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Thinking Ahead–I will not permit any kind of utility “shut-offs” on my watch as BUYER’s Attorney, if I can Possibly Avoid Them

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Recently, I wrote a post about the problems I encountered when a client of mine had serious closing problems because, by mistake, the dwelling in question had its electricity shut down, pipes froze and there was ensuing damage. Fortunately, for all concerned I had a financially viable SELLER who was motivated. Substantially all of the repairs have been completed in three (3) days and we are closing on the purchase today.

My client will be buying a dwelling, with three brand new radiators, a bunch of state of the art piping, newly, freshly painted drywall and, generally, an upgrade in condition from the “condition the premise are at the date of the home inspection, reasonable wear and tear excepted” In a word, my client has “lucked out”. They are good people who did not deserve all this last minute anguish so “good things happened to good people”.

The comments I received form the ActiveRain community on this situation were thoughtful, and I got to thinking how ironic it is that in Massachusetts, where I practice real estate law, and which is known for frigid winters, there is no real estate association or real estate bar association standard clause in the purchase and sale Agreement dealing with this type of situation.

Henceforth, that will changes, at least for me. In my BUYER representation contracts, I intend to include the following:

“The SELLER agrees to maintain the premises from the date of this Agreement until the time that the BUYER receives the Deed and keys to the dwelling in substantially the same conditions as exist on the date of this Agreement. This not only includes maintaining the lawn and shrubbery in the usual manner, but insuring that all utilities leading to the premises are kept operational and not “shut off” under any circumstances. The parties agree that the financial and other damages to be suffered by the BUYER as a result of SELLER’s breach of this covenant will be difficult to ascertain, so in addition to the SELLER’s agreeing to bear the full expense of repair should the SELLER violate this covenant, the SELLER also agrees to pay the expenses, if any, for the BUYER to extend BUYER’s financing commitment and a “Break-up” fee of One (1%) of the Purchase Price set forth elsewhere in this Agreement”

I do not expect many SELLERS to agree to this. It would probably only happen if they, or their attorney, did not read my comments. On the other hand, I have told the SELLER, in advance that “shut-offs” are serious and not acceptable. Since I write posts frequently, I will inform you of my success here. Again, your comments were very helpful, and I would appreciate more, if you can find the time.

Acts of God Between the Signing of A Purchase and Sale Agreement and the Closing–The Buyer Really Doesn’t have a Lot of Remedies

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It happened last evening in a bedroom community north of Boston. The tenant who had rented the home my clients are purchasing had vacated the dwelling on January 31, 2010 and informed all affected utilities,including the electric company. For reason still unknown, the electric company immediately shut off the electricity. The pipes froze, and there is rather severe damage to the interior of the dwelling including a flooded basement.

The closing was scheduled for this afternoon.  It has been postponed until Thursday afternoon. The Lender’s rate commitment runs out on Friday. The more the parties look at the damage, the more certain we all are that the repairs and replacements will not be done for at least a week. My clients, the Buyers, have requested an extension of their mortgage interest rate. They are likely to receive same, but at a cost.

I protected my client from this eventuality in the purchase and sale agreement by saying that if for any reason, the Seller was not able to deliver the premises in substantially the same condition as they were in at the time of signing the purchase and sale agreement on the agreed upon closing date, and my client could not extend their interest rate at no charge, we could terminate the deal and receive our deposit back. This is not what my client wants to do. They want the house, and they are willing to pay for a thirty day extension. I had asked, in the course of the negotiations, for the Seller to agree to pay for this extension, but that request was not agreed to.

In any event, we are now at that miserable state of affairs where in the middle of winter, the house which my clients have dreamed of owning has “clay feet” What is worse, with the exception of withdrawing from the purchase, there are no real remedies under Massachusetts law which protect my Buyer.

The event was not the fault of the Seller, at least it would be hard to attribute NStar’s negligence to the Seller in a court of law. Realistically, the Seller is suffering here as well, as the Seller struggles to assess the damage and fix what went wrong, all , at least initially, out of their pockets.

When the dmage is substantially rectified, and we close, I am anticipating requesting the following from the  Seller in connection with the home purchase:

     1. An assignment of insurance claims which the Seller may have with respect to the damage to the extent that same have not been paid to the Seller by the time of the closing date, as well as an affirmative covenant to assist my client with any subsequent claims.

     2. An assignment of any claims against NStar, if any, for shutting down the electricity without consent of the Owner and without contemplating the effect of such an action.

I would be very interested in hearing from any of you, either lawyers or other real estate professionals about any other ways I can protect my clients in this unfortunate situation. Perhaps, there is something obvious which I am missing.

