Category: contracts

Current Assessment X Current Mill Rate is only one of the choices for property tax prorating

The Offer to purchase provides 5 choices for the buyer and seller to select from to agree on how to prorate the property tax bill for the current year. Except for closings at the end of December, the actual amount the city is collecting from the owner will be unknown at the time of closing.

Each choice on under Closing Prorations is a simple word problem. One or more of the choices may provide a fair and simple way for the buyer and seller to split the bill. In certain situations, one or more of the options may provide a windfall to one party, or may leave the new owner significantly under compensated.  To know which options may be acceptable to both parties, we can plug the known numbers into the formulas.

A: Net General Real Estate Taxes for the Preceding year (or the current year if known):  Assume the current year bill is unknown. The previous year tax bill may be close to the current year bill. Tax bills tend to increase each year, but the increase when divided over the year is probably minor enough that no one cares.

B: Current assessment time current mill rate: This is a bad choice when the community is in reassessment or the property being sold is new construction.  A reassessment will result in property values increasing close to market value. In the fall to keep tax bills from going through the roof, the mill rate will be adjusted down. Close when you know the new assessment but not the current year mill rate and the seller will leave a large chunk of money with the buyer. New construction built in one year and closed  in the following late winter or early spring before the new assessment is known will leave the buyer with a very small credit compared to the actual amount owed for the days of the year prior to closing.

C: Sale price, multiplied by the muni area wide percent of FMV multiplied by current mill rate.  This one is unusually complicated when compared to the next choice.

D: __________________ Create your own method. I think this is safe. Based on the facts of each transaction, the parties may estimate a tax bill. If bill was $10,000 last year, assume the next bill will be $10,100 or $10,300 or some amount. You will most likely be close because tax bills rarely go down. If it’s new construction, you could multiply the sales price by the known mill rate or if the closing happens in the same year that (a) the lot was vacant on Jan 1, and (b) the construction began after Jan 1 and was completed and closed prior to December 31 of the same year, the value of the lot times the mill rate will give you a number that’s close.

E: Buyer and seller agree to reproprate after closing.  Sounds like a great way to be exact, provided the new owner can collect from the seller, or the seller can collect from the new owner if money is owed.   I don’t want to suggest this option and I don’t want to be asked to intercede at Christmas when one party fails to pay up.

When the Notice or Amendment appears unfavorable, why do we call the other agent?

Working through inspection related contingencies is when the most agent to agent calls (by calls I mean text, email, and phone calls) are initiated.  Why is a call made so quickly in response to Notices and Amendments?  I believe it’s an unnecessary practice.  Here’s why:

The Offer to Purchase is an agreement between the Buyer and Seller. Sufficiently written contingencies (and every licensee believes they wrote sufficient contingencies) include the steps the parties will take when this or that happens. The contingencies define key terms. The parties agreed to these steps and terms. When one party follows those terms by sending a Notice or Amendment, or doesn’t follow those terms, by sending the wrong form or no form, the receiving party has a predetermined course of action. Nothing in the contract or license law states a licensee must, or should, make a call to object, question, debate, or educate the sender.  The approved and understood options include the recipient party responding by Notice, Amendment, acceptance, or silence. Of the  approved forms for licensees, email, text, and phone calls are not mentioned for good reason.

Lawyers may have permission to speak on behalf of their clients. They may have the protection to make representations. Licensees do not have the legal authority of an attorney. A good way to lose the authority we still have to complete forms is to fail to complete forms. Let’s think about this.

A call (text, phone, email, fax) is documentation of a message from one licensee to another. The commitment to the statements is arguably attached to the sender and whomever responds.  There is no commitment to the statements from the principals. A Notice, Amendment, Counter Offer on the other hand, is signed by the principals confirming the words are their words; the promise is their promise; the responsibility is their responsibility.   Documentation is clear when appropriate forms are signed.

If the intent of a call in lieu of a proper form is to speed the process or challenge the other agent, the intent is reason enough that the form is a better choice.

