KCRAR 2021 Resale Contracts - Instructor - RENEE RYAN, CRS, CSP, CRB - Kansas City Regional ...
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2021 Resale Contracts, Timelines, Loopholes, and Common Issues This is not a “how to fill out the form” but what the forms are intended to cover, changes and things to watch out for to keep your clients under contract with no loss. 2
I AM A FORMS JUNKIE BUT NOT AN ATTORNEY! I am here to assist with “Implied Terms of the Contract”. YOUR BROKER IS YOUR SUPERVISOR! KCRAR Forms Committee - ATTORNEYS, INSURANCE, LENDERS, TITLE AND INSPECTORS WERE ALL CONSULTED The committee meets monthly! 3
2021 FORMS CHANGES Copyright date on all residential forms have been updated to “2021”. Additional Disclosures Including Those Mandated by State or Federal Law Paragraph 3; updated the URL for the Kansas Offender search. Reformatted from 3 pages to 2 pages. Buyer’s Estimated Expense Worksheet Removed “AT CLOSING” at the end of line 44 to eliminate confusion. Contingency for the Sale and Closing Addendum This form has been significantly revised and is essentially a new form. Please review the form in its entirety.
2021 FORMS CHANGES Counter Offer Addendum Paragraph 1; removed the list of preprinted addenda and added instructional text with check boxes and blanks to add addenda or remove addenda in the Counter Offer. Paragraph 2; in the Earnest Money section, added a checkbox for Electronic Funds Transfer and reformatted this section. The same changes were repeated in the Additional Earnest Money section immediately below. Exclusive Agency Listing Agreement Line 2, added “Indicate Marital Status” for Seller and reformatted blanks in the first 9 lines of the form. Paragraph 2g, removed “by a smart phone or computer” from the statement where Seller is to provide codes and passwords for all electronic systems or components.
2021 FORMS CHANGES Exclusive Agency Listing Agreement Line 2, added “Indicate Marital Status” for Seller and reformatted blanks in the first 9 lines of the form. Paragraph 2g, removed “by a smart phone or computer” from the statement where Seller is to provide codes and passwords for all electronic systems or components. Exclusive Buyer Agency Contract After “BUYER” at top of the form added “Indicate Marital Status”. Paragraph 6; updated the URL for the Kansas Offender search. Minor capitalization, spacing and punctuation changes made in various areas of the form. Exclusive Right to Sell Contract Line 2, added “Indicate Marital Status” for Seller and reformatted blanks in the first 9 lines of the form. Paragraph 2h, removed “by a smart phone or computer” from the statement where Seller is to provide codes and passwords for all electronic systems or components.
Exclusive Right to Sell – Transaction Broker Line 2, added “Indicate Marital Status” for Seller and reformatted blanks in the first 9 lines of the form. Paragraph 2h, removed “by a smart phone or computer” from the statement where Seller is to provide codes and passwords for all electronic systems or components. Kick-Out Notice/Notice of Backup Contract This form had significant changes and reworked to be compatible with the updated Contingency for Sale and/or Closing Addendum. 2021 FORMS Kick-Out Notice Response CHANGES This form had significant changes and reworked to be compatible with the updated Contingency for Sale and/or Closing Addendum. Non-Exclusive Buyer Agency Contract After “BUYER” at top of the form on line 2, added “Indicate Marital Status” Paragraph 6, “home” and “homes” replaced with “property” and “properties” Minor capitalization, spacing and punctuation changes made in various areas of the form.
Private Office Exclusive Listing Contract Line 2, added “Indicate Marital Status” for Seller and reformatted blanks in the first 9 lines of the form. Paragraph 2f, removed “by a smart phone or computer” from the statement where Seller is to provide codes and passwords for all 2021 FORMS electronic systems or components. CHANGES Real Estate Contract - Land Paragraph 6; in the Earnest Money section, added a checkbox for Electronic Funds Transfer and reformatted this section. The same changes were repeated in the Additional Earnest Money section immediately below.
