The Statutory Warranty Deed: What You Should Know as the Seller

This is not legal advice. For legal advice, consult an attorney in person, not a blog.

In most instances, a buyer will take title to the property by a statutory warranty deed. As the name implies, this deed is defined by statute. That said, this statute merely codified the common law, which evolved over several hundred years (beginning in medieval England).

In any event, a statutory warranty deed includes several warranties, or promises, from the seller:

(1) That at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same.

Given that this is pretty dense “legalese,” I’ll summarize: When a seller conveys title by statutory warranty deed, the seller warrants to (or promises) the buyer: (1) that the seller was the sole true and legal owner of the property; (2) that the seller had the legal authority to pass title to the buyer; (3) that the property is free from all encumbrances; (4) that the buyer’s ownership of the property will not be challenged; and (5) that the seller will defend the buyer’s claim of ownership if challenged. If one of these warranties is breached, then the seller will be liable to the buyer under the terms of the deed.

Of particular importance, a seller makes these warranties and will be liable for their breach even if the buyer knows of the breach at the time of conveyance. If the seller wants to limit these warranties and to exclude certain known breaches (for example, a known encumbrance), then the seller must do so in the deed itself. This is accomplished by a “subject to” clause in the deed.

If the deed does not identify an existing encumbrance in a “subject to” clause, then the seller faces liability immediately upon closing. For example, assume the seller and buyer are both aware of the fact that the neighbor’s fence encroaches five feet onto the property. Moreover, everyone knows that the fence has been there for 20 years. Thus, everyone knows that the neighbor has a very good adverse possession claim (i.e., the neighbor has a good claim that he has taken ownership of the portion of the property on his side of the fence). Regardless, unless the deed specifically excludes this claim from the warranties within the deed, the seller will still be liable to the buyer for this claim. The seller would have to pay for any defense of the buyer’s title (i.e., attorney’s fees and costs of litigation), and if the neighbor had taken title to the area then the seller would have to compensate the buyer for the resulting loss in value.

Thus, it is important that the deed by which the seller conveys title correctly excludes from the inherent warranties those defects on title that are known and exist at the time of closing. Of course, a buyer may object to a “subject to” clause that includes the known defect (such as the fence and adverse claim in the hypothetical above) because the purchase and sale agreement requires the seller to resolve such encumbrances. But if the seller simply folds on the issue and warrants against the encumbrance, the seller is not doing himself any favors. Rather, certain liability will result.

Warning to Thurston County agents – and this goes for FSBO folks too…

February 25, 2008. The NWMLS has received information (Thurston County area) concerning a male individual who looked at homes with an agent — all of the information he provided about himself and his employment was false. He claims to be a buyer’s consultant with the Federal Government, a PhD in Physics, his wife a professor at the University of Washington and they live in Medina, WA. None of the information he provided, except his name, is correct.

The individual is a currently registered, Level 3 Sex Offender, male, about 54, white, 5’11″, about 220 pounds, gray/red hair, tattoos on each arm and may have a beard.

Other than providing false information during the preview of two homes, the individual did not demonstrate inappropriate behavior. Showing agent did not allow herself to be placed in a perilous situation. Individual has previously been a home inspector and appears to be familiar with the real estate industry.

Please be careful! If this man contacts you, contact your local authority.

This posting from the NWMLS came out a few days ago but I was out of town and didn’t see it till today. You can never be too safe when selling your home or acting as an agent to help someone buy or sell a house, so do be careful if you are contacted by a person matching this description.

Trying to Force the Seller’s Hand

[photopress:hand.jpg,thumb,alignright] If you are playing the game of “trying to force the seller’s hand”, you have to know how to play it right. It is not easy to force a seller to…anything. Regardless of who is right and who is wrong, if you can say there is a right and wrong to the situation, reality is what it is. If you want the house, and you are not the only one who wants the house, you have to stay “in PLAY”.

Two buyers have been “circling the wagon” for weeks. Offers have been presented to the seller, counters have gone back to the buyers. Back and forth, back and forth. Buyer Agent saying, “Did the seller look at the comps I gave you showing why the seller should?” “Well of course the seller has to fix this and fix that, remove this and add that”. Meanwhile the seller is just going about their business, day in and day out, waiting for the buyers to agree to their price and conditions.

