Can your waterfront property have a pier? Maybe

WRA.org Article by Tom Larson, WRA

Until January of this year waterfront property buyers could have reasonably expected to have the right to place a pier at the water’s edge of their property.  A Supreme Court case settled a family dispute with the outcome property rights of landowners on a flowage.  The legal perspective is explained in the link to attorney Tom Larson’s article in the WRA Real Estate Magazine, April 2018.

Tom explains Wisconsin has about 260 flowages around the state, and a flowage is a body of water created by a dam. There are different rights for flowages created by a lake, than those created by a river, or stream.  The bed of the flowage created by the stream or river is generally owned by a private entity.  This is the problem:

Envision you are buying lake front home on a flowage.  At the water’s edge is a beautiful wooden pier with a boat slip, a lift, a pontoon boat, a fishing boat and a jet ski.  All included in the sale.  Are you sure you have legal right to keep this pier for your pleasure? Up through 2017 the presumption was you could.  Because of the decision it is now critical that you know if the flowage was created by the damming of a lake, or a river or stream.  If the lake bed of a flowage created by the dam on the river or stream is not owned by you, but a private entity, you can be prohibited from placing a pier which stands on the bed.   However, it appears if the flowage was created by a dam on a lake, you are permitted to place the pier because the bed is not owned by a private entity but belongs to the government which permits legal access to the water for shoreline property owners.

Lakes are not all the same. When you go to look at property, know if the body of water is a flowage, and then know if the flowage was created by a dam on a river, stream, or a lake. It matters.

 

Pleading Letters Move No One to Acceptance v. Safe Offer Terms

Three people made offers on the same house. Two offers included well written, emotion inducing letters with photographs of the married man and woman, complete with details of their employment, education, professional credentials, and community involvement in causes for good. Both expressed their love for the property and their awareness of the owner’s own remarkable traits.  Each of these offers included double digit items (14 and 17) an owner would counter to make the offer safe enough for the owner to commit to. Two of the three offers were for prices the owner would accept.

One offer was for the most money, and represented less risk than the other two. However, it included two ambiguous contingencies, and one exit clause the buyer could exercise six days prior to closing.  The open exit door and ambiguity were reasons for the seller to question the buyer’s commitment.

Had any of the offers been written with terms proving the buyer’s no-reservation commitment to closing, or at least left no exit doors open, their offer would have been accepted. The letters induced an emotional response. The emotional response did not cause a compelling response  to accept one offer or negotiate with any one person.

Had as much attention been given to writing a customized, seller-safe offer, any one of these couples could have had their offer accepted. And, unfortunately, two of the couples and two of the licensees may think their letters helped their cause.

Buyers are improving their skill in writing fiction. They’re getting professional help on-line.  Be the licensee who improves her skill in customizing, seller-safe offers to match the commitment of the buyer.  The pleading letter is no match for customized offers.

Inspection Contingency

The inspection contingency in the Wisconsin Offer to Purchase is designed to permit a buyer reasonable time and access to the property to complete their due diligence.  A definition of “defect” was added to the agreement to create some objective criteria for a defect.  Objectivity is not a strength of the definition. Defect is still subject to the opinion of the buyer and seller. (Not the licensees. Our opinion is not relevant in the conversation.)

To deter a buyer from objecting to only the defects which are worth losing the property over, the contingency was built with a lever on the Seller’s side.  Here’s a visual of the deterrent: Buyer discovers a few defects he wants cured prior to closing.  The Buyer approaches the Seller with a NOTICE of Defects in his hand. Standing in front of the Seller, on a trap door, the Buyer gives the Notice to the Seller. The Seller receives the Notice and reads:  Buyer objects to the following defects identified in the attached inspection report.  The Seller has the Notice in her left hand, and her right hand is on a lever.  With no explanation required, the Seller who has been Noticed, may pull the lever, opening the trap door, and send the Buyer away.

A less risky approach could be attempted first. A buyer could offer a written amendment to the seller requesting the seller agree to a specified resolution. A repair prior to closing or a price concession are typical.

Beginning with the amendment, a Buyer retains the right to deliver the Notice prior to the deadline for delivering the Notice.  Some issues are worth the risk to some buyers. No one should take the Notice step without weighing the cost of the Seller’s choice.  On the other side, before a Seller terminates an offer because of a Notice of defects, a Seller may want to consider their obligation to future transactions now that they have some information about a condition they did not have prior. Buyers trust that the fact the owner will have to contend with the issue to satisfy the next buyer is enough to motivate the seller to cure the defects and not terminate the Offer.

