Monthly Archives: June 2010

Condominium Operations–It’s Time for a Change

Condominium, , , , ,

Over the years, I have had many opportunities to become part of the Condominium process. I have drafted Condominium Documents, both conversions and new projects. I have closed literally thousands of mortgage loans, which involved either Condominium purchases or refinancing. I have also represented Buyers and Sellers of Condominium Units of all shapes and sizes. Based on my experiences, the following changes need to be implemented in Condominium operations, and we, as real estate professionals, need to be leading the way through our Boards and Legislative contacts to effect the following:

1. Condominiums Should be Required to file Annual Reports with the Secretary of State.     Most Condominiums do not keep current the names of the Trustees for the Condominium. I have, on many occasions, received 6(d) Certificates executed by individuals who are not the Trustees of record. In their Annual Report, the Condominium would be required to name the current Trustees, and affirm that the requisite filings have been made at the appropriate Registry of Deeds.

 2. Condominiums with Six (6) or more units Should be Required to produce, and keep current, Condominium websites. There is much too much inefficiency involved when a Condominium Unit owner attempts to sell his or her Unit. At the very least, the Condominium website will contain the following sections:

          a. Floors plan for each Unit. These are on record at the Registry of Deeds, but they are relatively easy to replicate on a website.

          b. A set of CURRENT Condominium Documents. Put them on the website as they exist at the Registry of Deeds, including all amendments. If nothing else, this will save the many trees which are killed to copy sets of Condominium Master Deeds and Declarations of Trust. The Buyer’s attorney can do his or her review of the Documents from the website. So can the Lender or the closing agent. Everyone wins, except Staples.

          c. The name of the current Management Company,if one exists, along with telephone number and email address of the contact person. Someone needs to be in charge of providing financial information to the putative Buyer. The website can designate that person.

          d. The website will contain a “ready to print” form of 6(d) Certificate. It is an outrage for a Seller to be required to pay $50 or $100 to the Management Company to deliver a 6(d) Certificate. It should be able to be printed out, at any time, and ready for Trustee(s) signature.

3. Condominiums Need to do a Review of their Documents, at least once every five(5) years. There are some very old documents in place, which are not responsive to modern Condominium living.  Rights of first refusal were in vogue in the 1970’s and 1980’s. What real purpose do they serve now? Some descriptions of common areas are prolix. Many lenders are requiring Condominiums to have arbitration provisions with regard to disputes. Older documents rarely, if ever, contain arbitration provisions.

4. Condominium Trustees need to be more vigilant in terms of collecting Delinquent Common Area fees. There is a statute in place which gives the Condominium Trustees broad powers to collect delinquent fees. Many of us in the Massachusetts Bar fought long and hard to have this provision enacted after some Condominiums in the late 1980’s and early 1990’s went bankrupt under the crush of non-paying Unit owners. We are in a difficult economy at present. That does not excuse non-payment of Common Area fees. Many Trustees are totally unaware of their rights to collect these fees. In case my readers do not know, the Trustees can commence a collection action, charge the Unit owner, in full, for attorneys fees and the obtain a judgement which will permit the Condominium to foreclose on the Unit, with rights ahead of even the First, and other,Mortgagees. That being the case, it has been my experience that as soon as this collection action is commenced by the Trustees, the Mortgagee(s0) steps in and makes the Unit current on its Condominium Fees. It should be a requirement in the Condominium Statute that the Trustees commence an action at any time a Unit is two months behind in paying common area fees.

The ideas set forth herein are not new, but they need to be acted upon. The current, inefficient way that Condominiums are being operated limits our opprotunities as real estate professionals. I would welcome any further suggestins any of you may have. I live with these probelms every day, and,probably, so do you.

Knock on that Door!!!! A Proven Approach to Condominium Due Diligence

Condominium

Over the years, I have represented many people who have purchased Condominiums. I have become familiar with many “due diligence” procedures, including examining the Master Deed. By-Laws and even Minutes of Trustees in those rare instances where the Condominium operates within preferred standards of governance. For your information, I intend to direct the identification of, and solutions for, many current abuses and shortcomings of Condominium governance in future posts.

Having described above some ways for an attorney to help a putative Condominium purchaser, I must fall back on the most successful measure I have seen to make the Condominium purchaser understand what he or she is buying, the good old-fashioned “knock on the door”.

Anyone who purchases an existing Condominium without one (or more) “door knocks” is walking into an uncharted situation which can often lead to financial loss and emotional misery. What do I mean by the “door knock” you ask.