Then along comes buyer number three. Buyer number one and buyer number two, who have had offers back and forth, know what the seller wants. So it seems only fair to tell buyer number three what the seller wants. Meanwhile buyer number two wants to submit an offer again, third time, for something less than they know the seller wants. I say, well you have two choices. You can bring an offer meeting the seller’s counter to you of a couple of weeks ago and beat buyer number three to the punch, OR you can hang back and wait to see what buyer number three does.

Buyer number two’s agent doesn’t want to bring an offer matching what the seller wants NOR wait until buyer number three makes their move on Saturday, so she brings an offer that she knows is LESS than what the seller wants and Tries To Force the Seller’s Hand”, by giving a very short response time. Bad move. You bring the seller an unacceptable offer and put a response time that is hours before buyer number three is scheduled to see the house. What happens. By trying to force the seller’s hand and make him respond before buyer number three sees the house, you are left out in the cold. Your offer is expired before the seller is going to respond. Buyer number three’s offer is accepted and your offer is a non-offer, because it expired before the seller was willing to look at it.

If you tell the seller they only have x amount of time to respond, and that timeframe does not match the seller’s schedule for some reason, your offer becomes invalid. Agent says “You COULD HAVE countered and just changed the date…” But why? Why would the seller risk countering an expired offer, when they have an acceptable and valid offer on the table? (agent’s answer is because she has worked long and hard and deserves…anytime the agent’s answer includes the agent in the picture…wrong answer – wrong thinking.)

If you are trying to force the seller’s hand by giving him a short wick, and putting a response time that is less than acceptable, you have to revise your offer and extend that date the second your response time passes. You have to keep your offer “in play”. By trying to force the seller’s hand…you can put yourself out of the game altogether, if you do not keep your dates running forward by submitting a new response time.

Buyers often think that the seller MUST respond, MUST counter. Not the case. No answer IS an answer. If you have no answer by the time your offer time expires…you have your answer. The answer is NO…try again.

When I was a teenager, my parents often didn’t want me to go to parties. So when I asked to go to a party, I didn’t demand an answer on the spot. I made my case for why I thought they should say yes, and then I left the room to give them time to talk it over and think about it. The fast answer was often no…I went to lots of parties 🙂

When you give the seller what he wants, you can try to demand a quick response. When you want the house for less than acceptable terms, you have to be willing to hang back, and you have to be willing to lose it, if the seller doesn’t meet your terms. You can’t bang your fist on the table and demand that you get the house for less. Presenting an unacceptable offer, and demanding a quick response, is like a kid throwing a tantrum…rarely works out for the best. And almost never works out for the best, when you know there are other interested buyers.

Time to get into 1st backup position.

Back to Basics

[photopress:BubbleBurst.jpg,thumb,alignright]Yes, you can prevent the bubble from bursting. Yes, you can prevent home prices from tumbling. The market takes a hit when sellers refuse to see the handwriting on the wall, and are too arrogant and complacent to compensate for market weaknesses.

The Seattle area is almost entirely unigue in its ability to sustain home values. But gone are the days when you can ignore the homes’ weaknesses. Gone are the days when you can put anything on market, in any crappy condition, and have people pouncing on it, regardless of look and smell and overall condition.

You can still get a better price than the comps. But you have to pay very close attention to showing your “product” in its best possible light. You can’t waste your Grand Opening by saying, I’ll lower the price IF it doesn’t sell. You can’t say “I’ll make it look better IF someone doesn’t buy it”. “You never get a second chance to make a first impression, was never truer than it is right now.”

Do not let anyone in your house until it is absolutely READY! Do not hit that button that sends you LIVE into the MLS, while you are still getting the house ready for market. Don’t push your price over the comps, unless you know you are at least as good or better than those comps.

The market tumbles when people are lazy and greedy. When they want to price it higher than any property that has ever sold before, and want to do nothing to make it look its best.

This is one of those “Forewarned is Forearmed” messages, because I am seeing things sitting on market because sellers are digging in their heels and saying I want more money and I want to do nothing to get that more money. Nothing will send the market tumbling faster that a lot of signs out there on stale listing.

