Archive for the ‘home sale tips’ Category

Can a Home Seller Be Sued for Contractor’s Knowledge of Problems?

Wednesday, November 1st, 2017

As a home seller it is imperative that you make sure you do everything you can to avoid lawsuits from your new buyers. Failure to disclose has been one of the most litigious causes of action in real estate law. Upon selling property, sellers must disclose all they know about the property according to state mandated forms – this usually includes past insurance claims, any upgrades or improvements, damage to the property, repairs, noise issues, and many other questions. Sellers must answer these questions to the best of their knowledge, and provide explanations and any necessary receipts to verify the claims. But what happens when other people who work on your home make a discovery that could render the home undesirable?

The most recent case, RSB Vineyards, LLC v. Bernard, was upheld by the California Court of Appeals. The court ruled that a seller must have had ACTUAL KNOWLEDGE to be held liable for non-disclosure, and a contractor’s knowledge is not imputed to the seller. In lay terms, this means that if a seller hires a contractor to do work, and the contractor discovers something about the property, the seller cannot be held liable unless the seller was made aware of the problem by the contractor.

In the lawsuit the contractor had converted a residence into a wine tasting room on vineyard property that was later found to be structurally unsound – the buyers found out after they purchased the home and had to demolish the structure. They sued the seller for failure to disclose. The contractor was found to have known about the problem but there was no “actual knowledge” by the sellers.

In many areas of disclosure here in California, the seller CAN be held liable for items about which they should have known. For example, if the sellers notice water stains on a ceiling of a room and do nothing about it, then have the ceiling painted prior to sale, without disclosing the stain…this would likely render the seller liable for failure to disclose, as the water stains obviously indicate some kind of problem. Note that had the seller disclosed the stain and not painted over it, s/he would not be liable. It would then be up to the buyer to investigate and ask for repairs if problems were discovered.

If you are selling a property it is very important to answer ALL questions on the disclosures to the best of your ability. Back up any claims with receipts, documentation, etc. I always tell my clients it is better to over-disclose. Put everything out there so that you do not have to worry about liability down the road. If you are made aware of any issues by a third party, make sure to include that in your disclosures so the buyer can look into it further.

If you are ever unsure of whether or not to disclose something, the rule of thumb is that you should do so. However, I suggest obtaining legal advice…or if your real estate agent happens to be an attorney that could help too 🙂

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New Zillow Program Could Hurt Home Sellers, Agents

Monday, May 22nd, 2017

Today Zillow announced that it has test-launched a new program called Instant Offers, which it claims will help home sellers and agents. But upon close inspection this program is full of legal caveats for home sellers and agents alike.

The new program claims to offer options to home sellers so that they can avoid traditional marketing such as open houses and photographs. Here is how it works, according to what I read: a seller decides to use the program, which offers 3 options –

1. Sell directly to investor buyers: Without placing the home on the MLS it is offered to investors for purchase – almost like a For Sale by Owner listing. The investors can make an offer. At that point the homeowner can decide whether to take the offer or list on the MLS with an agent the traditional way (Zillow will recommend the agent). Zillow will benefit financially from the agent referral as more agents will want to advertise with Zillow). It is not clear how Zillow will benefit financially when sellers do not want to work with agents, but maybe there will be some kind of agreement between it and the investors.

2. Sell to investor buyers and use an agent recommended by Zillow to assist with the sale: If the homeowner wants to list their home Zillow will recommend one of it’s “Premier Agents.” These are agents who pay Zillow for advertising. Zillow wins here (like above) because 70% of its revenue comes from these agents who advertise.

3. Reject offers and list on the MLS with an agent: Zillow will of course recommend one of it’s Premier Agents (note that Zillow is NOT a broker, rather these agents achieve this status by paying Zillow money to advertise their names and services).

Ok…so you may think this is good – it gives home sellers options. But here are the other points to consider for all home sellers:

1. Potential lower sales price – investor buyers typically do not pay high prices – they offer a quick sale but the catch is that they want to save money. For those who have to sell quickly this could be a good thing, but for those who want to realize top dollar this is not the answer. If you have a home that is a true fixer upper an investor buyer is great as well, but there may be competing investor buyers out there on the open market and you could end up getting more if you have multiple offers, so choosing the Zillow program really puts your back against the proverbial wall.