Just my opinion, but people waiting in secondary positions are likely to accept a condition the first buyer would not, or because they are the fresh face waiting in the wings, Sellers are receptive to giving the next buyer something they would not give the primary buyer.  A human nature thing.

 

Asking Questions, or Questioning Actions? One requires genuine curiosity.

Tell me more about that.  You’ve given this a lot of thought. What other ideas did you consider? If this works, what will it mean to you?  Why is that important? You mentioned something you see as an obstacle. What happens if we don’t overcome that obstacle? Is that a big problem or an inconvenience?  What is unique about the person who will buy the most expensive, unique property, in this community? Have you ever been that person in another transaction? Have you ever bought a house? Have you ever been sold a house?  Know anyone who has?

You know the property in a way no one else does or could. Your family history is in this home. What does it mean to you to be the person who sells it? Who else is involved in the decision? You have not tried to sell before. Why now? Why is this the year to sell? What if it doesn’t sell this year? Who looks after the house when you’re out of state? What do you do when something needs to be fixed? What’s the most inconvenient problem that’s come up in the last few years? How did that impact your life? When you think about this house, what wakes you up at 3 am?

What do you know about real estate marketing that you like? What would you like to avoid? Do you have a value in mind, and how did you arrive at the price?  Will the buyer pay cash or use financing? Are there other sales to support the price?  How will that affect our process? If closing doesn’t happen this year, what’s your backup plan?

May I share my thoughts about the plan you described?

There are so many questions to ask when judgment is overcome by curiosity?

 

 

 

Standardized Offers make you look uncommitted in the eyes of home sellers

Video Tom Explaining the Value of Customized Offers

Every buyer who submits an offer on a house this week will not be the same as every other buyer. Someone will have more commitment, more confidence, more willingness to fair play, and a sincere desire to get to closing on time with no trouble.

Unfortunately, that someone is hard to pick out of the crowd of Offers. The Wisconsin Offer to Purchase Agreement, and the addenda that get attached are standardized, buyer friendly, seller risky documents.  The contingency choices appear as a dinner buffet to buyers, and they fill up their offer with all sorts of fatty contingencies that make there offer unhealthy.

We can do better.  Instead of a standardized offer, making you look like the most uncertain buyer in the bunch, we can customize your purchase agreement to appeal to the seller’s number one interest: assurance.  Price gets the attention because offers typically are equal in risk. When risk is eliminated for the seller, and a closing on time, with no worry is more important than a few dollars more.

Before committing to an agent, find out what ideas they have to improve your offer without you paying more money…or writing a letter. When you’re selling, make sure your agent knows how to eliminate the exit clauses and high risk contingencies from your offer.

 

 

Feedback. Everything can be used against you.

Everything you say can and will be used against your client to benefit the other side. You know that’s true. Then why do we give the listing firm feedback from our client?  We do it because we always did it, and a long time ago,  we were legally responsible to do it. Licensees, under the old agency law, represented the seller; they had an obligation to share all pertinent information with the seller.  The law changed and made disclosing confidential information an illegal act.  And still, we reveal relevant negotiating information to the other side without the permission of the client.

Everyday buyer agents are responding to showing feedback requests and placing their clients in compromising positions.  A sample of questions include: “Is this your clients 1st choice, second choice, third or fourth choice house?”  “When does your client need a home by?” “What does your client think about the price? Too High, Just Right, Too Low?” “Is your client making an offer on another house?”  “Is this price at the bottom, middle, top of your client’s price range?” “What does your client dislike about the property?””Was the house clean and well presented? Disorganized and unprepared? In need of cleaning?”

It’s easy to see the questions that a buyer is likely to prefer you not answer.  If the house is the buyer’s first choice, advantage seller. When seller knows the date the buyer has to move by, advantage seller. There are other questions which if answered could work against the buyer. A response to a question on condition may not set well with an owner. “They thought my house was not clean???!!  They said my basement smelled musty???!!”  How many buyers want to tell the seller, “We think your house is priced right.”?

Listing agents who ask questions to gather information to persuade the seller the price is too high, or the condition needs attention are using you to do their job. “I didn’t say your house was a mess, the other agents did.”  There is no good reason for a buyer agent to bite on these questions.  Our job is to put our client first, not the listing agent.  If my answer to a condition question is not well received by the seller, it could be my client who loses when the seller connects my statement to this buyer’s offer.

Showing feedback in the day of buyer agency is at least a dangerous practice, and arguably a  violation of confidentiality. Maybe a safe response is: “Nice house. Thank you. The buyer wants us to tell the seller they have a beautiful home.”

