New New Regional Sales Contract

It looks like there may be a new version of the Regional Sales Contract approved soon, that will be released in Novemebr and effective for use in the region on January 1, 2012. 

GCAAR Board of Directors still needs to take final action to approve it. Details to follow.

FHA and VA Addenda Part III: A Deadline On Appraisals?

I had an "A Ha!" moment while teaching a class on Appraisals in Virginia and the new FHA and VA Financing addenda. In my previous post I describe the new FHA financing contingency as it is laid out in the new FHA Addendum to the Regional Sales Contract, and point out that there is language which makes it impossible to remove the financing contingency until a satisfactory appraisal has been received.

What I didn't explain, and didn't fully appreciate until I got an excellent question at last night's class, what why. The question presented to me was, where is the "Appraisal Deadline" in the new form? My reply, as I explained in my earlier post, was that federal law protects purchasers and their earnest money deposits from low appraisals, right up until the date of settlement,therefore there is no deadline. The follow up question was, "How do we protect or Sellers if several weeks have gone by, and we still haven't had any news about the appraisal?"

It was then that I realized that there is a way to kick out a Purchaser who is unable to provide evidence of a satisfactory appraisal, even when they are using FHA or VA Financing. The Seller simply provides a notice to the Purchaser that the contract will become void if the the Purchaser fails to deliver Form 100 removing the financing contingency. If the appraisal hasn't been done, the Purchase may not deliver Form 100 . . . effectively allowing the Seller to void the contract for lack of progress on the Appraisal.

In other words, the Financing Contingency Deadline is also the Appraisal Contingency Deadline. Anytime after that deadline has passed, the Seller can void the contract if the Purchaser's lender has not received a satisfactory appraisal.

Buyer's Agents should keep this important fact in mind when filling out the FHA and VA Financing Contingency Forms. While your buyer may be pre-approved and be an excellent credit risk, you may not want to put in a short deadline to try to improve the quality of your offer.

Next Post:

More the FHA and VA Addenda "Appraisal Provisions" paragraph.

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More on the new FHA and VA Financing Addenda

Today I will continue to breakdown the FHA Financing Addendum released with the new 2009 version of the Regional Sales Contract. We'll begin with the Financing Contingency. Without retyping the entire contingency (the form is available to view or download two posts down) lets look at how it is similar and how it is different from the Conventional Financing Contingency that many of are far more familiar with.

The new language is similar to Paragraph 10 of the Regional Sales Contract in that:

There is a definite date after which the Seller can force the Purchaser to remove the contingency or the contract become void (the Financing Deadline);

• The Contingency may only be removed by using Form 100;
• The parties must decide if Form 100 must be accompanied by a Lender's Letter, and the lender's letter is defined as containing the same 6 representations we use in the Paragraph 10 (although they are lettered rather than numbered);
• The Purchaser must provide a written rejection to Void the Contract, merely being unable to secure financing by the Settlement Date won't excuse the Purchaser's non-performance.
  

The are some important differences as well. This contingency introduces the concept of removal using a “Loan Option” or an “All Cash Option." The Loan Option is the procedure described above, and is designed to require the Purchaser to provide some evidence that they are really capable of securing their loan before they are allowed to remove the contingency, depriving the Seller of the right to kick them out should another offer present itself. The All Cash Option is to be used in the event the Purchaser elects to buy the property without taking out a loan at all, which is a theoretical possibility, but doesn't seem likely in the FHA context.

The real reason for defining the terms this way appears to have been to create mechanism to tie the Financing and Appraisal contingencies together: "Unless Buyer is removing the Financing Contingency using the All Cash Option, Form #100 shall not be delivered prior to lender’s receipt of a satisfactory appraisal(s)."

Note that this line doesn't require the Purchaser to remove the Appraisal Contingency prior to removing their financing contingency. Under Federal laws regulating the FHA loan process, there is no circumstance under which the buyer can be REQUIRED to close the loan if the house appraises below the Sales Price, nor can they be required to forfeit their deposit under those circumstances. As a result, the contract remains contingent on Appraisal until it has closed, funded and disbursed. What this line does, though, is preserve the Seller's potential to kick the buyer out if, for example, an all cash back-up offer were to come in, rather than be stuck with a non-contigent FHA financed offer that might still blow up a day or two before settlement over a low appraisal, or at least that's the idea.

