A sale pending sign stands in front of a house in North Andover, Mass., in 2019. Parties in a real estate contract should look closely at the financing contingency clause and modify it to be reasonable and enforceable. (Elise Amendola/AP)
By Harvey S. Jacobs
July 20, 2020 at 9:00 a.m. EDT
In the home-buying process, buyers and sellers should negotiate to write contingencies into their contract to mitigate risk. For example, sellers may want to condition their obligation to sell on finding and purchasing another home. Buyers who are financing a portion of the purchase price will want to insert a financing contingency clause. Buyers also commonly make their purchase offers contingent on receiving satisfactory inspection reports describing home condition, radon levels, well and septic system safety and functionality, where applicable, and absence of wood-destroying insects. Contingency clauses excuse a party’s obligations to go to settlement if the contingency is not met or waived.
Buyers should include only those contingencies they really need. Too many contingencies will make their offer less attractive to sellers, and in a competitive market, it can cause them to lose the desired home to competing offers.
While most contingencies are fairly straightforward, the financing contingency addendum used by the Greater Capital Area Association of Realtors is complicated and often misunderstood. The addendum creates a term called the financing deadline, by which the buyer must deliver a written loan commitment. Contrary to what sellers might expect, buyers’ failure to meet the financing deadline does not cause the buyer to be in default, does not automatically void the contract, and does not allow the seller to retain the buyer’s earnest money deposit.
If a buyer fails to make a timely loan application, fails to comply with a potential lender’s requests or otherwise fails to take steps required to obtain a timely lending decision, that can be deemed a default. It can also be considered a default if the buyer intentionally takes steps during the loan process that imperil the loan decision, like quitting a job or incurring large debts to buy a car or other major purchase. In those cases, the seller should have the right to retain the buyer’s earnest money deposit and/or sue for additional damages.
The financing contingency addendum provides that the contract will remain in force until the seller delivers its notice declaring the contract void. Sellers might erroneously conclude that if they want to retain the buyer’s earnest money deposit, they should send a notice declaring the contract void, but another GCAAR contract clause states that is not the case: “If this contract becomes void, without default by either party, both parties will immediately execute a release directing that the deposit be refunded in full to the buyer.”
So what should savvy sellers do to protect their interest in the earnest money deposit while still allowing the buyer’s lender time to properly underwrite its decision?
Sellers should modify the financing contingency clause in their contract to clearly identify the circumstances that allow sellers to retain the buyer’s earnest money deposit and when they must return it.
The seller should require the buyer to apply for financing within 10 days from the contract date and provide the seller with its lender’s written loan commitment 30 days thereafter.
The contract should specify the lender, loan amount, interest rate, term and whether the interest rate is fixed for the life of the loan or can adjust. Each of those factors impacts the parties’ risk.
A large loan amount in relation to the purchase price makes the loan riskier for the lender and less likely for the buyer to be able to qualify. The buyer must also agree to provide information in a manner that allows the lender to make a timely loan decision.
Buyers need to carefully consider their at-risk earnest money deposit that accompanies the purchase offer; the larger the earnest money deposit, the stronger the offer. Buyers need to meet their financing deadlines. They should work closely with their lenders before making a purchase offer and provide information to their lender to ensure the financing deadlines can be met. Buyers should work to get preapproved, a higher level of verification from the lender, vs. prequalified. The buyers should include the preapproval letter in their purchase offer.
If buyers and sellers understand the financing process and their rights and obligations, they will be in a better position to negotiate a reasonable and enforceable financing contingency clause in their purchase and sale contract.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law LLC in Washington. He is an active real estate attorney, investor, landlord, lender and settlement attorney. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact him at jacobs@jacobs-associates.com, www.jacobs-associates.com, ask@thehouselawyer.com, or call 301-417-4144.
The basic steps of a remote online notarization are equivalent to a paper-based, in-person action, but the tools used are all digital. (Courtesy of the National Notary Association)
By Harvey S. Jacobs
June 22, 2020 at 9:00 a.m. EDT
On July 25, 2000, the first paperless real estate transaction took place in Broward County in Florida. That transaction involved a home purchase and financing and took less than five minutes to record. Immediately, recorded documents were returned to the settlement agent via email and images of the documents were available on the county’s website.