If you have had your property on market for more than 45 days and it is not sold…wake up and smell the coffee and make some changes, before the volume of properties not selling sends the market into a tumble. Be reasonable, and make changes as needed. If the market tells you “We’re not buying it” in 30 to 45 days…do something about it. Don’t say “I’m not in a hurry to sell”. You don’t have to be “in a hurry” to notice that no one is making an offer, because your house is not in tip top shape, and so won’t sell at this price.

Don’t just lower the price until it sells. Take it off market, get it looking its best, and then bring it back. When you don’t make your house look its best, you drive down prices, and that hurts your neighbors. Be a good neighbor and sell your house at top dollar by doing anything and everything you can to make it show in its best light.

Agents and Consumers – A Perplexing Business Model

Seems to me that misinformation fuels many of the conversations regarding relationships between agents and consumers in today’s real estate marketplace. So let’s take a crack at one of Craig’s comments in #48 of Dustin’s post.

“If the mls were “open” – i.e. anyone could list – then agents will have an even harder time justifying the 3%/3% commission.”

Last I looked, every option known to man was available to sellers, with very few “having to pay” 3% to their listing agent, at least in the Seattle area. Many if not most agents do not charge 3% on the listing side, if the seller buys their next home from the same agent. There are many flat fee options available for limited service. High end often pays 1% for full service, especially on new construction homes. 2% is fast becoming the norm for the average Joe. 3% is more typical in the lowest of price ranges where 3% doesn’t amount to much and is a bargain for full service on a $120,000 condo. I have to wonder why people keep pretending that sellers by and large pay 3% to the listing agent? As this figure is not published, there must be some “hidden agenda” to the purveying of misinformation, I think.

As to why sellers offer 3% to convince more and many agents to come and show their home, I guess because it must make sense for them to do that, or they wouldn’t be doing it. That doesn’t mean the Buyer’s Agent GETS 3%, that only means that there is an allowance in the List Price, up to that amount, as far as the SELLER is concerned. Then it is up to the buyer and his agent to determine the actual fee, as they negotiate it within the target amount set by the seller.

Clearly all commissions are negotiable and always have been. Anyone who believes an agent, or attorney in this case, who pretends otherwise is mistaken. All commissions are and always have been negotiable. You just have to understand the structure, and the reasons for it, to maneuver within the system to your best advantage. If you don’t understand the system in place, you leave yourself open for someone to take advantage of your lack of knowledge, by exploiting that weakness. Know that you can, for sure, and in fact, negotiate any fee you want AND participate in the mls system in place while doing so. This is true for both buyers and for sellers, as long as the seller negotiates his side, and the buyer negotiates the other side. There is absolutely nothing in the system, as it exists, that prevents you from negotiating commissions, other than the misinformation which is keeping you from understanding the system.

As to using an attorney instead of an agent in a real estate transaction, it’s apples and oranges. No attorney purports to do, or even tries to do, what an agent does in a transaction. A great attorney is no replacement for a good agent in a real estate transaction. A monkey is a sufficient replacement to both, if they are not good, and monkeys may be more pleasant to deal with 🙂

“Man in the Bushes” Listing

[photopress:man_in_the_bushes.jpg,thumb,alignright]This article is in response to a reader’s request yesterday, that I describe what a “man in the bushes” listing means.

Over the years, I have used the term “man in the bushes” most often in response to the question, “Can I sell my home myself as a For Sale by Owner”. If they are ready, willing and able to do that, I tell them to try it for up to 30 days, even two weeks, to see if they have a “man in the bushes”. I once sold a home with 23 men in the bushes.

A “Man in the Bushes” property is usually a unique home that has something that no other house has, and is also one people have suspected may at some time be sold. In this case a stand out corner property in Mount Baker built at or before the turn of the last century in the late 1800’s with some Lake view. It also has an owner who for some reason, actually many reasons, never got around to moving into it. So it has been vacant on and off for some forty years.

There’s usually someone, or several someones, who drive by it on a regular basis (in this case visiting his brother who lives nearby) who has said to himself a skazillion times, “If that house ever goes up for sale, I’d like to have it”. Of course they don’t know for sure until it does go on market and they go in it. But they are already 70% sure they want it. That’s a “man in the bushes”. Not just someone who is the first one to view it when it is listed, but someone who has been waiting for that opportunity to arise for a long time.