Real Estate Sale Contract - Residential Paragraph 1; In the list of preprinted items, reworded “Attached and all bathroom mirrors” be to “Bathroom vanity mirrors, attached or hung” and reordered the items on the preprinted list. Paragraph 1a, removed “by a smart phone or computer” from the statement where Seller is to provide codes and passwords for all electronic systems or components upon closing. Paragraph 4; in the Earnest Money section, added a checkbox for Electronic Funds Transfer and reformatted this 2021 FORMS section. The same changes were repeated in the Additional Earnest Money section immediately below. CHANGES Paragraph 8d; removed the “/” in the blank so now the blank is one long field for either one lender name or two, if a second mortgage involved. Inspections Paragraph 13-line 467; inserted the following text: “If the Property is governed by a homeowner’s Association, it is recommended that BUYER determine the HOA funds on hand for expenditures and funds allotted for specific projects.” Line 860; changed field label “Selling Licensee’s Phone #” to “Selling Licensee’s Contact #”
Real Estate Sale Contract – New Homes Paragraph 14; added the following text: “For Missouri properties only: Under Missouri law, in the event BUYER is offered and accepts in this Contract an express warranty by SELLER or through a third party warranty company paid for by SELLER, BUYER understands: THIS CONTRACT, MERCHANDISE AND PROPERTY CONVEYED UNDER THIS CONTRACT AND THE TRANSACTION BETWEEN THE SELLER AND BUYER IS EXCLUDED FROM COVERAGE UNDER THE MERCHANDISING PRACTICES ACT, SECTIONS 407.010 TO 407.130, REVISED STATUTES OF MISSOURI.” 2021 FORMS Paragraph 16; in the Earnest Money section, added a checkbox for Electronic Funds Transfer and reformatted this CHANGES section. The same changes were repeated in the Additional Earnest Money section immediately below. Paragraph 20, After the checkbox for Cash Sale replaced the text to match that of the Residential Sale Contract: “BUYER must provide written verification of funds within ____ calendar days (five (5) days if left blank), after the Effective Date, which are sufficient to complete the Closing on this Contract.” Paragraph 20d; removed the “/” in the blank so now the blank is one long field for either one lender name or two, if a second mortgage involved.
Seller’s Disclosure Addendum – Residential On line 1 after “SELLER” added “(Indicate Marital Status)” Paragraph 8; added new question with yes and no checkboxes: “Any problems with windows or exterior doors? Paragraph 8h; added a “NA” checkbox. Paragraph 10e; added “Number of Tanks” with a blank after Septic System option. Seller's Disclosure Paragraph 19; statement refers to the Residential Real Estate Sale Contract Paragraph 1a and 1b. In 2020 a new paragraph 1a was added to the Contract, so the 2021 FORMS reference in the Seller's Disclosure was revised to the Contract Paragraphs 1b and 1c. CHANGES Paragraph 19; In the list of preprinted items, reworded “Attached and all bathroom mirrors” to be “Bathroom vanity mirrors, attached or hung” and reordered the items on the preprinted list. Paragraph 19; In Fireplace section added a blank line after each of the two “Other”. Paragraph 19; Added words “Swing set” in front of Playset Paragraph 19; Added “Boat Dock” along with a space for dock ID Number. Paragraph 19; Added “Camera-Surveillance Equipment” and “Generator” to list
Seller’s Disclosure Addendum for Condos On line 1 after “SELLER” added “(Indicate Marital Status)” Paragraph 7; Added new question with yes and no checkboxes: “Any problems with windows or exterior doors? Paragraph 8h; added a “NA” checkbox. Paragraph 19; In the list of preprinted items, reworded “Attached and all bathroom mirrors” be to “Bathroom vanity mirrors, attached or hung” and reordered the items on the 2021 FORMS preprinted list. CHANGES Paragraph 19-line 313; changed “(except h)” to “(except i)”. Seller's Disclosure Paragraph 22: Statement refers to the Residential Real Estate Sale Contract Paragraph 1a and 1b. However, in 2020 a new Paragraph 1a was added to the Contract, so the reference in the Seller's Disclosure revised to Contract Paragraphs 1b and 1c. Line 417; changed “salespeople” to “Licensees”. Minor capitalization, spacing and punctuation changes made in various areas of the form.