Protection of Your Investment, Easy Allocation of Contributions of Partners–It is extremely hard to beat the “Limited Liability Company”

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Anyone who owns a business venture should be concerned with certain basic truths.  It is a sad but true fact that our society is becoming more and more litigious every day, and more and more small business owners are finding themselves on the wrong side of law suits.  Right or wrong, the experience of defending a legal action is extremely stressful inflatable horse.

I have acted as a Massachusetts real estate attorney for more than 40 years. During that period, I have never had a client who “enjoyed” being sued and experiencing the expense and disruption of a lawsuit.  It makes sense to put a legal shield between yourself and the creditors of your business, whether real or contingent.  The  Limited Liability Company (“LLC”) is an entity completely separate from its members.

With proper planning, none of the members of the LLC should be personally liable for the debts of the LLC whether they arise in contract or tort. The LLC also offers some unique advantages for unmarried coupleswho own real estate together. This has been a subject of a recent post in which ActiveRain member showed much interest

The operating agreement of the LLC can be tailored to determine an “exit strategy” should the couple break up.  More importantly, the operating agreement can be fashioned in such a way as to recognize disparate contributions of equity or disparate payments on the mortgage, so there can be no problems sorting our who owns what and who is entitled to what tax deduction.  In many instances, the LLC can replace the use of joint tenancy agreements and tenancy in common agreements, which are often cumbersome and difficulty to administer and enforce.

Do you need to raise money for a real estate or venture capital project?  The LLC is a perfect vehicle.  Admitting new members is a simple process, and there are no limits to the number and/or character of additional investors.  They can include all types of individuals, corporations, trusts, pension plans, foreign investors (both out of Massachusetts and out of the country).  This is certainly not the case with the corporate structure that most closely rivals the LLC, the subchapter S corporation.

So, if your real estate transaction involves any group of people other than a married couple, I would strongly suggest an LLC. The planning, and protective, possibilities are endless, and the actuak working of the LLC easy to master. In the near future, my website, www.topkinsandbevans.com will contain examples  of many different types of Operating Agreements. I am sure you will find one among that group which can be adapted to fit your unique needs.

What Does It Cost?

The cost to set up and maintain an LLC are roughly comparable to setting up a corporation, (figure between $1,500 and $2,000 including filing fee and drafting of the articles of organization and operating agreement).  After the initial cost, however, the ongoing costs are minimal.  There is no need to hold an annual meeting of shareholders or directors.  The person designated as “manager” in the articles of organization can take actions on behalf of the entity without the approval of directors.  Moreover, in a single member LLC,  we at Topkins & Bevans have determined that there is no need for an operating agreement, so that the initial cost in that scenario is lower.

FSBO’s–They are Increasing in Number; They Have their share of “Holes”; It Would be a mistake to view them as the “Enemy”

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In the past three weeks, I have been actively involved in three FSBO’s. As a Massachusetts real estate attorney, I am often the “default resource” for people who do not want to pay a broker’s fee for the sale of their home. Whether this is an accurate conclusion on their part or not, they no not see the “value added” of a 3 or 4 or 5 percent charge to sell their home. They can rely on Craig’s List; they can relay on word of mouth; they can rely on the Internet:

I thought it might be worthwhile to describe the three situations in some detail. They may give our ActiveRain Naton some insight into FSBO’s and the fact that a constricted economy has caused many more people to use them:

     1. The Luxury Home in the Suburbs. My client is an extremely successful person in the financial area. His home is in pristine condition. He has an opportunity to relocate to the Western state where he grew up. He got the word out through the network in which he operates that his home was available, A similarly situated young couple had recently signed a purchase and sale agreement to sell their home. They have the money and the credit score. I have worked many times with their attorney on other deals. There were a few title issues. The other attorney and I worked things out. Last night I picked up the signed purchase and sale agreements at my client’s home. I will be holding the deposit for a closing in late March. This is a done deal, with very little likelihood of not taking place. I find it hard to see how a Realtor could have filled many of the holes here. My fee will be be more than usual, but certainly not in the middle five figures. This transaction would appear to have presented an efficiency that cannot be questioned. ActiveRain Nation may question this statement. I would be interested in hearing your comments.

     2. The Home in the Suburbs which has some “issues”.This matter came to me at a time when the Seller had received an “Offer” from a couple who had seen the FSBO Listing on Craig’s List. The Offer was a “low-ball” and there was no pre-approval letter attached. The Seller is in the “in-between” stages; he may be losing his job, and he would rather take a defensive stage and sell his home now. I prepared a counter Offer which provided some of the protections an Offer should contain, especially for a Seller. The putative Buyer declined to respond. He was a “tire kicker” from the get-go. My client has wasted money  , and is no further along. Sooner rather than later, I am going to suggest that the client list this home with a Realtor. It is my feeling that this will be easier to do now that he has seen how expensive and wasteful of time and money FSBO’s can be. I do not believe I could have told him this; he had to experience it.

