Year in Review

 

2012 was a good year for us – especially now at the end of the year, when the housing recovery seems to be really taking hold.  In 2010 & 2011, the foreclosures and short sales were making life very difficult for sellers.  Mortgage defaults, though, are now down significantly and there are many fewer of those distressed properties on the market, which is having an upward pressure on prices.

Prices, while they are rising, are still low however – partly due to the reality of our appraisal process.  Generally speaking, appraisers look at sales for the last 3-6 months within a mile radius of your home to determine the proper appraised price for your home.  But this “backward” look makes it difficult for prices to rise and keeps a governor on how quickly they can rise.

Sellers, after looking at a market analysis of their home or having an appraisal done, in many cases are deciding that now is NOT the time to sell and so they are holding off putting their home on the market.  The combination of fewer distress properties, low appraisal prices, and reticent sellers has resulted in LOW INVENTORY – there simply aren’t enough homes out there for the number of buyers we have.  We’ve even seen bidding wars in many instances – bidding wars!  In this market!

High quality problems, to be sure.

What this means is that it IS a good time to put your home on the market if you have a good agent who can market your home to buyers AND to the buyer’s lender’s appraiser to get you as much as possible for your home.  If you are thinking you’ll wait until the Spring to list and sell your home, it’s still a great time to meet – we can put together a staging plan that you can implement over the holidays. 

The long and short of it is – CALL ME.  Whether listing your home, buying another home, or both; or if you know of anyone who wants to buy or sell.  I’m here to help with all of your real estate needs.

LET’S GO TO COURT – OR NOT…

 

Most new construction contracts contain an ARBITRATION PROVISION.  If you’re buying new construction, you’ll notice it because typically it requires a specific initialling at that particular paragraph.  Our resale contracts in Georgia do not contain such a provision.  So the question is raised – is a good idea or NOT to agree to arbitration in advance?  Here are some thoughts from a recent briefing with the law firm of Epstein Becker Green I attended –

First, what IS arbitration?  Often confused with mediation, which is less formal and not binding, arbitration CAN be legally binding.  This means if you choose binding arbitration you may be stuck with the outcome with no avenue of appeal.  There are only very limited bases for appeal of an arbitration provision; as they stated at the briefing, you would need something akin to having a picture of the other party handing a monetary bribe to the arbitrator in order to have a judicial appeal. 

One party cannot force another to go to arbitration unless it is agreed upon in advance in writing – hence the provision in many new construction contracts.  So, say you’ve entered into an agreement with an enforceable arbitration provision and there is a dispute.  If you file a claim in court, the other party can legitimately ask the court to force you to arbitrate instead.  When you arbitrate, a private company is chosen to provide the arbitrator or arbitrators (typically there is one arbitrator or three – for obvious reasons, an even number of arbitrators would not make sense).  As a party to the arbitration, you will have the opportunity to strike arbitrators for cause.  You then proceed to a hearing.

WHY arbitrate?  Might you WANT an arbitration provision in your contract?  There are several advantages: typically it is less expensive than litigation, because it is faster.  It is also more certain, since there are only limited grounds for appeal.  On the con side, third parties aren’t bound by the arbitration agreement and cannot be forced to appear.  There are no rules of law or evidence in an arbitration proceeding other than those set by the parties or the arbitration company –thus, what often happens is that “if you can get it through the door, you can get it into evidence.” 

As a practical matter, the arbitration provision in many new construction contracts is probably favorable for all concerned.  Filing a lawsuit is expensive.  But most do not add an arbitration provision to the standard Georgia Association of Realtor resale contracts.  Our standard practice in Georgia is to adhere to the form contracts without extensive rewriting of them; rewriting by an agent who is not a lawyer might be considered unauthorized practice of law.  Even if your Realtor IS a lawyer (there are a few of us out there) you will want to carefully consider whether or not adding such a provision makes sense.    Talk to your Realtor about it when you are entering into your agreement – it may or may not make sense for you.  And as always, never hesitate to call the Mary Anne Walser team if we can help in any way!

SURVEYS - WHAT YOU SEE MAY NOT BE WHAT YOU GET

(Image: Residential Lot- 908 Peachtree Battle Circle, Atlanta, GA 30327 - Listed at $125,000)

What’s your line? When a buyer goes to look at a home, sometimes it seems very obvious where the property lines (boundaries) are. But what you see may not be what you get. Property boundaries don’t always coincide with fences nor are they always where you think that they are. In fact, we’ve seen cases where even a large pool was half on a neighbor’s property; no one was aware until a survey was performed.