2. High Fees – People always complain about high fees for selling homes. This program appears to charge a 9% service fee to those who choose to sell to one of the Zillow partner investors.  Rather than pay such a high fee for a likely lower net sales price, it’s better to interview professional skilled area agents. Standard commission rates in CA are around 5% but commissions are negotiable.

3. THE LEGALITIES – Selling a home is a legal transaction, with contracts, paperwork and deadlines that are imperative to get right in order to prevent a lawsuit down the road. Although Zillow says it will recommend the seller work with an agent to get through the paperwork process with the new program, sellers have the option to forgo this. This is problematic, to put it mildly.

If I can give you one piece of advice only when it comes to selling your home, it would be this: have a lawyer review all your paperwork, including seller disclosures. If you do not want to hire a lawyer, make sure your agent has a good broker and have that broker review all your paperwork (or better yet, find an agent/Broker who IS an attorney). There are also many highly skilled agents who know what they are doing – find one.

4. Errors and Omissions insurance and lawsuits – Every broker (at least here in CA) must carry errors and omissions (E&O for short) insurance. It protects them in the event of a lawsuit brought by a party to a real estate transaction. Here’s the biggest problem with Zillow’s new program – Zillow is NOT a broker. If a home seller opts into the program and elects not to work with an agent, who is going to assume liability for contractual paperwork? What happens if disclosures are not filled out correctly, or if there is a problem with the home that is discovered after closing? The seller is put in a very bad position.

Agents could be hurt by this new program if they do not advertise with Zillow, as they will not be recommended by the company program. This is a lose-lose for hard-working professional agents everywhere who do not choose to pay money to Zillow, as home sellers in their areas may not even come across those skilled agents if they opt for the Zillow recommended agent.

These and many other questions do not have clear answers and as an attorney I say this program is fraught with potential problems for home sellers. So while Zillow may think the Instant Offer program is a great new “thing,” in my opinion, or until I see otherwise, sellers should steer clear. This program is in a test phase right now and is only available in Las Vegas NV and Orlando, FL.

For more information on the legalities of selling your home please contact a skilled attorney or broker in your area, or feel free to contact me with any questions by responding to this post.

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5 Ways to Best Sell a Tenant-Occupied Home

Friday, February 20th, 2015

Selling a home the right way can be tricky – you need to make sure the home is clean, clutter-free, shows well and is staged properly. You should  have beautiful professional photos and the home should be inviting and bright…a lot to contemplate when preparing for sale. If the home is occupied by tenants these tasks can be even more challenging. Here are 5 things you can do to make sure your home looks great with tenants living there. spring-cleaning

1.  Make assessments with the tenants. Before listing you should walk through the home with the tenants and your real estate agent. Make a list of things that need to be done in order to get great photos and optimal showing results – is there any clutter that needs to be removed? Does anything need to be remedied? Make a list for the tenant and then offer to help them out to get those items resolved.

2.  Include the tenants in the planning. Make sure you discuss with the tenants the ideal time(s) for showings – get them involved so that they do not feel their privacy is invaded. Find out if they would like to be notified by the agents themselves of potential showings, or if they prefer to have daily times where agents can just go and show (for example, if they will be at work). If there are any pets make sure to get instructions on what agents need to do to assure the pets are safe during showings. Consideration goes a long way and will make your tenant feel their needs are being addressed.

3.  Pay for a cleaning service. Tell your tenant that you will be paying for the home to be cleaned. If your tenants are messy you may need to have the cleaning service come every week or bi-weekly during the showing period. Most tenants will like this because they do not have to clean themselves. Make a deal with them that you will do this if they promise to make beds, put away clothing and food items, and keep everything clutter-free. If the home is carpeted you should also have the carpets cleaned, as well as the windows.

4.  Rent reduction. Many tenants have no desire to help you sell the property because it means they will need to move. In order to make sure they keep the house clean and show-ready you need to make it worth their while to do so. The best way to do this is to reduce their rent during the time the home is being marketed and shown. The tenant will agree to keep the home tidy and de-cluttered daily, in exchange for a reduced rent. This can be a win-win for everyone.

5.  Last resort: termination of tenancy. Some tenants just won’t cooperate no matter how much you do to help them. Rather than try to show the home in a poor state, if all else fails you will need to provide your tenants with written notice to terminate the lease (if it is possible to do so according to the terms of your lease). If the lease is still in effect and cannot be terminated it may be advantageous to offer the tenants a monetary sum to terminate the lease early. Make sure you speak with a real estate/tenant and landlord attorney in your area to understand the law and your rights as a landlord, as well as those of your tenants – you should do this before listing the home if you have a lease that is still in effect.

