Why do we do that? Cuz, we always do.

Because that’s the way I was taught. Yup. That’s a common answer to a question that may get thought more than it get’s asked out loud. And that’s too bad. Change begins with asking, “Why?” Growth is stunted when we accept, “Cuz we always do”. Why do include the Appraisal Contingency in Offers?  Don’t tell me to protect the buyer. That’s not a reason we use the contingency. We use the contingency because it’s there.   And it’s been there since 2011. Carved in ink stone, that relic will protect  a person from an imaginary threat to the point of keeping them from ever getting a chance to appraise the property…cuz they came in second.

What’s wrong with that Appraisal Contingency? It’s old and  stuck in its way. It’s inflexible. It’s a seller unfriendly curmudgeon. It’s not a contingency, it’s an ESCAPE CLAUSE. Read it from the perspective of a seller… a seller who lives in a seller’s market. You can see the problem instantly…should the appraisal, which is a subjective process, show a value of even a dollar less than the purchase price the buyer CAN terminate the Offer. Will they? Probably not, but 30 days from acceptance the seller is in no good place to negotiate and without an agreement to modify the contract to something fair, the buyer is in a position to negotiate price, closing date, concessions of any kind.  Smart sellers and will pass your offer over if they have a smart buyer who knows they don’t need an overkill contingency to be safe.

Savvy Realtors are proactively thinking up better conditions to create a win-win for the buyer and seller who have an offer with an appraisal contingency. This is a version you’re welcome to copy:  Appraisal Contingency:  In the event that said appraisal shows a value less than the purchase price, buyer shall deliver to seller a copy of the appraisal and a signed amendment to the Offer to change the purchase price to appraised value amount. Said amendment shall include no other conditions and shall allow Seller one (1) day to accept. Buyer shall not deliver the Notice to terminate provided for in this contingency prior to seller’s deadline for acceptance of the price change amendment.

If you grew up thinking your’s is not to question why, your’s is to either do or die, there’s good news—you’re not gonna die…ASK WHY and find a better way.  Next contingency that has outlived it’s use is the “Buyer direct Broker to reject the listing broker’s offer of compensation. Seller to pay buyer broker  ____% at closing for buyer agency fees…” This monument to old times has no good reason linger longer…you know why, right?

 

No, Stupid. That’s Not What Business People Do

I sort of hope that happens (housing market collapses) because then people like me would go in and buy.”  Donald Trump 2006.

Trump in 2016, On being called out for rooting for a housing market collapse: “I mean, I’m a businessman, I like it when it-when it goes down it goes down.” “What am I going to do. I’m in business. Never thought I was going to run for office.” 

The Onion didn’t write the satire. This was no fictitious businessman, smirking with selfish irresponsibility. This was the epitome of the money grubbing, selfish thugs who thinks death and misery of others is a game of opportunity for them. If we were in business participating in perpetuation of the no-bubble lie, we have some responsibility for the humanity crisis of the start of this century. If our only contribution to change is taking what is not ours at a steep discount then we are not business people at all.

Oh, I understand, there were opportunities in acquiring properties lost by “business people” who leveraged what they did not have, but that’s not the target of people like Trump. Their target were moms and dads. Young people. Retired people. People with young children who lost their homes because they lost their jobs and their banks refused to modify their aggressive interest rate loans. A business person takes what talent, ability, assets they have and puts them to use to relieve the misery of others.

Another opportunity to be a business person in a crisis will come along again. If I have to think if my action is right or wrong based on my intention to run for office, or If I have to ask rhetorically, “What am I going to do?” then I’m stupid.

 

 

The Escalation Clause Rendered Useless

“In other words, an entire new world is pointed to, by this….It is authentically a new thing on the face of the earth.  Pieces such as this….” he picked up the pin once more briefly. Closing the lid he returned the box…”can be mass-produced….” The Man In The High Castle, Philip K Dick

We marvel at a new idea, something so special, perfectly suited for nearly no one, yet remarkably powerful for a bold and brave few. Being useless to the masses, its unique appeal makes the authentically new thing sensationally valuable. And then, because everyone wants one, we strip away its authenticity, its most powerful attributes, and render the idea useless. We  did this in the mid ’90’s with a brilliant marketing strategy known as Range Pricing and we just did it again with the Price Escalation Clause.

Savvy, capable real estate buyers, seeking a negotiating strategy to acquire property at a price more than they planned to spend, but at a price less than they are willing to lose the house over, hit upon the Price Escalation Clause (EC) It’s a simple and powerful clause shifting risk from the seller to the most qualified or boldest of a bevy of buyers.

The authentic EC looks like this: “This Offer price is changed to $1,000.00 over the purchase price, of any bona fide Offer Seller has in possession at the time of binding acceptance of this Offer. Said purchase price of this Offer shall not increase above $______________, regardless of the purchase price of said other bona fide Offer. Seller to notify buyer of the purchase price by written notice to buyer with acceptance of this Offer. Buyer agrees to pay any difference between purchase price and appraised value in cash at closing as necessary to satisfy mortgage financing requirements.”