When we make an offer on a property, we usually ask the Seller for a survey. If the Seller does not have a survey, the usual course to order a survey at closing – but this is not the prudent course. The best thing to do is order a survey long before, so if there are any issues they can be resolved prior to closing or so that the Buyer can terminate if the issues are of great concern and not fixable.

Typically you will want to have an inspection *first* and then if there are no big issues with the inspection, order the survey. Since we often have only a 7 to 10 day inspection period, that may not be long enough for both to conclude.  So insert a stipulation in the contract that says something to this effect: “Seller must provide a survey, if Seller has ever had one done, within 48 hours of binding agreement date. Buyer has the right to order his/her own survey, whether or not Seller provides one. If Buyer’s survey reveals any title, permitting, easement, or encroachment issues Buyer shall provide said survey to Seller within 3 days of receipt and Seller shall have a 5 day opportunity to cure any deficiency. If Seller cannot cure, Buyer shall have the option of terminating this Agreement at no penalty to Buyer.” 

Why the mention of “permitting” issues above?  Well, if a structure or improvement encroaches on a neighbor’s property, it likely means that the structure or improvement was not permitted with applicable governmental authorities, which is another, potentially even bigger issue.  While encroachment issues have a two year statute of limitations, permitting issues do not.  This comes up most often with garages and other structures on the edges of the property.

As with everything you purchase, be sure you know what you are buying!  One important aspect of this is knowing the boundaries of your property through a survey.  And as always, call the Mary Anne Walser team when you or someone you know wants to buy or sell a home!

IN AND OUT OF THE CLOSET

One thing about being a real estate agent – you become very comfortable looking into other people’s closets.  It’s just part of the job.  Closet space is IMPORTANT – we have lots of stuff these days.  The homes built in the 1960s or earlier generally have very very small closets compared to what we’re used to today.   Lots of times, owners have added on closets or expanded closets (one of my relatives even made a small bedroom into a closet).  In any event, closet space, and storage in general, is an important aspect of a home for most buyers.

Now when I go to a friend’s home to socialize I sometimes find myself automatically opening closet doors as I’m getting a tour of the house.  Not cool.  I catch myself right away, and people laugh.  But now I try to remind myself when the house I’m viewing is not on the market to NOT look in the closets unless prompted.  Looking into closets has become an automatic reflex.

When we put my now-husband’s home on the market, in one of the closets we left a piece of artwork that consisted of a stylized hanging skeleton, hoping that buyers would get a kick out of it and feel warmly towards the home.  Okay, it’s a stretch – but the more you can make buyers feelGOOD when they are in your house, the more likely they will buy it!  The house sold, but I have no clue whether or not the skeleton had anything to do with it – I am pretty certain it didn’t hurt, however.

I got the idea for this blog from one of my favorite columnists, Joel Stein, who writes “The Awesome Column” in Time Magazine.  Stein’s article is about “stuff” and “clutter” in general and was based on the book “Life at Home in the Twenty-First Century”, about an 11 year UCLA project studying the homes of 32 Southern California middle class families.  I can’t wait to read it.  If you’re as fascinated as I am about homes, home life, and what people use and keep, I also recommend Bill Bryson’s “At Home: a Short History of Private Life”.  Bryson goes room by room – including the closets – to describe how the modern home got to where it is today.  Happy reading!  Excuse me now, I’ve got to go clean out those closets…..

DO YOU WANT CONTRACTORS OR CASH? - A look at money in lieu of repairs

During the due diligence period, the buyer does an inspection and asks for repairs.  The seller may prefer to give money, and not want to actually do the repairs because (1) they fear that the buyer will not be happy with the repairs and will ask the seller to redo them; (2) they may not have sufficient time to schedule repairs, pack, and move; (3) they simply do not want to have to take the time and effort to have them done. 

The buyer may also prefer that the seller give money in lieu of repairs because (1) the buyer can oversee the repairs and be sure that they are to the buyer’s liking; (2) the buyer may want to do other modifications related to the trade at the same time and the money can simply go towards the larger bill; (3) the buyer may find it worthwhile to postpone the repair and use the money now. 

In the instance where both sides agree to money in lieu of repairs, the buyer has several choices: he/she can reduce the purchase price by the agreed-upon amount, or have that amount added to seller-paid closing costs.  Previously, we could have checks written at closing to third party vendors for the repairs to be performed later, but with the tightened mortgage restrictions that is generally not possible.  Which is preferable –reducing the sales price or increasing the closing costs?  Here are the pros and cons:

• Either way, the buyer brings less cash to closing. 
• The lender typically will limit the amount of closing costs the seller can pay on behalf of the buyer.  For most loans, it’s three percent of the purchase price.  So just be sure that if you’re increasing the closing costs paid by the seller, you’re not running afoul of this limit. 
• If you decrease the purchase price, the purchase price is reflected in the tax records and future buyers will see that you paid less for the place.  The plus side is that the tax commissioner also looks at the purchase price in determining taxable value, so a lower purchase price may result in a lower property tax burden. 

