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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.

How to get an offer accepted? Use a Realtor!

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This is an extremely sensible approach to REO practice. I do a lot of REO work for Lenders, and I would like all my sales agents to have this material.

How to get an offer accepted? Use a Realtor!

Many buyers are asking on various internet portals how to get an offer accepted.  My answer is easy, use a Realtor. The multiple offer phenomenons have returned in certain markets. Where is that? The areas are in the Short sale and Bank-owned property. This market is smoking.

 I have buyers who have submitted at least 15 offers. Forget low balls, think full price and above asking price. Then why is my offer still not accepted? Buyers ask these questions. How is it that the lower priced offer got accepted? The answer is they had cash, you have FHA. Many private remarks to agents state NO FHA. As discouraging it is you still have to keep going. Now the great news comes CONGRATS, your offer has been accepted, six, seven, eight months later still no Closing. Why is that? It is called SHORT SALE!.

This process is tedious and lengthy. Do you have to patience for this? 

I just closed on a Bank Owned Property, after four different attempts. Why did it take this long? The buyer had all cash, we needed to learn, that automatic low balls do not get acceptance. We were in multiple offers all four times. We missed out four times. Then as luck would have it, the first buyer did not perform. Said they had all cash, truth be told they were exaggerations. Then the second buyer did not perform either. So you would think we automatically came in. No, we had to give best and final to compete with three other buyers. So an All Cash nine day escrow with virtually no contingencies and a million dollar got us a property.

 No what did it take to get the offer accepted? The answer is a good strategy, good financial status and a strong stomach to take on a fixer with virtually no contingencies and a Realtor that guided the buyer through these turbulent negotiations. So we had a happy ending on the REO.

 We are still waiting on the Short Sale, patience is a virtue. We are being virtuous.If you are a consumer  who is considering buying  or selling  a home, investment real estate, vacation homes, or beach properties in Southern California, Los Angeles, Century City, Westwood, West Hollywood, Beverly Hills, Culver City, Marina Del Rey, Venice or Malibu. Feel Free to give me a call at 310.486.1002 (USA) or email me at homes@endrebarath.com  or visit one of my websites at http://www.endrebarath.com  Your Pet Friendly Realtor. I contribute a portion of My commission to Local Animal Rescue Organizations.  

Throwing Out the Baby with the Bath Water–Make sure your “Associations” with other Professionals don’t bring you Down

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I swear, it was not my fault. In my mind, every closing in which I,or my firm participated, was handled promptly and professionally. We even conducted the closings “on-site” to make it easier for the 30 or so purchasers of the Condominium Units. Toward the end of the process, I started to see what the problem was. The mortgage loan originator, who brought my firm to the deal, and introduced me to the very talented and helpful Realtor whose commitment to this project was total had totally “dropped the ball”. Phone calls were not returned by the originator; data was requested from Borrowers two, sometimes three, times for the same piece of paper or information. The level of frustration was high, and I could feel it as I closed successive loans.

The transactions are now completed, and the project is sold out. I often get future business from people whom I have met at closings. There has not been one from this set of closings. I thought my rapport with the listing Realtor was excellent. She and I had spoken about how she wanted to get me involved in future deals. She doesn’t even return my emails or phone calls.

It is apparent to me that I have been tossed down the drain by my association with this originator and this lender. Since I was the closing agent, I must be involved with the problem. As most of you know, that is not really the case. My law firm is independent from this, or any other, lender. We review the title, prepare the closing documents and conduct the closings. We operate under a set of ethical rules which are governed by our State Bar Association.

Regrettably, none of this seems to matter to the purchasers or the listing agent. The purpose of this post is not to rant. It is to caution all of you that you need to be extremely careful with whom you associate in your business dealings. Bad behavior, or negligence, on the part of the Realtor, mortgage professional or attorney or escrow agent can drag you down, even if you performed your part of the transaction flawlessly. My late, great father had an expression, “Tell me who your friends are, and I will tell you who you are” It would appear that the wisdom of this truism applies to our respective professional lives as much, or more, than our personal lives.

Closings in Martha’s Vineyard and Nantucket–They are not Quite as Mysterious as you Might Imagine

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I am sure most of you are aware of the existence of Martha’s Vineyard and Nantucket, if for no other reason, the fact that several of our recent president’s have spent summer vacations “on Island” as they call it. Each of these islands has its own Registry of Deeds (Dukes County for Martha’s Vineyard; Nantucket County for Nantucket). Each of the islands has special “land taxes” of Two (2%) Per Cent of the Purchase Price, which must be paid by the Buyer before their Deed will be permitted to be recorded.

