Tag Archives: seller

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

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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

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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.

Closing really means Final, Final!!! Things a realtor can do at a closing that REALLY matter

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Recently, I conducted a real estate closing in Massachusetts that came together in less than two(2) weeks from Offer to Closing. After the closing was completed, but before I had disbursed funds to the Seller, my Buyer discovered that a closing cost credit that was clearly set for in the Purchase Agreement did not make it to the HUD-1 Settlement Statement for the transaction.

This was, of course, after the Lender had “thoroughly reviewed” the HUD-1 and give its approval. Fortunately for my Buyer, our office has a ZERO TOLERANCE policy of not remitting to the Seller until a final review of the Purchase Agreement is made and the items on the HUD-1 Settlement Statement compared to the terms of the Purchase Agreement. To be perfectly candid with my readers, this ZERO TOLERANCE policy was born from a colossal mistake one of my paralegals made in the past which led to our firm absorbing a $5,300 loss in a residential sales transaction.

In any event, I am sure that not all closing agents practice the paranoia we have made as POLICY at Topkins & Bevans. That being the case, I have the following suggestions for you realtors who attend closings on behalf of the Seller or the Buyer:

     1.  Bring the fully signed copy of the Purchase Agreement with you to the Closing. It is a sad commentary, but you may be the only entity which actually has that kind of document in your possession. I find it often the case that I will negotiate the Purchase Agreement, and add riders, but, in the end, I never get a signed copy of the final Agreement.

     2.  Compare the Signed Copy of the Purchase Agreement with the HUD-1 Settlement Statement. The Buyer and Seller are busily working with the closing agent on getting all the documents signed. The Seller wants his money; the Buyer wants to get out of the Closing as fast as possible to pick up the kids at Mom’s, or greet the mover, or do a thousand other last minute things. You are there with actually very little left to do. You have done most of your work already. But, you can do all parties a big favor by just going through things “one more time”.

     3. Bring any discrepancies you discover discreetly to the attention of the closing agent. Certainly, your goal here is NOT trying to “show-up” the closing agent. You just want things to be CORRECT. Believe me, he or she will appreciate your efforts. So should the affected party for whom you may have saved thousands of dollars. If the closing is a chance for you to continue marketing, this diligent review of the Purchase Agreement will only underscore your thorough approach to all situations and enhance your standing with everyone in the Closing room.

The next time you hear a colleague complain about the requirement of going to a closing and being bored out of his or her mind, suggest the review set forth herein. I am almost sure that such advice, after being adhered to a few times, will engender a “thank you” from the person you suggested it to. Money errors at the Closing are hard to fix, and often result in expense of time and money, even if they can be rectified. You can be a vehicle for preventing these errors, and I urge you to be PRO-ACTIVE in this endeavor.