Either way, be sure your lender knows of the change in the contract.  Any changes – particularly those that change the purchase price of the property – must go through underwriting and you want to be sure there is plenty of time before closing to take that step.

Atlanta Metro TSPLOST SPLASH

Tomorrow, please go to the polls and vote!  I am hopeful that you will vote FOR TSPLOST.  In a nutshell, TSPLOST would increase our sales tax to 9 cents in order to fund a laundry list of projects – some make sense, some might not – but all of which are designed to help alleviate our increasingly difficult traffic problems.  The project list is lengthy and encompasses all ten counties which are voting on the TSPLOST but particularly benefit those of us who live intown.  The AJC ran a detailed list of the projects in the paper yesterday – and the list is also available online.

TSPLOST may well NOT pass – no one likes a tax increase, and some in areas outside the immediate Atlanta area feel as if they will not be getting enough from the tax.  The Marietta Daily Journal ran a headline: “Cobb County Not Getting Much Bang for the Buck [with TSPLOST].”   But helping intown Atlanta also benefits those who live farther out, in that all of the Atlanta metro area is losing business and relocations because of our difficult traffic – anything and everything that helps alleviate traffic helps Atlanta AND the areas surrounding Atlanta.

Why vote on it NOW?  The political negotiation process in the Legislature that resulted in the list was a lengthy, involved process (no surprise).  We need solutions, and even though these solutions may be imperfect, they are before us now.  If rejected, and the process has to begin anew – who knows how long that could take, or even if the outcome would be very much – if at all – different?

Defects, Due Diligence, and the Deal Killer

Once you are under contract to purchase a home in Georgia, you enter the due diligence period, during which you, as a buyer, does all relevant inspections and investigations and ultimately decide whether or not you would like to proceed with the sale.  This is very buyer-friendly, since during this period the seller is bound to the buyer and cannot enter into other contracts for the sale of the home (except as back ups)– but the buyer is free to terminate the contract with no penalty.

This due diligence period is relatively new in Georgia.  We used to have “inspection periods” instead.  In the former version of our purchase and sale agreement (with the inspection period rather than the due diligence period), it was tougher for a buyer to get out of a contract once she or he had entered into one - to terminate the contract, the buyer had to find a defect in the property through the inspection, ask the seller to fix it – AND the seller would have to refuse to fix it for the buyer to get out of the contract.  If the seller agreed to fix all defects, the buyer was bound and would be liable for breach of contract if they failed to proceed.

If as a buyer during this inspection period you decided you wanted OUT of a contract, one tactic was to call in a REALLY tough inspector – like the one known as the “Deal Killer” - and come up with something you knew the seller could not or would not fix.  The Georgia Association of Realtors Forms Committee decided the inspection period created a perverse incentive in that respect.  There was too much litigation over what is or is not a “defect”.   

So they changed our contracts to conform with those of a majority of other states – and now in Georgia we no longer have the inspection period.  Instead we have the due diligence period or the “FREE LOOK” provision.  During the due diligence period, which it typically anywhere from 7 to 14 days, the buyer can terminate the contract for any reason or no reason at all.  They do not have to have found something during the inspection not to their liking, and they do not have to give the seller the opportunity to fix any defects.  They can simply notify the seller that they have decided to terminate.

Thus, it is in the seller’s best interest to keep the due diligence period as short as possible.  That way, if the buyer does terminate, the property can go back on the market quickly and hopefully with little ill effect.  There is always some ill effect when a buyer terminates, however – the next buyer will wonder WHY the first terminated.  Sometimes there is just no good reason.  But the subsequent buyer will be more suspicious, and will devalue the property accordingly.

For the buyer, of course, a longer due diligence period is preferable.   There is really no risk for the buyer.  This creates a different sort of perverse incentive – some buyers will get a property under contract before they have really decided if they want the place or, perhaps, before they have even seen it. This is a particular problem in foreclosure sales, where there are often multiple bids.  A buyer looking for a bargain may make multiple bids on several foreclosure properties, but not even visit those properties until they win a bid. 

To end due diligence, typically the parties will enter into an “Amendment to Address Concerns” – in which the seller agrees to fix or give monetary compensation for repairs needed to the property.