with the statute and the buyer had a right of rescission.)

All of this raises an interesting question: Is it unethical for a new construction buyer to seek a legal basis for getting out of the contract with a full return of the earnest money? Our very own Ardell has argued that, if a buyer simply changes her mind about the purchase, the buyer should lose her earnest money. Other people have voiced a similar opinion. Is that right? Is it morally wrong for a buyer to seek a return of the earnest money? Does the buyer’s motivation in seeking to get out of the contract even matter?

I think the answer to that question can be determined by flipping it around. New condo developers are large entities typically owned by sophisticated multi-millionaires. What if one of those multi-millionairre owners signed a contract that required her to perform her contractual obligations two years later, and when the date for performance arrived she stood to lose substantial money if she performed? What if the owner just changed her mind for some other reason? In either case, I think its safe to say that the owner would not perform her obligations. Rather, she would hire a lawyer to identify each and every possible basis for avoiding her contractual obligations. The lawyer would then approach the other party to the contract and see if the parties could reach a compromise. Rich people got rich for a reason: they don’t intentionally make a bad business decision, and when faced with a situation that will cause them to lose money, they hire an attorney to negotiate their way out of it. They use the law in every way possible way to protect and advance their interests.

Which is, of course, the purpose of the law. It only works when it is applied to a particular situation. ILSA was designed to protect consumers. Developers should comply with this law. If they don’t, the law gives consumers the right to avoid their contractual obligations. There is nothing immoral or unethical in using the law to protect and advance your interests. It’s what is expected of every citizen, and its certainly what is done by every citizen who can afford legal counsel. If you’ve decided to not buy that condo –for whatever reason — then you should determine whether the law is on your side. It’s what every person should do — and what wealthy people do all the time.

What will they say in 20 years about today's new homes?

rcg1When I look at new construction for sale I often wonder if the architect and the builder ever spoke or better yet, if the architect or the builder would ever live in the house they designed/built (I am a builder). I seem to be asking myself that question even more lately as I tour homes built from about 2005+.

I wonder, besides the financial crisis, what will this era’s theme of houses be?
It will for sure be about townhomes, but (on average) I am afraid it will also equate to poorly designed and constructed too.

I was touring a home today that made me wonder if the builder ever asked the question, “where will the couch go

Having second thoughts about that High-End Condo presale?

As with any blog, this is not legal advice. If you want legal advice, consult an attorney in your area.

Escala. 1521 second avenue. Olive 8. Just a few of the many luxury, high-end condominiums going up in the Emerald City. Needless to say, when its “designed exclusively for the confident few,” you can be sure there will be a stiff price of admission. Indeed, these developers not only charge a high price, they also typically require a substantial earnest money deposit, usually 5% of the purchase price. On a million dollar condo, thats $50k. You’ll pony up this sum months, and even years, before the condo is complete and ready to close.

So what happens if you change your mind between the time you signed the presale contract and when the closing date approaches? What happens if the market goes in the tank and you want out of the deal? Or you foolishly went long on a can’t-miss investment opportunity, and now you’re not so sure you’re one of the “confident few”? Can you get your money back?

The short answer is “no.” Developers typically structure their contracts so that the earnest money will be forfeited if the buyer does not close. Buyers backing out of the deal is every developer’s nightmare — they need to sell the units and move on to the next project. Accordingly, developers do everything they can to “lock in” a buyer.

That said, there are typically a few avenues of attack if you really want out of the deal. To determine whether you are really serious about getting out of the deal (versus typical “buyer’s remorse”), ask yourself: “What would be worse, buying this condo or losing my earnest money?” If buying the condo is the worst possible outcome, worse even than losing your earnest money, then you’re ready to head for the exits.

