Do You Have 2020 Vision for Your Closing?

On behalf of the entire BPE family, we want to wish everyone a Happy New Year. Its times like this where it can be helpful to reflect on the prior year, and since this year is 2020 (presumably the year of “perfect vision”), let’s take a step back and reflect on those instances where the parties’ vision may have been less than perfect!

Over the course of 2019, you can imagine that we have seen it all. As we head into 2020, let’s recap some of the more common (and avoidable) mistakes we saw in 2019 (in no particular order).

  1. Selecting a closing date that was inconvenient and/or impossible for one of the parties to accommodate. Yes we have had several instances in which an escrow dispute ensued because one or more of the parties assumed the closing date was a mere guideline. Before you set that closing date, make sure your client can meet it.
  2. Not getting the proper parties to sign the contract. This issue is most common with trusts, entities, and homestead property where only one spouse signs the contract. Yes we saw “contracts” fall apart because they were not property signed at the beginning. Be very careful to make sure your contracts are signed by the right people and in the right capacity.
  3. Not getting a survey (usually for cash transactions). Yes we all know that surveys can take some time, but statistically speaking, a survey is one of the most, if not the most important due diligence item behind the title search and home inspection. We identify (and resolve) more survey issues than almost anything else we do. Yes you can close a cash transaction without a survey. But if there was an issue you could have discovered (encroachments being the most common issue), then just wait until your buyer goes to sell the property. It won’t be pretty.
  4. Not doing the right inspections for the type of property. Probably the largest number of calls we get post-closing involve angry buyers who want to sue their seller (or realtor) because they discovered an issue post-closing that was not disclosed. And in many cases, the buyer was never advised to get an inspection. Even if the property looks new, roofs, air conditioning equipment, seawalls, pests, mold, pools, interior inspections, and anything pertinent to the buyer’s decision are all items that a buyer should be advised to inspect (even if they decline the opportunity)
  5. Not doing homework when buying vacant land. Believe it or not, many people assume they can build virtually anything they want on property. In fact, some parcels are not even buildable. If you are working with someone buying vacant land, make sure they do their homework to determine if they can build what they want.
  6. Not reviewing the HOA or Condo restrictions carefully. Many buyer’s assume that someone is doing this for them. That is generally not the case. There is no way a third party can know what the buyer’s unique requirements might be. Make sure you strongly encourage buyers to read these documents carefully. Don’t’ be the person who sold the buyer a condo that did not permit their beloved poodle to move in with them
  7. And the number one issue we saw last year (drumroll please)… the failure to timely remove all of the seller’s personal effects by the closing date. Apparently some sellers feel that they can leave behind anything they don’t want. That is not true, and is technically a breach of the contract. Make sure your seller’s are well aware of their obligation to remove ALL of their items prior to closing. And please don’t take anything the contract requires to remain!

As we saw in 2019, with a little foresight, almost every issue we had to resolve (or try to resolve) was avoidable. If we head into 2020 with the mindset of having a bit better vision, your client’s real estate experience will be that much better.

As always, should you have any questions, please contact your trusted real estate lawyer. And again, Happy New Year! We at BPE hope you have an incredibly happy and successful 2020.

Sincerely,
Berlin Patten Ebling, PLLC
Article Authored by Evan Berlin, Esq. eberlin@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com

SARASOTA
3700 South Tamiami Trail, Suite 200, Sarasota, FL 34239
P (941) 954-9991 F (941) 954-9992

VENICE
247 Tamiami Trail South, Suite 201, Venice, FL 34285
P (941) 955-9991 F (941) 484-9992

LAKEWOOD RANCH
8433 Enterprise Circle, Suite 100, Lakewood Ranch, FL 34202
P (941) 907-9022 F (941) 907-9024

TAMPA
442 West Kennedy Boulevard, Suite 312, Tampa, FL 33606
P (813) 467-7500 F (813) 251-1662

Did you find this real estate law content useful, but need actual legal counsel?

Speak to a real estate attorney!

, , , , , , , , , , , , , , , , ,

Home Inspection Reports: A Life Isn’t Fair Teaching Moment

Mel and Dani are your typical first-time homebuyers. They have scrapped and saved for years to accumulate their earnest money escrow deposit and mortgage down payment. To keep down costs, Dani convinced Mel a home inspection was not necessary because the lender was performing a 4 point inspection. As a result, their contractual due diligence…

No Pets Allowed!