Two decades later and despite the threat of the novel coronavirus pandemic, many real estate transactions are still being conducted the old-fashioned, high-contact way. Home buyers, sellers and real estate agents meet at the settlement attorney’s office at the same time, provide government-issued photo identification and sign legally binding documents under oath before a notary public. The notary then signs those documents and affixes a seal on dozens of separate legal documents. The live notarization requirement has, until recently, prevented end-to-end digital transactions, but that rule is rapidly evolving.
The coronavirus has forced county recording clerks, mortgage lenders and the title insurance industry to expedite rules to permit remote online notarization (RON) closings under strict guidelines. RON closings no longer require the signer and the notary to be in the same room — they could be anywhere on the planet. Home buyers, sellers, lenders, real estate agents and settlement attorneys no longer need to gather in the same room. Buyers and sellers can take more time to review and sign settlement documents. Another benefit is that the actual closing document signing is recorded using encrypted, tamper-evident, audio and video technology. This record will then be stored and retrievable in electronic format for at least seven years.
As of mid-June, 26 states allow RON closings, including Virginia. The District and Maryland allow RON closings on a temporary, emergency basis. According to Diane Tomb, chief executive of the American Land Title Association (ALTA), nearly 30 percent of title and settlement companies are offering some type of digital closing to meet social distancing requirements. This is up from 17 percent of companies offering digital closings in 2019.
In March, the Senate and House introduced bills to authorize all U.S. notaries to perform RON. The bills would require that RON notaries use tamper-evident technologies, prevent fraud by using multifactor authentication for identity proofing, and make and retain audiovisual recordings of the transaction. It would allow signers outside the United States, such as military personnel, to securely notarize documents. It would also permit states to customize their own statutes and to recognize RON between states. The National Association of Realtors, the Mortgage Bankers Association and ALTA all support the bills. “Protecting consumers remains the title insurance industry’s top priority,” Tomb said.
Despite this regulatory groundswell, unless all parties agree, closings cannot be conducted using RON. To help lenders make decisions about allowing RON, the Mortgage Industry Standards Maintenance Organization created standards to certify technology providers that use consistent and best practices to secure confidential data. “Expanding the availability of RON is a priority” for the standards organization, said its president, Mike Fratantoni.
The National Notary Association identifies seven technology providers who are servicing the burgeoning RON industry. RON laws require tamper-evident technology, meaning that the settlement is recorded by an encrypted audiovisual record, where the notary and the signers can see, hear and communicate with each other in real time.
A notary’s main role is to identify the signers. With RON, signers must correctly answer computer-based questions about their life, credit or financial history. Signers scan credentials, and the technology provider analyzes if a credential is counterfeit, altered or expired. The notary must view the signer’s credential on camera and compare the information and image on that credential to the signer’s visual appearance, just as a face-to-face notary would examine a signer’s physical driver’s license.
Fannie Mae and Freddie Mac, which buy more than 40 percent of residential mortgage loans, have modified their single-family seller guidelines to permit RON closings in 43 states. Freddie Mac has specific temporary regulations regarding RON for closing documents, powers of attorney and electronic promissory notes.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law LLC in Washington. He is an active real estate attorney, investor, landlord, lender and settlement attorney. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact him at jacobs@jacobs-associates.com, www.jacobs-associates.com, ask@thehouselawyer.com, or call 301-417-4144.
Make sure your agreement with a property manager explicitly states how repairs and maintenance are handled and how they are paid. (iStock)
Published on May 27, 2020 at 9:00 a.m. EDT
Q: Over the years we have acquired a small residential rental portfolio that we self-manage. Despite the current market uncertainty, we believe the market for rentals will be strong for the foreseeable future. We want to expand our portfolio and believe hiring a property manager will allow us to focus on that goal. How do we go about locating and selecting the best property manager? What legal terms should be in the property management agreement?
