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Desperate Times Call for Desperate Measures–Some “Amplifications” in Your Purchase Agreements which can Save Your Deals

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Massachusetts, where I practice real estate law, is not experiencing the suffering as hard as other areas of the country. Perhaps, that can be put a little differently. Massachusetts was one of the first states to get hit by the real estate slowdown. Because of that fact, we may be ahead of some other states in recovering.

The real estate market is still not booming in Massachusetts. There are sales in certain pockets. It is becoming painfully clear that Lenders in Massachusetts are as slow, or slower, than other jurisdictions, appraisals are coming in “all over the place”, and people continue to lose their jobs. With that in mind, I have adapted my purchase and sale agreements, when I am representing the Buyer, as follows:

     1. Closing Date. Massachusetts remains a “time is of the essence state”. The dates in the contract mean something, at least that is what the reported cases say. I put in a provision in my agreement that says, flatly, “The Closing Date may be extended for a period not to exceed 14 calendar days, if, for any reason, Buyer’s Lender is not prepared to close on the Closing Date”. No real need for explanation here. The Lenders are deadly slow in processing, even on purchases. I cannot afford to have some nervous Seller pull the plug on my client if the Lender does not deliver documents and money.

     2. Mortgage Contingency Subject to Appraisal at the Purchase Price. This is becoming more and more important as appraisals, generally delivered the day before the mortgage contingency date, cannot be predicted as to value. I generally will permit the deal to go forward, if the Seller agrees to adjust the purchase price to the amount of the appraisal received by the Lender. This keeps things moving, and many times times Sellers will agree to this provision, as so modified.

    3. The Buyer’s obligations are Subject the one or both Buyers being employed on the Closing Date. This problem just arose for me when I got a timely commitment from the Lender (wonder of wonders) and my client lost her job between the date of the commitment and the Closing Date. In that situation,cooler heads prevailed, and we worked things out based on the husband’s income. People continue to lose their jobs. When they lose their jobs, they generally lose their mortgage. We need to protect our clients against this not terribly remote problem.

I am sure there are more “recession driven provisions” which you are using. Share them with me and the ActiveRain nation. We are all in this situation together, and there could not be a more important time for us to hang together.

Law Office Confidentiality–Make Sure Your Attorney takes this Seriously

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In Massachusetts, where I practice real estate law, the lawyer is still very much involved in the entire residential real estate process. We draft, and review, real estate offers and purchase and sale agreements, examine the title, prepare the title insurance policy and conduct the real estate closing, many times in one of the three offices (Boston, Braintree and Waltham) which we operate.

Conducting a closing at our office has proven to be extremely convenient for realtors, buyer and sellers in most instances. Massachusetts has started to institute electronic recording for some Registries of Deeds, so we can avoid the chaotic climate that most Registries present by doing our closings “on location”.

There is an old basketball adage, “if you live by the jump shot, you die by the jump shot”. In other words, there are some “confidentiality” risks inherent in office closings, and I thought I would detail some of the steps our firm, Topkins & Bevans, is taking to prevent “leaks” of privileged, and sometimes proprietary, information from falling into the wrong hands. 

    1. All attorneys and staff have been instructed NEVER to mention the names of firm clients so that a visitor to the office would be able to gain this information. This is a ZERO tolerance rule, and we have dismissed one employee who failed to adhere to it.

     2. Without express approval from the supervising attorney, no visitors to our office will be given access to any areas other than the reception area, the conference room and the rest rooms. There are often documents and information lying around offices, and people can glean information not intended, in any way, for them. If entry is permitted for a side conference or negotiation,no visitor will be permitted into the office of any attorney or staff member, unless accompanied by a representative of the firm.

    3. The rule for discussions about client matters described in Paragraph 1 also applies to conversations outside of the office, even with spouses and other family members. As my father used to tell me all the time “I never got in trouble for something I didn’t say” People’s legal affairs are serious, and they should never be the subject of conversation with outsiders.

We consider it a privilege to work with realtors and clients, and we welcome them with open arms into our offices. With that privilege comes responsibility, and we take our ethical responsibilities very seriously. It behooves all people practicing law to go out of their way to make sure that client confidences are never breached. Without this trust, we cannot really provide effective representation.

Tweeting and ADD–I am starting to think there is a connection

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I am new to social networking having started my legal career in Massachusetts in 1968, where a lot of the xerox copies were still “wet” and closing took  hours because the secretary for the Bank’s attorney (a cousin of the President who did every closing) started typing documents only when all parties appeared at the office.

In any event, we have come a long way from that spot, and I have embraced the new system of communication. I have my own blog sire; I write posts on ActiveRain (probably more often than I should, but I like to write). I am on Facebook, Linked-In, and I recently set up Masstitleexpert on Twitter.