 

 

 

 

 

 

What Do We Want to Accomplish?

 

Seth Godin’s Blog

“Will the seller take a cash offer with no contingencies?”

Offers to Purchase are handshakes. You own this property, and I want to own it. I’ll give you $X and you give me the Deed on this date. The details could be left out if no one ever had a reservation. The details are the exit doors. Our job is to attempt to make clear what everyone intends and expects.

Dishonorable people intent on not keeping a promise will not be impeded by language of a contract.  Seth Godin notes that our future depends on good agreements with good people. What do we want to accomplish? We want to work with good people. The good contracts keep us in business so the good people can benefit from our good work.

Inspection Contingency: Two ambiguous deficiencies you want to avoid

Wisconsin Residential Offer to Purchase page 9 of 9, Inspection Contingency

Deficiency number 1. NOT TESTING.  Line 410 reads: “This contingency only authorizes inspection, not testing…”. To add clarity, lines 395-409 have the definition of the terms inspect and test.  You can inspect, but you shall not test.   It’s agreed, testing can not be done without a specific contingency and the inspection contingency is specifically not for testing.  Or, is it? At least one firm in Madison has an addendum with an additional contingency altering the inspection contingency to apparently permit testing.

“Addition to Home Inspection Contingency: It is understood that if the buyers’ home inspector recommends that additional inspections/test be completed, Seller agrees to that portion of the inspection being extended for ____days…”.  I put the problematic words in bold.  If I’m interpreting this correctly, if a home inspector recommends a radon, mold, lead paint, water, or air quality test be done, the contingency is extended.  I don’t know if the parties are agreeing to permit the test, or just extend the contingency satisfaction deadline.

Practice Tip:  Do not include any reference to testing under the Inspection Contingency. Use a specific testing contingency with stated acceptable levels.

Deficiency number 2, NOT ENTIRE PREMISES. line 412 to 413: “This Offer is further contingent upon a qualified independent inspector or independent qualified third party performing an inspection of________________________________________________________________________(list any Property component(s) to be separately inspect, e.g., swimming pool, roof, foundation, chimney, etc.)…”. Even with the hint telling us to insert components of the property, some licensees are writing “Entire Premises”.  The consequence of the words “entire premises” in the blank where specific components are to be written may be this:  A qualified independent inspector or independent qualified third party may do the inspection of the property instead of a “Wisconsin registered home inspector” as was first stated on lines 410-411.

When a component (fireplace, roof, foundation…) is inserted in the blank line as intended, the contingency is not ambiguous, and we have an agreement by the parties to allow a buyer to have a Wisconsin registered home inspector inspect the entire property, and a qualified third party or other inspector inspect the component stated, such as “the fireplace, the roof, the swimming pool, the shed, etc.”.

Practice Tip:  When in doubt about what might be written in the blank lines, first look to see if the creators of the form offered any hints or suggestions immediately after the blank lines. I can think of two places where they’ve done so in the Offer. If there is no suggestion, and you feel it necessary to insert something, make sure the words you choose complete a sentence and do not contradict the intent of the contingency.

 

 

Time is of the essence. The “little details” matter.

This is a portion of an actual text from a Wisconsin real estate licensee’s response to a licensee who is trying to get an amendment accepted to extend a contract deadline: I think keeping in focus we are doing the work and we are set to close should be the focus. The little details always solve themselves. Well then, all you attorneys and real estate licensees may as well find another profession. Little details don’t need your attention.

Isn’t it the little details the Supreme Court hears and decides on to settle constitutional rights?  Does “Time is Of The Essence” in the Offer to Purchase contract mean something different for the “little” contingencies? I see 7 court cases sited on page 7-35 of the Wisconsin Real Estate Law, 2017 Edition which make it clear, the little details do matter.