    3. The Condo in the Back Bay that my Seller has not really even decided whether he wants to sell or not. This is a different kind of FSBO. It is kind of “I will run it up the flagpole and see if anyone salutes.” The Unit has charm and the asking price is only a little over market. My sense is that in this economy the Seller will not get much traffic. I prepared an Offer for them to use if one of their open houses produces a Buyer. I am not holding my breath. I am not getting any of my broker friends involved just yet. This Seller is a reverse “tire kicker”, and it is my belief that having a Realtor involved at this stage would not be productive.

So, there is a waterfront of three (3) FSBO’s, each offering different situations. Our industry should be considering how we can offer”value added” to FSBO Sellers. They are a rapidly increasing population, and just calling the Sellers who are listing property without a realtor  may not be the ultimate solution.

Let the other side win a few points–You will be amazed how well transactions move along when both sides feel good about the deal

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I went to a good law school where I was challenged every day to develop new and innovative ideas. In effect, I was told that what I did needed to be special, because I was “so well trained”. Over forty years into a career as a Massachusetts real estate attorney have demonstrated to me that the wisdom of this approach is fleeting. I am much better off being thorough and competent, rather than being the “best and brightest” who always gets the better of the deal.

What I am trying to say is that a real estate transaction is like trying to catch a fish. Until the fish is in the boat,no one wins, not the fisherman; not the person steering the boat; not the people waiting on shore for their seafood dinner. In real estate, you really have nothing until you have a signed purchase agreement at a reasonable price with a deposit. Oh sure, you can hold out for a better price and show how tough you are, but the danger is that you obtained such a good price, there was no way the property appraisal would match the purchase price, so you are back to square one.

It has been my experience that real estate transaction come in waves. There is the initial negotiation which leads to a sales agreement. Each side wants an agreement that demonstrates that they did not “get taken”. As we approach the closing, ancillary issues come up. Can we move the closing date slightly? Would you be interesting in including the refrigerator? Can we close at my attorney’s office because it is “kid friendly” and I have three young children.

If the initial negotiation went smoothly, and the parties more or less got along (through their representatives), the rest of the transaction will usually continue to be amicable. The purchase will close, and that is how all of us will get paid. You will be surprised how many “yes” answers you will get when the initial dealings went well.

I tell all of my clients I do not want the phrase “He wrote the perfect purchase and sale agreement” on my headstone. I would rather be known as a person who was a “deal-maker”, who knew his craft and practiced it in such a way that people were comfortable using him. I am sure each of you feel the same way as approach Ground Hog Day and yearn for the joys of the spring market.

Appearing Before Local Zoning or Planning Boards–Use the Local Luiminary to Help You “Sail Through the Process”

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There are some important things I have learned about appearances before local Planning Boards or Zoning Boards. Have someone really “local” leading your team. I am a Massachusetts practicing real estate attorney with more than 40 years of experience. From time to time, I am asked to represent clients before local Boards. I can make myself familiar with the terms of the local ordinances. I can speak to people I know in the community involved to find out what the appetite is in that community for the type of development or zoning change my client is seeking. I have some public speaking ability.

All of that being said, I never, ever appear before a local Board without retaining an attorney or attorneys who live in the town or city in question, or have a considerable amount of experience obtaining successful decisions in that arena. I have experienced too many “knowing looks” from  Board members in the past, when I tell them where I am from. It just doesn’t get me much mileage when I appear in Town X, in Y County and inform the Board members that I practice in Boston.

Have your  primary attorney find out who it is who gets  positive decisions in the town or city you are working in. Contact that person. In Massachusetts. I have complied a list of “go-to” people in many communities. I will gladly furnish my knowledge to any of you if you contact me.

You may want to keep your primary attorney somehow involved for iinformation and communication purposes, only. Your primary attorney should stay “way” in the background.  Allow the local luminary to have center stage.

If there ever is a time when “LOCAL” means something, it is before municipal Boards, who have the power to either make or break your intended transaction(s). Make sure your appearance before these bodies acknowledges that fact, and your chances of success are exponentially increased.

Saving Deals and Saving Time–Use and Occupancy Agreements Are “All-Purpose Solutions”

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In Massachusetts, where I practice real estate law, lenders and developers often do not live up to their promises. That Unit which, for sure, is going to be ready by the end of the month, still has requires major finish work. “On my God, your loan got stuck in underwriting, and even though we issued a commitment and knew that you needed to close by January 29th, we just are not ready.” How many times have we all heard this and cringed, because our clients have no place to live and a truckload of furniture and furnishings are driving around somewhere in a moving van or storage facility, accruing daily charges at an alarming pace?

The solution to these, and many other problems, can be a well-drafted Use and Occupancy (“U and O”) Agreement. There are some caveats here:

     1. You cannot utilize a Use and Occupancy Agreement if an occupancy permit for the dwelling has not issued. Living in a dwelling under with a C of O poses insurance, and even legal risks.