Don’t get me wrong. I really do not undersatnd Twitter. I just though I would set up an account and get some “on the job training” by reading the Tweets of others. I am not following thousand of people; thousand of people are not following me.

On the other hand, I am starting to think that the people I am following have nothing else to do in their world than tweet. It is not uncommon for me to get 40 tweets an hour from these people. Some of the tweets are funny or informational. Others are just plain boring.

Am I correct in assuming that Twitter is really a device for adults who have ADD? Can there be any other reason for such a plethora of almost senseless tweets which people send. I would be more than happy to hear responses which say “you are missing the point”. What these people are doing is relevant. Please help me. I would like to know.

Selecting a Real Estate Attorney—Some Advice from the Other Side

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In my over forty years of practicing real estate law in Massachusetts, I have had clients in all sizes and shapes. Many of my clients have been satisfied with my services, others not so much. When I have dissected what went wrong with the clients who were less than enchanted, I found that the old “C” word, communication, led to most of the disappointments on both sides.

With that inmid, I would submit the following set of rules to follow when considering attorneys to assist you in what will, perhaps, be the biggest single investment you will make in your lives.

   1. Ask the prospective attorney the following questions:

       a. Is real estate you primary area of practice? It seems so obvious, but many times you will have counsel who is “learning while you learn”.  This is generally not a good thing.

       b. Will you do this on a fixed fee basis or on an hourly basis? Many seasoned attorneys are not afraid to quote a fixed fee. Others will say “hourly” but will consider a “ceiling” on the amount of the fee. Some will day a fixed fee, with the understanding that if the deal goes way off the tracks, the parties may revisit the fee situation to assure that the attorney is not disadvataged when events really changed in the course of the transaction. In any event, too many people enter into a professional relationship with an attorney with no clear understanding of what the matter will cost, and that can lead to disatsifaction on both sides.

       c. Whatever is agreed upon for fees, enter into a fee agreement with your attorney. This should set forth the amount of your retainer, if any, the hoursly rate if that is the way the transaction is structured and any other important aspects of the attorney’s representation.

       d. Find out in advance if you can expect to be dealing with the attorney you slected most of the time. or if you will be dealing with an Associate or a Paralegal. My firm, Topkins & Bevans, is small, and one of my marketing approaches is “I am the A Team, and there is no B Team”. Other lawyers operate on a different basis. Find out in advance so you will not be frustrated because Mr. X or Ms Y is not returning your calls or emails.

     2. Once you have established the rules wth your attorney, learn to live with them. Attorneys, like any other professionals, cannot manage through exception. Realize that the attorney has other clients, and that sometimes you will have to wait for a response.

     3. Try to listen to the advice your attorney gives you. AsI said abopve, the purchase or sale of real estate is one of the most important things you will do in your financial life. Once you find the right attorney, listen to what he or she has to say. Many of us have been through thousands of transaction, and we know our crsft. Listen to what we tell you; we are on your side.

The Ins and Outs of Easements–A Primer for Non-Lawyers

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Like everyone else’s business, my business as a Massachusetts title lawyer runs in spurts. Lately, i have been involved in three situations concerning Easements. In one situation, a client of mine is buying a guest house while the Seller is retaining the major home. All the systems, however, run through the major home. To make things more complicated, some of the utility lines actually leave the street and pass over the land my client is purchasing. A reciprocal Easement is needed to protect both sides in terms of repair and access. We are working on same as we speak.

The other Easements were retained restrictions imposed a relatively long time ago by a land owner who wanted to protect the environment. Since these Easements were put in place, the Towns where the property is located have become much more vigilant in enforcing local and state conservation laws and codes. The people who put on the restrictions originally now are willing to remove some of the more onerous restrictions.

Because they represent encumbrances of the title, all Easements start with an accurate title report. Until we know who are the current lien holders on the property, we cannot complete the Easement work. In the case of the major home-guest house, the owner of the major home has a mortgage on his property. A Subordination of this mortgage to the Easement must be obtained before the Easement can be fully in effect. This takes some time, so we will hold back some funds from the Seller until the Seller delivers the Subordination. One never knows how long obtaining the Subordination will take. I am going to request that 1.5% of the purchase price be held back. That should “encourage” the Seller to act quickly.

In the restrictive Easements situations, my goal is to either eliminate, or weaken, the effect of the restrictions. That will take some negotiating and compromise, but restrictions like these, while laudable, can really make the value of property diminish.

The last issue is whether a full certified Plan is necessary for an Easement. I have prepared Easements where a sketch of the property lines and rights of way is adequate. Naturally, I would prefer a Plan prepared by an Engineer in recordable form. Most of these considerations are financial, but unless there is precision in Easement drafting, which includes accurate depiction of the property in question, the money saved in the present tense may be spent many times over in the future.

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