A seller can either try a FSBO on that, or get a deeply discounted rate if the “man in the bushes” comes forward very quickly. Another option is to list it in the mls and “exclude” the man in the bushes from the listing with a timeframe. “If Mr. X arrives and makes an offer on the property within 7 days, the listing is null and void”. To do it that way, you need to know who Mr. X is in advance and put him in the contract by name.

Sometimes the Man in the Bushes is a relative who has indicated an interest in buying it over the years, but may be “all talk” and “no ability to do so”. You give them 7 days to “put up or shut up”. This way the family doesn’t have to hear for the rest of their lives that this guy would have bought it, but no one gave him the opportunity to do so. There should never be a fee connected, other than maybe a handling fee, for people to sell their home to a relative. So if you think you have a “Man in the Bushes” in your family, give them 7 – 10 days to at least put that interest on paper, with no or little fee paid if a family member buys the property in the early part of the listing.

Marketing my Home on the Internet

While my opinion that a good real estate blogger does not include their listings on their blog is well documented and much debated, there is always room for an exception… and marketing my OWN home is one of those!

[photopress:kids_at_easter.JPG,thumb,alignright]Essentially, we have about two weeks left before we put it on the market. We’re just waiting for the movers to take our stuff and then, after we refinish the wooden floors on the main floor, we’ll be ready to list!

So, here are the internet marketing items I have on my checklist (of course, we’ll do some off-line stuff like putting together fliers, but I’m more interested in exploring the online stuff!)

  • Add Our Home to the Free Directories. Craigslist and Google Base come to mind. Are there others I should consider?
  • Blog About Our Neighbors. I know that there is very limited things that a real estate agent can say about the family-friendly nature of a neighborhood, but not having a license gives me the freedom to talk in great detail about are wonderful neighbors. Things I’d like to mention are all the kids that live nearby (8 kids within a few houses!), our regular Sunday BBQs during the summer and our weekly game nights during the Winter. (And I’m sure the neighbors would love it if the new owners continued our tradition of hosting the annual neighborhood easter egg hunt!!!). When moving to a new home, one of the biggest mysteries is what are the neighbors going to be like and because the people on our street are so cool, I’d like to put together an extensive neighborhood blog post! (Honestly, the hardest part of accepting a position in LA was leaving the neighborhood!)
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  • Financing Options. Interestingly, I’m in a place where I could offer the “right” people some innovative financing options… Like a lease-to-own, or something similar (as long as it is a win-win for both parties, I’m game for any idea!). Does something like this normally happen through the usual MLS channels or is there a special market for these types of properties? (Hint: if you contact me before we list, we might even be able to cut out some obvious fees.)
  • Blog About Our House. I promise not to overdo this, but I think one blog post about all the cool features of our home that might be too “personal” for the typical MLS listing would be appropriate on Rain City Guide. I’m thinking of things like the tree house I built in the backyard and the original art deco fixtures… I’d also like to add a map of all the recently sold homes (or maybe I’ll be lazy and just link to the appropriate ShackPrices page!)
  • Unique Icon. Robbie says he’ll give our home a unique icon on the maps of listed properties… Any ideas for what the icon should look like?
  • Enhance listing on Around Move, people are shocked at how often real estate agents pay to get showcase listings and then don’t spruce up their listings by adding additional photos and other extras. Considering that Anna’s broker already pays for this service, I’ll make sure we spruce up our home!
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  • Get on the Redfin Blog. If I provide a direct link from my blog to my listing on Redfin (and beg people to click on the link!) maybe I can blow out their single home stats for a day and thereby get a mention in their blog!!! (hmmm…. Is there a way to get on the Zillowblog?)
  • Newspaper Coverage? Is someone at the Seattle Times, Seattle PI, Seattle Magazine and/or any other local newspaper interested in writing a story about preparing and then selling a 1920’s Crown Hill (N. Ballard) home? We’ve got lots of great photos and I could probably write most of the story for you! 🙂
    (This reminds me… I did an interview for a real estate technology story that was suppose to be in the May issue of the Seattle Magazine. I never saw or heard anything about that story… Did this story ever go live? )
  • Picture Cloud. These guys just sent me a link for a free photo cloud. Interesting technology and easy enough to put together, so I think I’ll try them out with our home. (By the way, their branded option is free, but if you type the code “raincity”, they they will give you credit for five unbranded clouds for a penny.) If you try them out before I post my cloud, let me know what you think!