As many of us have learned from experience, lender's "receipt of a satisfactory appraisal" is often not the end of the story. Many FHA loans in the DC area are subject to a two appraisal requirement. Does that mean you can't remove the financing contingency until the second appraisal is received? The standard form doesn't say that. Also, the underwriter reviewing the loan package may take issue with elements of the appraisal long after it "received" by the lender. Still, this langauge should help when, as frequently happens on bank owned properties, the appraiser notes the presences of mold, a lack of copper piping or kitchen appliances.

Speaking of Appraisals, tommorrow's post will fully explore Paragraph 3, Appraisal Provisions. Note that the title of the paragraph is careful to avoid the use of the word Contingency. There is no contingency period, as noted above, after which a Purchaser's earnest money is put at risk in the event of a low appraisal . . . but more on that in the next post.
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Breakdown of the new VA and FHA Addenda

I've now had some time to digest the new FHA and VA addenda and they are available for download at NVAR.com and elsewhere. I understand that some of the vendors don't have them in their systems yet, but they will soon.

Before I launch into a Paragraph by Paragraph breakdown, a couple of important points should be made up front.

1) The Forms do not contain an option to proceed without a Financing Contingency when you are using FHA or VA financing. You may still elect to proceed without a financing contingency. We on the Standard Forms Committee are working on a library of useful "clauses" that have found there way in and out of our standard forms over the years. Rather than redoing all of our forms every time the market changes, these clauses will be made available on line as suggested language of the association. A clause to make the contract non-contingent on FHA or VA financing will be among the first included. I would imagine you could simply take the language of Option 2 from Paragraph 10 of the Regional Sales Contract and insert FHA or VA as appropriate, before the word financing.

2) The Forms suggest to some that the Purchaser must give the Seller the option to lower the price in the event of a low appraisal. If you read more carefully, though, you'll see language giving the Purchaser the right not complete the transaction, at no penalty, if the appraisal comes in low.

Over the next few days I'll post more . . .and I'll try to moderate your comments quickly so we can get a little bit of a discussion going over these new forms.

FHA FINANCING ADDENDUM

NOTICE:
THE PARTIES SHOULD NOT INCLUDE A SEPARATE APPRAISAL CONTINGENCY IN THIS CONTRACT, SINCE THE FEDERALLY MANDATED APPRAISAL LANGUAGE FOR FHA LOANS IS CONTAINED IN THE FHA AMENDATORY CLAUSE BELOW. - This is just a reminder not to use the Conventional Loan Appraisal Contingency Forms, which DO require the Purchaser to accept the property if the Seller is willing to lower the Sales Price to the Appraised Value.


1. FIRST DEED OF TRUST: Buyer will obtain a First Deed of Trust loan in the amount of $__________________ amortized over _____ years at a
Fixed or an
Adjustable rate bearing (initial) interest of _____% per year or market rate available. Buyer shall pay upfront and monthly mortgage insurance premiums (MIP) as required by FHA regulations. Subject to lender’s approval, Buyer reserves the right to finance any upfront MIP, in which event such
amount shall be added to the loan amount.

In addition to filling out basic loan terms, such as How Much, How Long a Term, Fixed or Adjustable, and the Interest Rate this paragraph states that the Buyer pays the up front mortgage insurance premium (MIP), and that it may be financed. This is necessary because the loan amount shown on Page 1 of the Sales Contract which defines the Specified Financing, generally does not include the MIP so that the numbers on Page 1 (Down Payment + Total Financing = Sales Price) will add up correctly. This provision allows the buyer to increase the loan amount without disturbing the “Specified Financing”

Tomorrow: Paragraph 2: FINANCING CONTINGENCY and Paragraph 3. APPRAISAL PROVISIONS:

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NVAR Releases New Version of Regional Sales Contract

Here are links to the new contract and two new addenda to be used for VA or FHA Financing.