Seller’s Disclosure Addendum for Land On line 1 after “SELLER” added “(Indicate Marital Status)” Minor capitalization, spacing and punctuation changes made in various 2021 FORMS areas of the form. CHANGES Seller’s Estimated Proceeds Worksheet Line 36; Removed “his” where it is used twice in this sentence.
Review and Explain the Contract “This is what you are offering, but just so you can understand the possible Counter Offer if or when it comes in, here is why”. • Be knowledgeable • Set Expectations • Be ready to explain concerns • Reduce Fear 19
Contract is a Timeline Give your client a visual approach
If you do not have a signed Listing Agreement STARTING with a Seller, can you market or try to sell their home? WITH NO It’s the same with Buyers. AGENCY You are NOT THEIR AGENT unless you have a SIGNED AGENCY AGREEMENT.
EXPLAIN AGENCY from the beginning!
AGENCY DISCLOSURE • NOW IN WRITING ABOVE AGENCY BOX: BOTH SIDES MUST BE FILLED IN PRIOR TO ANY SIGNATURES AT THE BOTTOM. • You can get the Seller’s Agency in MLS. • If you are ASSISTING an UNREPRESENTED Customer, then the Agent must sign BOTH SIDES. • Assisting does not imply Agency! (like on the Lead Paint Disclosure) • You may have more than one box checked-each side! • If you are the only Agent in the Transaction, YOUR AGENCY MUST BE THE SAME ON BOTH SIDES. • Commission box at bottom, only fill in if your side has it! 24
HUNT AND GATHER Prior to going under contract, gather as much information as possible! Review Sellers Disclosure with Buyers for what might be a FLAG to not getting: • Insurance • Passing Inspections • Loan Approval/Work Requirements Did you explain TILA/RESPA? TRID STANDS FOR TILA-RESPA Integrated Disclosure Rule (replaced the HUD-1)
NAR RECOMMENDS PLANNING FOR 45-60 DAY CLOSINGS Things to look at before deciding number of days to Closing: • how many days for inspections, • days to renegotiate, • loan commitment (45 days from Effective Date or 5 Days prior to closing is default) • a “First Right of Refusal” to serve to neighbors, to figure for how many days inspections, etc., to be estimated? • Is this a Short Sale?
JUST SAY “NO” TO • If end of month closing is delayed, the Seller END OF may have the expense of another full month’s interest if FHA payoff. MONTH CLOSINGS! • Title companies and loan companies can’t Why? always adjust if delayed! 28
INSPECTIONS When planning the amount of time for Inspections on the Contract: • Did Buyers check to see if Inspector could get in at that time? IE is it a Holiday? • Could all Inspections be completed? • Are all of Sellers items clear for Visual & Physical Access to Inspections?
EARNEST MONEY • How soon will you be able to deliver the Earnest Money Check? • Were enough days written in for Delivery on Contract, if not Defaulted at 3 Days? • Do you have a copy of the Contract to Deliver it with Check, if needed?
• If you don’t receive earnest money, do you have a contract? WHAT IF NO • YES! They would just be in default. Contract EARNEST terms say Seller CAN Cancel if not received. MONEY IS DELIVERED? • But if they don’t get E.M.to you, the REALTOR could be in violation of MREC/KREC rules. Keep a paper trail that you tried to get it. 31
EARNEST MONEY ON SHORT SALES Are you going to collect Earnest Money on the Contract? Don’t write in EM if you don’t want to deposit it by the Real Estate Commission guidelines. Add it to Additional Terms and Conditions to be collected after the written approval by lender. The Short Sale Addendum does not imply the EM gets deposited after written approval of Seller’s Lender, only Buyer can delay Inspections and Appraisals. It can be written in to be collected later, after written approval. REMEMBER CONTRACT IS BETWEEN SELLER AND BUYER, NOT LENDER.
• Remember the term, “It takes only one to buy, but two to sell”? That is still true! Even if spouse is not on title! They must be on Contract/Agency! CHECK • Pre-Nups are not recognized in Deed transfers. SELLER • Never assume Marital or Corporate, LLC MARITAL status or who signs! STATUS • JUST NOT SURE? • Ask your closer who must sign the deed. • Make sure the contract matches the deed. 33
• Once the FINAL SIGNATURES OR INITIALS ARE COMPLETED, your contract will be considered effective! • This effective date starts the UNDER timeline racing! CONTRACT • 10 days for inspections and 5 days for an offer to renegotiate. Should it happen? • Do you need a shorter number of days if closing in fewer than 45- 60 days?