The well versed seller sees safety in this remarkable offer of commitment from the bold and confident buyer. This buyer is a person the  seller wants to be in business with. This buyer knows what she wants and is willing to assume some risk to acquire the property. She fears nothing. She uses a tool that satisfies her desire to prevail.

Unfortunately we’ve lost sight of the purpose. No longer is the EC written as a tool to acquire a property, we’ve turned to mass production and churned out a contingency for the faint of heart who think they can eliminate competition to clear the field for their safety and security. The remarkable piece of authentic art the EC was, is now a plastic charm. In the hands of the unknowing user, what’s being represented as an EC is a useless garble of hidden security terms complete with a poison pill.

We’ve rendered the EC useless, and that’s not really a surprise. However, the smart Realtor and courageous buyer, there is an alternative. I hope you find it.

 

 

 

 

Hottest Trend in Real Estate; Price Escalation Clause

The purchase price of this Offer shall be $1,000.00 greater, up to a maximum price of $_______, than the purchase price of any bona fide offer….

Source: Hottest Trend in Real Estate; Price Escalation Clause

Hottest Trend in Real Estate; Price Escalation Clause

The purchase price of this Offer shall be $1,000.00 greater, up to a maximum price of $_______, than the purchase price of any bona fide offer….

Smart homes, modern kitchens, latest paint colors, big houses, not-so-big houses, the trends never end. This year’s popular trend is not in a can, a box, or a store. It’s an idea. Before you pick out paint, new kitchen appliances, or the latest in bathroom fixtures, you’ve got to get your Offer to Purchase on the house accepted. It’s  seller’s market in South Central Wisconsin where Necessity has once again proven to be the Mother of Invention. Her latest creation is the “Price Escalation Clause” and it’s a powerful idea.

Here’s how it works: House comes on the market at $300,000. Buyer A makes an offer for $300,000. Buyer B offers $310,000. Buyer C, knowing nothing about the other offers, is determined to get her offer accepted. She’s qualified to purchase up to $350,000, and this house is perfect for her. Buyer C writes her offer  as a Purchase Price of $298,000, with a clause to escalate her price if the seller has any offers for more money than the $298,000 she offered, to a price of $1,000.00 higher than any bona fide offer, with a maximum purchase price of $315,000.  Seller likes all of  the offers but likes $315,000 best. Buyer C goes from 3rd best offer to Accepted Offer because she let the seller pick the price, provided it was only $1,000 more than any other offer and not higher than $315,000.

Pretty easy right? Maybe not. Real estate brokers and lawyers recognizing the opportunities for foul play crafted  contingencies which may be more complex than necessary. Everyone has an idea and it seems every idea is incorporated into one of the dozens of versions of an escalation clause. Typical of first generation vehicles, these non-uniform contingencies are overbuilt and cumbersome to navigate.

Here’s a simplified price escalation clause  to help you understand the concept. Check with an attorney before using a version of any escalation clause. This one is only for an example, not to be used in your offer.

The purchase price of this Offer shall be $1,000.00 greater, up to a maximum price of $_________(a), than the purchase price of any bona fide offer the seller has received at the time of acceptance of this Offer.  Along with this accepted Offer, Seller shall send written notice to buyer stating the purchase, which shall be no more than $1,000.oo more than said bona fide offer and not more than $___________(a). Buyer and seller agree to promptly execute an amendment to state the purchase price as the amount given on said Notice from Seller to Buyer.

Broker and lawyer crafted contingencies call for the seller to provide the buyer a copy of the competing offer to prove the purchase price of the other offer. You’ll even see the term Net Price used to account for credits and concessions before calculating the escalating buyer’s offering price. Both conditions are good ideas. Whether or not they are necessary depends on the buyer. I believe the need for proof of existence of other offers is overblown, and calculating Net Price is splitting hairs.  Everyday as long as there have been more than one buyer for a property, buyers have offered more money than they might have otherwise, because they knew or thought another offer was coming in to the seller. Never, ever do those buyers require proof that their offer wasn’t already better than the one that did or did not come in. I believe in requiring the sharing of competing offers, we’re are adding a solution where no problem exists.

The easiest offer for a seller to accept is one that is easy to understand, and includes a  preferred price. Keep it simple and legal to have a better chance of being the next owner of the home of your  dreams….oh yes, there is still the issue of appraising for the purchase price. Seller’s be careful…make sure you are protected against appraisals below that escalated purchase price. Appraisers and underwriters are not as inspired as buyers and sellers to put unsupported values on properties.

Always use an attorney to review your contracts.