The door knock is that step the Buyer takes to find out what it is really like to live at Dreamhoue Condominium. You knock on the door of a neighbor in the building, introduce yourself as a potential Buyer, and then you rattle off these questions (there are probably manyI have missed, and maybe my readers will fill these in for me in comments): 

            1. What is it like to live here? Do my neighbors respect my rights?

            2. Are the neighbors friendly? Do you know them? Could you trust them with your child, your dog, your goldfish?

            3. What do you do when there is a power outage? A noisy sterro? A howling dog?

            4. Are you being kept informed by the Trustees of impending assessments, or plans for improvements? Are there reserves set aside for future contingencies?

            5. Do you feel that Condominium changing in any way in terms of mix of owners, or renters?

            6. Have you ever been a Trustee? Do you know if the same old group continues to manage things, year after year?

            7. When was the last time there was a common area fee increase?

            8. Do you attend Trustee’s meetings? If not, why not?

            9. Do you attend the annual meeting of Unit Owners? Is it well publicized and are you encouraged to attend?

As I indicated above, there are many more questions you, as Buyer, or even Buyer’s agent, can ask. You may say “why would these people speak with me”  You may wonder “why would these people give me accurate answers”. The plain truth is that they may be speaking with their future neighbors. If they lie, or embellsih, and they need to make eye contact with you in the hall or on the elevator, it is going to be very uncomfortable for them. My experience is that most people do tell the truth, even though it may hurt them financially. In any event, these people behind closed doors hold the key to what really happens at Dreamhouse Condominium, and they should be spoken to, and listened to,  as soon as practicable, and in any event, before you plunk down that Deposit and move forward with your purchase. If you  get answers you can live with, you almost certainly will find Condominium  ownership in that location ,or building ,pleasurable. if you do not get the answers you are seeking, move on until you find a situation where the answers meet your standards. Only then will DreamHouse Condominium provide the road to a dream and not a nightmare.

New Restrictive Financing Guidelines are Killing our Industry-A Call to Action

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In a recent article in the New York TIMES, problems besetting our industry were the main focus. Examples of people who had committed to purchase as yet unbuilt homes, free standing and condominiums,  and were now “trapped” by new FNMA/FHLMC Guidelines, which have made many financing programs much more restrictive, in terms of down payment and sales of project units. While I did not generally recommend 95% and 90% financing to many of my clients, such programs were a fact a life as recently as 18 months ago, and that high leverage was often the only way a family could purchase the home of their dreams. New Condominiums were not limited to 70% pre-sale, either.

So, when FNMA and FHLMC developed more rigid standards for borrowing, at this difficult time in the housing industry, I have to ask myself “why”. These entities are no longer owned by public stockholders. For all intents and purposes, they are part of our government. Yet, the very same government that has given lip service to the real estate recovery as being essential to an overall recovery permits these agencies to act in a manner which prevents real estate activity.

Who, if anyone,  is really benefiting from the new restrictions on residential lending? Certainly, the potential Buyer who has put down a deposit without a financing contingency is not benefiting. That deposit money is probably gone, as liquidated damages for the Buyer’s failure to perform. So, not only is the contemplated sale up in smoke; so is any other real estate purchase for the Buyer losing his or her Deposit. “No sale” hurts the realtor, the mortgage originator, the closing agent and, ultimately, the Seller or Developer, because holding on to the Deposit is a poor alternative to making the sale of the property in question at the contract price.

It is time for each of us, whatever role we play in real estate, to inform our elected representatives in Washington, DC that these restrictions need to be eased. Dropping interest rates, alone, will not stimulate a  real estate recovery. Programs with some leverage need to be brought back. Pre-sale requirements need to be lowered. If we sit back and allow these new restrictions to continue, we have no one but ourselves to blame for what happens to our industry. Make the phone calls; send the emails, petition the people you put in office. The stakes are much too high to sit on our hands.

Massachusetts Real Estate Transactions-A world of their own

Uncategorized

I am frequently asked by out of state realtors and mortgage professionals about deals “going into escrow” or the work of the “title company.” Very few out of Massachusetts people are aware of the idiosyncrasies of Massachusetts real estate practice, which include the following:

            1. An Offer and then a Purchase and Sale Agreement. The standard approach for a residential real estate transaction in Massachusetts involves signing a Offer, with respect to which a small deposit ($500 to $1,000) is delivered to the listing broker, a subsequent home inspection in or within seven (7) days of the Offer, a period of time after the Offer to review the Condominium Documents and financial materials, and then the execution of a Purchase and Sale Agreement, with substantially greater detail than the Offer, shortly after the home inspection is completed. Generally, there is a 5 to 10% total deposit associated with the signing of the Purchase and Sale Agreement, held, in escrow, by the listing broker or the Seller’s attorney. There is an important case which held that the Offer is an enforceable contract, but in almost all instances, the parties utilize the two-step Offer and subsequent Purchase and Sale Agreement for their deals.