SETTING EXPECTATIONS Sellers must disclose KNOWN material defects! This includes house flippers too! • At the time of Contract, Seller confirms information in the Seller’s Disclosure is current as of the Effective Date. • Seller understands that the law requires disclosure of any material defects, known to Seller(s) in the property to prospective Buyer(s) and that failure to do so may result in civil liability for damages.
EXPLAIN IMPORTANCE OF DOING INSPECTIONS & TIME NEEDED TO DO THEM • Everyone needs to do an inspection because you don’t know what you are buying otherwise! Once you close, It’s yours! • YOUR LENDER OR WARRANTY WILL NOT COVER PRE-EXISTING CONDITIONS! • Set the expectation to Seller of time it takes for a whole house inspection(s).
No “Lemon Law” or Right of Refusal after closing on purchases! • GET THEM TO SIGN ADDITIONAL DISCLOSURE, IF POSSIBLE, IF BUYERS DON’T WANT TO DO THEM. • Check out Seller’s Disclosure to look for things that may delay start time on Contract too! • Use TIMELINE!
REVIEW DISCLOSURE BEFORE SUBMITTING OFFERS WITH CLIENTS • Insurance Companies can look for reasons to deny coverage on homes. • Look for red flags prior to submitting offers! • May save inspection & appraisal costs • HERE ARE A FEW…
ISSUES / RED FLAGS • 3 layers of shingles ON ROOF • Comp over shingles ON ROOF • NO 20+ YEAR OLD ROOFS (unless proof of high value) • No tree limbs on roofs • No large cracks on driveways or walkways • Asbestos siding
ISSUES / RED FLAGS • FURNACES - if 20+ years old, must show regular maintenance records & it’s “thermostatically controlled” • Pellet stoves CANNOT be only heat source & need specific installation rules • ELECTRIC - must have a 100 amp minimum service and NO KNOB TUBE wiring
ISSUES / RED FLAGS • Disclose previous claims or non- disclosure could be fraud, especially if payout and no work done! (Previous fire) • FLOOD AREAS - call the lender to check FEMA flood maps • Dogs-check city lists, many don’t want pit bulls, and I heard of one that said if it was less than 50% they would be ok, so agent paid for dna test ($350) and it worked! Dog was 48% pit bull and sold them the home!
RECOMMEND GETTING INSURANCE DURING INSPECTION PERIOD • Just remember to check with the Insurance Company QUICKLY about insurability. • Insurability is not guaranteed, depending on many factors and change all the time. • 2 of 12 Underwriters had much higher rates if Driving Record is bad!
VERBAL OFFERS • Are they legal? • Are they enforceable? • Can text messages & email hold up as contract acceptance? • WHO WILL LOSE? GAIN? • Just DON’T DO IT! 44
Set the expectation about the buying process. Federal regulations make people much more liable for giving someone a loan! And it takes NOW, Talk to LONGER! them about the Lending Things NOT to do? Process Google “3 Sheets Terry Watson” or email request to me at reneer@reecenichols.com 45
• If TODAY is Effective Date, HOW TO • then TOMORROW IS FIRST DAY COUNT DAYS IN CONTRACT • The Seller does NOT have to give more time! • PLAN IN ADVANCE for Buyers Inspection Needs. 46
DOES OFFER REQUIRE SELLER TO DO REPAIRS? The Seller does not have to do repairs! With the exception of Termite Treatment, all Contracts are AS IS with NO REQUIREMENTS to repair unless otherwise negotiated. 47
Wood Destroying Insects • THE SELLER AGREES TO PAY TO HAVE THE PROPERTY TREATED for control of infestation by wood destroying insects if a written inspection report of a certified pest control firm reveals evidence of ACTIVE INFESTATION or PAST UNTREATED INFESTATION or otherwise recommends treatment. • This includes main dwelling unit, additional structures if added to the contract, and a 30 foot radius or otherwise required by the FHA/VA lender.