One fertile area of inquiry is the Public Offering Statement (POS). By law, the seller of a new condo must provide the buyer with POS, which contains a variety of information about the condo development. Upon receipt, the buyer has a 7 day right of rescission and can therefore rescind the contract within that period with a full return of the earnest money. The seller must also provide the buyer with “all material amendments” to the POS, and upon receipt the buyer has another right of rescission if the “purchaser would have that right under generally applicable legal principles.”

Therein lies the rub, of course. These “generally applicable legal principles” are not spelled out in the statute, so it is a bit of an open question as to the extent of a change in the POS (between when provided to the buyer initially and when finalized) that gives rise to another right of rescission. Regardless, however, it creates an arguable point with attendant risk to all parties if they are unable to voluntarily resolve the dispute. Since every POS changes between the initial, presale version and the final version, a buyer can usually use these changes to negotiate at least a partial return of the earnest money.

There are other “arguable points” as well, all of which can lead to a negotiated resolution and a return of at least some of the money. Many developers are apparently unaware of the Interstate Land Sales Disclosure Act, a federal law that applies to large-scale developments. This statute has several requirements, including a disclosure requirement similar to the POS. If the seller fails to abide by the requirements of this federal statute, the buyer may have a right of rescission. There are many exceptions to this statue, but as long as there is some doubt, it will assist the buyer in negotiating a resolution.

In the final analysis, it is probably worth it to hire an attorney if there is a substantial amount of earnest money at issue (almost guaranteed if you’re talking about a luxury condo). The attorney will be able to identify those legal issues that can be used to negotiate a resolution. In doing so, you will probably get some of your earnest money back, and that total will probably be more than what you spent on attorney’s fees.

Bribery to Work with the Builder’s Preferred Lender

When ever I’m working with a home buyer who may be considering new construction, I know I might lose them to the builder’s in house lender.   Often times the builder will offer an enticing credit to the buyer’s closing costs only if they obtain their financing from the builder’s preferred lender.   

How can having a Loan Originator (in this case, they are a retail sales mortgage person, or what ever Jillayne refers to them as  🙂  since they wait to be fed from the builder, often sitting at the construction site) who’s livelihood is supported by the Seller (i.e. the Builder) be in the Buyer’s best interest?    Who is looking out for whom?  How do you know the Loan Originator will not disclose the Buyer’s private information to the Builder if pressed?

Enough of my questions…here are some of my recent dealings with the Builder credit when working with the preferred lender.

The builder offered a $4000 closing costs credit when working with their lender.   After reviewing the builder’s lender (BL) good faith estimate (GFE), it was easy to see how they were doing this.    The rate being quoted for a 30 year fixed was 6.125% at a 1% origination and a 0.125% discount.   The actual current 30 year fixed rate that I would have quoted on that day was 5.875%.   The BL was getting over 1 point (over $2000) on the backend of the transaction.   Since the BL is a bank, the $2000 on the back did not show on the GFE.   My client did not have the Truth in Lending to provide me, so I don’t know if there was additional padding with any prepayment penalties to credit the lender.   If not, I am certain that the builder just increased his sales price by $2000 to fund the difference of the “buyer closing costs

Appalling Statistics

Recentlyk Reba Haas wrote a post about theft of copper from new construction sites.

Today the NWMLS reports that this theft is still on the rise. Here are the appalling statistics.

The thefts since January 1st have occurred in the following areas:

  • Area 54 – Tacoma area – 1 theft reported
  • Area 72 – Edgewood area – 1 theft reported
  • Area 100 – Auburn area – 1 theft reported
  • Area 140 – West Seattle area – 1 theft reported
  • Area 500 – Newcastle and Newport Hills area – 7 thefts reported
  • Area 550 – Union Hill area – 1 theft reported
  • Area 760 – Darrington area – 1 theft reported
  • Area 730 – Meadowdale area – 1 theft reported

[photopress:snarling_dog.jpg,full,alignright]Appliances, staging furniture, copper are being stolen, by apparently opening the nwmls keybox without a keypad, since the use of a keypad would be recorded.