            2. Massachusetts Real Estate Attorneys Stay Much More involved in the Total Transaction than in Other States. As a result of some statutory provisions, Massachusetts attorneys almost always serve a closing agents for purchases in Massachusetts. There is a Supreme Judicial Court (highest court in the Commonwealth) ruling which permits an attorney to represent both the Buyer and the Lender, as long as there is disclosure of same to the Buyer, and as long as the Buyer is apprised of the fact that if there is a conflict of interest between the Buyer and the Lender, the attorney will withdraw representation of the Buyer and represent the Lender, only. In my more than 40 years of practicing in Massachusetts, this has happened on two occasions, so there is really not much risk.

           3. Massachusetts Attorneys serving as Closing Agents do the Closing Scheduling and Write the Title Insurance for the Transaction. In most other states, there are “title agencies” which write the title insurance and prepare the title abstracts. That is not the case in Massachusetts. The experienced real estate attorney has the wherewithal to take care of the entire transaction, including title insurance. This permits closing in Massachusetts to be conducted speedily and without delay, because there is one central focus for the closing, rather than disparate elements which need to be tied together.

My firm is equipped to represent Lenders and out of state Buyers and Sellers for real estate purchases and refinancings. We welocme the opportunity to work with you on your Massachusetts transactions. With offices in Boston, Braintree and Waltham, we are equipped to handle the entire Commonwealth of Massachusetts, including Martha’s Vineyard and Nantucket for you and your customers.

Short Sales and You

Condominium, Short Sales & Foreclosures, , , ,

Short sales are a natural outgrowth of the recession we have been living through. People have lost jobs or become ill at the same time as the equity in their homes has been eroding. They have fallen behind in their payment or payments, yet even when they make the intelligent decision to cut their losses and sell, their net proceeds will not permit them to pay the mortgages in full.

Initially, banks and other lenders did not show muc sympathy to people in this kind of quagmire. In the last few years, however, even the most rigid of lenders have realized that “short sales” ,so-called, represent a cheaper alternative than foreclosure in almost all circumstances. Therefore, short sales have achieved a level of acceptance which make them an option every time a homeowner is behind ih his or her mortgage(s).

I have had considerable experience in dealing with short sales, and I would offer the following advice to those of you, who become involved either as selling agents or buyer’s brokers in short sales:

1. Do your Homework. Obtain as much information from, and about, your Seller. You need to know not only about first mortgages, but second and sometimes third mortgages as well. Make the listing agent furnish current statements from the mortgage lenders, if you can. Ask a friendly real estate attorney to do a “current owner” search of the property. I do them all the time from my computer. Normally, they will provide excellent information on what mortgages are outstanding.

2.  Work out the possibilities of Resolution Before You get in too deep. When there are second and third mortgages, the problems escalate rapidly. If these junior positions are not getting something out of the short sale, they may balk.  Make sure the Seller has addressed this issue with the first mortgage holder. A lot of time will be wasted if the junior lienors will not move.

3. Taxes and Other Municipal Liens. In many instances, when the mortgage has not been paid, neither have the taxes and water and sewer. You will be dealing with a Seller who has no money. In certain circumsatnces, you may resolve the mortage liability but the unpaid munipal charges will make the deal not feasible for your Buyer.

4.  Common Area Fees. The same criteria which make munipcipal charges a problem can also be a problem with common area fees for a Condominium Unit purchase as a short sale. The Trustees of a Massachusetts Condominium have the power to foreclose on outstanding common area fees and sell the Unit at auction. Many Condominium Trustees are unaware of this power or unwilling to spend the time and effort to make these sales happen. Despite their sloth, the lien for common area fees still exists. Know the amount of the arrearages, and see what might be done to compromise same, so that future payments can be applied to the future, not past due arrearages.

5. Short Sale Documentation. Nothing short of an executed letter from the lender or lender is acceptable to confirm a short sale agreement. Accept no substitutes!!! Have the closing agent confirm the validity and accuracy of the executed letter before a closing is scheduled.

6. Offer and Purchase and Sale Provisions. A realtor I respect has told me she insists on the following approach, and language, when she is working with a short sale Buyer:

              a. She will put down no more than $100.00, with the Offer to Purchase or Purchase and Sale Agreement.

              b. The balance of the Buyer’s deposit will be due only upon receipt of lender written approval(s), which has/have been verified as duly authorized by the closing agent.

              c.  The period of inspection will commence only after receipt of the approval(s) described above.

              d. The Buyer’s financing contingency date shall be twenty (20) days after receipt of approvals(s). The Buyer’s financing application date shall be three (3) business days after receipt of such approval(s).

