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Beware Delayed Occupancy

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | May 23rd, 2014

When Lexington, Kentucky, broker Nick Ratliff purchased a short sale last fall, the seller informed him that she wasn't going to move out until a week after the closing, when her new apartment would be ready for occupancy.

To complicate the matter, the seller's lender said it wouldn't extend its approval of the sale beyond the scheduled settlement date.

Still, Ratliff held his ground, insisting that the bank either give the parties one more week to settle or that the seller move as originally planned. "We stood strong," he recalls. "And after a few conversations with the bank, we got the short sale approval extended and everything went fine."

But that begs the question: Why not just allow the seller to stay in the house another seven days? Wouldn't that have been easier? What's the harm?

As it turns out, allowing a seller to remain is not a very good idea, and it's one that realty professionals almost universally warn against. It's also not terribly wise to allow the buyer to move in prior to the closing, agents in the trenches advise.

"Anytime the situation comes up, I always ask my client if they want to rent the property or sell it," says Ratliff. "By allowing a buyer to move in prior to closing or letting a seller stay post-closing, both parties are entering into a landlord-tenant agreement. This changes the entire dynamic of the relationship and adds so many more potential outcomes to the process."

For sure, the result can be a positive one. But "too many disasters can happen," cautions Bruce Lynn of Keller Williams Realty in Coppell, Texas, who suggests "never allowing the buyer to move in early."

"NEVER, EVER," Lynn says emphatically. "And while we're at it: no early contractors, either."

One thing that could go wrong is the buyer's financing. Since the house would not be owner-occupied, at least not for the period beyond the closing when the seller remains, it would be an investment property, and the lender might balk at backing a rental.

At the very least, the terms of the loan might change, with the lender calling for a larger down payment and a higher interest rate.

Insurance could turn out to be a nightmare as well. The buyer's insurance probably won't go into effect until he actually takes occupancy, yet the seller's coverage lapses at closing. Consequently, there is no coverage during the delayed occupancy. So if there is a fire during that time, who's going to cover the damages?

OK, a fire may be stretching it a tad. But what if there's an accident on the property?

Consider these other drawbacks to letting a seller stay put post-closing:

-- What if the seller's deal on his new place falls through? He would have no place to go, and would likely refuse to move until he can find another residence.

Similarly, what if the seller loses her financing, or the closing on her new place is delayed? Again, she'd have little choice but to stay put, and the buyer could not take occupancy even though he is now the legal owner of the property.

-- What if the seller damages something during his extended stay, or an appliance breaks down? Who's going to pay for that: the new owner-as-landlord, even though she's never lived in the house, or the seller-tenant? Generally, it's the landlord's responsibility.

-- Suppose the tenant leaves the house a mess when he moves out, or fails to pay for the utilities or mow the lawn. Will the owner have any recourse?

-- What if the seller refuses to pay for the time he remains as a tenant? You've already closed, so the only recourse would be to take him to court.

-- What if the seller doesn't stay for as long as she said she would? Certainly, she'll want a rebate on her rent.

Similar questions arise when it comes to allowing the buyer to move in prior to the closing:

-- What if his financing falls through? Perhaps he no longer qualifies because his credit score has fallen, or maybe the house fails to appraise. In either case, he's already taken occupancy and you're no longer a seller -- you're a landlord.

-- What happens if the buyer discovers things she doesn't like, but never noticed until after moving in? Worse, what if she finds a major issue that by law should have been disclosed, but wasn't?

-- What if the buyer damages a house that is not yet his? Or what if his movers damage something while he is moving in?

-- What if the buyer refuses to pay for the time she occupies the house as a tenant? She's already in the place, and you'll have a difficult time evicting her for nonpayment of rent.

-- What if an item that should remain with the house -- a chandelier, for example, or curtains -- disappears between the time the buyer moves in and the closing? Who's responsible?

Fortunately, all of these issues can and should be addressed in a written rental agreement between the two parties. If you don't have a written agreement, says Ratliff, "any misunderstanding can take a good deal bad very quickly."

Obviously, there should be a firm and stated limit on the time the seller will remain. And the buyer should require that a substantial amount of the purchase price be withheld from the seller at closing to serve as security.