Over the years I have sold properties with tenants – from cooperative tenants to those who lived in filthy conditions and made nasty comments to potential buyers about the home (those tenants started out cooperative and said they were going to keep the place clean – they had to be evicted eventually). In general it is easier to sell properties without tenants, but if you have people who are willing to help out it can be done and it can be a positive situation for everyone if you take steps to be considerate and plan everything out.

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Should Sellers Have a Home Inspection Prior to Listing?

Friday, November 21st, 2014

Today on Twitter a follower made a comment about the benefits of having a home pre-inspection prior to listing a property. There are some agents who recommend doing so and it can be a good idea. However there are also agents who would not recommend doing so because it could open up a can of worms for the seller. I thought it would be a good idea to look at the benefits and disadvantages of having a pre-inspection.home inspector

Issues with the Home that the Seller may not Know About Could be Revealed in a Pre-Inspection

Benefit:  A pre-inpsection gives sellers an opportunity to repair/remedy any defects or problems that are discovered, in order to present a home to the buyers that has been well cared for and has no deferred maintenance. This means there will not likely be any surprises when the buyers have their inspection. Oftentimes inspectors discover issues of which the sellers were not aware. Most buyers will ask the seller to repair such issues or credit them through escrow so they can do so after closing, or even reduce the price because of any issues. A pre-inspection could eliminate any surprises, but keep in mind that the buyers still may have their own inspection (something I always recommend), and it is possible that their inspector may discover other items.

Disadvantage:  There could be some major issues discovered that the sellers did not know of, that could cost a lot of money to fix. If the sellers do not have the funds or do not choose to repair such issues prior to sale, they now are aware of these problems, which means they must disclose them to buyers. Disclosure of know factors affecting the property is required by law. One could argue that no matter whether the buyers are told via disclosures that there is a problem, or whether they discover it themselves through a home inspection, they will still likely seek repairs or a credit, so it may not matter either way.

The one problem I see with having a pre-inspection is that if something major is discovered, meaning the seller has to disclose it, it could affect the value of the home (depending of course on the issue). For example, say there is a crack in the swimming pool, or the roof needs to be replaced. These could be costly issues to fix, and could detract from the value of the home. The seller can turn it into a positive and deduct the repair costs from the value right off the bat if aware of issues, OR if not aware of such issues and presented with a repair request by the sellers, it is possible the seller may be able to negotiate a price under full repair costs.

A Special Note About Termite Inspections

It is important to note that this month there will be a big change to the California Residential Purchase Agreement (RPA) regarding termite inspections. The current contract has an addendum called the Wood Destroying Pest Addedum (WPA), which normally specifies that the seller is responsible for Section 1 items – damage caused by pests. This would include dry rot on wood and fumigation, which could be costly. The new RPA eliminates the WPA, so it will now become a repair issue. This means that the buyer will be responsible for paying for a termite inspection, and any issues discovered will need to be negotiated with the seller, along with any other non-termite repair issues.

Keep in mind that a buyer can write something different into the contract, such as sellers are to pay up to a certain amount, if necessary, for any termite work discovered. If sellers have a termite inspection prior to listing and discover any issues, they can inform the buyer up front in disclosures so that the buyer can negotiate those repairs or decide what action to take. I will be suggesting to my sellers to have termite pre-inspections, as I feel it could eliminate potential problems. It also allows the seller to choose a reputable termite company.

I suggest always to discuss the above with your agent before listing your home so that you are aware of your rights and can make an informed decision.

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5 Inexpensive Ways to Get Your Home Sale-Ready

Friday, July 18th, 2014

Whether you are going to sell your home or have a home you can’t yet afford to upgrade, there are things you can do to make it more appealing, without breaking the piggy bank. If you are selling your home it is important that the home look the best it can, especially if you want to attract qualified buyers. Here are some great ideas you can accomplish in a weekend or two.paint

1. Paint. Paint is by far the best way to update any space, and it is inexpensive. If your  home looks dull or the walls are dirty, paint is the answer. Avoid any bright or dark colors, and try to stay within a neutral realm if you are selling (buyers may have different tastes so it is safest). If your home does not get a lot of natural light you should keep the colors light. Painting is easy and can literally transform a room. Don’t forget baseboards and doors if needed. If the front of your home needs sprucing up, you can save money by just painting the trim, front door and garage (if needed), without having to spend thousands on the entire exterior.