Any other ideas as I prepare the marketing plan for our home? Has anyone ever had any luck marketing a home on the internet? What did you do?

Negotiating the Offer Part 2 – The “Contingent” Seller

[photopress:startinggate.jpg,thumb,alignright]The “Contingent” seller knows exactly where he is going if and when his house sells. He is stuck at the starting gate until he gets an acceptable offer on his home. Every day he faces the possibility that someone else will come along and snatch his new home from him; someone who can make an offer without a home sale contingency.

Contingent offers have a limited time frame, and can potentially leave a seller at the starting gate, if his home is not sold within that timeframe.

Presenting an offer from a buyer to a “contingent” seller is one of my favorite scenarios. It is one of the few true win-win set ups. The seller is more focused on being able to get out of the starting gate and to the finish line. He’s chomping at the bit for the race to start and is genuinely happy to have received an offer on his home. The buyer usually doesn’t have to leap over as many hurdles, to get his offer accepted with a fair price and fair terms.

One of the tell-tale signs that you are dealing with a contingent seller is that the seller’s agent is from far away. When you see a Seattle condo listed by a Lynnwood agent, you get the hint that maybe this seller is buying new construction in Lynnwood. When you see an agent whose inventory generally consists of $700,000 homes in Lakemont, list a home in Kenmore for $450,000, you get the idea that maybe this seller has a contingent offer on a house in Lakemont.

Often buyers make the mistake of looking the seller right in the eye and asking “Why are you moving?”, the normal reaction being a look on their face that resembles that of a deer in headlights. As with all fact finding endeavors in the residential real estate market, it is better to surmise and test, than to point blank ask. When I suspect that I am dealing with a “contingent” seller, I call the agent and say I MAY be writing an offer and would like to know if the seller needs a specific closing date. Most often the seller’s agent will respond that the seller needs “closing plus 3”, so that the funds from his sale can get to his next transaction, and so the seller doesn’t have to move his things out of his house until that next transaction closes. This way I can quickly find out that there is a next transaction identified and that the seller cannot close unless he sells this house.

“Closing plus 3” is often identified in the mls, but it is by no means a sure sign that the seller is in a contingent contract. Closing plus 3 is used in divorce situations and almost any scenario where the seller is going to a rental, so you can’t rely on that fact alone to determine seller motivation.

Negotiating price and terms is generally a piece of cake when dealing with the “contingent” seller. The sticky point in negotiations with a contingent seller often becomes the washer, dryer and refrigerator, if they did not negotiate to receive those in their contingent sale contract, minor detail. When preparing and negotiating offers with “contingent” sellers, we are more likely to be looking over our shoulders for another buyer, than to be worrying about reaching a fair agreement with the seller.

Anytime you take too long getting from offer stage to signed around, you leave the door open for another buyer to swoop in and stop your negotiations in their tracks. Move forward with smarts and speed and wrap it up when the issues in dispute become minor and not worth losing the house over.

Negotiating The Offer Part 1 – The “Homeless” Seller

[photopress:250px_Tug_of_war.jpg,thumb,alignright]It is a popular perception that every seller wants top dollar as their primary objective.  In my experience that is not always true, and in fact is often not true at all, at the time the offer is being presented.  Let’s take a step back first to see where the perception comes from. 

When a seller is speaking with agents before the home goes on market, it is true that the discussion focuses on selling the property at the highest price, in the shortest amount of time and with as little inconvenience to those occupying the home, as possible.  Agents are trained to speak in these terms, and so that is how the discussion generally goes.

At the time the offer is presented however, if there is a lengthy discussion, that discussion is often not about the price at all.  Even when the discussion is about price, the underlying pressure on the price is often about something else entirely, like the cost of temporary housing for the seller.

For many sellers, the minute they accept an offer on their home, they are immediately, though temporarily, homeless.  I can’t tell you how many times a seller has looked up at me after signing the offer and said, “I guess I’m homeless now”.

