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Escalation Clauses

by Steve Meyers

March 29th, 2017

In this market where buyers are waiving inspections, presenting Offers without financing contingencies and, signing-off on their review of the Re-Sale Certificates without questions (condominiums), we’re also seeing “Escalation Clauses” that increase their Offers far above the List Price.  I attended a presentation of four of the top residential real estate attorneys last week where they unanimously disliked the “Escalation Clause” because it is fraught with potential for errors and miscalculations. There suggestions were to seek the highest and best Offer from the top two buyers based upon the “Escalation Clauses” but, then cross-off the “Escalation Clause” from the Offer and write-in the agreed upon purchase price on line 6 of Form 21 – Residential Real Estate Purchase and Sale Agreement and, have all parties initial the new purchase price.

The attorneys are seeing more and more disputes with the “Escalation Clauses” and recommend eliminating the Form from the Offer to Purchase, if possible.  A couple of suggestions were to present the “Escalation Clause” from the secondary buyer to the agent for the primary buyer to substantiate the higher price for them to submit / change the existing Offer.  Either cross-off the “Escalation Clause” on the front of Form 21 or Form 28 and then insert the new price with initials by all parties.  An alternative would be to submit a Form 34 with the appropriate language or, the Form 36 – Counter Offer.  However, any changes to the initial Offer to Purchase would be considered a Counter-Offer and would allow that buyer to not proceed with their initial Offer to Purchase.

If you have any comments or questions about this article, please email me at smeyers@kw.com.

Steve Meyers is a Managing Broker at Keller Williams Real Estate in Seattle, Washington.  He can be reached at (206) 972-3328 or smeyers@kw.com.

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Understanding your Resale Certificate

by Steve Meyers

February 27th, 2017

As the seller of a condominium in Washington State, you’re required to supply the buyer with a resale certificate and all supporting documentation shortly after you enter into a purchase and sales agreement with the buyer.  The HOA’s professional management company will produce these documents for you and you’ll sign to attest to their accuracy.

There will be numerous items in the resale certificate which may cause the buyer to terminate the agreement.  It’s best to learn about these items prior to listing your condominium for sale with a real estate agent and disclosing those items in the listing information on the multiple listing service.  Those items will include whether there is a “Rental Cap”, any special assessments, the minutes of the general HOA and specific B of D meetings, the minimum rental period, pet policy, the amount in the capital reserve account, information in the most recent reserve study, delinquent assessments, FHA approvals, controlling interests, assigned parking and storage, etc.

Buyers want to know if there’s a “Rental Cap” in the building in the event they’re transferred with their company to another area or, they seek employment in a different location.  There are many scenarios for how to qualify for renting your unit so you should understand these may limit the number of buyers submitting Offer to Purchase.

The biggest issue with buyers will be the amount of capital reserves and the information in the most recent reserve study.  Buyers want to know of any additional financial obligations they may have if the current capital reserve account will not pay for all of the repairs and maintenance items that come up in the future.  Low HOA Dues may result in a poorly funded capital reserve account and high HOA Dues may indicate there’s a significant financial obligation in the near future.

Recently, VRBO’s (vacation rentals by owners) and AirBnB’s (air bed and breakfasts) have become popular.  Some condominium Declarations, Bylaws and CC&R’s address the minimum rental periods within buildings but, there are some buildings without restrictions.  Surveys have found that short-term rentals in condominium buildings have a negative effect on condominium values and are an overall negative impact to the community of owners.

If you have any comments or questions about this article, please email me at smeyers@kw.com.

Steve Meyers is a Managing Broker at Keller Williams Real Estate in Seattle, Washington.  He can be reached at (206) 972-3328 or smeyers@kw.com.

Blocked FHA Mortgage Insurance Cut

by Steve Meyers

January 28th, 2017

The new Trump Administration halted the previously announced FHA mortgage insurance rate cut from 0.85% to 0.60%.  What does this all mean?  Let me give you a little historical perspective and then discuss the Pros and Cons.

One of the missions of the FHA (Federal Housing Authority) is to provide mortgage insurance on loans to low and moderate income families with modest credit scores, to allow them the opportunity to purchase homes.  These families can borrow up to 96.5% of a homes’ value and have a credit score of 580.  Mortgage loans greater than 80% of the purchase price require either FHA mortgage insurance or mortgage insurance from a private company like MGIC before they can be bundled and sold on the Capital Markets.