Stop me if you’ve heard this one before: After months of searching for the perfect Florida condo for your picky buyers, you have finally found the perfect unit that checks all of your buyer’s boxes. There is just one problem: NO PETS ALLOWED! As anyone who has ever had a beloved pet knows, pets are…

This Is Not A Bill

  Believe it or not, September is here and the football season is upon us!…. well maybe…hopefully? I am more excited than ever for the toe to touch the leather, as it will mean that things are that much closer to getting back to normal, or the new normal. However, all that glitters is not…

The Old Switcheroo!

  You have a Seller ready to list the residence for sale, you’ve confirmed that the Estate of the original owner who passed away has been opened, and a Personal Representative has been appointed by the Court. Your Buyer is an investor who works with a Limited Liability Company (LLC) who wants to buy the…

Prepare Your Buyer/Borrower for the Closing

  With the volume of closings that we have, we handle a lot of different personalities, situations, and behaviors when we go through our closing process. Being aware of these in advance, and perhaps trying to get ahead of the issues, can sometimes make the difference between a happy closing and a dramatic one. 1.…

My soon to-be-ex Needs to Sign What?

  Your friend of a friend from Michigan, Mr. Buyer, tells you he is newly retired, single, and ready to start the next chapter of his life in the Sunshine State, so he reaches out to you as his real estate agent to begin the property hunt. Two weeks later, he has found his dream…

Congratulations On Your Loan Approval… Now What?

Paragraph 8 FINANCING in both the “AS IS” and the “Standard” FR/BAR Contract* is the section of the Contract dealing with financing of a purchase by a Buyer. The purpose of seeking financing is to obtain approval for a loan, thereby permitting the Buyer to close on the Contract. This is defined under the Contract…

Survey Says…

    So what exactly is a survey? A survey is a drawing made by a surveyor which outlines the boundaries and features of your property, including the house and other improvements. It shows things like where the house sits in relation to the property line, where your driveway starts and ends, if your fence is actually on…

Permitted To Close

Open permits, expired permits and code enforcement violations can wreak havoc on a closing when not properly addressed. Picture this scenario… contract negotiations were a breeze, the inspection results were perfect, title came back clean, and closing is looking oh so smooth. Then, out of seemingly nowhere, the municipal lien and permit search results reveal…

Making a Listing, and Checking it Twice

So you just finalized a listing agreement for an exciting property that you can’t wait to advertise to the world for your customer. Like any good listing, you really want this one to stand out among the other similar listings in the area. After spending time at the property and with the owners it is…

Runaway Buyers: Seller’s Options When Left Alone at the Closing Table

What happens when a buyer leaves a seller at the closing table and it is not related to unforeseeable circumstances? In Florida, the FAR/BAR contracts are the mainstream residential transactional sale agreements and they generally provide the parties with a reasonable expectation of their rights and remedies upon a buyer or seller default. When Johnny…

Time (Of The Essence) Is On My Side, Yes It Is…

Contracts are full of language that may seem unimportant, boilerplate, confusing, or just plain useless. Real estate contracts are no different. The standard FAR/Bar forms for sale and purchase of residential property, “AS IS” contracts, and even vacant land contracts all contain provisions that you see all the time, but rarely have to really address.…

When Estates Become Part Of Your Closing

We routinely get the frantic call from a realtor or closing party to address a title issue or incident involving a deceased buyer or seller, or even a prior party further back in the chain of title. Those inquiries come with the urgent questions: Can you fix it? Can it be done before closing? How…

E-Sign Me Up

  Where would we be without technology? The current pandemic has demonstrated how integral technology is to thrive in the real estate business. Such a vast array of tasks can be done electronically: sending wires, signing closing documents, remote online notarization, virtual open houses, signing contracts, etc. When a buyer and/or seller signs a real…

All That Glitters Is Not Gold

The COVID-19 pandemic (a/k/a the “coronavirus”), has hit very close to home when it comes to homeowners being able to make their mortgage payments on time (or at all). Where many Floridians are being furloughed or laid off from their employment, there is increasing anxiety over how that 1st of the month mortgage payment is…

Da do Ron Ron Ron, Da do Ron Ron

By now you have probably heard of Remote Online Notarizations, commonly referred to as “RON.” RON is being hailed as a tool that will revolutionize the closing process, and some day it will. But for now, the process of conducting closings using RON is going through some growing pains as we all race to understand…

Homestead Exemption Revocation: Welcome to Florida, Now Pay the Tax Man!

