Here’s a story about a conversation I had with a referral partner of ours. She was showing a property. After leaving, she received a phone call from the Seller who is her client. He asked her, “Why didn’t you tell them about the fireplace? Why were you so bearish on the pool? The pool is great!” The listing agent sat back and thought: how could the Seller possibly know about these conversations? “Were you taping us?”
In MA it is illegal to record the audio of people who do not know that you are recording them. So what should you do?
Sellers: We recommend against recording anyone at your open house, especially without disclosing the fact that you are recording to them. You may be committing a crime. Technically, video taping may be acceptable but it is probably bad faith. You are trying to gain a competitive advantage by recording prospective Buyers. Sellers should disclose that the property is subject to recording.
Professionals: if you are aware of recording, you need to disclose that fact. It should be disclosed on the MLS. It should also be disclosed to each person that is walking into the house. We recommend asking the Seller if they are recording. If so, you should tell them that you will have to disclose this to all prospective Buyers. Further, if a Seller is able to view a potential Buyer and use their appearance in deciding whether to sell to that particular buyer, there may be a potential fair housing violation.
Buyers: you should assume that any house you may be walking through has recording devices. Simply walk through without emotion, without conversation and discuss once you leave the house.
Anyone with familiarity with today’s market undoubtedly knows that we are in a period of low inventory. This week, we’re going to look at three strategies that allow Buyers and Agents to help thaw an otherwise frozen market.
One Day Exclusive Listing Offers:
Ordinarily, a Buyer’s Agent will search the MLS looking for homes that meet their Buyer’s requirements within a given area. Due to low inventory, very often there are few homes to show a Buyer. In this situation, an Agent should consider what’s known as a “one day exclusive listing agreement.” Very simply, the Agent will send a letter, often as simple as a post card from your local office supply store, stating that they are an agent with a Buyer who is interested in homes in the area. The Agent will represent list the recipient’s home for a single day to allow for an offer from their Buyer to be submitted. Even if the Buyer does not make an offer, very often the Seller will ask the Agent to list their house because their mindset has shifted. The Buyer is able to see more houses, the Seller is spurred to list their house, and the Agent either Sells a house or gets a listing: this is a truly a win, win, win situation.
Negotiate a Home Sale Contingency:
Many Buyers are sitting on the sidelines waiting for inventory to increase. The problem is that many of these Buyers are also would-be Sellers. To increase inventory, Buyers who also need to sell should consider including a home sale contingency with their offer to mitigate the risk of not being able to sell their home. That said, not all home sale contingencies are created equal. There are generally four types which expire at different points of the sale process:
1) The Seller becoming party to a signed offer
2) The Seller becoming a party to a signed purchase and sale agreement
3) The Seller’s Buyer receiving their mortgage commitment
4) The Seller closing on their sale and receiving proceeds
An Agent guiding their Buyer should define precisely which type of home sale contingency they are seeking. The spectrum of possible contingencies shifts the risk from the Buyer to the Seller. In a Seller’s market, it’s unlikely that a Seller will agree to number four. Number one generally leaves the Buyer too exposed: the Buyer’s buyer may terminate after conducting a home inspection. Generally, number two or three is a fair option that Buyers and Sellers can accept. Be aware that a Seller may send a counter offer with a “Kickout Clause.” Generally speaking, a kickout clause allows the Seller to continue listing the house for sale, during which time the Seller receives a bona fide offer that is higher than the Buyer’s offer, the Buyer is given a defined period to either waive the home sale contingency or exercise their rights under the contingency to terminate the Agreement. For more information on kickout clauses, read our article, The Offer Part 2 – Contingencies for Sellers to Consider.
Negotiate a Suitable Housing Contingency:
Many Sellers are sitting on the sidelines waiting for inventory to increase so that they can find their next house. Some homeowners simply prefer to sell before they buy. Buying before selling comes with the risk of not being able to find a home to purchase before having to sell. As with sale contingencies, not all suitable housing contingencies are created equal. A suitable housing contingency generally expires at one of four points: when the Seller signs an offer, signs a purchase and sale agreement, receives a mortgage commitment, or closes on their purchase. Usually, Buyers will accept numbers two or three, as they fairly spread the risk between the Buyer and Seller. The benefit of spreading the risk is that Buyers that would otherwise wait for inventory to increase before listing will be willing to list and sell their homes, increasing inventory generally.
Above all, Buyers and Sellers who are motivated to move need to accept some degree of risk. Thinking creatively will help to increase inventory in this period of high demand. While not a panacea, the three strategies that we’ve listed will help to thaw today’s frozen market.
Buying and Selling a house can be a stressful, time consuming event. Very often, a Buyer/Seller will experience both on the same day. When a person sells and buys on the same day, they are said to have closed “back-to-back.” There are many moving parts: lenders funds, buyers funds, movers, recording, final walk-throughs, and the list goes on. It is, unfortunately, often the case that the second transaction is not recorded on the closing date. This often causes tempers to flare and Buyers left scrambling. This week, we’re going to tackle a few tips that will help ease the logistic burden of closing a back-to-back transaction.
Be Flexible: This is quite possibly the most important tip we could give. Flexibility comes in many forms. Perhaps closing at an unusual location could result in a smoother transaction. Perhaps conducting your walk-through the night before the closing date could free up additional time. Flexibility serves two purposes: 1) it allows the process to flow more organically. Stubbornly holding onto preliminary closing times and locations can actually lessen the likelihood that the second transaction will be recorded as originally planned. 2) Being flexible helps to garner goodwill with the other parties involved in the transactions. A Buyer who agrees to meet at a time and place convenient for the Seller is often repaid with flexibility in terms of moving in early.
Remember that Recording and Transferring Funds is Not Instantaneous: In order for a closing attorney to record a deed, that attorney must be “funded”; that is, the attorney must have the lender’s funds and the Buyer’s funds in their escrow account at the time of recording. In the case of a back-to-back closing, funds from the first transaction must be sent to the closing attorney for the second. There are two sources of delay: 1) recording the first deed can take time because of the need to wait for funds or for the act of recording to be completed, and 2) wire transfers through Fedwire (the Federal Reserve Bank’s funds transfer system) usually takes an hour or two to be completed. With all of these steps, recording the deed for the second transaction can often be delayed.
Negotiate a Use and Occupancy Agreement at the Time of the Offer: a Use and Occupancy Agreement allows a Buyer to move in early or a Seller to stay after closing. Rather than trying to record both transactions on the same day, consider building an extra day into the schedule by either asking to stay after your sale or move in prior to your purchase.
Plan to Stay at a Hotel for One Night: Moving is stressful. Nothing is worse than having the sinking feeling of having no where to go when your purchase can’t be recorded on the day of closing. Consider scheduling your purchase a day or two after your sale and booking a hotel for a night or two. Your movers will gladly hold your items for a modest fee, usually a couple of hundred dollars. With any luck, the hotel that you choose will have a spa where you can enjoy a well-deserved massage between closings.
Do Not Close on Friday or the Last Day of the Month: I think this may be the most common tip that I give to Buyers and Sellers: Do not close on the last day of the month. I’m going to borrow from a former First Lady: “just say no.” For various reasons, which we’ve outlined here, Buyers see a false economy by closing on the last day of the month. The problem is that lenders are usually very busy, registries and recording ques are filled, and closing attorneys have less time to devote to your file. Even closing a few days before the end of the month or on a random Wednesday tends to result in smoother, more timely closing.
While back-to-back closings pose several challenges, they are certainly possible. Careful planning, flexibility, and a few tricks helps to reduce stress, resulting in a smoother selling and buying process.
Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy.