CHOOSING AN INSPECTOR

Q: The inspector my real estate agent hired for my home purchase was not certified by the American Society of Home Inspectors.

The inspector is a CRI, which, he says, is a national certification. Is this a problem for me? He found a few minor problems that the seller is now correcting.

A: I have never heard of a CRI designation for a professional home inspector. Maybe he’s qualified. Maybe he isn’t.

You should have selected your own professional home inspector and accompanied your inspector to discuss any defects discovered.

I recommend members of the American Society of Home Inspectors because they must have completed at least 200 inspections and passed a tough exam, and they are required to continue their inspection educations. Being an ASHI member is no guarantee of competence, but ASHI sets the highest standards in the industry for their members.

Unfortunately, some real estate agents recommend home inspectors who are “easy” and overlook defects that could kill a deal.

TITLE INSURANCE

Q: My wife inherited from her uncle a property with a house on it. We refinanced the mortgage.

The lender insisted on title insurance, which we bought. Later, we discovered there were two judgments on the property.

When we filed a claim with the title insurance company, which failed to disclose the judgments, we were told, in essence, to “get lost.”

Without hiring a lawyer, what recourse does my wife have against the title insurer that missed the two judgments against her uncle?

A: The title insurer was correct. Unless your wife bought an owners title insurance policy, in addition to the lenders title insurance policy, the title insurer owes her nothing for the mistake. Although the uncle is dead, the recorded judgments against his property still apply to it.

However, if the title insurer’s error results in a loss involving those judgments for the mortgage lender, who has a lenders title insurance policy, the title insurer must pay the lender. But your wife could lose the property and receive nothing.

CAPITAL GAIN

Q:  Ten years ago, my wife’s mother put her house into the names of her five adult children. She retained a life estate. Recently she passed away. The house was sold at fair market value. Is there a tax due on the divided profit amount?

A: Yes. When your wife’s mother gave her house to her five children, they assumed her low-adjusted cost basis for the house.

Presuming the house appreciated in market value since the date your wife’s mother acquired the house, each of the five children incurred a taxable long-term capital gain when they sold it. Fortunately, the new federal capital-gain tax rate is now a reasonable 15 percent maximum.

Q: What exactly is commercial real estate?

A: Broadly defined, the term “commercial real estate” can be used to refer to any dealing with real property in a business context. It could involve leasing out office space, owning an apartment complex or selling real property along with and as part of the sale of a business. It might be industrial or agricultural property. It could even involve residential properties like apartment complexes or rental houses being held for business or income-producing purposes. It can even involve working with the government. Unless the property is a residence where the homeowner is living, you’re probably dealing with commercial real estate.

Q: Are there really that many differences between a commercial real estate deal and buying a house?

A: While many of the concepts are the same, there can be huge differences between commercial and residential real estate. Commercial real estate transactions can be far more diverse and wide-ranging than selling homes. Any real estate deal has its share of risks, and problems can arise that you could never possibly foresee. In general, however, the risk and potential liability exposure that you face on a commercial real estate deal can be much greater than when you buy a house. Look at it from this perspective: by and large, we all have a pretty good idea of what goes on in a typical family home, but can you say the same thing about a piece of business property? Depending on the nature of the business, commercial property may have all kinds of liens and title problems. There may be greater concerns about hazardous materials or zoning issues. Also, there will always be questions about the suitability of the property’s location for your business needs.

Furthermore, in many instances, you aren’t afforded the same consumer protections on a commercial real estate deal that may be available when you purchase a residence. In some states, for example, residential home buyers are given greater protections against abusive lending practices than are business owners. Likewise, there are mandatory disclosures required in residential real estate matters that may or may not be required in a commercial transaction.

Q: What are some of the common pitfalls involving a real estate business deal?