What do we do next? Iron gates and patrol dogs?

Whose client is it, anyway

Scenario: buyer says that they will be buying in 3 months. You say, perfect, let’s get you pre-approved so you’ll be ready by then. You believe the buyer until they call you 5 days later with the great news that they just bought new construction from a site agent! Aren’t you happy for them? 

But before you get really mad [photopress:mad_face.JPG,thumb,alignright]and start telling your clients they didn’t have representation, consider the following and you’ll see it’s not black and white. 

Most buyer’s agents hate new construction sites, especially those with site registration policies since they could lose their clients to the site agent. A few builders (notably an ex-agent on the Eastside, name will be supplied upon request!) will only pay the buyer agent 1% if the buyer goes to the site the first time without the agent (whether or not the buyer says they are working with said agent). But normally the site agent, if they are getting paid by the builder will be agent friendly and not give you a bad time and if you write it up, you’ll get paid.

The question is, can a site agent adequately represent a buyer?

The answer:  It Depends.  Here are the different models that I know about 

1. Builder can hire an in house team, where the agents work for the builder, sometimes on salary and are generally the listing agent and are privvy to all the deals that have been written.

This is the best scenario for the builder since the agent can not go elsewhere to earn money. The agent isn’t paid if the site doesn’t sell.  This agent is not able to represent a buyer. 

2. Builder can sub-contract to a marketing team, say “company A”, where the listing agent again can not pick up clients and take them off site under any circumstance. If there is a buyer for whom that product does not fit, then the listing agent is encouraged to refer that buyer to one of the team of agents who is associated with Company “A” but not a site agent. The site agent, the builder and “company A” each share in the referral portion of the commission if the referral agent sells the client. These agents are labeled buyers agents and are often on site to meet with buyers, but first the listing agent must be thoroughly convinced that their site is not a fit for this buyer. This can be a great source of buyer clients for the referral agent although there is a stiff referral fee Not as good for the builder, except for his 1/3 share of the referral fee since there’s not any incentive to sell the builder product especially if the client wants to come back to the site, the referral agent will not get the sale.  Can this work for the buyer? I’d say, maybe but there’s the big problem with going back to the original site to buy in which case the referral agent won’t get paid and may try to talk the buyer out of this.

3. Builder can sub-contract to a marketing team, say company “B”.  Here, the listing agent is not the agent that puts in time at the site. The listing agent represents the seller and hires a staff of agents out of company offices that are buyer’s agents. These agents may get a couple hundred per door, but they say they are buyer’s agents and in general are not privy to insider information.  These agents will likely have a sign, “buyer agent” on their desk and should advocate for their buyer in any discussions with the seller.  However, if this agent continues to work the seller for price considerations, etc, you can be pretty sure the builder will ask for the removal of that agent.  So, I still see a conflict of interest here.  If the agent consistently works on one builder’s site, then I’d wonder to whom loyalty is given.

4. Builder can sub-contract to a single listing agent.  In this case, the listing agent is probably too small to have much of a program in place for a team of site agents. They might casually bring other agents in to the site just to pick up buyers and to work when the listing agent doesn’t.  If the site is small, this is often the case. The listing agent in this case is often the agent that brought the builder the land. The buyer’s agent rarely know anything about inside information and are on site simply to help buyers. I call this Site fill in work:  This is a great avenue for prospecting for a buyer but I’ve never understood why a builder would want to have his site full of agents who earn an SOC either off or on site. At the first negative hint that a buyer might not like the builder product, the agent whips out the computer and starts showing buyer other properties. If I were the builder, I would be looking for 2 person listing teams to cover all shifts.  Does this work for the buyer? [photopress:j0400346.jpg,thumb,alignright]If the buyer meets the fill in buyers agent and connects, I believe this is a great situation for a buyer without an agent already, otherwise you’ll be working against the site agent for this client.  The site agent can represent the buyer possibly better than a non site agent because they know the plat and product better and presumably know new construction better. That agent owes no allegiance to the builder and can very well advocate for that buyer.  For instance,understanding how a builder addendum and limited warranty really affects a buyer isn’t something most agents are familiar with. Did you know that one very prominent builder requires the first buyer to hold the builder harmless if there is a sale before 4 years and the second buyer is part of a class action law suit? Would the average agent understand those 12 pages of builder addendum well enough to read this and have their buyer consider the repercussions? and to realize there is often an automatic removal of the financing contingency in 2 weeks?