The are educational samples only. Please go the NVAR website to download the actual documents. You must be a member of NVAR. These forms were also released to various vendors on Friday, so you should have them available in Zip Forms, Auto Contract, or through your brokerage soon.

Regional Sales Contract

VA Financing Addendum

FHA Financing Addendum
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GCAAR Has Moved to 2009 Regional Sales Contract

The Greater Capital Area Association of Realtors which cover Montgomery County and Washington D.C. has posted the new Regional Sales Contract and a summary of the changes on their website found here

NVAR should have their version out to Vendors and on the NVAR website soon. I'll have a paragraph by paragraph breakdown of the new VA and FHA Addenda posted here soon.


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Is a 2009 Regional Sales Contract in the works?

I am off to the NVAR Standard Forms committee to discuss GCAARs proposed changes to the 2006 Regional Sales Contract which they would like us to adopt in 2009. The idea is to correct a major oversight made by the 2005-6 Regional Sales Contract Task force which forgot to include an FHA/VA financing contingency. In addition to correcting that oversight, the proposed FHA and VA financing contingencies would address some recent issues having to do with FHA appraisals and other unique underwriting conditions that come into play when FHA or VA financing is used.

Stay tuned. I'll post samples of the language later today.


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Inaugural Impact on Regional Sales Contracts

We've been inundated with news about the impact the January 20th inaugural festivities will have on traffic, our bridges, roads, metrorail, schools and the federal government, but what about the impact on the Regional Sales Contract? I didn't think there would be much of impact until I got this question from a real estate agent the other day:

"We added the word business days to the contract to measure the time for our home inspection contingency. Since the Federal Government is closed on Tuesday, will that count as a business day or not?"

It turns out not to be such a simple question. Because the sales contract defines days only as calendar days, there is not definition of what constitutes a "business day." In the Virginia Jurisdictional Addendum, which regulates delivery and notices we have decided not to measure all time periods in business days. Maryland and the District of Columbia, however, do define business days as Monday - Friday with the exception of Federal Holidays. This is a fairly widely accepted definition of business days. (Keep in mind that Friday the 16th of January is Lee-Jackson Day, a state holiday in Virginia, but still a business day under this definition.)

Accepting the definition of business days as any day that's not a Saturday, Sunday or Federal Holiday, the question is, is Inauguration Day a Federal Holiday?

According the Office of Personnel Managements list of official Federal Holidays for 2009, it is not a full fledged federal holiday. A foot note to the schedule reads as follows: "Inauguration Day, January 20, 2009, falls on a Tuesday. An employee who works in the District of Columbia, Montgomery or Prince George's Counties in Maryland, Arlington or Fairfax Counties in Virginia, or the cities of Alexandria or Falls Church in Virginia, and who is regularly scheduled to perform non overtime work on Inauguration Day, is entitled to a holiday. (See 5 U.S.C. 6103(c).) There is no in-lieu-of-holiday for employees who are not regularly scheduled to work on Inauguration Day."

So, although it is paid holiday for federal workers in the area, it's not really a Federal Holiday.

As a practical matter, of course, the best way to handle this issue if you have a deadline measured in business days is to simply all the other side and ask them how they intend to treat Inauguration day. As long as there is a meeting of the minds between the parties, all should be well.

Happy New Year everyone. I hope to post more regularly in 2009. We have some interesting addenda and clauses floating through the Standard Forms Committee which should give me plenty of material to write about.

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Courthouse Closings 2008-2009

Now that it's November it's time to start focusing hard on the upcoming Holiday Season (although Retailers have been trying to get us to think about it since August). In addition to working on getting your holiday cards out, planning your holiday party schedule, and shopping, real estate agents should take note of the schedule of courthouse closings. Failing to do so could cost your Sellers hundreds and possibly thousands of dollars!

Why?

Remember, the Regional Sales Contract requires the Purchaser to deliver the required funds on the Settlement Date and the Seller to deliver possession of the property (including keys) at settlement. Virginia's Wet Settlement Act, however, requires the Settlement Agent to record the Deed and any Deeds of Trust prior to disbursing proceeds, including the Seller's proceeds and funds to payoff the Seller's mortgage.

When the Courthouse is closed, disbursements are necessarily delayed. For instance, if you were to settle on Tuesday afternoon on November 25 in Prince William County, your seller would have to give over the keys but they wouldn't receive their funds and they would have to keep paying their mortgage interest until Tuesday, December 2! The Prince William County Courthouse will close at noon on Wednesday November 26, and probably stop taking recordings about an hour before that, which is 11 a.m. -- if your settlement documents aren't first in line to be recorded they may not get on record until Monday the 1st, and your payoff check wouldn't arrive at the lender until Tuesday December 2, 2008.

In Fairfax County a closing December 23 might no be recorded until December 29.

What can be done to avoid this?

• Check the Settlement Date!
• Be aware that the Settlement Company has two business days after the scheduled closing to record.
• Talk to the Settlement Agent to see if they can do better.
• Be very wary of a Purchaser's promise to settle early in the morning to allow for same day recordation. As mentioned above, the Purchaser won't be in default if the funds arrive any time on the Settlement Date.
• Remind the Purchaser of their duty to provide cashier's checks or bank wired funds. Encourage them to take care of this the day before settlement, rather than the day of. Any delay will slow down the recordation and disbrusement process.

Below is the current closing schedule for Northern Virginia Jurisdictions. Keep in mind the schedules are subject to change. Where hyperlinked, you can click to go to the official site of the Clerk's office.

Alexandria (City): November 11, (Veterans Day) 27, 28; December 24, 25; January 1, 2

Arlington County: November 11, 27, 28; December 24, 25, 31; January 1, and 19

Fairfax County: November 11, 27, 28; December 24, 25, 26, 31; January 1, 16 (Lee Jackson Day), and 19

Loudoun County: November 27, 28; December 24 (noon), 25; January 1, 19

Prince William County: November 26 (noon) 27, 28; December 24, 25, 26; January 1, 2, 19

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Seller Financing Addendum

Here is a sample copy of the NVAR Standard Form - Seller Financing Addendum

A clean form fillable copy can be downloaded from NVAR.com by clikcin on the Members Only tab and going to the list of downloadable forms. Look for Form Number K1335.

I've received three calls in the last two days from agents with clients considering some form of Seller Financing. The Standard form is a check the box / fill in the blank document that will guide you through most of the important decisions a seller has to make when they are considering offering to take back a note and deed of trust on the property.

What follows comes from the written materials I prepared for a Continuing Legal Education Seminar in 2007:

B. Seller Financing:

Seller financing is likely to become an increasingly popular tool for sophisticated sellers who have built up substantial equity as their homes have appreciated over the last several years. By offering to use some of this equity to help buyers finance their purchase, sellers can set their properties apart from the growing inventory of listings.

The ability to offer Seller financing broadens the pool of potential buyers, which is more important than ever as the inventory of properties in Northern Virginia increases. If a seller cashes out completely when they sell their home, the buyer is limited to their available cash and traditional financing to meet the sales price. But if the seller is willing to provide some (or all) of the mortgage, it may open the property up buyers that may be able to get a traditional mortgage for most of the sales price, but don’t have the resources or don’t wish to liquidate those resources to make up the difference in cash. In such a case, if the seller is willing to hold a mortgage for the difference in the second lien position subordinate to the first mortgage lender, the sale may get completed, enabling the seller to receive the lion’s share of the price in cash at closing.

Seller financing can be as flexible as the imagination of the parties to the transaction. The repayment terms can be negotiated between the buyer and seller in order to make the transaction work. For example, if the buyer needs to sell another property, the mortgage payments might be interest-only for a period of time, or postponed for a certain period or even until maturity. Almost none of the requirements of traditional lenders are involved.

If the seller financing is in the first or only lien, another benefit is that less information may be required of the buyer.

Since the sellers already own the property, they know the property first hand and don’t have to require the usual appraisal process. They only need to be satisfied that the buyer will be able to successfully make the mortgage payments. In those cases the seller would be wise to require a more substantial down payment from the buyer to be assured that the buyer will not walk away from the property if they find themselves unable to make the required payments.

