Category Archives: closing

Seller’s attending closings–Very little to gain: Perhaps a lot to lose

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In my over 40 years of conducting real estate closings in New England, I wouldn’t say I have seen everything. I would say, however, that I have seen enough to reach the conclusion that having the Seller present at a real estate closing is rarely a positive experience, and in some instances, is an invitation to trouble.

Put aside the possible distractions of having another “persona” at the closing table who wants to comment about the length of the process or the interminable amount of paperwork involved in a typical real estate closing. That is part of the territory, and I believe I, and the other people in my law firm, know how to deal with that. Also, put aside the possible antagonisms that may have developed between the Seller and the Buyer over some aspect of the pre-purchase and sale negotiations about the property. The real estate professionals at the closing table should have the skill to deflect this aspect of the process, so things can proceed at an acceptable pace.

The real problem is the potential for litigation about the condition of the premises based on a comment, or lack of comment, made by an attending Seller. If I am representing a Seller at a closing, armed with a durable Power of Attorney, I am duly ignorant about the history of the home or the condition of the premises. If I am asked about the “spot” on the bedroom ceiling, or the trace of water that the inspector found in the finished basement, I can truly answer “I do not know”, and that will be the end of the discussion.

What if the Seller is present and asked the same question? As a point of fact, there was a water problem, maybe 6 years ago, and the derivation of the problem had been found, and the problem resolved. The Seller just had not gotten around to “painting and patching” the spot on the ceiling. That explanation would be honest, and should be sufficient to end the discussion. What if the Seller panics, and thinks, if I mention water now, I may kill the sale, right at the closing table? So, the Seller either denies that there was ever a problem or otherwise lies about why there is a spot. Months, or years, later, there is a water problem in the home, and the Buyer clearly remembers the Seller stating, at the closing, before many witnesses, that there was NO water? The chances for a lawsuit, even after closing, are greatly increased.

The moral of this story is that we, as real estate professionals, are better served if the Seller does not attend the closing. If the Seller wants to meet the Buyer, or convey information important information about the home to the Buyer, suggest a post closing event. Better yet, suggest that the Seller write down information for the Buyer and deliver it at the closing. While the writer hates to be as defensive as the suggestions in this post appear, litigation after a sale is costly and never really benefits either the Buyer or the Seller.  It certainly is not a felicitous event for a realtor. The Buyer is purchasing a “used” home in most circumstances. Small problems are bound to appear. Gratuitous, or even fabricated, remarks at a closing by the Seller can be costly. Use your influence on your customer to prevent the problem before it arises.

Vendor Inclusive Marketing (“VIM”)–Using your tested referral sources to explode your business

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Vendor Inclusive Marketing (“VIM”) is probably not new to most of you. You are probably using many elements of VIM in your everyday practice. Because you are a cutting age professional, you understand the worth of knowing the very best electrician in your market. The guy who will show ip promptly at a customer’s home, do an effective diagnosis of the problem,  provide a reasonable estimate for the work to be done and then deliver his services, on time, at the price which was quoted.

Knowing who this person is elevates you in your customer’s eyes, and, realistically, provides a ready source of referrals for you the next listing, next legal engagement or next mortgage application which comes before that artisan. It is just common sense that the person to whom you have given solid, quality referrals will think of you the next time work in your line of business is available. Who knows, your VIM person may go out of his way to promote your services without even being asked.

Given the effectiveness of VIM as a marketing concept, I am making a view suggestions here which cannot help but increase your VIM score and drive business to your door:

     1. Assemble a VIM List of reliable vendors. Your professional experience may have you pretty far along the way on this list already. What you need now is to organize your referrals and get them in a document, or on your Web Page, so you can easily reference them.

    2. Deliver the “VIM List” at what you consider the appropriate time. Because my time to perform is at residential real estate closings, I deliver my VIM List in conjunction with the Notebook given to every Buyer at a closing I conduct (See my post “The Closing Table–An opportunity for marketing”). I put a plastic page for business cards in the last section of my Notebook. I tell my Buyers that the people who are in my book are tested sources. I, and my clients, have used them and they are solid.