So before buyers or other agents decide how bad it is for a buyer to choose to work with an agent they met on site, first you have to know the relationship of that agent to the seller and in some instances, I think the site agent makes a very strong buyer’s agent.  So best move is to tell your buyers ahead of time what will happen when they go to a new construction site without you and study those builder contracts.  I used to give out a blue “buyer passport” book that had a spot for my business cards and a place where the buyers could write down each site they visited. That way, you’ve gotten a step ahead of them and it makes a great opening for the “watch out for the site agent” speech. 

New Construction Tip

Blue_TapeWhen buying new construction, you should try to do at least two walk through inspections before signing your closing papers. Do one early, maybe two weeks ahead of time. Go back BEFORE you sign your closing papers and check to see if everything from the first walk through was done. You can’t really hold up closing for minor items, so more walk through inspections are better than just one. As many as you can get away with.

But here’s the TIP of the DAY! I love this one and so do my clients. We bring our own blue tape. The new construction person will usually have blue tape, and when you point out a problem, they usually put a piece of blue tape on it. But sometimes if they think it is a picky item, they don’t, and you have to bug them to put a piece of blue tape on it. So bring your own blue tape. Give everyone blue tape. Then you don’t have to call the new construction person for every piddly little item.

Then everywhere there is blue tape at the end, you make a list of the items, and where you don’t expect the builder to be able to fix an item, you put a credit amount if they can’t fix it. Example, there was a little scratch on the stainless steel refrigerator. It’s a large all new condo complex. You put down that you want a $250 credit (whatever) if they can’t buff it out. The builder can just switch it out if he wants, and give you the one in the unit next door and hope they don’t see it, if he doesn’t want to give you the credit. You’d probably be happier with the one with no scratch, but at least you won’t have to suck up the one with the scratch without a credit. Another example. A little piece of slab granite in the back of the shower, where the two pieces meet, was chipped. You could only feel it, you couldn’t see it. The builder isn’t going to fix that. He’s not going to rip that whole shower apart and bring in a whole new piece of slab granite for a little chip you can’t even see. But you should get a credit for imperfections that can’t be fixed.

When the workers come to fix things, they can’t tell the builder reps tape from everyone else’s tape, so they just fix it all. That’s why it must be BLUE tape. Actually it has to be the same color they use. If you have green and they have blue, they can pull all of your piddly items off. But if it’s all blue, it will be next to impossible for them to sort out whose blue tape was whose.

Works great. And buyers love running around with their own blue tape, and not having to ask the person to PLEASE put a piece of blue tape on this and that. You are more likely to catch everything, if you have your own blue tape.

A New Kind of Real Estate Company Visited

A couple of weeks ago I blogged on a new real estate model where I try to match real estate agent strategies to the agent’s personality.  I call the different strategies “games” (www.getstrategic.com/agents).  I’m going to share my progress with you, the highs and the lows to let you know how it is going since there’s no other company that I know of doing this sort of model. It may be like picking a carrot to see how it’s growing. But this carrot is an unknown species. Sticking with this metaphore, the only way I can observe it is to grow it hydroponically in a glass beaker to watch it grow, the glass beaker being this blog!

Here’s what I can share with you so far:

I’ve had the poorest results with the 3 experienced agents I had to let go because they wouldn’t put time into activities that they’d never done before. I think they must have joined because of the word “free leads

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.