Archive for May, 2016
Monday, May 23rd, 2016
If you are a real estate agent or a home buyer you may notice that the market is obviously low on inventory right now. Being that it is the “selling season” of Spring/Summer, and since there are a lot of buyers out there looking at homes, there are many situations involving multiple counter offers and homes selling for well over asking price…all great if you are a seller. However, there are also some fishy things going on out there and it is frustrating to agents and their buyers.
Let’s take a look at what is happening:
1. Homes listed well over comparable value. Many, and I mean a LOT, of homes in North San Diego are being listed over market value – some slightly and some way over. Buyers, who normally would avoid such homes until the price drops, are flocking to them and making offers anyway. No one seems concerned that the home likely will not appraise, and if one buyer walks there are many more who will step right in. This is pricing out first time homeowners and bringing prices up…you may think the latter is good, but it is dangerous because such inflation could create problems for the market – especially when there are many buyers who have incomes that will price them out of neighborhoods they should have been able to afford had prices reflected comparable sold values.
2. Many sellers are taking a long time to respond to offers – even very strong ones. If a buyer makes a very strong offer over asking price, many listing agents are waiting for 4 or 5 days to even respond, during which time they collect more offers. Many then submit multiple counter offers to all bidders asking for the best and highest price. This prices many potential buyers out of the running, and most already submitted an offer slightly over their budget.
3. Sellers are refusing to make repairs or pay for reports. In a seller’s market the seller knows s/he is in the driver’s seat, and many sellers are countering back stating the home is sold as is, and that they will make no repairs and pay for no reports – like termite reports. They want the cleanest offers possible with the least amount of money out of pocket. This means the buyer can get stuck with multiple repairs, termite work, etc. If the buyer is already paying top dollar for the home, s/he has to make sure those things are affordable. No one wants to see a new foreclosure wave hit in a few years.
4. Appraisals are not coming in at contract value – but that is not deterring sales. I have not had problems with appraisals on listings (I don’t market properties in the “insane” price category), but have heard from many agents who have. Even if the home does not appraise at contract value, there are plenty of buyers who are willing to pay the difference in cash if sellers will not negotiate prices down to the appraised value. They feel that is the only way to secure a home purchase in these crazy times. Does this sound like 2003/2004 – “pre-crash” – to anyone else besides me?
5. Overly aggressive listing agents seem to be multiplying, and they are not being cooperative. There are many listing agents who are ruthless and even rude. They don’t care that your buyers love the home and have been looking in that neighborhood for a long time, or that they wrote a very strong offer and submitted it first. To these agents, it’s all about playing the game and finding the highest bidder. Some agents do not return calls and emails, and some violate the Realtor code of ethics – a few may even commit fraud. It is extremely frustrating for buyer’s agents, who are trying to find a home for their well-qualified buyers.
6. Pocket listings and homes listed “off the MLS” are increasing. Many agents are marketing their listings on third party sites like Zillow, and not placing them on the MLS – the cooperative tool used by Realtors to benefit all parties looking in particular areas/price ranges. While it is their right to do so, it makes a problem for buyer’s agents whose clients may see these listings and want to visit them – but when their agent calls the listing agent to make an appointment she is often told that the seller is not paying a commission to buyers’ agents. Imagine you have been helping your buyers for months to find a home and now you cannot show them this one home because the broker will not cooperate with your broker. It puts buyer’s agents – who play an imperative role in protecting buyer’s rights – in a very sticky situation. You may ask why listing agents do this: the answer is so they can find buyers who will work with them, thus saving the seller from paying out a commission to the buyer’s agent. Hopefully the California Supreme Court will soon put an end to double ending sales and this will no longer be a problem.
I am a bit concerned and hope that we are not heading into trouble in the real estate market. I hope that agents keep in mind the spirit of cooperation that is inherent in our business – we all need to work together and be fair. If we do not then buyers and sellers will not be protected from future lawsuits, and many people will be priced out of the housing market – which could cause a domino effect with local economies and eventually the US economy.