A: Regardless of whether you’re buying a home or a piece of investment property, there will always be risks involved. Your goal should be to lessen these risks as much as you can. Examples of potential problems that often times lead to legal disputes include:

  • Defects in title
  • Debt service and lender requirements
  • Mechanics liens
  • Zoning and land use problems
  • Market fluctuations

Hazardous waste and environmental contamination

Real property interests are usually conveyed by a deed. In order to track how property changes hands, every state has a public record system where real property deeds are recorded, becoming a part of the public record system for everyone to see. In theory, this is a great system for keeping track of who owns what, but deeds are sometimes not recorded. Sometimes people sell or transfer partial interests in property. Lenders make loans against properties and record mortgages or deeds of trust that become liens that are of public record. Easements given to cross over or use property may or may not be of record. A judgment against a person can be recorded and become a lien against any real property that person owns, even without his consent. All these things can become a lien against title. You may not be buying everything you thought you were buying, because someone else may have a prior claim that you didn’t know about.

If you’re borrowing money to acquire a piece of real property, the lender is no doubt going to want security for the loan. While a personal guarantee may work if you’re net worth is substantial, a lender will usually want a mortgage or deed of trust against the property. This will give the lender the right to foreclose if you fail to comply with the terms and conditions of the loan. Beyond the repayment requirements, these terms and conditions can give rise to other concerns that could become a problem. For example, some lenders prohibit borrowers from taking out more loans on their property, which could stop you from getting more financing that your business may need down the road.

Often times, a commercial loan will also require that a business maintain a certain “net equity.” Pre-payment penalties are also common on real property loans. Also, many lenders on a big commercial real estate deal require that their legal fees and costs be paid by the borrower(s).

In a business context, contractors who do work on real property have a process called a “mechanics lien” that they can use to make sure that they get paid. This is a statutory lien that contractors, laborers and material men place on property when they’ve performed work or furnished materials in the erection or repair of a building or an improvement. They must generally give advance notice that they’re going to file the lien, and must then take action to enforce the lien within strict timelines if they aren’t paid. Ultimately a mechanic’s lien could be used to foreclose on property, so it can be a very powerful tool for a contractor, a laborer or a material man.

A big concern for a business is to make sure not only that property used in the business is properly zoned, but also that the zoning of nearby or adjacent properties is not going to be a problem. Believe it or not, many people fail in new businesses because they don’t investigate the land use and zoning issues carefully enough. Even if you do your homework, issues can come up down the road if governmental agencies or neighbors try to change the zoning on your property to limit your use of it.

If you’re in the real estate business, changes in property values and other market fluctuations can have a profound effect on your operations. Rents can go up or down; tenancy rates can increase and decrease. Changing property values and market fluctuations can also affect any other type of business that owns property. With retail space, for example, a company that owns rather than leases a store location may decide to change locations to follow their customer base, only to find out that they can’t afford to move because of property values having dropped to the point that their business premises can’t be sold at the price they need. (In contrast, a lease may provide more flexibility because, at the end of the term, the business could simply pack up and move without having to worry about selling the premises.)

The biggest potential concerns to owning business property, though, are hazardous waste or environmental cleanup problems. Property owners are the ones who have primary responsibility for fixing such problems, even if the current property owner didn’t cause them. These problems may not be obvious or apparent to the naked eye, and could arise from anything ranging from an underground storage tank to an old garbage dump. If you’re in the chain of title to contaminated property (meaning that at some point you held an ownership interest in that property), you’re potentially responsible for paying for the cleanup. The costs for an environmental cleanup operation can run into the millions of dollars.

Q: Should I hire a real estate broker or a real estate lawyer?

A: The goal of every seller is to maximize profits, and every prospective buyer wants to get property as cheaply as possible. Having to pay a real estate commission or other professional fees as part of a real estate deal only works at odds with these goals. Consequently, many business people who are sophisticated when it comes to negotiating real estate deals may feel comfortable with doing a lot of the work themselves on commercial real estate deals. However, even sophisticated business people will still rely on professional advice when comes down to actually closing a deal, as the potential pitfalls can be so significant. The bottom line is that you should seriously consider hiring real estate professionals, and professional fees should be factored in as a cost to doing any commercial real estate deal.

There are many reasons why you should hire your own real estate broker (or an agent who may work for a broker). The broker or agent should have specific expertise in commercial real estate, and particularly in the area where you need it (for example, office space, retail space, industrial warehouse space, apartment complexes, agricultural land). Even if you’re just leasing property, a real estate broker may be invaluable. If he or she is good, an agent will go out and find property for you. The agent will also serve as an arm’s-length intermediary to negotiate on your behalf, which can be much more effective than you trying to negotiate the deal yourself. (Wouldn’t you love to have an agent representing your interests when you go buy a new car? It would help you to avoid high-pressure sales tactics, prevent you from making rash decisions and make it easier for you to say “no.” The same considerations apply here.)