    3. See if you can get your VIM List people to give discount certificates you can give to the Buyer. In these days of required penny-pinching, f you can give solid referrasl, at discounted prices, to your Buyer, you are doing something. Not only will your VIM List people do everything possible to give you referrals, the Buyesr will, as well.

In prior posts, you have commented on my ideas and given me new ideas to build my marketing efforts upon. For instance,one of you suggested that I place a 2010 Calendar, with my firm’s name on it, in the ever-present Notebook. I got my printer to prepare same for free,and he puts his information on the reverse of te calendard, which I place in the insert infron of the Notebook. Win-win for both of us, and a tool to keep our firm’s name in front of the client.  “Drop” marketing,if you will. Please share any of these enhancements with me. We are all working together to develop a better mousetrap. TOGETHER WE CAN!!!!!! (Sound familiar).

The Closing Table–A Venue for Marketing!!!

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As a Massachusetts title attorney with over 40 years of closing experience, I am often shocked at the number of missed opportunities for marketing that the closing table presents. For my own part, I view the closing table as a chance to market my law firm and to provide the Buyer with an array of services my firm offers. This not only includes helping their friends and relatives with their next real estate transaction; it also includes explaining why home ownership presents a need to bring their estate plans up to speed and to make sure their insurance coverage is adequate. After all, they have just signed up for a large liability in their mortgage, and they want to make sure that if something happens to them, their home (and children) will be protected.

There are several other things I do at each closing:

     1. I always give the Buyers a small gift. Sometimes a special bottle of wine, other times an umbrella with my law firm’s name emblazoned on it.

     2. I have now taken to preparing a large loose leaf binder with the name of the Buyer and the property address. I tell the Buyer to place a copy of the HUD-1 Settlement Statement and a copy of their Owner’s Policy of Title Insurance as the initial entry into the binder. Thereafter, I advise them to place a copy of each and every invoice relating to their home into the binder. If they are diligent in doing this, they have created a wonderful marketing book for you, the real estate professional, to sell their home when that time comes. recently, I have inserted a plastic sheet for business cards. i place mine in the sheet and urge the selling broker or buyer’s agent to place theirs in the sheet, as well. I am a member of a BNI Group. I also place the cards of those BNI Members in whom I have confidence into the binder.

These are the marketing opportunities I have observed for other real estate professionals:

     !. Realtors. A realtor in attendance can often firm up future business by being at the closing and being helpful. I have seen realtors bring small gifts, as well. Many seasoned realtors also backstop suggestions I make to the Buyer, and in general serve as liaisons in the process. It is akin to bringing home the girl you brought to the dance, and the sense of closure is important.

     2. Mortgage Professionals. I am surprised at how few appearances these people make at closings. To me, this is a perfect opportunity to market only to the selling broker or Buyer’s agent who almost certainly in attendance. On many occasions, the listing agent appears, as well. Closings take an hour or so, and there is a lot of dead time for the realtors. What a great chance for a mortgage originator to make a captive sales call. He or she can answer questions, speak about new programs to people who have no choice but to listen. Maybe a new deal sprouts from this initiative!!!

Perhaps, many of you have found closings to be boring chores foisted on you by your superiors. As this post indicates, I view them quite differently, and I urge you to give some thought to some, or all, of the marketing ideas I have shared herein

Adjustments at Closing-Information for you to help your customers

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As a Massachusetts title attorney with more than 40 years experience, I have handled more than 20,000 real estate closings. While there have been many changes in the industry over the course of my career, there are still some basic concepts that have remained constant. There follows a primer on the most standard adjustments which are involved in each and every real estate closing:

     1. Real Estate Taxes: In Massachusetts, most taxing authorities render bills on a quarterly basis. This means that taxes are due on the first of February, May, August and November of each year. The February bill covers the period which commences on January 1 and ends on March 31. The May bill covers April 1 through June 30 and so on. The trick here is to explain to the Buyer and Seller that when you close within a taxing period, there are roughly 90 days of taxes to deal with. That means that if a closing takes place on January 20, the Seller is responsible for 20 days in the quarter and the Buyer for the remainder. A January 20 closing will almost always produce a credit for the Buyer and a debit for the Seller since the February 1 taxes will not have been paid. The Buyer will be required to pay the taxes due on February 1 if the closing take splace on January 20. What makes thing more complicated is the fact that Massachusetts uses a June 30 fiscal year. This means that any taxes collected after July 1 of each year and before December 31 of each year are only “estimates” and there may be post closing adjustments based on whether the actual taxes are higher or lower than the estimate.

     2. Condominium Common Area Fees. These are generally monthly fees. The Seller brings a Certificate from the Consominium Trustees which indicates that the monthly fees have been paid through the end of the month. The partiesd then adjust what is owed based on the actual time during the month that the Seller occupied the Unit. Sometimes, the Seller is behind in his Common Area Fees. The Trustees issue a “wet” ceritifcate that can only be delivered if the total amount of arrearages is collected by the closing agent. This is workable, but tricky.

     3. Balance of Seller’s Mortgages. Most Sellers underestimate the amount of their mortgage payoff. They forget that their mortgage has interest accruing in arreas, so that if they close on the 25th of the month, they owe the principal balance of the mortage plus accried interest. The writer has had “heated discussions” with Sellers over the amount due. This is compounded by the usual custom of taking a few extra “per diem” interest charges to take into acocunt delay in getting themortgage payoff to the Seller’s mortgage lender.

There are other adjustment that come up from time to time, but the ones set forth in this post are the most common. Take some time to understand adjustments in your  state. Knowledge is power, and the more effectively you can explain these comments to your client, the easier and smoother your real estate closing will be. It  aldohelps if you have an erxperienced conveyancer steering you through the process!!

Newly Built Home or Condo–Work very very hard on the Offer Document

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I have been running into a lot of situations where there was a “misunderstanding” as to what was included in a newly built home or condominium. In one situation, the developer indicated in the marketing piece that he would direct the gas range vent outside at his cost. Now when we are trying to reach agreement on the P & S, he wants an extra $500. One developer indicated that he would place a door on the Buyer’s garage. When we sat down to draft the  operative document, he indicated he cannot do this because of “zoning requirements” As Roseanne Rosannadanna used to say, “There is always something”.

What can we, as responsible real estate professionals do? What we have always done, ask questions, take notes and get things down in writing either on the submission document or in a letter between the parties. A lot of developers are tight for cash. They will “weasel” out of verbal commitments if they can. If it is in writing, and signed off on, it is much more difficult. And by being extremely thorough, you and I are doing “right” by our customers. That is a good feeling, especially in these days where there are not a lot of deals out there. Let’s make the ones we do “Da Vincis”.

The Blase Mortgage Lender–How Much Longer Can we Put Up with This?

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Recently, I was representing a young couple buying their first home with an FHA mortgage. The Purchase and Sale Agreement was signed in early March. The closing was set forth for late April. Plenty of time for the Lender. The written mortgage commitment issued in late March with standard conditions. My clients easily fulfilled them.

THREE days before the scheduled closing, the Lender informed my client that “they were backed up and all closing were being pushed back for FIVE days.” The Seller had scheduled a day off for the original closing date to do the final walk-through. My clients are looking a being homeless if there any any further delays. There were no suggestions of underwriting problems. The Lender was “backed up” and that was all there was to it.

When you consider all of the things that all real estate professionals need to do to have a successful closing, this “walk away” approach by the Lender is simply not acceptable. The SELLER in my case wants to be paid (at least a per diem for the delay). My clients are in jeopardy of not having a roof over their heads. Do you think there is any way that the Lender will “chip in”” on this? Personally, I do not.

