It depends upon what the meaning of “is” is.

Skilled magicians and lawyers are alike in their ability to amaze and baffle.  Both can take one thing that is clearly one thing, and before our eyes make it be another thing.  I could watch a magician for an hour, but a lawyer will keep me mesmerized until sunset.  With a flip of a word, a comma out of place, an interpretation of a definition of a word, lawyers turn believers into doubters with remarkable ease.

“There is nothing going on between us..” Bill Clinton had not lied under oath he contended, after facts of his relationship with an intern had become known.  “It depends upon what the meaning of “is” is.” from the perspective of the President, an accomplished attorney well versed in the art of twisting  words to alternative logical conclusions.  

Contracts used in real estate transactions are created with heavy input from lawyers.  If a lawyer wrote a sentence, there is a good chance every word has relevance. It may depend on the meaning of the word, and as long as the meaning is questionable, the outcome is disputable. 

Licensees draft contracts to an extent. Well we fill in blanks, check boxes, and within limits we free hand write some conditions the parties will rely on.  When getting an offer accepted or moving on to the next step is most important, care for proper sentence structure, punctuation, and definition of terms are at risk of being overlooked. Our license law requires we write what the client directs us to write. If we are surmising the intent of what the client wants, we’ve come up short. Getting it right is expected of us.

And when we get it wrong, all is well, until it isn’t.  Regardless of how kind, eager, committed, friendly, related, a person is to the licensee, when the source of conflict in a real estate transaction is traced to the licensee, there’s a better than good chance we’re going to lose.  As long as we are willing to spell out a person’s concerns, plans, expectations we are exposed to being challenged.   I actually like that challenge. Not everyone does and I understand.   There is no reason to fear consequences when you develop your contract drafting skills. With all of the free University education on-line, becoming trained by the same people who teach lawyers is possible. We don’t have to become lawyers to think from the perspective of a lawyer. Just be a learner. It’s worth the effort, but you won’t know it until there is a problem and it has nothing to do with your role.  Here  is a link to one resource for access to 1,300 universities. Take your pick, Oxford, Harvard, MIT. Oh, you don’t need to be a contract geek to get better at drafting, you only need to want to learn. 

Lead Paint Test or Radon Test. Why one and not the other?

Allowing a buyer to test for Lead Paint in single family (homes built prior to 1978) home purchases is mandated by the United States Government. Deny the buyer the opportunity to test and you face fines in excess of $30,000.  Disclosing that you are aware of lead in your home will diminish the value by at least 5%.  Cost of remediation is enormous compared to curing any other condition.  The cost of clean up, and health risks are  significant.   If you know a  REALTOR who encourages buyers to test for lead paint I’d like to meet them.  I have never seen an accepted offer with a lead paint testing contingency. Ever. Oh, 100% of the homes built before 1978 are subject to the Lead paint test requirement.

Radon is everywhere. Always will be. There is no safe level of Radon. The WHO and USA do not agree on an action level.  WHO says 2.0 picocuries per liter. USA EPA says 4.0.  Do you know anyone who knows the radon level in their home? Their office? Their school, or apartment? Nope.  Does the government mandate radon testing? No. Radon is present in 100% of the homes in the United States.  Not just old homes, and in fact the new homes are way better at holding radon—no leaking windows, or holes. The test done by inspectors to measure radon is at best 3 days. In a row.  The EPA recommends a six month test.  The cost of the test is roughly $200.  The cost of curing the radon level to an EPA level of below 4.0 ranges from $600 to $1400.  The fix is pvc pipe sold for pennies by the foot, a small electric motor, an outlet, and a hole in the concrete floor.  The material is about $150 total.

Because the cost of the test is a third of the cost of the cure, it makes no financial sense to test. Just put in the mitigation system.  But test we do. We promote the Radon test at a cost to buyers. ($200 is at least 10% more cost to the acquisition costs for the buyer)

I’m perplexed. If we think we are looking out for our buyer by including radon tests, why are we not including Lead Paint tests in target housing?  It’s OK with me if you want to put radon testing in your offer. I’d just like to know the logic.

Radon has no known safe level, and it’s everywhere (A lot like mold)

A Radon Test costs between $150 and $300 in the Madison, WI area. A mitigation system ranges from $650 to rarely above $1,200.

A Radon contingency is one of the contingencies  left out of an Offer when  obtaining acceptance matters more than protection against risk.
Because  Radon gas is everywhere there is air, there will be a level of Radon in every building.  Long term exposure to Radon Gas is a health concern of the World Health Organization; for certain, there is no safe level. The level of 4.0 pCi/L was set by the EPA only as a practical level for indoor air. The chance of a radon level at or greater than 4.0 pCi/L from a 48 hour test is great. (WHO recommends three month tests for accurate indicators). The 48 hour test costs $150-$300.  A mitigation system runs $650-$1200 (If you have a bill for over $1,200 in Madison, WI let me know)  regardless of the size of the house.  A mitigation system will not reduce the level of radon gas to 0. The guarantee made by the people who install  mitigation systems is only that the level will be below 4.0 pCi/L….but again, there is no safe level of radon gas. No one is promising to make your home safe from radon gas.
Including a radon testing contingency will not protect  a person from owning a home with radon gas inside the home. It could be effective in allowing the buyer an opportunity to continue negotiations.  Therefore, the contingency will  be considered for its risk to the seller. If the objective of the Seller is getting safely to closing, and they have options which don’t involve testing for radon gas, the Offer with the testing contingency has less appeal than one that does not.  All things considered, zero risk is more attractive to any owner than any risk. And of course the same goes for buyers. Someone has to give.
Given a choice of contingencies it’s expected a typical buyer prefers to have all the contingencies they can get.  For our part, assisting our clients to become informed typical buyers allows them to decide if any contingency is worth the risk to the appeal of their offer.  A chance to make an informed  choice  to decide what contingencies are best and which ones aren’t worth the risk of rejection, is a level of service informed licensees can offer and others will not.
Radon is everywhere, and  levels can be reduced below the practical level for less than the cost of installing gutters on your house or a bit more than twice the cost of the radon test.   Taking the radon testing contingency out of the Offer is one of the surest ways to improve the chance of acceptance.  Having a radon testing contingency will not ensure the house is radon free.