Following the housing bust in 2008, the FHA experienced an unexpected number of borrowers who went into default and they ultimately had to foreclose on their loans.  The FHA’s capital reserved of 2.0% of their entire portfolio, as required by congress, was severely diminished.  The Obama Administration raised the FHA’s mortgage interest rate 4 times since 2010 to increase the capital reserves back to its’ required 2.0%.  To help the Agency, the Federal Government had to infuse 1.7 billion dollars into the Agency in 2013.  That was the only time in the 79 year history of the FHA that Congress had to bail out the Agency.  In fiscal 2015, the FHA finally reached its’ required reserve of 2.0% of its’ portfolio.

In late 2016, the Obama Administration made the decision to reduce the current FHA mortgage interest rate from 0.85% to 0.60% to allow more low and moderate home buyers to purchase homes and, to reduce the monthly insurance payments for over 700,000 existing borrowers by 0.25% of their outstanding loan amounts.

So, what is the biggest advantage in halting the announced plan to reduce the mortgage interest rate?  Housing prices throughout the country are growing at historically higher rates than normal.  This cannot continue and there is sure to be a correction in the market.  If the FHA reduces their mortgage insurance rates and the bubble bursts again as it did in 2008, the FHA should increase its’ capital reserves today so Congress does not have to bail it out for its’ second time in a decade.

What are some of the disadvantages in halting the reduction of the mortgage interest rate?  As mentioned earlier, roughly 700,000 current home owners will not receive a reduction in their interest rates and between 30,000 and 40,000 potential new home buyers will not qualify to purchase a home.

If you have any comments or questions about this article, please email me at smeyers@kw.com.

Steve Meyers is a Managing Broker at Keller Williams Real Estate in Seattle, Washington.  He can be reached at (206) 972-3328 or smeyers@kw.com.

Condominium Loan Changes

Condominium Loan Changes
by Steve Meyers
August 29th, 2016

There have been some changes in the policies which govern condominium loans that are insured by Fannie Mae and Freddie Mac.

a.) The most significant change in policy allows for a loan to an owner-occupant, or condominium purchased as a second home (vacation home) to be insured by Fannie Mae and Freddie Mac if more than 50% of the units in the building are non-owner occupied units (rentals). Before this change, Fannie Mae and Freedie Mac would not insure loans if 50% or more of the units were rentals. However, a loan to an investor still requires fewer than 50% of the units to be rentals.

b.) Historically, if there were any litigation matters against the condominium association or the builder, neither Fannie Mae nor Freddie Mac would insure the loan. In general, this meant the borrower would have to seek a non-conventional loan for their purchase which would cost significantly more. Fannie Mae and Freddie Mac have changed their guidelines and now allow “Minor Litigation Matters”.

They still will not allow litigation involving safety, structural soundness, functional use, or habitability.

They will allow some “Minor Litigation Matters” where:

1.)The HOA is the plaintiff in litigation for past due HOA assessments.

2.)The result of the litigation will have an insignificant impact on the financial status of the condominium project.

3.)The litigation does not involve monetary consideration.

4.)The litigation involves a “Claim Amount” that is currently known by all parties, the insurance carrier has agreed to defend the “Claim” and, the HOA General Liability Insurance will cover the “Claim”.

c.) For buildings and complexes with more than 21 units, Fannie Mae and Freddie Mac will now allow a single owner to own up to 30% of the total number of units. Prior to this change a single owner could only own up to 10% of the units.

d.) The amount of commercial space in the building / complex can now be up to 30% of the total square footage in the building. Previously, it was limited to 25% of the total square footage.

e.) These agencies are now allowing the loan underwriter to sign off on a completed HOA Questionnaire without reviewing detailed Budget, Reserves, Minutes, etc. for borrowers of primary residences who put 10% as a down payment and borrowers on their second homes (vacation homes) who put 25% down as a down payment. For investors, Fannie Mae and Freddie Mac still requires the underwriters to perform a “Full Review” of the Resale Certificate and the supporting documents.

 

 

 

Appreciation, is it real?

Appreciation, is it real?

by Steve Meyers

On the surface, the generic statistics given to reporters and the media may be correct.  The single statistics that are accumulated by the aggregators of this information like Zillow and provided to reporters and the media leaves out an explanation of how these statistics can be misapplied or mis-interpreted.  Here are two examples.

In downtown Seattle if you were to compare the sale of two-bedroom condominiums over the last 12 months the appreciation may be reported to be, say twelve percent (12%).  So, if in June, 2015 the average sale price of 2 bedroom condominiums were, say $700,000 and in June of 2016 the average sale price of 2-bedroom condominiums were $784,000, that would be your 12% appreciation.  However, when you understand that Tower 1 of the new Insignia Condominium Project closed a significant number of 2-bedroom units during that same time frame with sale prices between $800,000 and $1,000,000, that will skew the average sale prices of other condominium projects in downtown Seattle.  What was the appreciation in those existing condominiums, say 5% or 6%.  I don’t know but, it wasn’t 12%.