  Knock, knock, BOOM…this is the sound you hear when opening a notice of tax lien from your local property appraiser. The property appraiser’s letter states that you have 30 days to pay taxes, penalties, and interest, or there will be a tax lien filed on your home. There must be some mistake…how did this…

I Love You…Now Sign This!

  It’s that time of year again. Love is in the air, and spouses all over the state of Florida are scrambling to come up with the perfect way to show their significant other that they love and appreciate them. For far too long, spouses have stuck to the same unimaginative and uninspiring routine of…

Use Caution When Attempting to Reduce Commissions in the Contract

  Every once in awhile I see handwritten clauses added to Section 20. Additional Terms of the Contract that attempt to reduce the commission that will be paid by the Seller to the Realtors at the Closing of the transaction. This typically happens when Brokers agree to a reduced commission as an enticement for the…
selby lights in bloom

Stealing Home

So the contract is signed, the earnest money deposit is in escrow, the lender has approved the loan, the survey is clean, the home inspection reveals no issue, and the closing date is set. What could possibly go wrong? You show up to closing only to find out that the Seller never owned the property! This scenario has…

Relocation to Florida: Looking to your Future, Leaving your Past

We all know about the snowbird, the retiree, the investor, the tourist who asks the question: how do I relocate to Florida, how do I become a resident? Beyond the weather and lifestyle, there are obvious reasons why people want to make that move, including the lack of Florida income and estate taxes, exemptions for property…

Don’t Get Burned By Solar Panels (Or Other Leased Items)

More and more homes are running off the power of the sun these days. Renewable energy has become a trending topic and solar panels are beginning to become prevalent in the state of Florida due to positive environmental impacts and the potential to reduce large A/C bills. Selling a house with solar panels comes with…

Be Thankful You Don’t Receive a Fowl Title Objection Notice

It seems almost obvious, only a plucked turkey would buy property without having a title search conducted to determine if a Thanksgiving feast is in the making, that is to say “title is clear”, or if there are title defects that would render the property unmarketable. This right is provided under the terms and provisions…

Movers and Breakers

Moving day can be an exciting time for many!  However, the thought of moving always causes angst, frustration, and physical/emotional exhaustion.  To avoid most of these emotional and physical moving issues, Sellers and Buyers should research said issues and then eventually hire vetted and reputable moving companies. Moving companies come in all sizes (i.e., National to local) and shapes (i.e., service and costs). …

Survey What, Survey Who?:

A buyer of real property normally is required to procure a survey due to a lender’s requirements. This is not so when a buyer is purchasing real property using cash or private financing. We often see the preceding buyers attempt to reduce their costs by forgoing the cost of a new survey and rely on…

I just noticed something…

Real estate sellers and buyers are often required to provide contractual notices to their counterparties relative to all kinds of different issues.  For instance: cancelling a contract requires timely notice, objecting to title issues requires notice, and financing issues require notice, to name just a few. How does one party provide notice to another?  The…

Standard Or “As Is?” That Is The Question

While Florida law requires no particular form of contract for a real estate transaction, the FR/BAR Contract forms are the most utilized and well-recognized residential contract forms in Florida.  The FR/BAR Contracts, created and approved by a collaboration between the Florida Association of Realtors and the Florida Bar, include two Contract forms: the Residential Contract…

Modern Uses For Life Insurance Trusts

Since the enactment of the Tax Cut and Jobs Act of 2017, the utility of the irrevocable life insurance trust (ILIT) has been in question. The substantial increase in the federal estate tax exemption–$11.4 million for an individual and $22.8 million for a married couple in 2019-greatly reduced the need for estate planning aimed at…

Can I Get A Pre-Nup (Or A Post-Nup)?!?

  With respect to real property transactions, understanding contracts is a daily challenge.  Whether it is a listing agreement, an “As Is” agreement, or even a warranty deed, contracts are at the heart of what real estate agents deal with (outside of the actual clients.)  On occasion, non-real estate contracts will creep into a transaction…

Property Sharing: Yours, Mine and Ours

Many times property ends up having some form of shared ownership. Sometimes it is simply in the form of joint tenants or tenants in common, but sometimes more complex forms are involved such as life estates, ownership through entities or even by agreement (such as a co-habitation agreement). Over the years, statutes and common law…

Show Me The Money!