As an industry, we really need to develop ways to make the Lender more accountable for this type of behavior. I would suggest substantial fines for each time it happens, some of which could be paid to FNMA/FHLMC and some which can be paid to the Borrowers. Maybe, the state Banking Commission should suspend licenses of Lenders who do this more than “X” times in a given period. I am a real estate attorney in Massachusetts, and in our state, the attorney conducts the closing, I am fed up with the insouciance of the Lender. We all suffer when closings do not take place, and allowing the Lenders to run “roughshod” over our industry is unacceptable.

I would appreciate your view and suggestions. In this time of reduced activity, every closing is important. Lenders must be hed accountable for not realizing how many people they hurt when they are “backed up”. Hire some more people!!!Work longer hours!!! Stand up and be responsible!!!

Payment at Closing–A suggested “Ounce of Prevention” for Buyer’s Agents

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Buyer’s agency is a relatively recent phenomena in Massachusetts. While it has been my practice to pay the Buyer’s Agent directly at closing, I am informed by Buyer’s Agent clients and friends, that this is not always what transpires. Many times, the Buyer’s Agent must wait for the Listing Agent to “process” the final closing transaction, and then make remittance to the Buyer’s Agent some time in the future. I am aware of one situation where the check delivered two weeks after the closing was returned because of insufficient funds in the Listing Agent’s checking account.

The Buyer’s Agent works for the Buyer, even though payment of the Buyer’s Agency fee is geneerally made by the Seller.There follow several suggestions for Buyer’s Agents which can mitigate the delay, and other problems, associated with the current normal practices:

                 1. Manage the Deposit at the time of Offer. If the amount of Deposit can be limited to no more than the fee which is due to the Listing Agent, the ability of the closing agent to make direct payment to the Buyer’s Agent is greatly enhanced. If the Seller insists on a greater Deposit, have the Deposit split in such a way that no more than the amount to which the Listing Broker is entitled is placed in escrow with the Listing Agent. The remainder of the Deposit may then be placed in escrow with the Buyer’s Agent to insure prompt payment after closing.

                 2. Have the Deposit placed in the Escrow Account of the Seller’s Attorney. Insisting on this condition will take the power away from the Listing Agent to sit on the Deposit. Because having a check drawn on an Escrow Account of an attorney returned for non-payment is an ethical violation which will subject the attorney to disciplinary action by the Massachusetts Board of Bar Overseers, the safety and security of the Deposit is greatly enhanced. The Seller’s attorney may either hand over the Deposit to the closing agent at closing, or make direct payment to the Listing Agent and the Buyer’s Agent at the closing. The treatment of the Deposit should be carefully spelled out in the Offer, and then reinforced in the Purchase and Sale Agreement for the transaction, See Paragraph 3 below.

                3. Take Extra Care to Make Sure that the documentation for the transaction provides for payment at closing. As a Buyer’s Agent, you have an obligation to review the Offer and the Purchase and Sale Agreement and Rider(s) thereto, on behalf of the Buyer. Make sure a provision is included in both documents that specifically directs the closing agent to make payment of the fee due to the Buyer’s Agent,directly to the Buyer’s Agent ,at the closing. If the Seller has executed a document with these instructions, the closing agent has no choice but to adhere to the specific provisions of the Purchase and Sale Agreement.

You, as a Buyer’s Agent, have worked hard on your customer’s behalf to earn your commission. The steps set forth above should assist you not only in obtaining your commission, but. just as importantly, obtaining your commission at the same time as the Listing Agent obtains his or hers. It is time to make the playing field level for Buyer’s Agent and adoption of the measures set forth above should be  step in the right direction. See my blog: www.realtorsresourcblog.com for more suggestions and comments.