A: To find the best property manager for your situation, narrow your candidates by taking the following steps:
Make sure your candidate is properly licensed
The District of Columbia Real Estate Commission’s website provides a tool to look up licensed property managers. To obtain a property manager license in the District of Columbia, the candidate must be able to read, write and understand English; pass the commission’s exam; be a high school graduate or equivalent; not have been denied a license in the past year, and not have had a previous license suspended or revoked in the past three years. Having a real estate broker’s license is not essential, but any licensed real estate broker in the District also meets the requirements for licensure as a property manager.
Investigate your candidate’s experience, reputation and professional credentials
“You will want to select a property manager that has been in business for many years [and] enjoys a reputation for honesty, competence and technical savvy,” said Steven Landsman, president of Abaris Realty in Potomac, Md., a property management firm representing 150 condominium and homeowner associations. Call references from your candidate’s current and previous clients. Ask how long they used the candidate, if they experienced any problems and how the candidate resolved those problems. Ask the candidate how many properties they have under management and how many employees they have serving those clients.
Steven Moretti, who owns Moretti Management Group in Potomac, Md., said investors should watch out for companies that try to solicit more new business than they can reliably manage. “The problem with building a large account base without having a solid infrastructure in place is they don’t deal with all the issues that arise in a timely manner. Failure to immediately follow up on repairs adversely impacts the property and damages the tenant-owner relationship.”
Professional managers will often possess professional certifications, such as the Certified Property Manager designation awarded by the Institute of Real Estate Management, and will have joined relevant trade associations, such as the National Association of Real Property Managers.
Carefully negotiate the property management agreement
Management rates are based on the monthly rent collected and range from 5 to 10 percent. At a minimum, the agreement must clearly list the services the manager will perform without additional fees. The base fee should include collecting rent; maintaining all insurance policies; enforcing your leases in court if necessary (but not the legal fees paid to attorneys), and ensuring compliance with all homeowner association or condominium covenants, conditions, restrictions and house rules. You should also expect to pay additional fees to property managers for handling insurance claims, major repairs and capital improvement projects.
Property managers typically charge owners additional commissions for leasing vacant rental properties. These commissions typically range from a half to a full month’s rent. According to Heather Norwich, a property manager with Pier Associates in the District, “that fee covers the marketing and Internet-based advertising tasks; evaluating rental applications, running credit, criminal background and eviction checks.” A property manager’s role is to cover logistics so the owner does not need to interact with the tenant, she said. “I also handle the leasing package, make sure that the owner has the necessary District general business license and coordinate all inspections and showings.”
At some point you may decide to sell your rental unit. Pay attention to how your property management agreement treats a sales transaction. Some agreements contain clauses that obligate you to pay a commission to your property manager if you or anyone else sells your property while the property management agreement is in force and even for a period after it ends. That post-agreement period is called the “tail period.” You should avoid these embedded “exclusive rights to sell” clauses, or at a minimum, reduce the commission rate and shorten the tail to perhaps 30 days.
Many property management agreements provide the property manager with an “exclusive agency agreement,” granting them the right to sell your property for a limited time, such as 90 days, and the right to earn an agreed-upon sales commission if they sell it during that time. In either an exclusive right to sell or an exclusive agency agreement situation, you should negotiate a commission waiver or discount if you sell to your tenant, specified neighbors, friends or family members without any help from the property manager.
Still other property management agreements are silent regarding the possible sale. The implicit assumption in those cases is that since the property manager has performed well, knows your unit, and knows the sales market for your unit, you would probably call on them to list your unit for sale.
Make sure your agreement requires the property manager to provide you with all leases, modifications and renewals; tenant contact information; all keys, fobs and access control codes; and monthly and annual financial reports.
Your agreement should permit you to immediately cancel it for “cause.” Cause is often defined as a property manager’s criminal conduct, gross negligence or failure to account for and promptly disburse funds. You should also be able to cancel the agreement without cause on 60 days’ written notice.
Repairs often become contentious between owners and property managers. Make sure your agreement explicitly states how repairs and maintenance are handled and how they are paid. Most property managers’ base fee will cover handling run-of-the-mill maintenance and repairs. They outsource these tasks to contractors and should bill you for the actual cost without any markup or additional cost.