 

 

 

 

Standardized, Computerized, Personalized. The evolution of real estate.

We Skillshare to learn and adapt.  How recent was it when the value of our business was possession of a private data base of real estate for sale? Property was the commodity. Information in 1988 was only accurate up to two weeks earlier. Gradually computerization decentralized the data from one giant computer to the single shared machine in individual offices.

Data, the commodity of real estate, gradually moved closer to up to date. First  by the week, then to within a day.  The public wanted access to data. Our industry refused. Realtor.com was released. Consumers could peek at data. To get more they had to call us. We have always held a pay to play attitude toward the consumer. We have always been in the business of “capturing leads”. The consumer  did not accept Realtor.com. The industry didn’t trust it. Realtors couldn’t figure out how to monetize the service. Realtor.com was a loser.

The rights to the platform and it’s operating brain were relinquished.  Zillow stepped up,  joined our organization, and quickly flipped the perspective. The value is not in the data we put into the brain, the value is in the data the brain collects.  Zillow delivered the service the public was eager to get.  Exclusive access to King Data was reduced to a day for the Realtor. Today it’s seconds, or maybe not. The public wants to be able to tell the consumer “Hey, I’m thinking about selling.”  We tell the public, decide and we will give you a platform to reach the consumers.  Zillow responds with “Make me move” and the public is given what they want. Again.

What do we do with members who share what they know to give a consumer an edge? We penalize them with punitive fines. Our value, we believe, is in cooperation for our mutual benefit. The value of delivering data for the benefit of the consumer is not only unrecognized, delivering data to the consumer is penalized. Standardization is demanded by us for us.  Zillow gives the consumer a computerized, personalized platform.

Consumers, not property, are the valuable commodity in the transaction. Zillow figured that out. We now pay Zillow to share their consumers who are interested in our property.  They realized monetizing was not in the ability of the brain of the computer to store and standardize data, it is in it’s ability to personalize, organize, and distribute data on people who are interested in owning what we’re selling. Zillow uses technology to deliver information to the consumer. In exchange the consumer would freely give what we demanded they share, their personal information.  Does the consumer trust Zillow? For good reason we are seeing consumers have every reason to not trust tech giants with their private data. And still, they do.

Our standardized data on real estate is given away.  We pay an outside firm to share the people they meet who are interested in our data (property). Our property is actually used to attract consumers who are sold to our competitors at a price we won’t pay to keep what we considered valuable: exclusive access to data.

Where is the uproar? It didn’t happen. Paying to play is now the norm.

in the early years of the 21st Century an idea to change real estate licensees from an agency model to a facilitator model.  The legal industry was in favor of turning us from agents to facilitators.  We feared the consumer would see less value (worth less in fees) in a facilitator than agent. We fought to remain agents.  Facilitating was left for computerization.  The public wants personalized facilitation. We want standardized agency.

We retain our right to fill in blanks of purchase contracts at the objection of the legal industry. To keep that right we require accuracy in the service. To be accurate we restrict our work to standardization. Fill in blanks, check boxes of standardized forms in an increasingly personalized business. Our profession is point and click.  We think we have value in our ability to explain a standardized form. In fact, 100% of computers have the ability to accurately explain the forms and they can do it better than 99% of the licensees. To top it off, computerizing the drafting and presenting of offers allows including real estate legal advice and interpretation.

Soon. Very soon ,computers will analyze, evaluate, and explain financial qualifications of the parties. They will interpret and summarize the commitment and intent of the buyer and seller.  The decision of which offer is the best offer for the seller can be done with present technology. To craft a better offer, the computer will personalize the contract to match the buyer and seller’s most important requirements.

The trait the computer excels at compared to humans, is the computer listens and understands the parties. No suggestion is made until the computer has received and processed the information from the consumer. Do we do that? Not well. We present and tell people what to do based on what we always do or only heard.

A computer is able to facilitate a transaction between the most ready, willing, able buyer, with the ready, willing, and able seller who has the property that best matches their desires.  Agency is not what the consumer wants from us. They want personalized facilitation. They want ideas to help them get their offer accepted in competition. They want a way to connect with the seller on a personal level. The seller’s want safety. They want to reduce their risk by getting into contracts with the most able, prepared, and committed buyer.

The future is bright for Realtors. The ones who learn, adapt, deliver to the consumer what the consumer demands will thrive as our industry moves from standardized to personalized. We can, if we want to, be the better facilitator. We can be better at  crafting personalized offers, eliminating risk, and facilitating smooth transaction. We  can meet this demand if we move from standardized and computerized, to personalized and computerized.

Agency they can get from attorneys. For now.