Couple the land tax with still lofty prices charged for homes on the island, and there is an almost sense of intimidation that accompanies considering purchasing a home, or assisting a client purchasing a home,  on Martha’s Vineyard and Nantucket.

My  law firm, Topkins & Bevans, has offices in Boston, Waltham and Braintree, Massachusetts. Over the years, we have established many solid connections on the two islands. We regularly conduct real estate closings with respect to island property, and we are familiar with local practices. There is regular plane service from Boston to each of the islands. The flights are short and reliable.

If you are an out of state realtor or attorney, we would welcome the opportunity to assist you in weaving through Martha’s Vineyard and Nantucket transactions. They can be managed “off-island” extremely efficiently and, generally, at a substantial savings in cost.

Representing an Out of State Client in a Massachusetts Real Estate Transaction–The “Massachusetts Rules” Can be Difficult to Comprehend

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When I attended a national law school almost 45 years ago, we would learn two sets of rules in almost every discipline–the law for 49 states and then the “Massachusetts rules”. Today, after practicing law in Massachusetts as a real estate lawyer, I must admit to each of you that the “Massachusetts rules” continue to operate loud and clear, and they can be downright confusing for people who are not used to them. At this time of the year when we all try to “give back”, I have decided to give you some examples of the “Massachusetts rules” with the thought that if you have further questions, you can check my profile and contact me directly. One of my New Year’s resolutions is “I promise to return each inquiry on a prompt and courteous basis”.

Here goes:

     1. Quitclaim Deeds Are the Standard Not the Exception.   In some of the western counties of Massachusetts, and sometimes on Cape Cod, I have seen Warranty Deeds used for conveyancing. Warranty Deeds are not, however, the normal type of Deed which is delivered at the closing. The standard Deed is the Quitclaim Deed, which at first blush, can drive an out of state practitioner wild with fear. You see, in most states, a Quitclaim Deed is what it sounds like. “I am not sure if I have any interest, at all, in this property, but if I do, I am conveying it to you, or words to that effect.” In Massachusetts the Quitclaim Deed says much more. Among other things, the person executing a Quitclaim Deed in Massachusetts warrants that the granted premises are free from all encumbrances made by the grantor, and the grantor and his heirs, successors and assigns will defend the title against all person making claims through, or under, the grantor. In other words, the Massachusetts Quitclaim Deed has similar characteristics to the Warranty Deed in other jurisdictions.

     2. Massachusetts Attorneys Run Almost all Purchase Closings.   Because there is a statute which requires an attorney to render a “title opinion” in every residential purchase to the extent of the purchase price, Massachusetts attorneys continue to conduct purshase closings and serve as closing agents. That is not to say there are not title companies, so-called, in Massachusetts. It just means that the title companies generally work for, or are owned by, attorneys. The concept of “going into escrow” really does not exist under the “Massachusetts rules”.

     3. In Most Purchase Transactions, the Attorney Serves as the Agent for the Title Insurance Company and Writes the Policy.  This part of the “Massachusetts rules” is really a function of the title opinion statute referenced above. Since the Massachusetts attorney is certifying the title, it has proved more convenient for the title insurance companies to use the attorney as title agents.

     4. Despite all these Differences from other Jurisdictions, Title Insurance in Massachusetts is not as Expensive as in Other Jurisdictions. In keeping with all the other idiosyncracies in Massachusetts, you will not be surprised to learn that the cost of title insurance is not regulated in Massachusetts. In point of fact, I have found that most title insurance costs $4.00 per thousand for an Owner’s Policy and $2.50 per thousand for a Lender’s policy. If Owner’s and Lender’s are purchased simultaneously, there is a $175 extra charge. I am told that these rates are in the low to middle range of title insurance charges nationally.

As my clients start to obtain mortgage financing more and more on the Internet, our firm has been doing more and more work for out-of-state Lenders. If any of you fall into that category, please feel free to use Topkins & Bevans as your “source” for Massachusetts mortgages. We have lived with the “Massachusetts rules” for a long time, and we are comfortable wending you through them should you have the need.