When the seller finally vacates the property, the money can be released -- but only following a second walk-through after the seller leaves. This way, if the house is damaged in any way, there will be money set aside to pay for the repairs.

Still, the best advice is to delay the closing until the seller can clear out. A rental agreement does not insulate you from responsibility for the property. Once the place is yours, it's yours, whether you have occupied it or not.

"The key is having all parties on the same page," says Retliff. "But the 'what-ifs' of these situations always scare me. When someone else is occupying your home for any period of time, you lose power ... I'm never going to encourage my client to do that."

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The 'Pain Points' of the Closing Process

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | May 16th, 2014

It is often said that the closing process is second only to a death in the family in terms of stress.

Here it is: the end of the line for buying a new home. You walk into the settlement office and are faced with a stack of papers you do not understand. You have maybe an hour to look them over and sign or initial each one, finalizing what is probably the biggest financial decision you will ever make.

No wonder more than half of all recent buyers in a survey conducted for Chase, the New York commercial bank, wish they had been better prepared for the entire home-buying process. A good many specifically cited the closing as a problem area.

A lot of that consternation should go away beginning in August 2015, when lenders will be required to provide borrowers with a new closing disclosure form at least three full business days prior to closing.

The new form will combine two important documents -- the Truth in Lending (TIL) statement and the HUD-1 closing sheet -- and will give borrowers some breathing room to review the numbers and ask questions.

But that's only one of the so-called closing process "pain points" identified by the Consumer Financial Protection Bureau in a recent report. Here's what to expect when you close on your new house:

-- Numerous documents. The sheer size of the closing package is formidable and often overwhelming. The number of documents can range from 50 to 100 pages -- sometimes more, according to the CFPB. Together, they act as a complex set of alternating pieces, each contingent on many variables associated with the mortgage.

Documents in the closing package tend to fall into four categories: federally mandated, state mandated, contractual forms and lender documents. But very often, they are redundant.

Two of the largest contributors to the number of forms are state governments and Uncle Sam. About 95 percent of all home loans are originated in states that require additional documentation over and above what the lender needs. And different versions of essentially the same document are often required for loans backed by the federal government.

-- Incomprehensible. A frequent consumer gripe is that the documents range from difficult to understand to downright incomprehensible, and a good many settlement providers agree.

Typically, the documents are designed by and for lawyers, not for the average borrower. In particular, according to the CFPB, the note, security instrument and the aforementioned TIL statement and HUD-1 form are all heavy with legal jargon or confusing terms.

The agency conducted extensive consumer research to design the new integrated closing disclosure, which must be used starting next summer. But many other forms are confusing, adding to stress at the closing table.

-- Timing. In its year-long look into the closing process, the CFPB found that the timing of document delivery wasn't just an issue for consumers. It is even a challenge to notaries and settlement agents.

Closing documents change hands many times before the big day, and a frequent complaint the CFPB heard was that the previous party in the process often delivered documents behind schedule. Such delays can cause a domino effect, pushing back each subsequent step and forcing each party to rush through the documents and send them to the next.

-- Errors. Often, the rush to get the package to the closing table on time results in errors, yet another pain point. Even a small slip in the paperwork can result in long delays. Even a common error, such as a misspelled name or an omitted spouse, requires closing agents to send back the entire closing package for correction.

If one or more errors aren't discovered until the closing -- a frequent occurrence -- the transaction cannot move forward as scheduled. You'll have to wait several hours for the mistakes to be corrected, and sometimes you might have to return another day to complete the process.

That creates a particular hardship for buyers who have the kids on their arms and the moving van waiting to drop off their furnishings at their new digs.

-- Too fast. Another point commonly cited by consumers is that the 60 or 90 minutes reserved for the closing is hardly enough time to read and digest all of the documents. Even when consumers encountered discrepancies that made them uneasy, the CFPB found, they often felt pressured to sign the papers during the allotted time to avoid delaying the closing or even losing the house.

The agency found that the allotted time to review and sign all the papers is particularly insufficient to make certain the fees and rates on the closing sheet -- the HUD-1 -- match those quoted by the lender in the Good Faith Estimate they received when they applied for the mortgage.

Again, that should become much easier when the new, combined disclosure form takes effect. Until then, borrowers would be well-served to demand that their lenders give them as many documents in advance as possible, so they have time to read them, ask questions and digest their meaning.

