Tag Archives: Buyer-Information

Is Your Earnest Money Protected By The Finance Contingency?

Posted on by
75

 

While the purpose of the Finance Contingency is to protect the buyer in the event they are not able to obtain a mortgage, more and more the buyer is not covered all the way to the day of closing.

In a perfect world, the buyer submits an offer with a Finance Contingency that runs through the day of closing.  If the buyer’s loan is rejected, the sale becomes null and void and the Earnest Money is returned to the buyer.  The seller puts his property back on the market and finds a different buyer.

Finance Contingency addendums are two pages long and much more complicated than the simple explanation above, and much more dangerous to the buyer than they often expect.  I have not met a buyer in 15 years who did not expect to get their Earnest Money returned if their loan is not approved.  I also have not had a buyer client in 15 years whose loan was not approved 🙂  

It is becoming common practice in the last few years for the seller to counter the offer by shortening the timeframe on the Finance Contingency.  Often this is deemed a minor date change, when in fact it is a major change for the buyer.  I have even seen buyer’s agents write offers with a 30 day escrow and a 15 day finance contingency because that is “common practice” :0 

If you have a 30 day escrow and a finance contingency that expires in 15 days, you are not likely covered if the loan is rejected on the 23rd day.  You are also not covered if you did not apply for your loan on time or if you did not submit the documents to the lender in a timely manner.

VERY IMPORTANT, you are also not covered if you do not have enough cash to close. 

I am hoping the attorneys here will have something to add, or will have something on their blog explaining this further.  In the meantime, suffice it to say that just because you have a Finance Contingency, that does not mean that you will automatically get your Earnest Money returned, if you can not close due to financing issues.

Earnest Money – Where does it go and when?

Posted on by
124

Some of the most Frequently Asked Questions in a Real Estate Transaction involve the Earnest Money Deposit. The Earnest Money usually follows with the transaction from day one all the way through to the last day, as in “follow the money”.

The buyer usually writes a check for the Earnest Money deposit at the same time that they sign the offer and they hand it to their Buyer Agent. The check can be made payable directly to the Escrow Company they chose in the contract, or to the Buyer Agent’s Company if they have an in house Trust/Escrow Account. More and more these checks are made payable to the closing agent.

When the seller accepts the buyer’s offer, the check gets deposited. Let’s assume the check was made payable to escrow and went directly to the escrow company for deposit.

At close of escrow this money comes back to the buyer as a credit against his costs or downpayment. If it is a zero down loan and the seller is paying the closing costs in full, this $1,000.00 can be returned to the buyer at close of escrow.

If you know you really want the house when you make the offer, and you have no problems at all throughout the transaction, the Earnest Money just slides like butter from your hand and back into your hand. Whether it actually goes into your hand at the end or is paid against your costs varies from transaction to transaction. But it still simply comes back to you like a boomarang.

The only time you should be worried about handing over an Earnest Money check, is if you are not sure you want the house at the time you make the offer 🙂

A Closing Date without a closing

Posted on by
255

(This post is authored by Craig Blackmon, an attorney and real estate broker in Seattle whose practice focuses on residential real estate — see his web page or his blog for more information. Please note that this post is not legal advice. You should consult an attorney for specific legal counsel.)

Your purchase or sale is scheduled to close on the Closing Date. What happens if, for some reason (perhaps a delay with the lender), the transaction does not close on the Closing Date? What are the rights and obligations of the buyer and the seller?

time essenceA discussion of this scenario begins with the “time is of the essence” clause. Virtually all purchase and sale agreements (including the forms used by the MLS in Seattle), contain a clause indicating that time is of the essence. When a contract does not contain such a clause, the law affords the parties some flexibility in regards to performance of their contractual obligations. With such a clause, however, the law requires the parties to perform as indicated by the contract. Thus, assuming the contract indicates that time is of the essence, the transaction must close on the closing date or there will be problems.

If the transaction fails to close because a contingency was not satisfied, such as a financing contingency, then both parties are absolved of their contractual obligations. A contingency is a “condition precedent” — i.e. a condition that must be satisfied before the contract binds the parties. So, if the contract includes a financing contingency, and the transaction fails to close because the buyer did not get financing in time, then neither party is in breach of the contract. The contract simply expires. If the parties want to proceed with the transaction and close beyond the closing date, they need to so agree in writing by amending the contract prior to its expiration.