2. Replace door and cabinet knobs. This is another inexpensive way to really change the feel of a room or entire home. I can’t tell you how many times I have shown homes that have been upgraded, but for the ugly door and cabinet knobs that are circa 1970. Knobs come in a plethora of shapes and colors, with a vast price range. If you go to a large home store like Home Depot or Lowe’s, you can find some great prices. You can also shop online. Doors that are freshly painted with new fixtures improve the entire room.

bright kitchen3. Let the light in. This is one of the biggest selling points – buyers do not like dark homes. If you have one you have to assess how best to address the issues and bring in as much light as possible. Windows should be uncovered and cleaned – no heavy drapes (because even when they are open the material hanging on the sides blocks light). Short of installing light tubes in your ceiling, you can add more lighting to your home if there are areas where the natural light does not illuminate. You don’t need to spend lots of money – if that is not an option you can simply purchase inexpensive lighting features. If the kitchen is dark, consider mounting under-cabinet lights – if you have multiple outlets you can usually install them yourself without the help of an electrician.

4. Dress up the front of your home. This is critical for sellers, because curb appeal is the first thing buyers will notice. Without having to completely re-landscape, you can make a big difference to the front of your home by doing the following: trim overgrown bushes and trees, mow the lawn, pull weeds, clean windows and doors and sweep porches, and do some planting – think colorful. You can purchase flats of flowers for cheap and line your walkway or planter boxes. If you don’t have those think of investing in a few big pots (it is easy to find cheap ones), and filling them with flowers – place these at your front door or other focal points. If you have large spaces that cannot be filled with plants, purchase a few large bags of bark to make the spaces look fresh. Make sure outdoor lighting is working and clean fixtures.

5. Declutter. I have written numerous blogs about the importance of decluttering. If you are selling your home, keep in mind that buyers want to see the useable space in every room. Take out excess furniture, stacks of books or magazines. Remove photographs from walls (a few well-placed pieces of art are fine, but you do not want walls covered with photos or art). Leave counters empty (except for very little, like a vase of fresh flowers). If you have furniture that is very bulky, get rid of it if you are sprucing up for sale. If you really need  help you can consider staging (which really is not overly expensive and will likely bring  you offers sooner than without staging, so do the math). If you are not selling but living in your home, decluttering still is advantageous and will highlight the space in your home. Decluttering should include the garage and outdoor living spaces.

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What Should You Fix Before You Sell?

Wednesday, May 7th, 2014

I recently met with potential sellers who wanted me to take a look at their home and make recommendations as to what they should fix or remodel before they list their home. Like any sellers, they want to make the most money they can on the sale. Luckily for them, their home is in a very desirable part of San Diego, in a great location on a cul de sac with high-ranking schools in the area. It is an expensive area so they wanted to make sure that they would meet buyer expectations.dreamstime_2647321

All sellers want to make the most they can on the sale of their homes, and the question they all ask is the same: what should we do to make our home look the best it can in order to attract buyers and get the best price possible?

My advice usually veers toward not spending a lot of money to prepare a home for sale. I have written numerous blogs over the years about ways sellers can make their homes look better without emptying bank accounts.  Here are some factors to consider so that your home shows in the best light possible:

1.  Location. First and foremost, the location of your home may determine how much money you need to spend in order to have a sale-ready property. If you live in a desirable location obviously that is a plus, and it will mean you may not have to do much to get your home in tip-top shape. Discuss with your agent how your location may or may not determine the extent of pre-sale preparations.