The Wisconsin Offer to Purchase WB-11, is a nine page form filled with little details.  Those little details make or break transactions. Licensees who initiate compliance with the little details are doing the job they are licensed to do. Intentional disregard to the little details is setting the parties up for a dispute. Compliments to the buyer agent licensee who took the initiative to protect the customer (the Seller) and the client (the buyer) in spite of the haughty attitude of the listing agent licensee who could not be bothered with the little details.

 

Letters to the Seller. What’s the intent?

Google will give you 1,040,000 results for “Dear Seller Letter”. From upstart real estate agents to the biggest players in the field, including Realtor.com, love letters to sellers are promoted as the key to success for buyers negotiating in Seller Markets.   A lot is being written about something that has nothing of real evidence to prove its value. There is no scientific evidence to support the notion that the love letter makes a difference. Oh, there are incidents where people believe it made a difference, even THE difference. But those incidents do not qualify as a scientific study.  On the other hand, substantial evidence supports the fact that people who submit offers with the most favorable price and/or terms for the Seller, provide the most definite assurance that they are capable of closing on time, and are committed to honoring the terms of the contract, are highly likely to have their offer accepted.

In spite of the lack of evidence, advice from people in the real estate industry encouraging buyers to write Dear Seller letters continues to pour in.  I scanned a dozen web site stories and saw  versions of this  suggestion often encouraged:  “…always include a photo…” of your family.  Apparently the “family” photo makes your Offer stand out. It shows the Seller who you are. It shows the seller you might have something in common. It tells the Seller you will be good stewards of the home they love.

Could those reasons be faint cover for communicating another message? What is the intent of these letters?  If the intent is to persuade the Seller to look favorably upon the Offer because of the appearance of the buyer, arguably a line has been crossed.  The Wisconsin law says a licensee is subject to disciplinary action “…if it is found that the licensee treated any person unequally solely because of sex, race, color, handicap, national origin, ancestry, marital status, lawful source of income, or status a a victim off domestic abuse, sexual assault or stalking.”   

There is a better way to make a Buyer’s Offer stand out, and we are all capable. The licensee who improves their ability to craft Offers to purchase with terms more favorable to the Seller, while providing the protection the individual buyer desires, is safe and worth their fee and then some. It takes more work. It requires thinking. You will be challenged. And it’s what we are licensed to do.

Are we more than drifting toward Fair Housing violation accusations? Is it time for  a national dialogue on the practice? I think we are, and it’s time to talk. What do you think?

 

 

It’s About the Net to Seller, Not the Price

There are always  gimmicks. Buyer markets gave us the Appraisal Contingency – Escape Clause, and the Buyer-Gets-the Last-Word Inspection Contingency. Seller markets spawned the Escalation Clause.  Insecurity morphed the Escalation Clause into a watered down, useless jumble of nonsense. (I’ll beat any offer price as long as I get to see the offer, and then I get to deduct a laundry list of expenses from the price, and maybe I will agree to amend our price, but I don’t have to pay this amount if the appraisal doesn’t match our price, and then….)

All of the gimmicks look like good ideas until you, ah well, look at them. People who hire smart real estate brokers as Buyer Agents get their Offers accepted by steering clear of the gimmicks. The savvy Realtor® out thinks the competition by seeing  knowing the objective of the Seller is really the Net to Seller, not the Price Offered. I believe the Wisconsin Offer to Purchase (Residential, the Condo Offer, and Vacant Lane Offer) are boiler plate forms where costs paid by Seller are pre-determined. To increase the Seller’s Net without increasing the price, financially capable Buyers will take on the Seller’s typical expenses (some may be tax deductible—see your accountant), and save themselves thousands of dollars in interest and higher property tax bills over the years of owning the home.

This weekend when you write your offer try this: Think like you are in cooperation with the Seller, not in competition. The Offer has at least 8 areas you can modify to improve the love your offer receives from the Seller…and none of them require sappy letters and photos of your kids. If you haven’t committed to a Realtor® yet, before you do, ask them what ideas they have to help you get your offer accepted. Commit to the professionals who know how to make the Offer work for you AND the Seller.