If we’re so opposed to overpaying, why do we buy water for $4.00 a bottle?

As of this moment, if you live in the United States, clean, clear water is available within a few feet of where you are right this moment. In a year the average American consumes more than 30 gallons of bottle water per year.  1999-2017 per capita consumption. Individually we each spend at least a $100 per year on water in a bottle.  Considering in 1976 the average American bought 1.5 gallons of bottled water per year, the market has been booming for this overpriced product.

If clean, safe drinking water can be had for pennies for a ton we are overpaying by….(Do the math here). Think about this, often we decide against a purchase over the financial difference of a percentage of less than 5%.   In competitive real estate markets the same people who pay hundreds and hundred of a percent over the price of water drop out of the negotiations for fear of looking silly for overpaying.   Nothing wrong with that of course, but compared to the craziness of buying free water in a plastic bottle for $2.00 a bottle, overpaying for a home which may increase in value along with all its other attributes seems like a smart decision to be applauded. Of course the amount we overpay isn’t available to spend on plastic bottle water.

When full price, cash offers, no contingencies, closing whenever the seller prefers are the most attractive terms a seller can get, it’s logical that every contingency included in the buyer’s Offer diminishes the appeal of the Offer in the eyes of a seller.
On the flip side, every contingency in an Offer protects the Buyer, allowing them time to do their due diligence before being obligated to close. Time and exit opportunities on the Buyer’s side put stress on the Seller. As long as the contingency exists a door to exit is open, and the Seller lives with fear of something going wrong.
Some contingencies in a WB offer and Addenda are irrelevant to some buyers. By knowing what matters most to this buyer, we give our clients the opportunity to decide what stays and what goes from the WB Offer and Addenda.   When the purpose for which a contingency exists is of no concern to the buyer, the contingency  only decreases the Buyer’s chance of having their Offer accepted.
Checking boxes and filling in blanks the way its always been done is standard practice. It’s not good for the client, but it’s simple for the REALTOR. When thinking of implications is not part of the conversation, no serious consideration of options, no “what if” questions, it’s safe to expect the Offer that comes out will have ultimate Buyer Protection and very little Seller appeal.  It’s more than unfortunate when well qualified people lose the house of their choice because of such a simple flaw. And it happens too often.
SRE agents study real estate contracts. They learn to eliminate terms which diminish their client’s Offer,  and structure terms that work for their Buyer clients.  Our approach is to make the Offer reflect the Buyer’s intention, ability, strengths, and fearlessness when that’s the case. The payoff for our clients, if the price is good enough for the seller, should  be an accepted Offer.

The Situation is Not The Reason We Do Anything

A change in employment, a job in another state, the grandchildren live in Seattle, the kids are all married; these are situations.  When asked,  “Why are you selling your house? Why are you moving?” any of those replies only reference a situation in the person’s life. They are not reasons for selling, for moving.

The reason a person sells their house is as simple as, “I want something different. I have this, but I want that. Having this keeps me from getting that.”  What they want might be different real estate, different weather, different lifestyle.   When the house a person owns can not be retained in order to get that next thing, the house becomes the key to their future.  Then why does  history, the past life, memories of the house weigh so heavily in the decision to sell?  I believe the hangup in selling is always tied to a weak commitment to the next thing.  When we want something bad enough, we will let go of what keeps us from getting it.  If I want to be in Texas with my family and the kids enrolled in school by August 15th, I won’t let a few thousand dollars difference get in the way. My reason for selling is the solution to getting what I want more than what I have.

When  a person says they won’t sell for X price below their asking price, the reason is because they want to keep this, more than they want to have that.  Regardless of the situation, the reason to not sell at X price is to keep what I have right now.  Only when getting the next thing is more important than keeping this thing will we reach an agreement with a buyer. Until then all buyers are competing with the seller/owner. It’s hard to outbid an owner when they want what they have more than what they might acquire. Maybe a fear of the future, the unknown, is greater than the comfort of the present, the known.  The money will be enough when desire for the future exceeds fear of loss or what might be.

If more money won’t guarantee an accepted offer, what will?

Every home seller wants something so they can be somewhere by some date.  Knowing what they want most is the key to getting your offer accepted.

More money is likely a want of every owner.  Less stress is near the top of a person’s wants.  Stress is related to risk and perceived consequences.  Fear and worry are relatives of stress. We are safe to assume eliminating fear and worry about undesirable consequences will be recognized and valuable to a home seller.

Every REALTOR should have at least ten good ideas for you to consider, to present you and your offer more risk free, safe, and sound for the seller.

The ideas we have for you are simple to understand. You can think of a few by simply switching your perspective to the view from the Seller’s side of the table. If you were her, what would you want to see in an offer?  Before committing to be represented by a Buyer Agent, find out what smart strategies the agent has to give you an edge in a competitive market. If the first and last idea is more money, they have no idea.