Watch out for managers that use repairs to increase their profit, Moretti said. “Many property managers maintain in-house contractors and receive extra compensation for making repairs,” he said. “Some property managers will outsource to third-party contractors and add a 5- to 15-percent administration fee to the repair cost. Still other less-ethical property managers will not charge the administration fee but will have the contractor inflate the repair cost and receive a kickback from that contractor.”
Despite taking these steps, there is no guarantee that you and your property manager will be a good fit. After all, property management is not just about managing the property condition. It is about maintaining happy tenants who pay market rent and remain in your investment properties for many years.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Washington. He is an active real estate attorney, investor, landlord, lender and settlement attorney. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact him at jacobs@jacobs-associates.com, jacobs-associates.com or ask@thehouselawyer.com, or call 301-417-4144.
ould the coronavirus pandemic stop a home sale? Read your contract closely to see if there’s a key clause. (iStock)
Published on April 14, 2020 at 9:00 a.m. EDT
The unprecedented coronavirus pandemic is having a major impact on real estate transactions. Parties under contract to buy or sell their homes are concerned about their contract’s viability and their legal rights under that contract.
In law, there is a doctrine called “force majeure” that excuses or permits a party to delay its performance under an otherwise legally enforceable contract when certain events occur. Force majeure means “greater force.” A force majeure event is derived from the French Napoleonic Code. Force majeure events are often defined in contracts to include political events such as wars, insurrections, riots, strikes, lockouts, terrorist threats or actions, or explosions. A force majeure event is often referred to as an act of God or act of nature, such as hurricanes, floods, earthquakes, landslides, tornadoes, tsunamis, volcanic eruptions, sinkholes and storms.
Generally, losing one’s job, asset diminution, financial reverses or general uncertainty about the future are not force majeure events, though they may be relevant factors that lenders will consider when approving or denying a buyer’s loan application.
Courts look to the specific force majeure clause language in a contract to determine whether a certain event is covered. Absent a force majeure clause, the courts will generally enforce the contract terms as written.
The current Greater Capital Area Association of Realtors sales contract does not contain a force majeure clause. The association has recently issued a coronavirus addendum. The addendum allows a buyer and seller to agree in advance to extend deadlines if certain events occur. Those coronavirus-related events are called permitted delays. Permitted delays include the buyer or seller being exposed to or infected with the coronavirus or diagnosed with covid-19, the buyer or seller being quarantined or not permitted to travel, the buyer’s settlement attorney or lender being unable to complete the transaction, and other similar causes related to the coronavirus outbreak that are beyond a buyer’s or seller’s reasonable control.
Events that may be beyond a buyer’s or seller’s reasonable control may be scheduling home, pest, radon or other contractually required inspections. Sellers may be understandably reluctant to allow home access for showings and/or walk-throughs immediately before settlement. If they do allow access, many sellers are requiring visitors to wear gloves, masks, shoe coverings and perhaps even submitting to have their temperature taken. Home inspectors are reluctant to make their inspections. Lenders report that they are having difficulty getting appraisals done in a timely manner and in verifying buyers’ employment immediately before settlement since so many employers’ businesses are closed. Open houses have become risky and, where legal, severely limited, but virtual open houses may still be held via the Internet and may become the wave of the future.
All stakeholders in the residential real estate industry are collaborating to continue to allow settlements to proceed while complying with the public necessity to stay home. Emergency declarations and stay-at-home orders issued by governors and mayors around the country have defined lenders and settlement attorneys as “essential businesses” so that parties ready to go to settlement may do so. These governmental acts have also, in many states, authorized electronic signatures and remote online notarization to be used so that settlements can occur without having to engage in face-to-face settlements. Emergency orders have authorized and directed county recording officials to accept electronic signatures via electronic recordings. Lenders are expediting approvals for using digital promissory notes and permitting settlement attorneys to conduct online settlements and remote online notarizations. Settlement companies are rushing to implement the available technology for virtual settlements. But these coordinated steps will take time to fully integrate. In the meantime, curbside settlements, settlements held in strictly controlled and disinfected rooms, and other improvised measures will be the norm to permit buyers and sellers to complete what is typically the most important transaction of their lives.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate attorney, investor, landlord, lender and settlement attorney. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact him at jacobs@jacobs-associates.com, jacobs-associates.com or ask@thehouselawyer.com, or call 301-417-4144.