Disbursement instructions to closing agents come in all shapes and sizes, but they all have one thing in common. Each involves a specific direction to the closing agent to disburse the funds entrusted to the closing agent precisely as instructed. The most common form of disbursement instructions involve the settlement statement itself (which is executed…

It’s Not Over Until It’s Really Over…Selling Real Estate After A Divorce

As you all know, real estate professionals constantly wear an abundance of different “hats.” Working in the real estate world demands that real estate professionals have at least a minimal understanding of a variety of topics including, but not limited to, family law, wills, trusts and estates. Even with divorce rates slightly declining, it is…

When Is It Critical To Review Your Estate Plan, and Why?

Just like other important life tasks, your estate plan deserves your time and attention. It’s important that you work with us to review your estate plan at least once a year. Think of this as your estate plan’s annual physical exam, and remember-prevention is the best cure. An annual exam isn’t necessarily the only time…

Color Of Authority To Sign Listing Agreements & Contracts

A contract (which, for purposes of this Blog shall focus on Listing Agreements and Residential Contracts For Sale and Purchase), is only as good as the authority of the Seller and/or Buyer to sign them. Many times, I receive calls from agents asking who has authority to sign the Listing Agreement, and then the Contract…

“Trim Notices & Property Taxes-What to Expect”

At the end of August every year, while most of us are gearing up for football season, County property appraisers across the state are sending out TRIM notices. The TRIM (Truth in Millage) notice or Notice of Proposed Property Taxes is the document that provides a home owner with the updated assessed value (the taxable…

Insurance Considerations as Hurricane Dorian Approaches

As Florida braces for the possible threat of Hurricane Dorian, we encourage you to take all necessary precautions to ready your loved ones and homes for potential impact. If you are purchasing property, or representing a buyer of a property, that is set to close in the near future, we urge you to contact your…

No Leaks, No Damages, No Problems!

  Congratulations!  Your client entered into a new Standard FARBAR Contract on the purchase of a single family home in Sarasota.  The only contingencies are inspections and marketable title. Your client immediately hires a professional home inspector to conduct their home inspection.  During the Inspection Period the home inspector provides a “clean” report only notating…

The Repair Escrow Agreement: Having Your Cake and Eating It Too

In Florida, more likely than not a buyer will identify his or her requests for repairs early in a real property transaction and prior to closing pursuant to the standard FAR/BAR contractual provisions with little fanfare. Nonetheless, as in life and in realty, there are unforeseen circumstances where a closing extension would be difficult and…

“Options? We All Got ‘Em, We All Want ‘Em, What Do We Do With Them?”

We see option contracts for real estate purchases frequently, and we run into problems with those contracts just as frequently. In this blog we’ll go over what option contracts are, what they require to be effective, and we’ll identify some common pitfalls. An option contract is a promise by the owner of property to sell…

New Construction, Review Before You Execute

  New construction agreements can be extremely complicated and it is important that the buyer have a thorough understanding of the contract and terms prior to executing.  The construction agreements provided by developers are typically one sided and do very little to protect the buyer/owner in the event that an issue should arise.  It is…
Real Estate Firm

Your Condo Purchase-Treat It As An Investment

Condominium purchases by their nature involve property rights that are more complicated than typical single family lots or properties.  We have written several blog articles relating to investigations that buyers and their realtors should undertake prior to their purchase (links are included at the end of this blog). It is said that ownership of real…

Check Out My Title While BPE Resolves It!

One of the most frequent questions we receive from realtors involves the status of title to the property. The answer to the question “how is title” can be a source of great anxiety or a source of great relief. As a result, most people involved in any real estate transaction want the answer to that…

Balancing a Closing with Summer Vacation

During the summer when everyone is jet-setting on vacation, and year round as part time residents move in and out of Florida, we experience an increasing amount of closings where one or both parties cannot be physically present on the day of closing.  As this is a common occurrence, there are many ways to accomplish…

Breaking News! “RON” Remote Online Notarization is coming to Florida

  The much-anticipated remote online notarization (“RON”), is set to arrive in Florida as of January 1, 2020. Florida will join the ranks of twenty-three other states that have either passed or have pending bills that allow online notaries to perform notarizations anywhere in the world (Alabama, Florida, Idaho, Illinois, Indiana, Kentucky, Michigan, Minnesota, Mississippi,…

Hurricane Season: The Good, The Bad and Still Closing

Often, parties seeking to buy and sell real property only concern themselves with Florida’s Selling Season and do not take into consideration the other season – Hurricane Season.  Florida’s Hurricane Season is kicking off and now that Hurricane Irma is approximately two-years in the rearview mirror, Berlin Patten Ebling would like to remind our buyers…

Look Before You Leap…Into A New Listing!