Let’s look at single-family homes in the Ballard Neighborhood.  If the media reported the appreciation rate of single-family homes went up 14% in the last 12 months in Ballard, that would be wonderful.  However, if you take out, or consider, there have been a significant number of single-family homes that were purchased by developers to construct 3, 4, and even 5 townhomes on those single-family home sites, how will that skew the appreciation rate?  If your Ballard home were outside the areas in Ballard that allowed the re-development of your single-family parcel into 3, 4, 5 townhomes, would your site have increased in value by 14% …. No.

Granted, there has been significant appreciation in the two sectors above but, the statistics reported to reporters and the media by the aggregators of this information is many times incorrect because they take a broad brush look at the prices and have no idea what other things to consider.

If you have any questions or comments about this article please contact me.  Steve Meyers, Managing Broker, Keller Williams Greater Seattle, (206) 972-3328, smeyers@kw.com

Multiple Offers….Wahoo!

Multiple Offers….Wahoo!

by Steve Meyers
April 18th, 2016

So, your full service real estate agent did a wonderful job helping you prepare your single-family home or condominium for sale and he / she did an outstanding job marketing the property on-line, through “Open Houses” and directly to buyers and real estate agents. The date has come to “Review” Offers from buyers and you’re thrilled. There are 7 Offers to Purchase your property from buyers.

Back-up a few steps. Here are some things you may or may not have known. Did you know that you can share the terms and conditions of any of the Offers with one or more of the other potential buyers? Yes, if a seller would like their real estate agent to contact one of the other buyers and tell them what their current highest and best offer is and, allow that buyer to meet or beat the current Offer, the seller is allowed to do just that.

Did you know that a seller cannot accept an Offer based upon any of the protected classes as outlined by the federal government. For instance, a seller cannot accept an Offer because a couple has young children and the seller would like to sell their home to a family. This would be discrimination towards a single person who doesn’t have any children.

Once a seller reviews all 7 Offers and settles on one Offer to pursue, the seller should write on the first page of each of the other 6 Offers that the seller has reviewed the Offer and “Rejects” that Offer. The seller should then initial where he / she has indicated they have “Rejected” the Offer. Their real estate agent should then forward a copy of the first page to the agent representing that buyer.

“Sellers Right to Terminate”

“Seller’s Right to Terminate”
By Steve Meyers
February 29, 2016

The most recent Financing Addendum to the Purchase and Sale Agreement includes new language in Section 2 titled the Seller’s Right to Terminate.   Here is the new language.

a.Right to Terminate Notice: “At any time ______ days (30 days if not filled in) after mutual acceptance, Seller may give notice to Buyer that Seller may terminate the Agreement at any time 3 days after delivery of that notice (the Right to Terminate Notice)”.

b.Terminate Notice.  “If buyer has not previously waived the Financing Contingency, Seller may give notice of termination of this Agreement (the “Termination Notice”) any time following 3 days after delivery of the Right to Terminate Notice.  If Seller gives the Termination Notice before the Buyer has waived the Financing Contingency, this Agreement is terminated and the Earnest Money shall be refunded to Buyer”.  If not waived, the Financing Contingency shall survive the Closing Date.

What does this mean for the Seller?  Once the “Right to Terminate Notice” is provided to the Buyer, the Buyer must waive their financing contingency.  The Buyer has no further ability to terminate the transaction based upon any items within the Financing Contingency.  If the Buyer does not waive this contingency, the Seller can provide the “Termination Notice” and return the earnest money to the Buyer.

Why would the Seller terminate the transaction? If for whatever reason the Seller does not feel comfortable with the Buyers efforts to obtain financing, the Seller can use this “Right to Terminate” to force the Buyer to waive his / her financing contingency.   The Seller may also exercise this “Right to Terminate “  if they received another Offer to Purchase with better terms and conditions as the current Agreement.

What does this mean for the Buyer?  The Buyer needs to actively secure financing for the property prior to the Seller providing the “Termination Notice”.  If they have secured the financing from their Lender such that they are confident that the loan will fund at Closing, they will minimize the risk of losing their earnest money.  Once the Buyer waives their Financing Contingency, he / she can no longer terminate the Agreement based upon anything within that Agreement.  If the transaction fails to Close because of one of those elements in the Financing Agreement, they risk losing their earnest money deposit.

If you have any comments or questions about this article, please email me at smeyers@kw.com.  If you know of someone who would also like the information in this article, please forward it to them.You can find other articles I’ve written at  www.ourseattlehome.wordpress.com.

Steve Meyers is a Managing Broker at Keller Williams Realty in Seattle, Washington. He can be reached at (206) 972-3328 or smeyers@kw.com.



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