You probably won't be able to get your hands on every piece of paper in the closing package early. But at the very least, you should receive the standard disclosure forms that require nothing more than a read and your signature.

If you wait, you could easily be overwhelmed.

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Home Warranties Blasted in Nonprofit's Report

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | May 9th, 2014

Homes that come with warranties sell 11 days quicker and for an average of $2,300 more than those without, according to a recent survey by one of the country's largest warranty providers.

But Consumers' Checkbook says such warranties aren't worth the costs, which run from $400 to $600 a year.

"Instead of buying one of these policies -- or placing any value in the one provided when you buy a home -- you'll do better to place that money into a home-repair fund," says Consumers' Checkbook, an independent nonprofit that publishes local magazines in seven locations, including Boston, Chicago, San Francisco and Washington, D.C.

Home warranties have been vilified before, but never by an organization with a solid reputation like that of Consumers' Checkbook, which has won the National Press Club's First Place Award for Excellence in Consumer Journalism. Like Consumer Reports, the D.C.-based nonprofit does not accept donations from businesses and its publications carry no advertising.

The warning about warranties does not include those comprehensive warranties provided by homebuilders on brand-new houses. Rather, it is solely about those on existing homes.

Actually, they aren't really warranties at all: They are service contracts that insure against the repair of a home's major appliances, heating and cooling systems, plumbing systems, circuit breakers and a few other things.

But while the potential breakdowns covered by home warranties might be unpleasant, Consumers' Checkbook says, they are often not catastrophic. Those bigger, more expensive repairs are what insurance is for -- to cover stuff you can't afford to fix or repair yourself.

"When you buy insurance against risks you can afford to cover on your own," the magazine says, "you end up paying for sales commissions and expenses and company profits rather than for claims paid" by the warranty company.

"Buying a home warranty is like buying a (very) limited extended service contract on a bunch of appliances," says the group.

Nevertheless, warranties have become almost universal in today's market. Not only do they appeal to would-be buyers, who believe they're covered should the air conditioner break down or the refrigerator kick out during their first year of ownership, they also appeal to sellers, because they, too, are covered during the listing period.

Buyers and sellers tend to put their faith in the warranties, but only until they are actually needed, according to the magazine, which notes that the files of consumer affairs agencies are "stuffed" with complaints about warranty companies.

Two major warranty companies were contacted for this story, but declined to comment. But Art Chartrand, counsel for the National Home Service Contract Association, which represents the largest warranty companies, called the Consumers' Checkbook report "silly" and said it was "full of extreme factual errors."

Chartrand said the policies his members write are for the repair and replacement of systems due to normal wear and tear. "If you are competent at handling repairs, you may not need a warranty," he said. "But most consumers are not."

Consumers' Checkbook found a number of other issues with these policies:

-- Coverage. Warranties do not cover the most expensive repairs you might face. Of the half-dozen policies from the major warranty firms examined by Checkbook, none covered roofs, leaky windows or skylights, basement moisture problems or chimney repairs. And some charged extra to cover plumbing and HVAC systems.

Chartrand said warranty companies are expressly forbidden by most state laws to cover structural components.

There are other exclusions, too. Icemakers, which break down often, usually are not covered. Most policies don't cover plumbing backups caused by tree roots or "foreign objects." And if your floors or walls have to be ripped out to get to the problem, the nonprofit says, "don't expect the warranty company to pay to make everything look nice again."

-- Cost. Because of the "thin coverage," plus the $75-$100 service charge per claim, the costs don't add up in your favor unless you have a particularly bad repair year.

-- Contractors. You don't choose the plumber, electrician or other contractor who comes to your home. Rather, you call the warranty company, which dispatches the next-in-line repair service with which it contracts. But although warranty companies say their contractors are pre-screened and do go work, Checkbook isn't convinced.

It found that of the 20 top-rated HVAC contractors it selected at random, not one participated in warranty programs. In fact, these contractors "overwhelmingly disdained" these types of warranties, the publication said.

Chartrand said that the only way companies can control the quality of the service offered is through their networks of local providers.

His advice: Check with your local real estate agents and ask them if a warranty is a good buy. "We will stand by what they say," he said.

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