Monthly Archives: July 2010

Eliminating the Emotion–No job that we do as Real Estate Professionals is more important

I recently wrote a Featured Post about negotiating. I stressed how important it was for people to “walk” at some point in negotiations, either before the property was placed under agreement or at the closing table.

The consistent sentiment from those of you who responded was that you worked hard in the beginning of the engagement to develop a set of expectations from your client , and then tried as heard as you could to keep  that “wish list”, if you will, in front of the client, at all stages, with the objective that  the client would not change course and start to ask for new concessions, normally late in the game.

This approach appears commendable. Almost everything in our business improves with preparation and diligence. I would suggest another important element when you are speaking with your client early in the game. Tell the client that emotions should be “left at home” while they are negotiating for their home. As much as they want the home, or want to sell the home, they need to maintain a “poker face” throughout the process.

In my experience, any  significant show of emotion by Buyer or Seller opens up the doors to the other side. A client needs to  be comfortable with his or her goals for the transaction. They may change somewhat after the home inspection. Perhaps, they need even to be put down in writing. But, I have found that we do out best for our clients if we remind them, gently but firmly, that they should not lose sight of what their goals were in the transaction and what they really expected.

Sometimes the best way to remove emotion is to remove the client. Urge your Seller not to attend the cllosing. Nothing is added by the Seller’s presence, and the chance for an emotional flare-up is increased by the Seller’s presence. The  parties do not need to like the people on the other side; they just need to accomplish what they originally set out to do, purchase, or sell, the property, on terms which they have assessed as fair. If we can keep them focused on that course, we are doing our job,

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

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.

Twitter Power for Active Rain–I Tweeted the Whine and AR treated me fine

I do not know his name. I always get people’s names, and write them down,  when they call me. I have been practicing real estate law in Massachusetts  for more than forty years. I know better. Suffice it to say, whomever he was, he was very helpful. He responded right after I tweeted that I had been writing thought- ful posts on ActiveRain, and no one was commenting. My feelings were hurt.

Right off the bat, he spotted one problem. My posts were limited to Members; he made a keystroke and now they are available to the public. Ww walked through a recent post of mine, He suggested some key words to include. I needed to make my posts more local to Massachusetts , so they wiould appeal to the audience I was really seeking. He suggested that I put pictures or cartoons in future posts. He showed me how to do this appliocation. I will try to make this addtion, soon.

Bottom line, I received a ten minute, very intensive tutorial on posting on AR. My job now is to make my posts more lively and relevant. That is fair, and I am energized. I am reading a book called TWITTERVILLE by Shel Israel. I am finally starting to understand why Twitter can be powerful in growing my practice. Having said that, the lightning quick response from AR when it was mentioned on Twitter is the best evidence of what Mr. israel is suggesting, AR is living. No tweet is unimportant; no tweet can be ignored.

Frustrated by the Apparent Insourciance of Massachusetts Mortgage Lenders- -Make your Sales Agreements “Bulletproof”

In the near recent past, most real estate purchases in Massachusetts had one thing in common. They closed on or before the date set for closing in the sales agreement.  The writer, a Massachusetts title attorney with more than forty years of experience, has recently seen a departure from that truism. Loans are now closing, when the Lender is ready, and that may well be after the specified date in the sales agreement.

Generally, when I have represented Buyers, I can get by this delay because I am working with fellow professionals who have been on my side of the fence in other matters, and they are sympathetic. We enter into extensions to permit delayed closings. I cannot really count on this goodwill every time I represent a Buyer. I , therefore, approach the problem frontally and insist on some protections in the sales agreement which are designed to lessen the stress when the Massachusetts Mortgage Lender insists that the loan is not “clear to close” because the third appraisal review has not been completed, and Martha is on vacation, and she will not be able to get to it until next Tuesday. (Your scheduled closing date is next Monday!!!)

So with this knowledge in hand I work hard to insure that the following provisions are in my Buyer representation sales agreements:

     1. The Mortgage Contingency Clause. I insist that the mortgage commitment be “in writing” and does not contain “any terms or conditions which are beyond the Borrower’s ability to fulfill in a reasonable time” I now am insisting that the appraisal which is the basis for the mortgage commitment “indicate a value equal to or greater than the purchase price.” The appraisal piece is becoming much more important with the new appraisal rules. I say to the other side, “Look, we all entered into deal this in good faith, but if we are wrong about the appraised value, we can not go through with the deal”. In these days, this seems to work.

     2. Delay Protection Provision. Getting a solid mortgage contingency provision helps, but it does not deal with the internal idiosyncracies concerning the understaffed Mortgage Lender. So, even after I make the mortgage contingency provision have some teeth, I  also insist on a provision as follows; “The parties agree to extend the deate of closing for a period not to exceed fifteen (15) buisiness days if the delay is caused by Buyer’s Mortgage Lender. or the Seller”.

     3. November 30, 2009. I have also recently been putting in a provision that if the Lender’s, or Seller’s delay causes the transaction not to close on or before November 30, 2009, the parties agree that the purchase price will be reduced by $8,000. This may seem harsh, but that closing cost credit would appear to be vanishing on December 1, 2009, and I want my client protected. I am not always successful in getting this provision accepted, and I do allow  the clause not to take effect if the Buyer Tax Credit is extended.

These are my suggestions. I would welcome yours. Masschuseets Mortgage Lenders are understaffed. They are working on short sales and modifications. They fail to grasp what “time is of the essence” means. We need to think ahead to protect our clients and customers.

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