Let the Camera be Your Friend–Use Your Digital Camera to Enhance Your Professional Image

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It has not always been this way. When I started practicing law in Massachusetts in 1968, single reflex cameras were heavy and required a host of accessories to insure proper lighting, focus and the like. The modern digital camera has none of this complexity, or bulk, and I have found my camera useful in marketing myself as an “in-tune” professional. The plethora of self-taken photographs on ActiveRain is ample evidence of the fact that most of us know how to “point and shoot” which is really all that is required to produce an acceptable photo that can be useful in the following types of situations:

     1. Photographs at the closing. Generally, everyone is smiling once the papers are signed and the keys delivered. I bring my camera to every purchase transaction. I try to get pictures of the Buyers with the Buyer’s Agent. I later email them to both parties. It is something that a savvy realtor can use to his or her advantage, and I have provided it. Here we are at one of the most important days of our lives, and our realtor helped make it possible.

     2. Photographs during the home inspection. The potential buyer have a lot on their minds. They will NOT be taking pictures. If you are their realtor, you can assist them with pictures. If a situation comes up regarding repairs or substandard conditions, you have a contemporaneous photograph of the problem. It may help you work out a solution with the other realtor or the Seller. And, of course, there is always the problem of “what is included” with the home. A photograph at the time of inspection will be great evidence of what was shown to the Buyer.

     3. Photographs when the Buyer moves in. If you are the type of realtor who participates in this event, why not take some photographs when the Buyers are crossing the front door, or flopping on the living room rug, after a rigorous day of moving? These shots will be cherished somewhere down the road, and you will be person providing the memories.

I have just touched the surface here. I am sure each of you can devlop other scenarios where a photgraph can be helpful. I am alwasy interested in new ideas and thoughts. Share them with me when you comment,

Life in the Pressure Cooker–Some Suggestions for Extracting Ourselves from Ensuing Difficulties

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As real estate professionals, we are more or less used to the stress level which exists within our clientele. I am a Massachusetts real estate attorney with more than 40 years of experience. I have bought, and sold, five and four homes, respectively. In not one situation was I calm and relaxed throughout the process. it seemed that there were a million things to do, and I did not have the time, or the patience, to tackle all of them. Sometimes the lender created problems with requests for information I was sure I had already submitted. Sometimes, the walk-through did not go particularly well. In one situation I had a flooded kitchen between the time of Purchase and Sale and the closing. That caused its own set of problems.

Looking back on my own situations, and the many others I have handled for others, I have developed a few tried and true approaches to the real estate “pressure cooker”, which I would like to share with all of you, whatever part in the process you are assuming:

     1. Try to Stay Calm. Problems are going to arise, and almost always when we least expect them. Acccept the fact that there can be problems. Think about your customer first. What can you say or do to assuage the issue. I have found that the last minute inspection problem, or the lender delay, or any number of other things which can delay a closing, or worse, are best addressed by calmness. Do not let yourself get emotional about the problems. Speak with the other professionals. Try not to relay bad news to a customer without suggested approaches to a solution. Think positive thoughts; convey your sense of confidence to your customer through your calm mien.

     2. Do Not Point Fingers. Many times the approach which appears simplest to effect is to blame another person or entity for what has happened, and step away. I used to do this, because lawyers are very fat targets when there is a problem, and I wanted to stress that I had done nothing wrong, but Mr, Jones or Ms. Smith, was the true culprit. I no longer take this approach. Rarely do real estate disputes actually result in litigation. More often than not there is a solution out there which everyone can live with. If I have been solution, rather than blame, oriented, I can preserve my relationships with the professionals I will have to work with at other times, and in other places. Furthermore, I have found that coming up with a solution in a difficult situation is the thng that a lot of people remember about me, and my firm, when the smoke clears.

     3. Do Not be Afraid to Call a “Time-out”. In our profession, no one really gets paid unless and until the deal closes. Sometimes, that colors our behavior. We all have lost deals, and spent time on matters that do not produce revenue for us. On the other hand, sometimes a deal just cannot work, no matter how hard we try to push it forward. Sometimes, it can work, but the financing must be re-tooled to fit the specific situation of the Borrower. My experience has been that it is better to call a “spade a spade” early in the game than to labor relentlessy on a project where there is little, ot no, hope of success. Call “Time Out”, regroup, and go a different path.

     4. Never Sacrifice Your Integrity to Make a Transaction take place. New financing rules have severely hampered the ability of the Borrower to exaggerate assets or income, or even lie about them. In a way, that has taken some pressure off the rest of us. There are still situations which arise, however, where a half-truth or a lack of disclosure may let a deal go forward. I suggest to each of you that you do not want to be a part of any effort which involves ANY deceit or subterfuge. I mentioned above that real estate matters rarely become litigations. If they do, however, and you are called upon to testify, you want to make sure that your behavior in the matter, from an ethical standpoint, is above reproach. Deals come and deals go. Your reputation is forever.

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