If the transaction fails to close because one of the parties did not live up to their obligations, however, then the other party may have an action for breach of contract. For example, suppose the seller fails to execute the documents necessary to convey good title to buyer. If, at the time of closing, buyer has performed its obligations, then buyer has a breach of contract claim against the seller. Note, however, that the buyer must have tendered performance — i.e. deposited the funds with escrow to purchase the property — in order to have a breach of contract claim (with two exceptions noted below). If neither party has performed its obligations by the closing date, the contract expires.

If buyer did not tender performance, buyer may still have a claim if seller either waived the “time is of the essence” clause, or otherwise acted in a manner inconsistent with an expectation of performance on the closing date and the seller relied on that action in not performing (the legal term is “collateral estoppel”). In either case, the law concludes that the buyer has a claim because the seller has acted in a manner inconsistent with enforcement of the closing date.

Finally, note that these are exactly the sort of questions that should only be answered by an attorney, not a real estate broker. And when an answer is needed, it’s needed now. If a buyer needs to scramble to get an attorney on board and up to speed, the buyer may not get answers soon enough. So a prudent buyer will have a team of two real estate professionals – a real estate broker and an attorney – in place at the start of the process so that the buyer is fully informed and protected, particularly when the deal gets off track.

"bottom feeder" sites and the mls

Posted on by
56

pac Let’s start with an analogy. I love analogies.

I come to your store and ask if I can take that really cool T-shirt out into the light to see it better. The shirt costs $8.00. You say sure. I go out and set up a little stand with your T shirt and get five people who want to buy the T-shirt. Now I come back in the store and say, I don’t want to buy anything in your store after all. But I have five guys over there who will buy your shirt if you give me $2.00 each. You scratch your head and reluctantly agree.

Now I ask to look at your T-shirt out in the light one more time please. I go out and tell everyone the shirt is only five bucks. I come in the store with 10 people this time and say OK. I still want $2.00 a shirt, but these guys will only pay $5.00. Hmmmm…

How many times do you give the guy the T-shirt to see in the light? Is the horse out of the barn, Robbie? LOL

A “bottom feeder” site does not sell real estate, never has. The original site said “put your listings here for free” so we can all look at them. It’s really cool! Look you can see it on the internet. Very Kewl! Then the site said, if you pay me $250 for each of your listings, I will put your name on it. Hmmmm…well why didn’t you put my name on it in the first place. Hmmmm…OK, I do want my name on it, so here’s $3,000 for all of my listings.

Now when you go look at your listing on the internet it has your name. But it also has a little flashing button that says click here for a school report. You click on the button for a school report and there’s some other agent’s name in there. Hey! What the heck is that all about? So you call the site and they say you can buy a flashing button that says school report and get double the exposure! Hmmmm, so you pay him another $3,000 to get school report flashing buttons on all of your listings that point to you again.

Then you go back to see your listing on the internet and at the top of the page there is another flashing button that says “find a Realtor”. Your name no longer shows on your listing unless they click for details. You say Hey! I’m paying to have my name on my listing. They say sure, and if someone clicks the detail button they do see your name. But if you want to have your name behind door number 3, the flashing button at the top of the page….another $3,000, later there’s a button in the side bar….

Bottom feeder sites and the people behind them don’t know anything about how to value homes or sell homes. Bottom feeder sites don’t ever go out and see a house, nor write up a real estate contract or accompany a buyer to a home inspection. But they do get paid when a house is sold. They post the mls on a website, just like the guy who takes the T-shirt out into the light. They then sell the consumers who want the houses back to the agents, just like the guy comes in the store with people who like the shirt. Then they tell the consumers “let’s get those guys!” Let’s tell them we only want to pay 1/3 of the old price! Then they still want to get paid their “finders” fee for finding buyers using the agent’s listings to do it.

The mls doesn’t want anyone taking the t-shirts out to the pavement anymore 😉

ZILLOW BUZZ

Posted on by
22

Got my first “issue” of ZILLOW BUZZ this morning. Or actually an email announcing that ZILLOW BUZZ is coming.