2.  Local market and neighboring homes. The hyper-local market obviously has a big impact on what a seller needs to do to get a home ready. If all the homes in the neighborhood are remodeled and upgraded, and the sellers’ home is not, then that is a consideration. However, a seller should not always assume that just because their home is the ugliest on the block they need to dump money into it in order to sell – it really depends on the the market. Like many local markets today, if inventory is scarce it may not make a difference if a home needs TLC. Another consideration is that you cannot please every buyer – some may like wood floors, some tile, some carpeting – so it may make sense to let the new owners decide. Sellers really need to discuss these concerns with their agent, using all the local data and comparable sold properties available…things could go either way. Of course a cost analysis needs to be done for any work that is a consideration. There are also many ways to make the home look as appealing as possible without spending a lot of money.

images3.  Eyesores and functionality issues. If a home has specific rooms or areas that really stand out as undesirable it may be worth it to address them, however that does not always mean spending a lot of money. For example, if a room is dark (which is not generally desirable), the sellers can consider inexpensive ways to brighten it up without adding windows or skylights. Lighter color paint and removing window treatments are just a few ideas.  Of course, it is all very project specific, so again it is a good idea to consult with your real estate agent or a home stager.

In the case of homes that were rented and not cared for, or homes that have pet stains and odors, it may make sense to replace carpeting or flooring, as odors are big red flags to most buyers. If there are items known to the seller to be in disrepair (for example, plumbing or electrical issues), I usually recommend taking care of those – it is important that all major systems function properly. If the fix is too expensive you will need to disclose and be prepared to lower your price. The key is to make the home as appealing to potential buyers as possible…if they know they will need to spend money to fix big issues it may be a turn-off. If a home potentially has multiple issues it may be a good idea to get a pre-sale inspection and address issues in the report. Of course, there are some homes that may need to be sold as-is, and priced accordingly.

4.  Smart alternatives. As alluded to above, there are many ways to really dress up a home for sale without breaking the bank – landscaping and paint are two of the best ideas. De-cluttering is a must. Brightening and cleaning are also imperative. For those properties that just need a little extra help, staging is terrific. Talk to your agent and consider your options before jumping into any expensive remodeling project or upgrade.

There are some inexpensive things you can do to really enhance your curb appeal – for ideas on staging click here. For other ideas click here.

It is important to remember that it is not always necessary to assume that you need to spend a lot of money to get your home sale-ready. Of course, every home is different and will have it’s own set of issues to conquer. But with a little creativity and likely not a lot of money, it is possible to present your home in the best light.

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Should You Paint Your Home Before You Sell?

Wednesday, January 22nd, 2014

I have blogged already about my feeling that 2014 will be a great year to sell. Those sellers who have held off, waiting for values to go up, can reap the benefits of the 2013 price increases, as well as the growing buyer pool and lower inventory levels. But today’s buyers are definitely picky, and they usually know where they want to be (which neighborhoods, what amenities). To get top dollar for your home you really need it to be in the best showing condition possible.images

I have written several blogs about things sellers can and should do to get their homes in the best condition for sale. But in this blog I wanted to focus on painting. Paint is probably one of the cheapest things you can do to seriously enhance the desirability of your home. A fresh coat of paint says that your home is well maintained, and really makes buyers feel there is less they need to attend should they purchase the home.

Exterior paint: Drive through any neighborhood and look at the homes. You will immediately notice those that are in need of paint jobs and those that look fresh and clean. Curb appeal is a big factor in whether a buyer will consider making an offer. If you are unable to paint the entire exterior of your home, at least consider painting the trim, front door and garage (if you have a painted garage). Doing so will not create a big dent in your pocketbook and will really make your home look more attractive.

Interior paint: Color was always a big plus in the past, but interestingly enough I just learned from a local builder that most buyers of new construction today prefer white paint. That was somewhat surprising, but I have heard it elsewhere – white seems to be the new preference. It says clean and fresh.

When it comes to painting one piece of advice has and still rings true: avoid bright or loud colors. While you may love a red kitchen or purple bedroom, if the buyers viewing your home do not it makes the home less desirable. It is better to paint over those colors and keep it neutral, or just go with white. You never know what colors people prefer and can never please everyone, so keep it simple.

Of course, paint is just one thing you can do to get your home in the best selling shape. You also should consider decluttering, removing personal photographs, light staging if needed, touching up your landscaping (potted plants are great by the front door), keeping your home clean and letting in the natural light. For more ideas on what you can do to make your home more appealing click here.

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Do You Really Know What Your Home is Worth?

Monday, March 18th, 2013

If you are thinking of selling, refinancing, or just want to get an idea of what your home is worth, you have many options. Most people these days like to do things themselves, since there is so much information available at our fingertips online. There are also some great real estate sites and many local brokerage sites, so there are multiple ways to access the information. But you need to be careful, as what you get on some of those sites may be inaccurate, especially in today’s market.