Real estate transactions can often be quite complicated and confusing for even the most savvy of Sellers and their agents. You would think that the most basic and straightforward step in the process would be determining who are the owners and who has the authority to convey the property and sign related paperwork, such as…

LOOK BOTH WAYS BEFORE YOU WALK AWAY FROM A DEAL

While it may not happen often, on occasion we have experienced situations where one of the parties “walks” from the transaction.  In this instance, the buyer or seller is often left in a difficult position and wondering what remedies they may have against the breaching party, if any.  A well drafted contract will typically set-forth…

“Up a Stream without a Paddle-Closing without Title Insurance”

The immense value of title insurance has been well documented. Generally speaking, title insurance provides three somewhat distinct, yet significant coverage’s: Fatal title defects that could cause one to lose their property altogether, such as fraud, forgeries, inheritance issues, or execution/signing issues; Defects that could require the expenditure of significant amounts of money to cure…

Six Things You Need to Know about Buying Rental Properties (#2 will surprise you)

When a Buyer is purchasing a residential rental property such as a multi-unit building, they often have many questions about their rights as the new building owner and landlord.  The Buyer may also wonder whether the standard FR/BAR real estate contract is the appropriate contract for them and what protections it affords them.  Below is…

Getting Up Close and Personal (Property)

When real estate agents are out and about showing homes, those homes are usually staged, lived in, and/or full of furniture, appliances, etc. So when agents get the property under contract, what exactly is conveyed with it? The “As Is” and Standard Florida Realtors/Florida Bar contracts are useful tools and have been drafted by attorneys…

Consequences of Recording a Notice of Commencement

The Florida Construction Lien Statute (commonly referred to as the “mechanics’ lien law”), can be found in Chapter 713 of the Florida Statutes, Part 1. For purposes of this blog, the focus will be on this section of the statute dealing with Notices of Commencement.  First, what is a Notice of Commencement? For brevity, Notice…

Helpful Closing Tips for Commercial Real Estate Sellers

Here are some tips to ensure that your commercial real estate closing is a smooth one. Commercial real estate closings are often much more complicated than your regular residential closing, there are usually multiple business entities, often with layers, leased property where there is a tenant or tenants in the property, elaborate surveys, environmental due…
HOA In Florida

HOA Buyer Approval: Avoid Next! and Receive Your Rose

In Florida, homeowners’ and condominium associations have considerable power to approve new buyers and renters under Florida law. And while most associations must comply with the Fair Housing Act regarding race, religion and age (fifty-five and over communities may be exempt if properly qualified), it is perfectly legal to deny a “rose” to a buyer…
Changes The Home owners

Changes to the Homeowner’s Association/Community Disclosure Rider

A new Home Owner’s Association Disclosure (the “Disclosure”) has been approved for use with the FAR/BAR AS IS Contract as well as Standard Contract for Residential Sale and Purchase. The updated Disclosure is now available as part of the CR-5 Rev. 9/17 and was approved for use beginning on September 26, 2017. Part A of…
Black mild in the corner of room wall

Don’t Let Mold Be A Smudge On Your Closing

You’ve just negotiated the labyrinth that is the Residential Contract For Purchase and Sale (the “Standard Contract”), or the AS IS Residential Contract For Sale and Purchase (the “AS IS Contract”), and their various Addenda, Riders, and Disclosures.  Surely, somewhere in there are protections for Buyers against the hazards of mold and mold related issues.…

The Importance of the Buyer Walk-through

The excitement of closing is near.  Your Buyer flies into town a day before closing with the moving van not too far behind.  They are so happy they request to conduct their walk-through the day they arrive.  Upon arriving at the home they discover that the Seller has not finished packing.  The Buyer immediately begins…

What Happens During My Real Estate Transaction?