Keep in mind, too, that real estate agents work on similar deals all the time, so presumably know what they are doing. Their knowledge and contacts can well be worth the cost of a commission. They can also help you with the paperwork, to make sure you don’t do something stupid when submitting an offer.

If you’re a buyer, it may really make no sense not to hire a broker when it would usually be at no extra cost to you. The seller usually pays the commission in most real estate deals. Most real estate agents agree to split the commissions on listed properties, though, so an agent has a real incentive to be involved in a deal even if he or she is not the listing agent. But a buyer can simply chose to work with the seller’s agent to close a deal. The seller’s agent usually won’t object if a written consent is signed. (Incredibly, this happens all the time and it only makes sense from the standpoint of the seller’s agent, who then gets to keep the whole commission!)

A multiple-listing arrangement is a “you scratch my back, I’ll scratch yours” sharing mechanism for real estate agents. They are mutually beneficial to buyers and sellers, as well, since the multiple listing of all properties on the market will inevitably help to bring buyers and sellers together. One of the conditions to an agent participating in such an arrangement is that commissions are shared when more than one agent is involved in a transaction.

Any reputable real estate agent would be more than happy to explain the process at greater length. The agent should also be willing to work with you as long as you understand that he or she would have to look to the seller’s agent for payment of a commission, if any is to be paid. This helps protect the buyer in the rare instances where there is no seller’s agent (for instance, a “property for sale by owner”) where the seller’s agent does not participate in a multiple-listing arrangement.

You shouldn’t hire a broker just because he or she is a relative, or because he or she is your best friend’s spouse. Instead, hire the best person you can find who has expertise in representing parties on real estate sales in the segment of the market where you are looking. Ask lots of people who they would recommend and why. Ask disinterested parties who are more likely to give you an informed answer (for example, escrow agents, lenders, contractors, real estate attorneys, and people who have recently bought or sold commercial property). Look in the newspaper advertisements to see who have been the highest producers in your segment of the real estate market. When somebody’s name comes up more than a few times, that person would be someone who you would want to contact.

Q: If I hire a real estate broker, why do I need to hire a lawyer?

A: The benefit of competent legal advice on a real estate deal stands on its own. There are so many things that can go wrong on a real estate deal that you may very well end up kicking yourself mightily if you don’t hire an attorney to help you with the transaction. You may even end up hiring a lawyer on a lawsuit, which could end up be a lot more expensive. Real estate agents don’t usually get paid unless the deal closes (or unless you somehow become obligated to pay a commission by, for example, backing out of a deal or otherwise breaching you’re listing agreement). Also, listing agreements will clearly state that real estate agents are not providing legal advice. So real estate agents are typically not going to worry about the “what if’s” of the legal details and are inclined to do whatever they can to push a deal to closure. This is not the case with an attorney working on an hourly basis, who’s going to get paid one way or the other. An attorney will be in a better position to provide you with essential legal advice and to do so with more impartiality than may be the case with your real estate agent.

Q: Is an escrow always necessary?

A: Strictly speaking, no. Unless the parties contractually agree to it as part of their deal, there’s seldom a legal requirement that there be an escrow. Inevitably, though, an escrow is almost always a good idea. The escrow company ends up being an intermediary and a facilitator to the transaction. They can also handle most of the details and the paperwork, including escrow instructions, title reports, title insurance, recording deeds and other instruments, and disbursing funds.

Q: How do I find out if I am getting good title?

A: In some states, there are lawyers who specialize in researching public records to determine the status of title to property. They’ll issue opinions or reports as to the condition to title. In other states, the job of researching title to property has become something that is almost universally done by title insurance companies. These companies have developed tools that they use to track public records and other resources to develop extensive databases on title to real property. They’re able to prepare title reports on property that are used to determine the status of title on real property transactions, and that are used as a basis for issuing title insurance.

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