AUDIT ISSUES OR FLIP CAUSES… • Fill out the information in all blank areas, including coop agent information. • Earnest Money must be delivered within (3) days if left blank, or Seller can Cancel! • Allow time for delivery! • Get the check to Escrow STARTING WITH EFFECTIVE DATE (not the date check was delivered) WITH COPY OF CONTRACT! DELIVERY TIME DOES NOT SUBTRACT DEPOSIT REQUIREMENT!
1. Expiration date is adequate time for all signatures or counter. YOU CANNOT ENFORCE AN EXPIRED CONTRACT. 2. Deliver earnest money check by date on contract. CHECKLIST 3. Verify title/marital status of sellers. 4. Agency/brokerage relationships disclosure - FOR correctly filled in prior to signatures - all parties have signed/dated. SUBMITTING 5. Initials/dates/signatures provided on lead paint OFFER disclosure, if applicable. 6. Initials provided on all pages to the contract. 7. Verify type of financing and if written loan commitment requirements can be met. 8. Sellers disclosure completed, initialed, & signed by all parties. Remove from contract if no disclosure.
LEAD PAINT DISCLOSURE-EPA FORM • Top section – Seller initials - Do they or don’t they know about Lead Paint or have reports? • Buyer section - Buyer initials - Did they have reports? Did they get the form? Are they doing an inspection? • Back page - ALL SIGNATURES, INCLUDING AGENTS! If you are selling both sides, sign both sides! Assisting does not imply agency!
Attached Items listed on Contract in Seller’s Disclosure SET THE EXPECTATION! Seller must leave attached items unless otherwise excluded (i.e. bathroom mirrors, light fixtures, window blinds, treatments, mounting components, mounted TV brackets). If they want to keep items, exclude/remove them before marketing! 52
THIS SUPERSEDES SELLER’S DISCLOSURE 53
• If you ask for Personal Property Don’t items, it may not be allowed by Hide your Lender. Do not “hide” these items by taking them off the Inclusions Contract and putting them on a “side” agreement on a Personal from Property Addendum. Lender! • This is perceived as FRAUD. 54
• If Seller wants compensation for items of value… • Buyer and Seller can sign a Personal Property Agreement or HOW TO Bill of Sale. Buyer will pay Seller separately for items and a “real HANDLE IT value”, like in a garage sale. • NOTE: $10 for a $1500 lawnmower may mean that buyer can only get $10 in damages if Seller doesn’t follow through.
Great Liability Reducer! Limited Home Warranties
CLOSING & POSSESSION • Closing & Possession Dates should not be moved around unless in writing, even if it says “on or before” in the contract. • Seller must maintain the property, remove all possessions & debris, and clean the property upon giving possession. 57
APPRAISAL VALUE CONTINGENCY • Just because a Seller agrees to reduce price to appraisal value, it doesn’t mean it’s done!
LOAN APPLICATIONS • You don’t have to be approved to submit an offer but it helps! • If you lease/purchase you may not be able to until later.
LOAN APPROVAL-WATCH OUT
LOAN APPRAISAL REQUIREMENTS •If you don’t have cost added in and you see repairs may be required to get the loan, your deal can flip!
UTILITIES AND MAINTENANCE • Be sure to confirm in writing of the exchange on utility dates! 62
PREVIOUS INSPECTION DISCLOSURES • If the Contract flips due to Inspections, the Seller must now DISCLOSE and SHOULD ATTACH the inspections to the Seller’s Disclosure. 63
RENEGOTIATE AFTER INSPECTIONS • 10 Days from Effective Date to send an Inspection Notice, copy of Reports and “Offer to Renegotiate”, if left blank. • If closing in less than 45 days, shorten Renegotiation time if left blank • If you DO NOT send this document on time, the Buyer is acknowledging they are purchasing the home with no repairs. • “Cover your Assets” by having them use Inspection Notice!