Indispensable Components to a Real Estate Transaction The Contract is signed; the earnest money paid; and the title agent selected. What do we do now?  Well of course we start the due diligence, which begins with procuring a title search of the property. Seems like simple stuff, right?  Not so fast, however. The purpose of…

Getting to the Bottom of Unpermitted Improvements

With the housing market in a steady growth pattern over the last few years and interest rates on the lower end of the spectrum new home construction and residential remodels have been more prominent.  Over the last six (6) months we have seen an increase in unpermitted improvements (Example, remodeling plans reflect 2 bathrooms but the…
Paper House

What you need to know about an action for partition in Florida

Florida law allows property to be owned individually, or jointly by several persons or entities.  We are often called on to help resolve cases where joint owners of a property cannot agree on the management or disposition of the property.  If the owners of property cannot resolve those differences through voluntary negotiation, they are sometimes…

Does the Subdivision Require Your Buyer to Be Approved By the Homeowner’s Association?

Typically, subdivisions created in the last twenty (20) years now require buyers to be approved by the homeowner’s association prior to purchasing a property in the subdivision. This application requirement can be found in the subdivision’s recorded Declaration of Restrictions or Bylaws. The application requirement sets forth the application process and timing requirements.  Buyers purchasing…

It Wasn’t a Problem When We Purchased the Property?

Here is the scenario:  Buyer is getting financing and has a new survey completed since seller couldn’t produce one.  The new survey shows that the screened swimming pool encroaches into the platted drainage and utility easement along the rear property line.  As a result, the closing agent sends a survey objection letter to the seller…

Inspection “CYA” in a Demanding Marketplace

Real estate professionals are often asked to perform many tasks for their clients. Such requests can include recommending inspectors, contractors, and even performing final walk through inspections.  In what is an extremely competitive market, it would be nonsensical to suggest that any prudent real estate professional  refuse to provide the best service they can. In…

How Does One Define the “Procuring Cause”?

In light of a flurry of recent inquiries about commissions, we decided to take a look at the current state of the law as it pertains to how one defines the term “procuring cause.” We started with the National Association of Realtor’s definition, which defines the procuring cause as follows: “is … the interplay of…

Can Buyer Object to an Encroachment on Prior Survey?

Question: Can the Buyer object to an encroachment shown in Seller’s prior survey, or does the Buyer need to obtain a new survey? The Buyer really needs to get a new survey. Under Paragraph 9(d) of both, the Regular and As-Is Florida Realtors/Florida Bar (“FR/BAR”) contract forms, survey is defined as: “Buyer may, at Buyer’s expense,…

The Estoppel Fee Monopoly

Over the last few years Associations (Condominium and Homeowners) have substantially increased the fees they charge to prepare estoppel letters.  Unfortunately, this has caused further undue hardship on sellers, buyers, title agents, realtors, etc., during tough economic times.  There are many sellers, buyers, realtors, title agencies, etc., that believe the unsubstantiated and exorbitant fees are…

New! Access Your Files on Berlin Patten Live!

BERLIN PATTEN LIVE: NEW ONLINE COMMUNICATIONS SYSTEM After more than a year of planning, development, and implementation, Berlin Patten is proud to announce the launch of our new electronic communications system, Berlin Patten Live.  Berlin Patten Live is intended to virtually eliminate any communication barriers and ensure that parties to transactions handled by Berlin Patten…

Flood Insurance Reform Act of 2012

In 2012, Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012 (“Act”) which requires FEMA, as well as other agencies, to change the way the National Flood Insurance Programs (“NFIP”) is run. The Act was designed to reduce the NFIP’s growing debt. Key provisions of the legislation require the NFIP to raise rates to…

Don’t Forget the Open Permit Search!

For financial reasons most parties do not perform an Open Permit search (which would include expired permits) until after the inspection period has expired.  This is a common mistake that generally leads to the buyers inability to object to an open permit issue at a later date.  The new FARBAR-2 Residential Contract for Purchase and…

Major Differences Between the As Is Contract and the Regular FAR/BAR Form

The As Is Contract and Regular Florida Realtors/Florida Bar Contract forms are essentially the same with the following exceptions: 1. Heading. Of course, the inclusion of “As Is” in the heading sometimes draws concern and can create minor angst for Sellers since they don’t want Buyers to get the impression that the Property is substandard.…

Addressing Exchange Rates for Foreign Buyers/Sellers

ADDRESSING EXCHANGE RATES FOR FOREIGN BUYERS/SELLERS When the opportunity arises to represent an international clientele, a factor that is not always considered in the transaction is the cost of exchanging their native currency to USD, or vice versa. When money is sent from one country to another, the funds have to be converted to the…

House Bill 87 And The Impact Of Florida Mortgage Foreclosures

As you may have read, House Bill 87 (H.B. 87) was recently passed by the Florida legislature and proposes to make significant changes with respect to the Florida Statutes regarding mortgage foreclosure actions.  As of now, H.B. 87 will become new law unless Governor Rick Scott decides to exercise his veto power, which seems unlikely…

Marketable Vs. Insurable Title

In response to our blog last week, most of the feedback we received involved questions pertaining to the quality of title that one might get if they acquire REO Property. The answer to this question is not simple. In a non-REO setting, the requirement is generally for the seller to deliver marketable title (i.e. title…

Should I use An Attorney Rather Than A Title Company For Closing?

