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The Liquidated Damage Provision in the Sales Agreement–Often misunderstood, more often a trap for the unwary

July 2, 2010Uncategorizeddeposits, liquidated damages, loss of deposit, purchase and sale agreement provisionsRobert Bevans

One of my pet peeves as a Massachusetts real estate attorney is the printed language in most standard purchase and sale agreements regarding liquidated damages. To paraphrase the legalese contained in the printed form “if the Buyer defaults, the Seller may keep Buyer’s deposit as liquidated damages unless the Seller within thirty days of such default decides to avail himself,or herself, of other options”

These “other options” would definitely include suit for specific performance of the contract, which in a falling market, could mean a financial disaster for the Buyer. In effect, if the Seller sold the property to another Buyer, the defaulting Buyer would be responsible for damages measured by the price in his or her contract versus the actual sales price realized by the Seller.

The alarming thing about this provision is that in my forty plus years of practicing real estate law, I have never had an attorney for the Seller refuse my request to eliminate the second option. So,if for some reason, you Buyer’s Agents are forced to “fly solo” because your client will not retain an attorney, I urge you to, at the very least, make sure that you request a change from the printed form.

The changed version reads, that “if the Buyer defaults, the Seller may retain Buyer’s deposit, and such retention shall constitute Seller’s sole remedy against the Buyer” That remedy is a horse of a different color and,of course, much more favorable to the Buyer.

Those of you who are starting to serve as Buyer’s Agents should also be aware that many Sellers are inserting provisions in the purchase and sale agreements to the effect that “since there is no way to truly measure the damages suffered by the Seller, if the Buyer defaults,both parties agree that the retention of the entire deposit constitutes an acceptable remedy for both side.”

I strenuously resist this provision when representing Buyers, unless their deposit is very small. The only Massachusetts Supreme Judicial Court decision which actually address this issue held that five (5%) was a reasonable sum for liquidated damages. Many deposits are in excess of five (5%) per cent. I would rather leave the provision quoted above out of my agreement, and argue that five (5%) per cent is, indeed, plenty of compensation for a Seller, especially if the default occurs in a relatively short period of time. I have a lot more wood to cut if I have agreed the retention of the deposit, no matter of what amount, is a “fair measure” of damages.

It is never pleasant when circumsatances dictate that a Buyer must “walk away”. In circumstances where we are representing Buyers, it is important not to turn this cruel turn of fate into a financial disaster for the Buyer, which usually cannot be easily remedied.

Refinancing Your Present Mortgage–Make sure that the Lenders, and Closing Agents, are Financially Able to Perform

July 2, 2010Mortgages, Uncategorizedmortgage lender financial problems, refinancings, verification of paymentRobert Bevans

In today’s edition of the Boston HERALD, there is an article about a Borrower in Illinois, who recently refinanced his mortgage with a mortgage lender. The check which the refinancing Mortgage Lender sent to the person’s then mortgage lender “bounced”, and the former mortgage lender is now foreclosing on the property because the Borrower has not made his mortgage payments to the former Borrower since he completed his refinancing. There are two other similar cases, in different jurisdictions.

This type of situation is disastrous for the homeowner, and care should certainly be taken to prevent its re-occurrence. At the very least, the Borrower needs to be extremely vigilant with his or her former mortgage lender to make sure that the former loan has been paid in full. This full payment should be effected no later than ten days after the refinancing is completed, and it behooves any person doing a refinancing to check this out. If there are any problems at all after this contact has been made, I would recommend at speedy call to the Consumer Protection Office of the Attorney General; of the state in question, and also a call to the division of the State Banking Commission to make an immediate complaint.

In Massachusetts, where I have been practicing real estate law for more than forty years, there has been a recent incursion of mortgage companies who do refinancings without using licensed attorneys. This certainly saves the company a fair amount of money, which savings may,or may not, be passed along to the customer. The big difference is, in Massachusetts, when the attorney is responsible for clearing the title, the attorney uses his or her clients account trust funds to pay-off the old mortgages. If the checks which the attorney sends are dishonored, the attorney has committed a crime under Massachusetts law, and can be imprisoned, or fined. An attorney who bounces a check also has committed an ethical violation and will almost certainly be sanctioned by the Massachusetts Board of Bar Overseers.