Scammers send massive numbers of malware-embedded emails containing real estate settlement subject lines such as: “URGENT There is a problem with your settlement.” Innocent home buyers fear something may have gone awry with their settlement and open and/or click on the infected email. (iStock)
Published Jan. 6, 2020 at 9:00 a.m. EST
As if buying, selling or refinancing your home were not stressful enough, consumers must now be aware of an increasingly insidious form of email-based real estate fraud. The FBI categorizes this crime as Business Email Compromise (BEC). In 2018, it is estimated that 11,300 consumers lost $150 million to BEC crimes.
BEC crimes begin when scammers induce email recipients to open or click on a link in an infected email.
When the recipient inadvertently opens or clicks on the fake email, a malware program is installed on the recipient’s computer. Once that malware embeds itself, it allows the scammer to monitor the recipient’s emails for words like “settlement date,” “wire instructions” or “cashier’s checks.”
At just the appropriate time, the scammer, impersonating the title company, will send out a fake email instructing the victim to wire funds to a bank account that turns out to be the scammer’s own account. Thinking it has received official title company wire instructions, the victim willingly wires their funds.
There are numerous techniques scammers use to get real estate settlement parties to click on fake emails.
One technique is to spoof the legitimate sender’s email address. Scammers send fake emails from accounts that are nearly identical to the legitimate sender’s email addresses. For example, law firm email addresses that contain the word “law” are spoofed when scammers change the word law to lavv. On a mobile device, distinguishing a “w” from a “vv” can be almost impossible.
Another technique uses social engineering by appealing to the recipient’s sense of urgency, fear or curiosity.
Scammers send massive numbers of malware-embedded emails containing real estate settlement subject lines such as: “URGENT There is a problem with your settlement.” Innocent home buyers fear something may have gone awry with their settlement and open and/or click on the infected email.
From that point forward, the scammer can access all transaction details. These emails are referred to as “phishing” emails since they are designed to hook their recipients into clicking on a link in those emails or even just opening them.
Increasingly, scammers are targeting specific recipients by taking advantage of all the publicly available information about a real estate transaction. They “phish” the listing agent, and if successful, they gain access to that agent’s email.
With that access, the scammer obtains information such as the names and email addresses for buyer, seller settlement company and lender as well as the loan amount and the proposed settlement date.
Armed with this data, scammers pose as the settlement company and email the buyer well before the settlement date and falsely instruct them to wire their “cash to close” immediately. Unwitting buyers comply. It is only later, when the real settlement company contacts the buyer, that the horrible truth is discovered. By then, it is too late for law enforcement to trace the funds or catch the scammers.
“Scammers send us phishing emails every day, and sometimes numerous times in a day,” said John Cotter, president and CEO of Passport Title Services in Rockville, Md. “It is imperative that before consumers wire settlement funds, they scrutinize the sender’s email address. We no longer accept wiring instructions via email unless verified by a phone call.”
With this much at risk, the real estate industry has embarked on a public education campaign to raise awareness of these crimes. The American Land Title Association (ALTA) launched the Coalition to Stop Real Estate Wire Fraud with consumer resources at www.StopWireFraud.org.
If you do become a victim of BEC crime, “immediately call your bank and ask them to issue a recall notice for your wire, report the crime to BEC.IC3.gov and call your regional FBI office and police department,” said Justin B. Ailes, senior vice president of policy at ALTA. “When these steps are followed within 24 hours of the wire transfer, the FBI’s Internet Crime Complaint Center’s Recovery Asset Team has recovered 75 percent of compromised funds.”
To avoid being victimized, the public should carefully examine the sender’s email address to confirm it is coming from a legitimate sender. If in doubt, do not reply; rather, forward the email back to the known email address.
Do not use phrases like “wire instructions” in the subject line of your emails. Call and confirm all wire transfer instructions by phone using a previously known phone number or by accessing the title company’s website.