In Florida, both, attorneys and title companies, may issue title insurance.  In contrast, in some states, like Delaware, only attorneys may issue title insurance.  The title insurance rates are promulgated by the Department of Insurance so title insurance obtained through an attorney is priced the same as from a title company.  In addition, closing costs…

Tips on Inspection Periods for Short Sale Transactions

As most of you have likely seen, the demand in today’s market for short sale properties is very high, with decreasing inventory and a large pool of buyers.  In fact, property prices are increasing in many areas because of this high demand, and short sale sellers are often receiving many offers – some possibly even…

The AS-IS Contract And Disclosure

When a transaction is an AS-IS sale, the seller often insists that the property is in “AS-IS” condition in an attempt to reduce repair limits/credits and possibly shift the responsibility for determining the true condition of the property to the buyer.  It is well known that the buyer is typically given a specified period of…

Should I Order A New Survey Or Rely On A Prior Survey?

Our clients often ask this question when they are purchasing residential property. You can only rely on the prior survey if the Seller has an existing survey accurately depicting the property and the Seller can sign an affidavit at closing that there have been no changes to the property since the date of the survey.…

What About The Flat Screen TV?

There is no question that home-technology has improved tremendously in recent years. As a result of this improvement, we have received a steady increase in questions and disputes regarding whether an item should be considered a fixture or personal property with respect to residential sales. For example, flat screen TVs and built in speaker units…

Substituting Contract Pages

We have noticed an increase in a practice, that if not done with full and proper disclosure, could lead to substantial trouble for the parties involved, including civil liability, license forfeiture, or worse yet, criminal sanctions.  The practice involves changing and/or substituting pages to a fully executed contract.   While we recognize the reality that…

Preventing Post Closing Issues

Many clients, their agents, and unfortunately some closing/title agents believe that the end of a real estate transaction occurs when it closes and funds.  Too many times we have seen post-closing glitches, oversight, or lack of follow-up lead to problems with the future sale of a property.  Over the last few weeks we have run…

Counting Time Periods When Using The FR/BAR Contract Form

Under the FR/BAR Contract calendar days are used when calculating time periods versus the CRSP-12 Contract form, in which business days are used. Consequently, it is much easier to count time periods using the FR/BAR since you don’t have to worry about excluding national legal holidays when counting your time periods.  You don’t count the…

Dealing With Entities As Buyers In Investment Properties

As most of you are aware, more and more investors are coming to this area to invest in distressed properties. The result is an increasing number of short sale contracts in which the buyers are entities (such as LLCs) rather than individuals. Typically, short sale lenders require the seller to provide a slew of documentation,…

How to Effectively Use an Attorney From a Realtor’s Perspective

We have found with our experience that most real estate professionals are not aware of how they can most effectively utilize an attorney throughout a real estate transaction to not only protect themselves, but to better serve their clients. Many real estate professionals (and/or even their clients) are under the assumption that they will receive…

Addressing Financing Contingencies

Under the Financing Contingency paragraph of the FloridaRealtors/FloridaBar-1 Contract and As-Is Contract (hereinafter collectively referred to as “Contract”), when can the Buyer or Seller terminate the Contract and is the deposit returned to Buyer? Prior to Loan Commitment Date, Buyer notifies Seller in writing that Buyer can’t obtain financing after using diligence and good faith,…

Berlin Patten Raises Funds for the American Cancer Society

Originally Published: 9/14/2012 Berlin Patten would like to thank our donors, sponsors, and guests for supporting our charity bartending event for the American Cancer Society on September 10, 2012.  Together, we almost doubled our fundraising contributions from last year!  We would like to give special thanks to Shane Rawley, owner of Shaner’s Pizzeria.  He and…

And the Survey Says?