Tuesday, May 17th, 2016
There are too many mistakes made by real estate agents – some come from a true lack of understanding of the legalities that are inherent in buying and selling real estate, and others from ignorance, selfishness or stupidity. But either way the fact is that real estate agents need more training and licensing requirements should be much stricter.
I was contacted last week by a lady who felt she had been taken advantage of by her current agents. They failed to inform her about the process of accepting a particular tricky offer, and the ramifications associated with doing so, in order for her to make an informed decision on whether to accept the offer. They did not explain many other things she had the right to know. She was beyond frustrated.
The reason this home seller called me is that she had been referred to me, and liked my legal background – she wanted to fire her agents and have me list the home. I counseled her on the terms of her listing agreement, and provided options and advice; in the end I told her she should try to resolve issues with her current agents so that she could get her home sold since they had already done so much work, while renegotiating some terms and making clear that she needed to be kept in the loop throughout the process. She said she felt much better after speaking with me, and I was glad to help.
The listing agent team she was working with is seasoned, so I was rather surprised that they did not provide information and explanations on many of the forms and processes that come with selling a home. They also charged a 6% commission fee, and they offered 2.5% commission to the selling agent, so they were planning to make 3.5% on the sale! She tried to negotiate with them but they would not do so. She was told that was standard and she had no idea that commissions are negotiable. But I am more disgruntled with other aspects of the sale that I feel were not handled properly.
It is time our national, state and local associations set up mandatory training programs for every agent, and license renewal programs that touch on much of that training so that agents are reminded of their professional and legal responsibilities every time they have to renew their license. Here are some suggestions:
1. Real estate exam – this needs to be more difficult and more expensive to take – that will keep those out who are only in it because they think they will make a lot of money.
2. Across-the-board mandatory training programs – these need to be implemented for all new agents – every broker must comply. This will ensure that all new agents have the same degree of basic knowledge about real estate and law, and the practicalities of sales (forms, paperwork protocol, transaction management, etc.).
3. Stricter license renewal requirements – these also need to be addressed, because the license renewal requirements could be more challenging.
4. Stricter punishment for ethical violations and breaking of laws – as the current rules stand in my state, an ethical violation may or may not be punished – it all depends on whether the agent on the other side of the violation, or a disgruntled buyer or seller – reports the behavior. Unfortunately many do not, because they do not want to be involved in a situation where they are pointing a finger. Agents especially do not like to get involved in ethical hearings because they feel their reputation may be at stake for calling out a fellow agent – thus many unethical agents continue to slide downhill. Punishment is also not meted out often enough or enough to match the crime. The same is true of agents who break laws, like committing fraud. Reporting and punishment need to change.
The real estate business would benefit immensely from the above changes – real estate agents would be a more educated, professional and savvy group of people, and home buyers and sellers would win in the biggest way.
Tuesday, May 10th, 2016
The California Supreme Court will soon have a chance to review the practice of dual agency, where a broker (either through one agent or two agents who work for the same broker) represents both the buyer and seller in the sale of real property. California is a state that allows this practice, although the California Association of Realtors has penned rules that require full disclosure of such situations to all parties. Nevertheless, when one agent/broker represents both sides of a sale transaction there is a big conflict of interest, and the possibility of misrepresentation and breach of agency duties is highly possible. I have always been against dual agency, but I have represented both buyer and seller in transactions – there are rare situations where the scenario can work effectively. I think it would be better for all sellers and buyers if it were not allowed.
Here is an example of a typical dual agency dilemma for an agent: If a seller tells his agent something in confidence, say what is his bottom line for an acceptable sales price, and that agent then represents the buyer – who asks what price they should offer on the home – the agent is placed in a very precarious situation. The agent in this example owes a duty to both sides, but how can she answer her buyer’s question without betraying the seller’s confidence? She knows what the seller will take, but it is her duty to get the seller the best offer possible. Similarly, it is her duty to do her best on behalf of her buyer now, so it puts her in a hard place.