The primary disadvantage of seller financing, especially if the seller provides the whole mortgage, is that the seller only gets a minimum amount of cash at closing – the buyer’s down payment. The majority of the sellers’ equity remains tied up in the property, even though they are now receiving mortgage payments from the buyer. Many sellers need the equity in their home to purchase their replacement home. By financing the mortgage, the seller will have to deal with the headaches of servicing the mortgage, accounting for the receipt of payments, additional payments of principal, concerning themselves with the timely receipt of payments, etc. Although they have the Deed of Trust as security for the property, foreclosure and a trustee’s sale are usually not an attractive option in the event of the buyer’s default.

One final note of caution, in some situations the availability of seller financing may encourage a buyer to overpay for a property. A situation could arise in which a buyer has a certain amount of down payment and a traditional mortgage lender is willing to make a loan, but the combination is still well short of the asking price. The seller might be willing to make up the difference by holding a second mortgage. But unless a property is seriously under-appraised or in need of renovation and improvement, a seller second mortgage could put a buyer in a position where a future sale, after paying off both mortgages, could yield little or no return on the buyer’s investment, and might even cause the buyer to be “upside down.”

Documentation
Contract Provisions/Addenda
The documentation for seller-held financing is not much different in substance than the documentation discussed above for institutional financing. In addition to the note and deed of trust, though, there is typically an addendum to the purchase contract or language inserted in the purchase contract that sets out the basic terms of the parties understanding of the seller financing. At a minimum, the contract should contain agreement as to the amount of seller financing, the interest rate, maturity date, and repayment schedule. The parties should also agree on what lien position the seller financing is to be in, and that it will be the purchaser’s responsibility to disclose the existence of the seller financing to his primary lender. It is also helpful to agree at this point on what happens in the event of Purchaser’s default, whether there will be a different interest after default, and what remedies are available to the Seller Lender.


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Even Newer Disclosure Form - Use Immediately!

I, like many of you, was surprised to learn that the Virginia Real Estate Board (VREB) recently amended the Virginia Residential Disclosure Statement to comply with House Bill 837. HB 837, which received no attention from the Virginia Association of Realtors or the Virginia Bar during the session, requires a new 7th notice be given to all prospective purchasers advising them that the seller makes no representations with regard to whether the property is located in a “dam break inundation zone.”

The new form was adopted by the VREB on July 10, 2008, and was posted to the VREB website that evening which means Listing agents should get the new disclosure signed by their sellers and use it for all contracts ratified Friday, July 11, 2008, forward.

Buyers who received the old form before July 11 do not need to receive a new form.

Remember: As with the changes effective January 1 of this year, It doesn't matter when you took the listing. If you are giving a form to a prospective buyer on or after July 11, it must be the new disclosure form. If your seller or agent gave the old form on July 11 -15, you might want to give the current form to the buyers to avoid creating a potential loop-hole for a non-performing buyer to discover later in the process.

Here is a link to the form:
Residential_Disclosure.pdf

Here is a link to the write up on NVAR's website on which I based much of my post.

disclosure_notice.pdf

Here is a link to thew new disclosure law.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-519


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New MRIS Policy on Short Sales

The Fredericksburg Area Association of Realtors posted an interesting article about the new MRIS policy on Short Sale Listings and the tension between the policy and your ethical obligation as realtors to keep your clients personal financial information confidential.

Michele Freemyers, of my law firm and the Fredericksburg office of Ekko Title added that she wished the posting had began and ended with the following :

"MRIS requires you to disclose this information. The Code of Ethics requires that you NOT disclose this information as it is considered confidential. Bottom line: Get written from authorization from your Seller to disclose the Short Sale status BEFORE you list it in MRIS"

http://faarforum.com/2008/07/mris-short-sales-commissions-disclosures-and-you/

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Negotiating the Home Inspection Removal Minefield

I have had several calls recently from real estate agents having difficult home inspection removal negotiations that wound up putting the entire transaction at risk over "nice-to-have" items. It is very important that Real Estate agents understand the danger of trying to extract concessions from the Seller. The way the Home Inspection Contingency for northern Virginia is written, a negotiated item may not start out as a deal-breaker for you purchaser, but may wind up being a deal breaker after all when the Contract becomes void due to a failure of the Seller to continue negotiations.