Originally Published: 5/12/2012 Survey review is a prevalent part of our practice whether we do so for purposes of property due diligence, removing or confirming title issues, etc. More often than not Buyers are unclear as to the necessary requirement that a survey must include to be used for purposes of removing title exceptions and…

Foreclosure Update

As most are painfully aware, Florida foreclosures suffered tremendously last year after the discovery of apparent rampant fraud by both lenders and foreclosure attorneys in prosecuting foreclosure actions. Many existing foreclosure lawsuits came to a sudden halt, and new filings dropped significantly. As a result of this, along with the poor foreclosure practices of many…

Response to Anonymous Blog Entry: Title Agents should still not be conducting short sale negotiations

On or about September 30, 2011, an anonymous reader provided a response to a blog Berlin Patten had sent to its readers regarding who can or should be engaged in the negotiation of short sales. While we debated whether or not to further comment on the subject (as the blog response did not really specifically…

Short Sale “Pre-Approvals”

We are frequently asked about listings being marketed as “pre-approved” in the MLS. We suspect this designation is intended to imply or suggest that there can be a quick closing.  We feel that the use of the term “pre-approved” can be misleading and lead to unrealistic or false expectations. Other than a pre-approval under HAFA,…

Short Sale Negotiations

We have been asked by several real estate agents to investigate whether or not a title company or title agent can conduct short sale negotiations. One of Berlin Patten’s contacts at the Florida Department of Financial Services, Bureau of Investigation, Title Services, responded to our inquiry as follows: “The license for a title insurance agent does not…

Assignable Contracts & Specific Buyers

Please be advised that short sale lenders are getting very strict about approving the specific buyer identified on the contract. As such, lenders are carefully scrutinizing assignment provisions in contracts. Short sale lenders who are reviewing contracts (that permit the contract to be assigned) are kicking back the contracts more and more frequently.) Lenders are…

Berlin Patten’s Short Sale and Bankruptcy Services

Real Estate professionals are frequently confronted with listing a short sale property encumbered by two or more mortgages and a seller who is strongly considering bankruptcy as its “exit strategy.” We have struggled with that same scenario… working on a short sale for months, and then the seller decides to file for bankruptcy. At that…

HAFA Policy Changes for Servicers

Lenders’ inconsistent eligibility requirements seem to be the most consistent thing we have seen with respect to the Federal Government’s HAFA (Home Affordable Foreclosure Alternatives) Program.  The Federal Government seems to have taken notice. On August 9, 2011, the Home Affordable Foreclosure Alternatives Program adopted certain policy guideline changes.  The changes, we presume, are in…

Short Sales – Working with Second Lenders

Anyone who works with short sales knows that it can be very difficult to get short sales approved when there is a second (or even third lender). To successfully complete a short sale, ALL lenders (among others) must agree. The problem is that in many instances, they do not. In fact, we have seen situations…

Deficiencies and Deficiency Judgements

We spend a great deal of time counseling prospective short sale sellers regarding the advantages of attempting to pursue a short sale rather than allowing their property to go through the foreclosure process. Many people do not realize that the foreclosure process is a two step process. The first step is the sale of the…

Bank of America Realtor/Broker Listing Agent Certification – Questions and Answers

The new Bank of America Realtor/Broker Listing Agent Certification (the “Certification”) has fostered some significant concern among real estate agents. The most common questions and our comments/responses are as follows: 1. Question: Does paragraph 1 of the Certification mean that Bank of America will not pay a commission. Answer: No! Bank of America never paid…

Bank of America Document Warning

Please be advised that Bank of America is now requiring the parties to a short sale transaction to execute certain form documents before they will consider your short sale for approval. The buyer and seller will be required to execute a new addendum, and somewhat interestingly, the agents involved in the transaction will also need…

Nonlawyer Assisting the Short Sale Seller: Ministerial Acts or UPL?

As you know, short sale negotiations (and negotiators) are coming under great scrutiny by local and federal authorities. There are significant new disclosures for non-attorneys, and now the Florida Bar is weighing in on the subject. In essence, various proposals under consideration by the Florida Bar suggest that a great deal of the short sale…

FTC Issues New Rules for MARS

The Federal Trade Commission (FTC) has issued new rules that might impact real estate practitioners who represent clients involved in short sale transactions. The Mortgage Assistance Relief Services (“MARS”) regulations define anyone providing services which assist or attempt to assist the consumer in negotiating a short sale as a “MARS” provider. Depending on certain factors,…
Menu