Often when a seller is picking on every minutae detail of the offer, it is because they do not know where they are going.  This is a dangerous situation for a buyer, as the seller often wants them to “make it worth their while” to leave.  You might think it was obvious to them when they listed their home for sale, that they would have to leave.  Trust me, the reality in that moment when they pick up the pen to sign your offer, that the minute they sign it they will behomeless”, hits them like a ton of bricks IF they do not know where they are going.

Any good negotiatior considers the factors on the other side of the table when preparing the offer, or during the give and take of the negotiation process as new information becomes available. While 30 day escrows have become the norm, does that really give a seller the time they need to find their next home?  Often the seller can’t make an offer on their next home until their home is sold, or at least in escrow. If you are willing to give them the time they need to know where they are going, and match up the closing dates so they don’t have to go to temporary housing, you often will win out on price.

If you are currently renting, adding an extra couple of weeks or more to the escrow time can actually save you money.  Go out to the date where you will not be paying rent and interest on your mortgage simultaneously.  Giving the seller time to negotiate the offer on his next home can be a winning strategy in multiple offer situations and even get you the house you want at a lesser price than other offers on the table.  Consider a longer close or a post occupancy agreement when writing your offer. (Some lenders will not permit a post occupancy to exceed 30 days on “owner occupied” financing, so check with your lender before agreeing to anything longer than 30 days past close of escrow, even if longer is only by a couple of days.)

Giving the seller the peace of mind that they can stay in their current home until they are moving into their new home is generally worth up to at least $5,000 in price and sometimes as much as $10,000.  If the seller has two offers on the table, one with an escalator up to $460,000 and one at $450,000 straight up with no escalator, they often will accept or counter the lower offer, if it provides them with the ability to find their next home before having to leave the house.  Sometimes something as simple as letting the seller keep some things in the garage for a week or two can make the difference.  Sometimes giving them the entire weekend to move can make the difference.  Sometimes splitting the weekend, giving them all day Saturday to move out and leaving you all day Sunday to move in is sufficient.  Often these little things prevent the seller from pulling extra had on the price to compensate for his uneasiness and inconvenience.

The perception that the highest price on the table always wins out, is erroneous.  A seller who faces being “homeless”, will often select the offer that affords him the option to stay until he closes and can move his belongings into his new home, even if that offer is not the highest price on the table.

Should you have an Open House?

I just sold another house from an Open House this weekend, and am reminded of all of the articles about how Open Houses do not sell houses. Sometimes I think the articles are sponsored by agents who don’t want to spend their Sundays working 🙂

I have changed a few things that I do based on technological advances, like pricing the home straight on $350,000 for double hits, instead of $349,899 to be first to show in the mls book. But listing and selling houses via Open Houses has always been “my thing”. I have provided some online training on the subject to agents around the Country, and still there are some agents who can honestly say that they have never sold a house from an Open House. It just boggles my mind.

I have always spent a great deal of time helping the seller get the house ready for weeks beforehand, before it goes on market. Then I usually do open houses the first two weeks back to back. This weekend I listed a property, that I had already spent many hours staging,and put “No showings until the Sat. Open House and Open Sat. and Sun. 1-4 p.m.” in the mls remarks. This is less wear and tear on the seller and creates a new listing that opens up with a BANG! Lots of energy! Agents showing and people coming all at the same time. I have 6 Open house signs and those big flags that new construction people use. It’s like a big party! Sometimes I even cook Italian food and play Connie Francis and Mario Lanza…and of course FRANK! But that’s usually for Broker’s Opens. I even had agents dancing once…that’s an accomplishment 🙂

Anyway, back to this weekend. I had an offer by the time the Open House was over and another from an agent who was begging me to wait for her as she rushed back two hours from wherever she was to write it for the buyers who came without her to the Open House. Turned out I didn’t have to do the Open House on Sunday, as it was all tied up by noon on Sunday.

Of course an agent who sits in the living room watching the ball game or playing with his laptop looking bored to tears may never sell a house at an Open House. But if you love doing them, there are plenty of ways to turn an Open House into a SOLD House! I hate to admit it, but I did get a call from my friend Reidi in Florida when she saw American Beauty. When Annete Bening got to the Open House hours early in her work clothes scrubbing it down saying “I am GOING to sell THIS HOUSE TODAY!!, Reidi called me and said “Ardell, they made a movie with YOU in it! LOL I’m not quite that bad…but close.