ZILLOW really is exciting news…I’m not being sarcastic when I say that. We need a “shot in the arm” in this business.

That being said, I would like to say something about how real agents really value property. I read the “about us” notation on the ZILLOW BUZZ email and it showed how one of the partners had used spreadsheets to value his property. I just saw an elaborate spreadheet done by an owner at “The Newmark” in a downtown Seattle condo. Boy was it elaborate, and boy was it wrong. No way that condo is worth what that excel spreadsheet says it is worth.

The way we value property is on a comparison basis. The more we see the better we can value. That is why we go to Broker’s Opens (at least those of us who aren’t just looking for a free lunch 🙂

We have a mental running calculation in our brains. It goes like this. John’s listing last month sold for $700,000 and it was on the best view corner of the building, remodeled and up on the 21st floor. Better window configuration. Crappy cabinets, but otherwise a great remodel. The wall was knocked out around the kitchen. Penelope’s listing down stairs on the 9th floor had the best unobstructable view, but was 600 square feet smaller. Poor presentation. Owner left his clothes all over the place and it smelled like sweat. Original condition, no remodel and had a “handicapped” bathroom that gave it that “hospital” feel. That one sold for $400,000, but it was a pre-foreclosure with the owner under the gun. So I can list this one at $550,000. It is between the 9th and 21st floors. It is remodeled as to aesthetics, but no walls knocked out. It’s really worth $500,000, but I think I can squeeze an extra $25,000 out of it because it’s “the only game in town” at the moment.

I don’t think a computer can do that. Robbie, can you do a Vulcan Mind Meld? LOL.

Buying Investment Property – Entity Protection

Posted on by
25

Many “average” Americans are dipping their toe into the world of investment real estate. Not satisfied with owning REITs, many non-real estate professionals are turning to buying vacation homes, single family rental properties, small multi-family dwellings and even small commercial buildings.

If you are in this group (or thinking of joining this group), I want to give you three letters to remember as you begin your journey – LLC.

LLCs is an acronym for limited liability company. It is a form of entity recognized by states as providing liability protection for its members. At the same time, it receives different tax treatment than traditional corporations. It also is much more flexible than corporations when structuring relationships between members. The following is a very high level discussion on some benefits of forming an LLC. While forming LLCs can be done by laypersons, you should consult an attorney or CPA before taking that step.

TAX TREATMENT – When an individual forms an LLC, the feds disregard the entity and tax the individual as if no LLC existed. If more than one unmarried persons form an LLC, again there is entity protection like a corporation and the individuals are taxed as partners by the feds. So, instead of filing a separate corporate tax return, the members file form K-1s as part of their individual return. The benefit of this is that there is no double taxation as there would be if the investor(s) had created a C-Corp. Moreover, the members can have a much more flexible relationship than had they formed an S-Corp.

LIABILITY PROTECTION – This is the main reason to form the LLC. Say you want to purchase a rental house. If you purchase it in your own name, all of your personal assets are subject to risk in the event that something goes wrong. If you and your renters get into a lease dispute, they may sue you and your individual assets are on the line. What if someone gets hurt on the property and your insurance coverage is not enough to cover the loss? Again, your assets will be at risk. If you form an LLC, you have just created an entity that is separate from you. Its assets are only those that the LLC owns – usually the property. Thus, if something goes wrong, usually only the property is at risk and not your life savings. This can be worth a lot of sleep at night.

While LLCs may not be for every real estate investor, they are certainly three letters that need to be discussed when buying investment property.

Understanding STI

Posted on by
12

In answer to Craig’s question, when you look for property “on market” at www.SearchingSeattle.com, you will see two types of property.

The ones on which you can make an offer, that is not a “backup” offer, will show “ACTIVE”.

The others, that I have asked you to pay more attention to in my previous entry entitled USING THE INTERNET TO BUY YOUR NEW HOME, will say “OFFER STI”.

Now Craig, being a lawyer, will be the first to understand that STI (Subject To Inspection), is not necessarily about an inspection at all. It is what we might call a very broad escape hatch or an “out” clause. This “out” clause can be used for many, many reasons that have absolutely nothing to do with an inspection at all.