My advice to all real estate professionals is to be very careful when you are refinancing, or your customers are refinancing. The price the gentleman in Illinois is now paying is extremely steep, and he did nothing worng, other than verifying the successful termination of his former mortgage.

Getting the deal done—Common Goals almost Always Make People representing both sides “Comrades in Arms”

July 2, 2010Uncategorizedreal estate attorney, real estate professionals, seller, winwin situations thankfulness buyersRobert Bevans

I was speaking with a fellow Massachusetts attorney yesterday about our practices. He is a partner in a downtown Boston firm; my firm is mid-sized and mostly suburban, with an office on Newbury Street in Boston, but one office in the Western suburb of Waltham and one office in the Southern suburb of Braintree. After we spent the better part of an hour hammering out the terms of a purchase and sale agreement for commercial property in Boston, Massachusetts, we agreed that he would do the changes in the latest draft, send it along to me for final review, and we could sign things up before the end of this month.

When we finished out work, and we exchanged pleasantries about how smoothly our negotiations had gone, and how we had developed a basically fair deal for both sides, he commented to me that this result is why he has enjoyed practicing real estate law so much. He said the common enterprise which followed the negotiations makes real estate transactions different from all other areas of law. His point was that when you have a willing Buyer and a willing Seller, and we perform required due diligence through inspections and confirmations with governmental authorities, we have a “deal” and all sides are working together to get the sale closed and the buyer moved in.

Upon reflection, it occurred to me that this was the charm of real estate work in general. After the preliminary discussions, and offers and counter-offers, the deal gets done, and both sides are generally pleased with the outcome. This is not the sale of a business where the Seller knows of some changes in revenue projections which mean that the Buyer may be overpaying. This is not a litigation where there is a winner and a loser.

We are engaged in a professional where everyone can win and walk away smiling. I have been impressed with how many realtors comment about the great feeling they experience when the deal is closed, and the Sellers and the Buyers coalesce into discussions about maintenance issues or reliable artisans and contractors to use.

So, at a “feel-good” time of the year, after we have thanked our young men and women for defending our country on Veterans Day, and prepare to thank a higher being for the joys of family and home and good friendship on Thanksgiving, we can also have good feelings about our profession. Each in our own way, we make the dream of home ownership a reality for people every day. And we do it together, both sides working together to try to make things as manageable as possible for Buyers and Sellers who have justifiably relied upon us for assistance. I salute us all.

Big Trouble Brewing in Massachusetts–The Seller does not own the Property you are Buying

July 2, 2010Uncategorizeddecit, fraud, seller, seller as owner, speficic performanceRobert Bevans

The point I am making seems so simple. Of course, my seller owns the home he or she is listing. Why else would the person be speaking with me and going through a listing agreement, and seller statement and countless open houses and execution of an offer and purchase agreement if the person did not own the home.

The cold hard facts are that there is a recent Massachusetts case where the putative seller had placed the property in a trust, where he was the trustee, prior to listing the home. As an individual, he did not own the home. The relevant documents were signed, the buyer applied, and was committed for, a mortgage. The title examination revealed an owner other than the person listed as seller on the purchase agreement. The transaction did not close.

This may seem totally ludicrous to most ActiveRainers. It didn’t strike me as properly defensible either. The buyer certainly had rights against the seller for fraud and deceit. He did not, however, have the right to compel a conveyance from the seller. Each piece of property is, on its face, unique and specific performance could not be granted against a non-owner.

There are ways to guard against this heinous result as follows:

1. Prior to taking a listing, the listing agent can do a simple owner search. In most states, this can be done online from your computer. If you don’t know how to access your registry online, ask you title company or title attorney to teach you. You can find out from the jump whether you are dealing with the proper owner.

2. After the initial documents are sign, the buyer agent can ask his or her attorney, or title company, to confirm the ownership of the property right away. This is a relatively simple process, but it can save heartache and expense in the future.

There is nothing more frustrating in law than having a right without a remedy. Being able to sue a seller for deception is one thing, but it doesn’t get the buyer the property he or she has set their sights on. Go the extra mile to make sure that the record title is in the name of the seller. Anything short of that is not acceptable.

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