With the rapid increase in new construction, have you ever asked yourself, how is the seller calculating square footages? This might seem like a simple question, but believe it or not, the answer is not always that simple. Do not make assumptions about how square footages are being determined, such as the normal assumption that the square footage being represented is “air conditioned” square footage, as many of us might think. There are several different ways to measure the size of a home/condominium, and not surprisingly, sellers tend to use the methodology that results in the largest square footage. So ask questions.

For example, one of the more prominent ways that some builders measure square footage of single family homes is to include the exterior block walls in their calculations. This has the obvious effect of increasing the square footage of the residence beyond what one would consider usable space.  When purchasing a single family home, one should always ask the seller if their square footage calculations include the exterior block walls (and other areas one might not normally associate with livable/useable space).

With respect to condominiums, every Declaration of Condominium provides the definition of how each condominium unit’s boundaries are established, and thus how each unit should be measured. Nevertheless, some sellers may still choose to measure the unit to the exterior face of the outside walls, or use some other methodology that results in square footages that might exceed the square footage of the unit’s boundaries, as determined by the Declaration. As such, when purchasing a condominium, it is wise to ask the seller if the square footages that are being represented were determined in accordance with the boundaries of the unit as set forth in the Declaration (which typically defines the boundaries as the face of the interior walls, floors, and ceilings), or is the seller providing measurements that may not be consistent with the declaration (such as measurements that go to the outside of the walls or otherwise include limited elements, or even common elements).

If you have any questions about the manner in which a residence or condominium’s square footage should be calculated, we urge you to consult with your real estate attorney.  Whether you represent a buyer or a seller, confusion or misunderstandings can lead to unintended legal consequences.

Sincerely,

Berlin-Patten, PLLC

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 S. Tamiami Tr, Suite 200, Sarasota, FL 34236   P (941) 954-9991  F (941) 954-9992

VENICE

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

LAKEWOOD RANCH

8130 Main Street, Suite 206, Lakewood Ranch, FL 34202   P (941) 907-9022  F (941) 907-9024

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

Speak to a real estate attorney!

, ,

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…

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.…

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…

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…

1 Step Forward, 2 Steps Back…

Florida law allows a residential property owner the ability to pull a permit and serve as an Owner-Contractor so long as the residence is for occupancy of such owner and NOT offered for sale or lease (Note: the owner is also required to sign a disclosure statement confirming the same at the time the permit…

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…

DON’T BE CAUGHT WITH YOUR PANTS DOWN

Have you ever represented a Buyer that literally waits to the last second to inform you, via email, that they want to terminate a contract?  As a Realtor, what are your obligations?  Generally speaking your obligation (as Selling Agent) is to deliver the written notice of termination (or signed Release and Termination) to the Listing…

Am I Bound or Can I Entertain Other Offers?

“Do I have a valid agreement or can I entertain other offers?” In this day and age, this a question that is becoming increasingly prevalent.  For example, you receive a call from a buyer’s agent and the agent indicates that their client has agreed to buy your listing at full price, with no contingencies, closing…

Can Brokers Put a Lien on Real Property for Payment of Commission?

You are the listing agent, and the seller decides to dispute the amount of your commission or breaches the listing agreement and fails to pay your earned commission.  What are your remedies?  We often receive requests from brokers to place a lien for commissions on the real property being sold.  However, this is not an…

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…

Best Practices – Why is this Important?

Are you aware that most title underwriters, lenders, and insurers are now requiring real estate attorneys/title agents (“title agents”) to maintain a Best Practices Policy and Procedures Manual (“Manual”)?  In fact, some title underwriters may “drop” or not approve a new title agent if there is no Manual in place and lenders have been known…

BUYER IS IN CONTROL OF FOREIGN’S SELLER’S FIRPTA WITHHOLDING UNDER THE REVISED 8/13 FLORIDA REALTORS/FLORIDA BAR (“FR/BAR”) CONTRACT FORMS.

  Under the revised FR/BAR contract forms, Section 18 Standard V replaces the FIRPTA RIDER previously known as Rider I.  Apparently, agents were neglecting to incorporate Rider I into the Contract when the seller was a “foreign person” under the Foreign Investment in Real Property Tax Act (“FIRPTA”).   With the increase in transactions involving foreign…

Increase in Real Estate Transactions Involving Foreign Buyers & Sellers

  The local press recently published an article that spoke to the increase in real estate transactions involving foreigners.  It is true that instances in which a transaction involves a foreign buyer or seller have increased substantially. We expect that trend to continue. Transactions involving foreigners can be quite complex, and involve issues that are…

The New Foreclosure Legislation is Now Law and Affects More Than Just Foreclosures

On July 1, 2013, many revisions to the Florida foreclosure statutes went into effect. While many of the new provisions are technical in nature and primarily effect attorneys practicing foreclosure law, the overall effect is a dramatic change in the foreclosures process and the rights of struggling homeowners. Also, most of the changes are retroactive,…

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.…

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…

Navigating a Short Sale – Tips & Reminders

With the extension of deficiency waiver tax relief, we have seen no slowdown with respect to short sales, and do not anticipate a slowdown in the foreseeable future.  With that in mind, we wanted to remind anyone who routinely handles short sales to consider the following: Do not forget about how critical it is to…

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…

Another Reason to Complete Your Residential Real Estate Transaction in 2012

Beginning January 1, 2013, a new 3.8% tax on some investment income will take effect.  The tax was passed by Congress to help fund the health care and Medicare overhaul. Recently, we have been receiving multiple inquiries regarding the new 3.8% capital gain tax and what impact it will have on residential real estate transactions. …

Bank of America Short Sale Seminar Summary

The Berlin Patten short sale negotiating team recently attended a Bank of America Short Sale Seminar.  The following is a brief summary of what Bank of America advised its seminar’s attendees:  Short sales are about two primary things to Bank of America:  Hardship and net proceeds Investors are reluctant to postpone foreclosures as the buyer…

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…

Fraud Investigation – A Top Priority for Freddie Mac

In previous blogs, we have discussed our concerns about short sale fraud and the warning signals to watch for.  According to Freddie Mac’s Mortgage Fraud Officer, Short sale fraud has also become the top priority for Freddie Mac’s fraud investigation unit as well. Per the attached article, recent trends that Freddie has been alerting Real…

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…

The Importance of a Municipal Lien Search

Performing a municipal lien search is crucial when purchasing property in this day and age. In many cases there are unknown or undisclosed fees, costs or other issues that will impact a buyer post-closing. In addition a municipal lien search generally will assist a seller in complying with contractual terms to avoid a default. Examples…

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…

A New Buyer Can Be Substituted for One Who Walked

We have learned of a very interesting development with respect to Bank of America. Bank of America has advised that it will permit a new buyer to step into the shoes of a buyer who has walked away from a transaction.  Furthermore, Bank of America has advised that the process will not have to begin…

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…

Wells Fargo Short Sale Addendum

As expected, Wells Fargo has followed suit with Bank of America and has put out a new Short Sale Affidavit (attached hereto). Similar to the agreements recently published by Bank of America, Wells Fargo appears to be getting more aggressive in trying to curb flips and low offers and is now requiring realtors and closing…

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