If the steps outlined above are taken, realtors can save themselves, and their Buyers, a lot of wasted effort and expense. There is nothing worse than having the belief that a short sale transaction is going through, only to find out that the proper authorizations have not been obtained from all people who have liens on the property, and a sale transaction which many people have worked hard to make happen, will fail. See my blog: www.realtorsresourceblog.com for other areas of interest

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/

    Disposition of Offer Deposit–Ending Buyer and Seller Disputes over Small Amounts of Money

    Litigation/Disputes, Uncategorized, , ,

    I have been pleasantly surprised at the number of comments I received relative to the disposition of Purchase and Sale deposits, and the problems that many of you have experienced because of the uncertainty in what to do about the “Offer Deposit” so-called, normally $500 or $1,000, which is delivered to bind the Offer. See my post on Purchase and Sale Deposits in www.realtorsresourceblog.com

    In point of fact, the Seller changes his position once an Offer is accepted. In most cases, marketing efforts are sharply curtailed, and even if they continue, they are presented on a “back-up” basis which does not engender a lot of enthusiasm from prospective purchasers. So, there is a “price” involved in the Seller’s accepting an Offer, and that needs to be somehow recognized.

    For the Buyer, the accepted Offer is an opportunity to “get serious” about the property. The Buyer pays for an inspection, and often has his attorney look over the Condominium Documents and Condominium Information, if this transaction involves the purchase of a Condominium Unit. Well drafted Offers (future blogs will consider the status of Offers in Massachusetts) will give the Buyer many “outs” if the transaction does not go forward.

    What seems to be the problem is what you, as the realtor holding the Offer Deposit, must do with same if for some reason the deal does not go to signed Purchase and Sale Agreement status. The normal approach would be for the deposit to be returned,in full, to the Buyer if the Buyer decides not to proceed. Most realtors will require both the Seller and the Buyer to “sign off” on such return.

    Most realtors I have dealt with will NOT return the deposit unless and until a piece of paper, authorizing the Release of the Offer Deposit, with signatures of both Seller and Buyer, is obtained. If it is not obtained, for whatever reason, the Offer Deposit goes into some form of purgatory in the realtor’s fiduciary account, never to see the light of day for either the Seller or the Buyer.

    Suppose the deal doesn’t go because the Buyer just “walks away” and cannot be located. Suppose the deal doesn’t go because the Seller is not comfortable with the Buyer’s reasons for not going forward, and, in effect wants to punish the Buyer for acting irreponsibly or arbitrarily. Haven’t we seen this happen in our practices?

    I have a suggested solution, which I would appreciate your feedback on. In my opinion, my approach champions some much needed reform in this area.

    My suggestion is two-pronged:

                1. No Request from the Buyer.If the Buyer does no request  the Offer Deposit back, in or within thirty (30) days of the date of the Offer, the Offer Deposit, in full, shall be delivered to the Seller.

                2. Request from the Buyer for Return of Offer Deposit. If the Buyer requests the Offer Deposit back within said thirty (30) days, Eighty (80%) per cent of the Offer Deposit is returned, no questions asked. The remaining Twenty (20%) is delivered to the Seller to defray Seller’s costs for participating in the inspoection and delivering Condominium materials, if a Condominium Unit is the subjectof the sale.

    This set of provisions would be an inetgral part of the Offer to Purchase, thus agreed upon in advance. The 80/20 split of the Offer Deposit is mechanical, but it ends disputes. Having the Buyer bear some responsibility for the work involved in getting to a signed Offer limits “tire kickers” who sign offers like eating popcorn. Serious Buyers may think twice before leaving $200 or $100 on the table. The transaction can “move on” without the weight of what to do with the Offer Deposit. Neither the Seller or Buyer can dispute the dispostion of the Offer Deposit. it is agreed upon beforehand, and is based on reason.

    I would be interested if my readers think a system like this could work. It would end endless headaches for our profession, and the need to go to Small Claims Court or other litigation for a relatively small amount of money.

    The Greater Boston Real Estate Offer Form and Purchase and Sale Form have not been amended for almost twenty years. Future posts will explore this situation and suggest some other needed revisions. I truly believe that the proposed “automatic” Offer Deposit solution makes sense and should be included in a new Offer Form. Get me your responses to this idea through blog comments or emails to etopkins@topbev.com. I promise to respond and keep this matter alive.