Marketing 101–The Notebook

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At residential real estate closings which I conduct, my main goal is always to gain the trust of the people buying their home or condominium unit. I generally do this by spending as much time as the purchaser wishes going over the HUD-1 Settlement Statement and the accompanying closing documents, like the mortgage promissory note and the mortgage, itself. There is usually a point where the purchasers start to believe that I am a decent guy who is not trying to do anything but help them buy the home they have searched for, and wanted, for a long, long time. They are prepared to listen to me, as the closing attorney, for advice for the future.  

You, as the real estate professional, are almost always in attendance at the closing, if you are thinking correctly, because not only is this a time to receive your well-earned commission, it is also a time to participate with your customer in a positive experience with the thought that you will have earned the chance to work for the purchaser, and perhaps friends and relatives of the purchaser, in future real estate experiences. Together, you and I (if I am fortunate enough to be working with you on this transaction) can make suggestions to the buyer which will put real estate professionals, but more importantly, you, in an extremely favorable position. 

Some realtors make gifts to the buyers of a bottle of wine, or a door knocker, or a framed picture of the home they have purchased. May I respectfully suggest a different approach? May I suggest that you deliver a large three (3) ring binder, with your name and pertinent contact information included therein, and perhaps the property address placed on the outside thereof?  

This gift, you inform the purchaser, is for them to create a working history of their home. I provide the first document, an 8 and one-half by 11 reduction of their fully signed HUD-1 Settlement Statement. I suggest that they take the original HUD-1 and place it in their safe deposit box. I then advise them to copy the Owner’s Policy of Title Insurance which I will be sending them and place that document in the binder as well. 

You can then suggest that the purchasers make a copy of every invoice related to their new home and insert the copy in the binder. This includes purchases of new appliances or fixtures, and also expenses of plumbers, electricians and other artisans who have done work on the new home. A few of my creative realtors have included tabs in the binder to provide information on local contractors whom the realtor has found reliable. In effect, they have developed their own “Angie’s List” for their customer, no doubt endearing themselves to the contractors who are getting new customers because you have included them in the binder. There may even be the possibility of having these contractors furnish money-saving “coupons” which you can include in the binder. 

If the purchasers take seriously the suggestions we have made, and use the loose leaf binder you have presented, the following positive results will almost surely follow: 

  •  
    1. Future Marketing of the Home

 At some point, your purchaser will become a seller. The completed loose-leaf binder becomes a powerful marketing tool for you when you list, and show, the home. You do not have to tell the prospective buyer that the washer and dryer are new. You have the actual invoice for the purchase. You can demonstrate when the floors were sanded, and by whom. You can also deliver any existing warranties for work on the home or fixtures and appliances. Your presentation is “buttoned-up” and it will be impressive.

  •      2.  Tax Implications.

    • In the current tax picture, it is not important to have good basis information for a residential home that is being sold. Given the uncertain economic climate we are in at present, this could change. The information in the binder permits the purchasers to collective complete basis information which can be given to their tax accountant or used by themselves (if they prepare their own taxes) when they sell their home. 

    3.  Retrieval of Important Information.

    The invoices and statements in the binder contain information which can be useful in the future. Perhaps, owners want to redo their floors after three or four years. The archived invoice will provide information as to how to contact the contractor who did the work. If any vital information is missing on the invoice, the owner can include same before inserting it into the binder. 

    4. Emotional Benefit

    As all of you know, a home is more than brick and mortar. It becomes a personal statement for the owners as to the owner’s creativity and responsibility. Having a complete loose-leaf binder demonstrates to the owners that they have really made the home better. There is a feeling of achievement about their home which becomes a source of pride. You can convey that positive spin when you market the home on the owners’ behalf. 

    As I have indicated, I have been suggesting, and using, this technique for many of the more than 40 years I have been practicing real estate law. I am convinced that it works. On the other hand, even good ideas can be improved. I would welcome comments from you as to how the loose-leaf binder approach could be improved or amplified Email me at etopkins@topbev.com if you wish to begin a personal dialogue. Please visit my blog at http://realtorsresourceblog.com/

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