The Home Inspection Contingency gives Purchasers of Real Estate three options following their Home Inspection:

1) They may elect to accept the property in its present physical condition, subject to the warranty provisions of the contract (Paragraph 7, Termite, Well & Septic etc.).

2) They may elect to deliver a copy of the entire report along with notice voiding the contract completely. No reason for voiding need be given.

3) Most Buyers, however, submit a copy of the inspection along with a list of items identified in the home inspector's report that they would like remedied (either by having the item repaired or replaced or by receiving a credit in lieu of repair).

The Seller then has some length of time (usually 3 days) to respond. If the Seller fails to respond or makes a counter offer, the Purchaser has 3 days to consider the Seller's response or lack of response and can still choose from any of the three original options (accept the property, void the contract, or submit a revised addendum).

If the Purchaser chooses to engage in further negotiation, they risk losing the house completely, or losing any concessions they may have won with their initial addendum.

Illustration:

Buyer conducts home inspection and requests roof replacement, carpet replacement credit, and stuck windows be made operational.

Seller counters that they will replace roof, credit $500 toward carpet replacement, and refuses to address stuck windows.

Buyer counters that they want $1000 for carpet replacement.

Seller does has not responded with fewer than 8 hours left in their response period.

Buyer now has only two choices -- if they drafted their contract using the most recent version of the Home Inspection and Radon Testing Addendum form.

1) They can do nothing and the contract becomes void at the end of the response period, and they lost the house over $500.00

2) They can remove the Home Inspection Contingency and take the property in its present physical condition, subject to paragraph 7, termite, etc. They have lost the concession for a roof replacement and $500 worth of carpet replacement in an effort to squeeze an extra $500.00 out of the Seller.

The scenario is worse if the Buyer used an old version of the Home Inspection addendum . . . arguably they can't save the transaction at all, and if the Seller is upset (or has received a back-up offer) they can wait out the clock and the contract will become void. I say arguably because some attorneys take the position that a contingency that exists solely for the benefit of the buyer can be removed by the buyer at any time before the contract becomes void . . . but who wants to litigate that issue?

What would the buyer like to be able and do? Go back in time and accept the Seller's last counter offer. How many of you keep a clean copy of every Seller counter offer just in case? I have no doubt that some Purchasers have successfully convinced their Seller to continue to closing after resubmitting a previously rejected counter-offer. The Seller is not obligated, however, by that delayed acceptance if it is received after the Purchaser's original deadline to respond.

Please feel free to comment or send me an e-mail if any of this confuses you.

Bottom line -- don't haggle over items that aren't deal-breakers for your buyer, because your deal just might break if you do.


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Who Should Fill Out the Short Sale Addendum?

If you know you are writing an offer on a short sale I highly encourage you to include the NVAR Short Sale addendum, rather than waiting for the Seller to counter with it. You want to control the deadline in paragraph 5 on page one of the addendum, as well as the timeframes on page two. You, the buyer, want to tell the Seller how much time you will give them to get the short sale approved, rather than having them tell you how much time they would like.

Also, you want to insist that the Seller fully ratify your offer, contingent on short sale approval, rather than holding on to your offer, submitting it for approval without ratifying it, and keeping the house active in the computer waiting for someone else to possibly make a better offer. The addendum allows you to do that, but put off your home inspection, appraisal, and other buyer contingencies until after you know the short sale lender has approved the sale.

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Class on new NVAR Short Sale Addendum

We are hosting two classes this week and next on the new NVAR Short Sales Addendum and how to handle short sale transactions generally.

Please RSVP to marcus@ekkotitle.com if you would like to come.

Seating is limited as the capacity at the Dolley Madison Library is only 60 people, so please RSVP and let me know if you plan to attend. Right now we still have a few spaces left and will maintain a stand-by list should that become necessary.

So, mark your calendar, April 3, from 1-4 in McLean and April 10, from1-4 in Reston.

Marcus

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