Sites like Zillow and Trulia provide easy access to recent sales, and even provide estimates for the value of your home. Some things they may not take into consideration are:

1. The condition of your home and comparable sold properties

2. Upgrades

3. Additions – sometimes these take a long time to show up in the public records, which could alter the valuation of your home

4. Very recent sales (closed in the last few days)

5. Pending sales that are about to close escrow (as they will have an affect on your sales price should you decide to sell)

6. Whether or not your property is distressed or other recent sales were distressed

7. Inside knowledge about other homes that may have just gone into escrow or appraised

8. Other factors. There may be other factors that can affect your sales price, such as information displayed in the confidential remarks on sold properties (that only licensed agents can see) that provide details – for example, commissions may have been reduced, sellers may have reduced the sales price due to expensive necessary repairs, or other factors could have affected the sales price. Also, there may be information about construction in the surrounding area that can affect sales prices in the future (freeway extensions, plans for new shopping centers, Or there could be issues with the condition of the home that sold.

All of these details are important in analyzing your home and making sure you get the correct information. Thus it is very important that you consult a local area real estate broker or agent to provide you with a specific and detailed market analysis.

There are many things we can do ourselves these days online, but if you are considering selling make sure you get the right information so that you can make an informed decision. Real estate agents are there to help you, and I do not know of any who charge for a detailed market analysis. So find a skilled agent to assist you, and make sure you have all the pertinent information before making any major decisions.

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What is an Escalation Clause and Should You Use One?

Monday, March 11th, 2013

Escalation clauses are becoming very popular again. Although controversial amongst those who work in the real estate field, they are not illegal nor prohibited. If you are a buyer or seller you should understand what they are and how they work…they could be a blessing or they could cost you in a big way.

An escalation clause allows a buyer presenting an offer to agree to pay a certain fixed amount higher than any other competing offers made on the property. Thus, the buyer has a huge advantage over other buyers. Usually there is a cap placed on the price overage.

Let’s look at an example. Say Mr. Seller puts his home on the market for $500,000. According to recent solds in the neighborhoods this is a fair price. He receives 3 offers, all for $500,000, and one with an escalation clause for $1,000 above any other bids, up to $510,000. Mr. Seller can either send out a multiple counter offer to all buyers, seeing if any of them will come up in price. If they do, the buyer with the escalation clause will still come in $1,000 higher, up to $510,000. If the comps do not support value over the $500,000 asking price, the only way any buyer getting a loan will be able to pay for this home is to agree to pay over appraised value, which many buyers will not or cannot do. Thus, the buyer with the escalation clause, who is presumptively willing to pay over appraised value, has an edge.

This sounds great for the buyer, who oftentimes cements his place as the winning bid in multiple offer situations. It also sounds great for the seller, who will undoubtedly sell his home over asking price. However, there are some major caveats when using these clauses, and you need to make sure you understand how they work in order to decide whether they are right for you.

Buyer Caveats

1. Place a limit on your bid. If you are going to utilize an escalation clause, it is important that you do put a cap on your price increase, for obvious reasons. Do not put yourself in a situation where you could be taken advantage of.

2. Understand possible consequences if your escalated offer is accepted. You need to make sure that you understand will happen if your offer is accepted. If you are obtaining a loan with 20% down, for example, you will have several options. You can include the higher contract price in your 80% loan amount, if possible. If not, you will need to be able to pay the cash difference. Similarly, if you do not include the increased price in your loan amount and the home doesn’t appraise, you will need to be able to pay the amount in cash over appraised value…unless you have a contingency in your contract giving you the right to cancel should the home not appraise – but this would make your escalated offer not very desirable to the seller and really defeats the purpose of an escalation clause.

3. Seller could use your offer to her advantage. Consider this: if you submit an offer with an escalation clause, it is possible the seller could use that to solicit higher offers, just by letting other potential buyers know there has been an offer presented with an escalation clause. This could be detrimental, so you have to decide whether you want to put yourself in that position. Also, how long does the seller have to contemplate your offer? You want to discuss this with your agent, and possibly limit the time the seller has to make a decision.

4. How do buyers really know there IS an escalation clause on a submitted offer? You need to be careful, because even if a listing agent informs you that there is an offer coming in with an escalation clause, you want to make sure any offer you present is one you can afford, and one that you can afford the increased price should the home not appraise at the price you are offering. In other words, if you know there is another offer with an escalation clause and thus decide to make your offer up to $10,000 over comparable market value, you have to be comfortable with the possibility that you will need to pay the $10,000 cash above appraisal value if the home does not appraise.