If a buyer makes the offer contingent on an inspection, especially if it is a 35A inspection clause and not a 35B inspection clause, they have a huge timeframe to change their mind based on many things. In fact, in parts of this country, a buyer may tie up five properties all at the same time, and cancel four “based on the inspection” as he only tied them up to have the time to consider which one he really wants to buy.

That is why our mls system internally, calls these “ACTIVE STI” vs. the public sites that call them “OFFER STI”. Sometimes the very best property on market is the one that falls out of STI status and comes back on market.

It is very important to note that you, as a buyer, should ALWAYS have an inspection, even when you do not make that inspection a contingency. The Home Inspection Addendum makes the seller responsible in some way for the results of that inspection. Sometimes you make an offer without a home inspection contingency to get a better price. The property status then goes straight to PENDING and skips the STI phase, but that does not mean you do not do an inspection. It means you are willing to lose your Earnest Money if you are not happy with the inspection.

Sometimes you can save 5% or more off the price by being the one offer without an inspection contingency, and only lose $1,000 if you want to cancel based on the inspection. But, please do not think that not having an inspection contingency means that you do not do an inspection. You still need to close on that property with full knowledge of it’s total strengths and weaknesses.

Using the Internet to Buy Your New Home

Posted on by
42

I have recently been enlightened on how grossly inadequate many of the home viewing sites are and how misleading they can be.

Maybe I should have known this before, but frankly, those sites rarely come into play in my everyday life. I use the mls and clients use me. I truly haven’t considered until recently how people use the internet in the home buying process and why they do that.

Now that I am viewing the world through your eyes a bit, with the help of my most recent clients, I would like to “give back

"Klaatu Verata Niktor"

Posted on by
6

Before we read Osman’s piece on Buyer’s Agency, let’s do a little review.

Does the seller or the seller’s broker really pay the buyer agent’s commission? To suggest, as Osman does, that the buyer is getting a “free ride” (down the garden path), is too simplistic.

earth

The day we envisioned that buyers would control their half of the transaction, we, the real estate industry, spent about 30 days toying with the concept. Then, in a New York Minute everyone turned on a dime and backpeddled to their comfort zone. That place where the seller and the seller’s broker controlled everything.

When you start talking about Buyer Agency in this Country, you might as well be spouting “Klaatu Verata Niktor”, as only agents seem to want to talk about it, while the general public’s eyes glaze over.

Buyer’s want a house, sellers want a buyer, and agents want to talk about agency.

Osman, buyer’s pay the buyer agent fee, not the seller. Unless we think of it that way, buyer’s will never be empowered in this Country, regardless of this whole data control “smoke and mirrors game” everyone is playing.

There are still many old curmudgeon rules in play, that prevent the buyer from truly controlling that fee, but let’s not suggest that buyer’s are getting anything for “free” please. The day the buyer takes possession and the right to pay a big mortgage payment every month, he starts paying for that fee in his monthly payment. The fact that he finances that fee, does not mean he doesn’t pay it…he pays it with interest!

Until we recognize this fact, buyer’s will remain Klaatu’s and will never become true Jedi’s.

Buyer Tip – Successful Negotiation of the Home Inspection

Posted on by
12

You can ask for the moon in Phase 1 of the inspection contingency. But if the seller’s response to that is less than satisfactory, you need to get specific in your response to the seller’s response.

Let’s say you give the seller a big laundry list of “stuff” that is “wrong” with the house under Phase 1. of the Inspection Contingency.

Seller comes back in Phase 2. offering to fix only one of those things.

To be successful at getting more than that in Phase 3, you should go back with a very specific, and pretty much final request, such as:

I will buy the home “as is” with regard to all times noted in the inspection if the price is reduced from $514,000 to $512,000.” Or “I will buy the home “as is” with regard to all other items noted in the inspection contingency IF Items #2, 7 and 9 are repaired prior to closing and receipts for those repairs are delivered at closing with at least a 30 day warranty on those repairs”. There are many and better ways to state this, but be specific about what you want the seller to actually DO when you get to the final round.

The long winded version is on my blog. Trying to cut down on the verbiage over here. I tend to “overstate my case” to put it kindly, which results in blog-clog 🙂

And don’t forget…as with any negotiation…timing is everything.