 

 

 

Falling Oil Prices and Real Estate

Oil at $146 per barrel gave us gasoline over  $4.00 a gallon in 2008.  Today I filled up at $1.49 per gallon and oil went to $26  barrel. Cool. Remember 1974 and the Arab oil embargo? Gas prices doubled to 55 cents a gallon. I looked this up, that 55 cents is $2.81 today. The $1.49 I paid today is equal to 29 cents in 1974.  Twenty nine cents! In 1974 I put a gallon of gas in a snowmobile for a quarter and I probably had an extra 3 or 4 quarters to spend on soda, candy, and maybe a burger.  I thought those days were over.

High oil prices cause a slowdown in production and delivery of goods. Anything we buy is impacted by the cost of fuel so prices of groceries, clothes, and toys cost more. Less goods and Less money to spend on anything other than gas, means less buyers in the stores but that’s OK, there are fewer employees needed to service those customers who will not be buying what they want and only what they need. Can we expect oil prices under $30 a barrel will translate into increased spending?  I think so.

OK, you can see I’m not an economist but I know $17.00 to fill up my car is better for me than $48. I’ve got $31 dollars to save or spend.  Effective Mortgage Company Blog explains how these low gas prices could be good for the housing market. Or, low gas prices might not be good for the housing market if you live in an area where oil production plays a big part in the local economy. Madison is not a big oil producing city. Shoot, we’re not even a big gas guzzling city with everyone driving a Prius, van pooling, taking the bus, or riding a bike.

Here’s where the economics become tricky. Apparently oil prices impact bond prices and bond prices move mortgage rates. We were told in December to expect rates to reach 5% by the fourth quarter of this year. If that happens the economists will have an explanation. Probably will have something to do with Greece, China, North Korea, or some uncertainty about the economy somewhere in the world.

This is what I know: There are historically few homes on the market, interest rates are low, home prices are up (simple supply and demand) and if you have a house to sell and want to buy another, you may need to park yourself at an extended stay motel or the house of a friend. If you can sell your house and not find one to buy you become, well, homeless. Just my opinion, expect to see people who want to sell stay put and that means fewer homes for the consumers to buy. If you can’t buy a house, I suppose you can take the extra cash and drive around the country for the summer, after all gas is only about a quarter a gallon. Maybe we’ll see the opening of drive-ins again, and jobs for car hops.

 

 

 

 

It’s Never Been A Problem Before

A real estate licensee may sign a contract on behalf of a client or principal.

What’s a missing qualifier to that bold statement? How about: As long as the licensee is prepared to personally fulfill the obligation or is prepared to defend herself and her broker from financial liability in court, at a high cost in legal fees the licensee might but shouldn’t sign anything for anybody. Signing on behalf is a bad practice to start because one day something will go wrong.

The liability risk is serious and still we see licensees picking up pens and signing documents we should never touch. A review of files in every real estate office may find more than a few offers to purchase, listing contracts, amendments, counter offers, and closing statements executed by well meaning licensees who thought they were out of harms way.

Attorneys, and title company closing agents who don’t represent the Realtor,  know a document signed by a party without proper authority and protection places liability on the Realtor and his Broker.  Even if that liability is the right to appear in court and defend his rights to immunity, the licensee will spend money and time finding out how much money this simple signature is going to cost him.

These are all too common situations:

A closing agent at a title company needs seller’s signature on the closing statement and the seller isn’t present. She passes the document to the listing agent and says, “We do this all the time. Sign it on behalf of the seller. We’re fine with that.” The well meaning licensee who has the best interest of her client in mind, not wanting to appear fearful or unhelpful picks up the pen and signs her name, “Jane Doe, on behalf of James T. Smith, seller”.

An attorney for a buyer instructs her client’s buyer agent to prepare and send a counter offer but, “just sign it on behalf of the buyer. He’s a busy surgeon and he can’t sign today”. The licensee signs the counter offer “John Doe, Realtor on behalf of Mark Anthony, as directed by attorney  Lisa Ward”. That should do it, he thinks and sends off the counter offer which is promptly accepted and made binding by the seller.

That’s an ugly one. Realtor John Doe is exposed to liability and the seller’s broker may be tied to the same sinking boat. Harmed parties will line up all of the usual suspects giving them their right to defend themselves.

Best Practices are better explained by lawyers and there are publications written by lawyers available online.

Be safe. Regardless of what anyone tells you, you are at risk of expensive liability when you sign on behalf of any party to the contract. A legal document prepared by your attorney protecting you as a legally authorized person to sign on behalf of anyone, without liability to any party may be a measure of protection. My advice is to pass the paper back to the  person who said it’s OK to sign,  and say, “It may never have been a problem for you, but it’s never going to become a problem for me. I’m not authorized to sign.”  I promise you will appear wise and prudent. And if anyone thinks differently of you, they have the right to their thoughts no matter how wrong they are.