If you are a buyer who has been told there is an offer on the table with an escalation clause, you should have your agent obtain proof of this offer before presenting an offer. The listing agent can do so without disclosing the name of the other buyer or the price offered, by whiting out specific terms (name and price) and showing you the offer form.

5. Do not waive your contingencies. Make sure you keep your loan and inspection contingencies when using escalation clauses…you always want to make sure you know if there are any issues with the home that could cost you lots of money, and similarly you never want to waive your loan contingency (unless you happen to have enough cash to cover the purchase price in the event your loan does not go through.)

Seller Caveats

1. Escalation clauses may not be in the sellers’ best interests and could backfire. If you are a seller who has received an offer with an escalation clause, and other potential buyers know about this, it could ruin your chances of getting other offers. If the buyer with the escalation clause does not qualify or backs out for another reason, you could be left with accrued market time and no other offers.

Let’s understand this using the above example. Say buyer 1 presented the offer with the escalation clause; buyers 2 and 3 know this and also know it is highly unlikely the home will appraise beyond a certain number. Not knowing what buyer 1 offered, nor the terms of his escalation clause, they may simply decide it’s not worth it to present an offer at all under the circumstances. If you accept buyer 1’s offer and down the road the contract is canceled, you now have to start all over marketing your home, as you have no backup offers. You go back on the MLS with the accrued market time, potentially causing other buyers question why your home has not sold.

The important lesson here is to really understand how escalation clauses work, whether you are a buyer or a seller. Buyers need to be sure they can accept the terms should their escalated offer be selected. Buyers and sellers should talk to their agents and brokers to make sure using an escalation clause is in their best interests, and I also suggest consulting an attorney before doing so. Escalation clauses can be beneficial if you are careful.



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Bank of America Issues Notice that May Affect Short Sales

Sunday, November 4th, 2012

Bank of America issued a notice recently to agents about the possibility of selling off loans in the middle of a short sale, which could drastically affect your short sale (and even cancel it last minute). It is very important that both homeowners and their agents understand what is happening, before listing a property for short sale.

As is customary, many lenders sell loans, even those that are delinquent – this is nothing new. But the fact that B of A sent out a notice about it is concerning, because of the timing that is mentioned for possible sales. The notice states that while in the midst of a short sale, borrowers’ loans may be sold to other servicers. If that happens, there is no guarantee that the pending short sale will close. Here are the steps by which this may happen (as spelled out in the notice):

•  Bank of America will send the homeowner a letter 15 days before the servicing transfer date.

•  Bank of America may call the agent to advise of the impacts to the short sale.

•  The new servicer will send a letter or statement advising the homeowner where to send payments.

•  If an offer has already been accepted on your short sale, a closing has been set and an approval letter issued, the new servicer will determine if the short sale will continue. (Yikes – a little too much discretion here!).

The scary part is that B of A is giving itself an out – why would a lender approve a short sale, only to then sell the loan while the property is in escrow? This makes not sense whatsoever. B of A states, “Real estate professionals should advise homeowners that, similar to foreclosure, a servicing transfer is a risk that may occur at any time during the short sale process. This is why it is important to move as quickly as possible to facilitate the short sale.” Wow – if I have to tell this to potential short sellers, why would they want to risk a short sale? Why would a buyer want to risk making an offer, with the very real prospect of losing money and not closing? And why would I, as an agent, want to risk spending marketing dollars and time in selling the property? NO ONE WINS!

It seems to me here that B of A is trying to cover it’s behind, but this warning and the described act is contradictory to short sale approvals.

The solution here is this: if you have a B of A loan and are considering a short sale, you need to have your agent or negotiator discuss this with B of A before listing your home. I would ask to get something in writing that B of A will not sell the loan after the short sale has been approved and during the escrow period, up until the deadline that is provided in the approval letter. This applies whether you have a first or second loan with the bank. If B of A is not willing to do this, you can either take a risk or look into other options.

This move is a step in the wrong direction by B of A, and thus they remain on the top of my “lenders who are not cooperative” list. What a shame that this bank – Bank of AMERICA, for goodness sake, is not willing to truly help American homeowners. Maybe they ought to think about a name change.


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