Moses Kagan on Real Estate

From the Offer through Removing Contingencies

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The advent of services like Redfin and Zillow have made everyone into a real estate genius. You can see what’s for sale, what’s sold, the comps, everything. Don’t let that make you think you know what you’re doing. You don’t. Buying real estate is really complicated. To get that wonderful property you see on Redfin, you will go through multiple rounds of negotiation, review and sign 25+ pages of legal contracts and disclosures, supervise various inspectors and brokers, and finally make a go-no-go decision regarding what is almost definitely the largest financial transaction of your life up to this point.

This post is designed to give you a peak into the process of going from seeing something online through removing contingencies, which is when you make the final commitment to go through with the deal. Remember: This process is no joke. Mistakes can cost you tens of thousands of dollars. If you’re confused about anything, consult a lawyer. That said, here’s a short guide to how the process works:

Step 1: The Offer

The buying process starts when you make an offer to buy at a specific price, on specific terms. In California, we usually use the Residential Purchase Agreement (for a single-family home) or Residential Income Property Purchase Agreement (for an apartment building), which are standard forms published by the California Association of Realtors (C.A.R.). The idea is to standardize on terms that are relatively fair to both sides. This allows most people to avoid paying real estate lawyers for simple buy-sell deals. Your broker will help you fill out the form with the key terms, which are:

  • The price
  • The good faith deposit (usually 3% of the price)
  • How the rest of the price will be financed (cash, first loan, second loan, etc.)
  • What is to be included in the purchase
  • Who pays for various reports and repairs
  • How long the buyer will have for due diligence during the contingency period
  • How long it will take to close the deal

Remember the seller has all the power at this stage. She can accept your offer and/or someone else’s, counter-offer you and others, or decline all offers. Because you don’t control the process yet, it’s best not to invest too much time, money or emotion at this stage.

Technically, the C.A.R. offers expire three days after submission (unless you have specified something else). But you should understand that sellers sometimes take a bit longer to make up their minds. Unless you’ve made a killer offer, you don’t have any leverage yet, so it’s best not to try to force the issue. If the seller wants to accept your offer after three days, it’s easy to reactivate it without re-writing the whole thing.

Step 2: Counter-offers

Unless you offered the list price, it’s very likely that the seller will counter-offer you and/ or other potential buyers. Technically, a counter-offer is a rejection of your offer coupled with an offer by the seller to sell on specific terms. Once the seller counters, she can’t then go back and accept your original offer; that has now been rejected.

The structure of a counter-offer in CA is “by exception”. What this means is that the counter “accepts all of the terms in the initial offer, with the exception of…” and then lists the exceptions. So Counter 1 might say, for example: “We accept your terms, except we want $50k more and we want you to close 15 days sooner.” For this reason, counter-offers are generally no more than one page in length.

If the seller’s terms aren’t acceptable, your broker will help you draft Counter 2. Just as for Counter 1, Counter 2 is a rejection of the preceeding offer along with an offer to close on revised terms. Counter 2 is also “by exception” and includes all of the terms in the original agreement, the terms from Counter 1 you are accepting, plus the new terms you are offering. To continue the example above, Counter 2 might say: “We agree to everything in the original offer plus your desire to close 15 days sooner, but we’ll only pay $10k more.” The seller then has the ability to accept Counter 2 as is, reject it, or respond with Counter 3.

A word about counter-offers: Remember that until you have an agreement, the seller still has all the power. She is free to sell to someone else or decide not to sell. If the seller at any point offer terms that you consider acceptable, I strongly urge you to accept. You’re not committing to anything (as we’ll see in a second) and trying to over-optimize the terms in your favor can lead to nasty surprises. I once lost a deal I would have made $200,000 or so on because I thought the seller was desperate. I chose to counter a fair counter from the seller. He turned around, called his friend and offered him the same deal I had stupidly rejected. The friend accepted and I lost the deal. I curse my greed every time I drive by that 30 unit building on Santa Ynez in Echo Park. Argghhh.

Step 3: Agreement and Opening Escrow

At some point, there will hopefully be a “meeting of the minds” between you and the seller. This happens when one side or the other makes an offer or counter which the other accepts. At that point, the seller’s agent will take the contract over to an escrow company and open escrow. Escrow is a neutral third party whose job it is to make sure the transaction is carried out according to the terms of the sale contract. You will transmit a good faith deposit to escrow (the amount will have been agreed in the contract, usually 3% of purchase price or less). Escrow will send you and the seller “Escrow Instructions”, which re-state the terms of the contract and remove any ambiguity about how you are going to proceed. Both you and the seller will sign the escrow instructions.

A word about your deposit: Your broker will tell you that your deposit is safe and that you’ll get it back if you decide not to go forward with the deal. The truth is that an unscrupulous seller can tie your money up in escrow. They can’t get it themselves, but they can make you fight to get it out. This has happened to me before and it really sucks. Make sure you can live without that money, just in case you run across a jerky seller.

Step 4: The Contingency Period

After you open escrow, two things happen: 1. You apply for any loans you’ll need, and 2. You investigate the property.

During this “contingency period”, power flows from the seller to you. The seller is obligated to sell you the property on the agreed terms. If she doesn’t, you can sue and she will have to sell you the property and pay your legal fees. You, on the other hand, have the right to back out if the property is not what you thought it was. This is why it’s called the “contingency period” – the deal is contingent on you finding the property acceptable.

The length of the contingency period will be specified in the contract. Generally speaking, it will be 10-14 days, though it can be longer or shorter. My advice is not to let it be any shorter than 7 days, unless you’re very, very confident you know what you’re doing.

During the contingency period, it’s up to you and your broker to research the property. You want to bring in professional inspectors, check all the sellers books and records, check with the city, review the title report, and generally confirm that you’re happy with the property. This is one of those times you want a really experienced broker, particularly for apartment building purchases. There are all kinds of hidden issues that can come back to bite you if you don’t discover and plan for them during the contingency period.

You’re now in a great position to negotiate with the seller. Say you find something wrong with the property. You can request a “repair credit” for the estimated value of fixing the problem. Maybe the foundation has some issues. Go back and tell the seller: “Give me a repair credit so that I can pay someone to fix this, or I’m walking.” The seller, wanting to close the deal, will likely respond favorably to reasonable requests for repair credit, since she’ll figure that, if she tells you to take a hike, some other buyer will raise the same issues. Negotiating the repair credit works the same way as the offer/counter offer procedure.

Step 5: Removing Contingencies

Eventually, you will either reach an agreement with the seller about repair credits or not. If not, you will have two choices: Buy the property at the price detailed in the contract, or walk away. If you haven’t made up your mind at the end of the contingency period, the seller will issue you a “notice to perform”, giving you a specified period (usually 24 or 48 hours) to fish-or-cut-bait. If you decide to walk, you and the seller will sign cancellation instructions, escrow will return your deposit less any fees charged (usually 0.5% split between you and the seller), and you can go on to the next property.

If you decide to move forward, you will sign a “Removal of Contingencies”. This says, in effect, I have satisfied myself as to the condition of the property and I intend to buy it. Once you remove contingencies, that’s it… if you don’t buy, you’re generally going to lose your escrow cash.

One final note about negotiating during the contingency period: Some people think this is an opportunity to try to re-negotiate by finding all kinds of tiny problems with the property and then demanding the seller reduce the price. My advice is not to do this. If there’s something majorly wrong, ask the seller to fix it. But don’t be a jerk.


Written by mjkagan

09/26/2011 at 1:47 am

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