The case at hand stems from a sale of a luxury home in Malibu, in which the buyer (represented by a Coldwell Banker agent) claimed the listing agent (a different Coldwell Banker agent) failed to disclose to him that his home was much smaller in square footage than advertised – this claiming that the price was inflated for the size of the home.
I believe that dual agency should never be allowed unless the broker is also an attorney, and even then I have doubts. After all, it is not allowed with attorneys – could you imagine hiring counsel for the opposing side in a court battle! This is a very sensitive area and many agents do not understand the legalities involved. It will be interesting to see what the court decides.
Friday, May 6th, 2016
The passing of Prince really effected me – it’s crazy but I really fell into a mild depression. Prince’s music plays on the soundtrack of my life, my most poignant self-discovery years of high school and college. He was a musical genius and stood up for ownership rights to his music, which I admired immensely. He also reminded me much of my birth father – a very talented musician who learned to play the violin as a small child and ended up at 17 (same age Prince was noticed by the industry) getting into a popular band and touring the country as it’s lead bass player (he was also a talented vocalist and song writer as well, and recorded many songs).
Prince was a prodigy, a mover and a wizard of words and sounds. There will never be anyone like him in the music industry. He was also a big philanthropist, helping others all over the world. But the saddest note in all this is that he left this world without an estate plan. As an attorney I am beyond upset for him and his legacy. As a fan I am devastated as well, and can only hope that all the beneficial causes that he contributed to, as well as the vault of thousands of songs that were never released, are handled properly. I hope that his estate, Paisley Park, does get turned into a memorial museum for fans to pay their respects.
I tell all my real estate clients when they purchase a home that they need to consider creating a trust and an estate plan in general. It is easy as a young home buyer to not consider doing so, but life has no set expiration date, and in order to protect those you care about and not tie up your property in probate, as well as for tax purposes, this is a no-brainer.
If you are thinking of creating an estate plan (and if you don’t have one you definitely should be thinking about it, especially if you own real estate and especially if you are a parent, have a spouse, etc.), stop thinking and get moving. You will need to collect lots of information to provide your attorney, so find a good estate planning lawyer and get started.
Here are the documents you should incorporate into your estate plan:
1. Trust: You should hold real estate in a trust – it enables you to appoint executors of your estate so that your wishes are adhered to properly when you die. It also avoids the costs of an estate sale and court time to determine who inherits the property. Just as importantly, if you have children you will set up plans for them should anything happen to you and your significant other – no parent should be without a trust. You can set up a revocable (changeable) trust, or an irrevocable (non-changeable) one depending on circumstances.
2. Will. This will specify your wishes regarding a host of issues like who will inherit personal items. You can always make changes to these documents – my husband and I have done so over the years due to the passing and health of family members.
3. Power of attorney. This allows you to name who will pay your bills, sign tax returns and sell any needed assets. If you do not do this the state will appoint a stranger to oversee such issues (like in Prince’s case), and your wishes may not be followed.
4. Health care directives and DNR. This will allow you to appoint the person who will make medical decisions for you if you are unable to do so yourself, and you can include a DNR (do not resuscitate) to specify whether to keep you on life support if you cannot breathe on your own. It is hard to think about but is necessary, and will save your loved ones from having to make a decision if they don’t know what your wishes would have been.
Depending on your net worth and the particulars of your assets, you can have estate planning documents drafted that range from the simple to the very convoluted. But no matter what you need, my advice to you as a lawyer and real estate broker, is to create a trust. Unlike Prince, you can make sure your legacy is left to your heirs or whatever organizations you choose. If you need a referral to an estate planning attorney in the San Diego county area please shoot me an email, text or call me and I will be happy to provide some names.