Do not call the phone number in the suspicious email. Minimize the number of people who get copied on real estate settlement-related transactions by sending transaction details only to those on a need-to-know basis.
Start a new email thread each time you email anyone involved in the transaction, especially when communicating about the financial part of the transaction.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates in Washington. He is an active real estate investor, landlord, settlement attorney and lender. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Submit your questions to: Ask@theHouseLawyer.Com, or call Harvey at 301-417-4144.
With the richest men in the world such as Bill Gates, Warren Buffett and Mark Zuckerberg giving away their fortunes, you may wonder whether you have similar options and what the tax benefits would be.
Chase Magnuson, director of the Planned Giving Department-Real Estate at George Washington University and co-author of “The Secret Power Behind Real Estate Donations,” said giving away property can be tricky if not done correctly.
Nearly 2 million qualified charities “reject over $15 billion in real estate donations annually because they are unable or unwilling to assess and accept the real estate risk,” Magnuson said. But he added that when real estate agents, CPAs, property managers, appraisers, risk managers, title attorneys and other consultants “are brought onto the team, the donation success rate increases dramatically.”
There are several strategies for giving your property away and obtaining beneficial tax treatment. An outright gift is easily accomplished and provides the maximum and earliest financial benefit for the charity, while providing you with the maximum tax benefit. You are able to deduct the gifted property’s full appraised value against 30 percent of your adjusted gross income. If you are unable to use the entire deduction in one year, you can carry that deduction forward for an additional five years.
Another strategy is the “bargain sale.” A bargain sale is when you sell your property to the charity at a price below the property’s appraised fair market value. In return, you can take a charitable deduction for the difference between the sales price and the appraised value. That deduction from this gift portion can often be used to offset the exposure to capital gains tax on the property’s sale portion.
If you wish to sell your property but do not wish to donate it all, there is another option to receive charitable benefits: You may donate an undivided fractional interest in your property to a charity, at which point, typically, you and the charity cooperate in marketing and selling the property.
At the closing, net sales proceeds are distributed to you and the charity based on the respective ownership shares. You are entitled to a charitable deduction based on the ownership percentage you donate (sometimes adjusted to reflect the minority discount rule that provides that a minority interest is worth less than a majority interest). Since this strategy does not require the charity to come up with upfront cash to purchase the property, it is often the charity’s preferred strategy vs. the bargain sale.
There are even strategies that will allow you to donate your property, receive the charitable deduction and an income stream for life. These strategies utilize a charitable gift annuity (CGA) or a charitable remainder unitrust (CRUT).
Your income stream is based on several factors, including your property’s appraised value, the expected net sales proceeds realized when the property is sold, your age, your life expectancy, and the prevailing interest rate discount factor that takes current market interest rates and the money’s time value into consideration.
CRUTs vary slightly in that they are established by placing your property in a trust, then selling it to establish an asset on which a fixed percentage is paid to you for life. A percentage, these days, typically 5 to 7 percent, is then paid out to you for your lifetime or for as many years as you select.
So, for example, assume 30 years ago you bought property costing $50,000. It is now appraised at $550,000. Assume you paid off the mortgage, so it is now debt-free. When you sell it for the appraised value, you will pay a real estate agent $33,000 in commissions, and $15,950 in transfer and recordation taxes. Your net sales proceeds will be $501,050. Assuming a 5 percent annuity rate, the charity will pay you $2,087 monthly for the remainder of your life.
“These strategies can be combined into hybrid strategies to customize the donation to suit the donor, the charity and to assure strict compliance with the detailed IRS rules and regulations,” Magnuson said. “You can even retain a life estate allowing you to live in your property for life and still complete a tax advantaged gift.”
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, landlord, settlement attorney, lender and associate real estate broker. This column is not legal or tax advice and should not be acted upon without obtaining your own legal counsel. Contact Harvey at (301) 417-4144, www.jacobs-associates.com, or ask@thehouselawyer.com.
With the richest men in the world such as Bill Gates, Warren Buffett and Mark Zuckerberg giving away their fortunes, you may wonder whether you have similar options and what the tax benefits would be.