INSPECTION NOTICE-DELIVER REPORTS AND RESOLUTION OF UNACCEPTABLES Unless property is accepted in its present condition, applicable written inspection reports must accompany this notice! The next 3 paragraphs: • Box 1- Accept it As Is (with or without inspections) CYA • Box 2- Cancellation of Contract by Buyer PRIOR to Expiration of Inspection Period. Must attach all reports as well as a Cancellation. • Box 3- Offer to Renegotiate; Must be done prior to end of Inspection Period; Must attach all reports as well as Resolution of Unacceptable. This stops the Inspection Period and starts the Renegotiation Period. 65
RENEGOTIATION PERIOD • 5 Day default time allowing Seller and Buyer to decide what, if anything, gets done on Inspection Repairs. • ON THE 6TH DAY, EITHER PARTY CAN CANCEL THE CONTRACT!
RESOLUTION OF UNACCEPTABLE CONDITIONS ADDENDUM • It ends up here, either by repairs and/or by changes in price and/or credits, as permitted by lender. • Seller must provide proof of repairs if not being paid out of closing. • Buyer may inspect work prior to closing. • If Buyer does not receive response from Seller within the Renegotiation period, Buyer has the right to send over a new section signed PRIOR TO THE END OF THE RESOLUTION accepting the Property in its Current Condition. • The Seller does not have to sign for it to be Effective. 67
PASSING THE RENEGOTIATION PERIOD TIME • There is a cancellation risk with no possibility of remedy BY PASSING THIS TIME. • It doesn’t mean it has to cancel! Ask for an extension of the five days if you think the other party is really negotiating. 68
Inspections, Access, Damage & Quality of Repairs • Just because the Buyer is under contract, it does not give them the right to keep asking for access. • “Seller must provide Buyer REASONABLE ACCESS to the Property to Conduct the Inspections, re-inspections, inspection of any corrective measures completed by seller and or final walk through prior to the Closing Date”. • Buyer is responsible for repairs of damage resulting from inspections – Hire insured Inspectors! 69
CHECK OUT TAX ASSESSMENTS NOW! Seller Proceeds or Buyer Qualifying may be high
SIGNATURE SECTION • You will have the same area for signatures but notice checkbox if seller is counter offering. • Fill in spaces for the brokerage,address, agent phone, office number and email. • Be aware of details! • Real estate commissions audit for blanks! 71
Filled out by the licensee preparing the form! FORM CERTIFICATION States you are using the form without changing it from the legally accepted copy, other than handwritten or computer- generated changes.
• Last paragraph can be provided by Licensee Assisting the Seller, proving that the Offer was Presented and Refused by the Seller. The Seller MAY sign, but does REFUSAL OF not have to. OFFER • The Licensee MUST sign and return if requested by Licensee assisting the Buyer. • If it was revealed that the agent signed this without presenting the offer, there could be serious implications to their license!
CONTRACT COMPLIANCE Importance of processing Canceled files All files are required to be processed as if they will close. All of the required documentation needs to be accessible when the file is turned in. This includes Contract, Right to Sell, Buyer Agency, Business Disclosures, and all other documents relative to the transaction.
• This Amendment form is for use in changing the terms of an EXISTING CONTRACT. • IT IS NOT INTENDED FOR USE AS PART OF AN OFFER AMENDMENT OR COUNTER OFFER DURING NEGOTIATIONS”. • To help you out, the U.S. Constitution came first, and then when they went to change it, they had to AMEND.
“This ADDENDUM is an ATTACHMENT to an Offer, Counter Offer or Changes & Modifications DURING NEGOTIATIONS. IT IS NOT INTENDED FOR USE AS AN ADDENDUM AMENDMENT TO AN EXISTING CONTRACT.” “ADDendum” is when you run out of space and need to ADD terms to something you are negotiating. 76
IN ITS PRESENT CONDITION ADDENDUM • Termite treatment by Seller is required if option 1 is selected. • Language was added to option 2 clarifying that BUYER is waiving the right to renegotiate pursuant to inspection provisions of the contract. • No termite treatment by Seller is required if options 2 or 3 are selected.
CANCELLATION AND MUTUAL RELEASE AGREEMENT
MANY MORE… • Occupancy Prior To Or After Closing Addendums • Contingency Sale/Closing Buyers Prop. • Septic Tank Addendum • Pet Addendum • Real Estate Rental Listing Agreement • Land/Condo/Residential Sellers Disclosures • Short Fall/Short Sale Addendum
THANK YOU FOR ATTENDING! Knowledge is Power!
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