 

    2. A Seller should NOT enter into a U and O if there is any real doubt that the delay with the lender is ministerial and not substantive. In other words, even though a U and O states that it is only a license to inhabit, and not a Lease, if the Buyer’s mortgage loan does not come through, the Seller may have to evict the Buyer from the dwelling, notwithstanding the language in the U and O.

    3. Make sure the title to the premises is clear. I have had clients enter into longer-term U and O agreements, and then run into title problems when they were ready to close on the purchase.

    4. Do a Walk-through of the dwelling before the Buyer takes occupancy. Normally, this walk-through will be the final inspection called for in the Purchase and Sale Agreement. Therefore, this will be the time to note, and deal with, conditions in the dwelling which do not comply with the terms of the Purchase and Sale Agreement.

Assuming all of the hurdles set forth above are not problems, I often draft U and O Agreements, which permit occupancy prior to closing. Among other things, these are the items which must be considered and included in a well drafted U and O Agreement:

     1 Financial Terms.  Normally the U and O licensee pays the principal, interest, tax and insurance for the dwelling. The Seller should be able to present evidence of all these items so there is no confusion.

     2. Term of the U and O. That varies from deal to deal. It is important ,however, to provide for a large payment due from the Buyer should the Buyer “hold-over” after the agreed upon term. For example, if the U and O fee is $100 a day, after the term is over, it increases to $250 a day. This protects a “squatter” situation by the Buyer.

     3. Escrow Held by an Attorney. This needs to be substantial (at least $2,500) to protect the Seller from a “holding-over” Buyer or physical damage done by a Buyer who does not close.

     4. Other Terms. Payment of utilities is usually a Buyer requirement. Other items like condominium common area charges are similarly treated. It is important to set forth what standard of cleanliness is required at the termination of the U and O, if a sale is not completed.

At Topkins & Bevans, we do Use and Occupancy Agreements on a regular basis. We will soon  be including some standard types of Use and Occupancy Agreements on our website, www.topkinsandbevans.com. Those of you who are in the business of buying and selling real estate should know about Use and Occupancy Agreements. They may be the “secret weapon” you can use to hold a wobbly deal together.

Dealing with Home Inspection Results–Health, Safety and that old Stand-by “Bargaining Power”

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In Massachusetts, we have a rather archaic practice regarding agreements for the purchase and sale of real estate. There is an Offer to Purchase (usually signed by both parties without the benefit of counsel). After the Offer is signed, there is an hiatus where the Buyer causes a home inspection to be conducted. A well-written Offer will give the Buyer a complete “out” if the Buyer finds something that is seriously wrong with the dwelling.

The difficult issues come up when small issues arise, and the Buyer often sees these as an opportunity to “renegotiate” the deal. The Buyer’s risk after the Offer is signed is minimal. He or she could possibly lose the $500 or $1,000 which they put down as a “good faith binder” when they submitted the Offer. The Buyer has much more risk after the Purchase and Sale Agreement (more terms, almost always with the assistance of counsel, and a substantial deposit) is signed.

Whichever side I am representing in terms of turning an Offer into a Purchase and Sale Agreement, these are the rules, I try to live by with home inspection issues:

     1. Unless we are speaking about new construction, and Seller’s warranties, the Buyer is purchasing a “used house”. That means that the paint may be chipped, the electrical and plumbing systems not the most modern, the boiler not as efficient as the brand new ones. The Buyer needs to understand this set of facts and accept them.

     2. Health and safety issues are a different story.If the electrical system contains unsafe wiring, or there is a hole in the foundation, these items needs to be addressed. I normally opt for a “credit at closing” over having the Seller do the repairs. Somehow, I cannot see the Seller putting his or her heart and soul into a repair or re-installation which is only done to permit the sale of the dwelling. To me, the Buyer is the proper person to effect this work, because of his or her entirely different perspective on the project.

     3. Nothing I have said in Paragraphs 1 or 2 applies if one of the parties has disparate bargaining power. A home which has been on the market for 249 days is a lot different from one that was listed last week. If you have a motivated Seller, there is nothing wrong with exacting some financial or repair concessions based on your situation. Similarly, if the home you have dreamed of just gets listed, you may have to swallow some expenses to get the deal done.

My experience has been that a savvy Buyer’s Agent will be able to steer the Buyer through this minefield. First and foremost, the Buyer’s Agent should let the Buyer know what would appear to be possible. At that point, taking a reasoned, and unemotional, approach to dealing with home inspection items seems to have worked best for my clients. I have said in other posts that a major contribution of a real estate professional is to attempt to moderate, and channel, the Buyer’s, or Sellers’, angst. There is no better example of this talent than in the area of dealing with home inspection items, which never fail to arise.