Creative financing can lead to creative trouble

by Dan Krell

Several weeks ago, my client encountered The Amazing Criswell of real estate. Without knowing anything about my client’s home, this real estate agent professed to know how many homes are for sale in his neighborhood, the price the home would sell for, and time it would remain on the market. Much to my client’s dismay, the agent expressed an interest to discuss a proposal to sell his home quickly and for more than the list price. Needless to say, my client did not call him.

There is always someone pushing their angle on how to sell your home faster, make more money, or buy with no money. Some of these “real estate solutions” could even be called schemes; many schemes are not practical, some are outrageous, and some are blatantly illegal. Presently, the temptation to think outside the box tends to be more prevalent since financing guidelines are more restrictive, and for many it means needing more cash for a higher down payment, closing costs, or reserves.

Aside from creative financing options that offer seller financing, land installment contracts, or leases with the option to purchase, there are schemes that provide creative gifts of money to the home buyer so they can qualify for their loan. One of the more blatantly illegal schemes involves a “gift” from the home seller to the home buyer while increasing the sale price to exceed the listing price; the gift is not disclosed to the lender as well as exchanged outside of settlement. This scheme essentially creates a 100% financing loan from a loan that technically requires some form of down payment.

A graduate student who researched this type of transaction for his Ph.D. in finance (as reported in the New York Times “The Cash-Back Mortgage,” June 10, 2007) found that the “cash back” scheme is more prevalent than previously thought. He found that people advertised such deals through advertising and through key words in the MLS (the study revealed 150 keywords were used).

Additional findings suggested that this type of transaction would occur when homes were on the market for long periods of time, yet sold above the original list price. Furthermore, these types of transactions tend be executed by the same real estate agents (who are either the seller and/or they are the only agent in the transaction). Ironically, most of these deals were perpetrated through loans packaged in bundles and sold on Wall Street.

A subtler form of this cash back scheme occurs when the seller provides closing help to the buyer, but raises the sale price beyond the list price to make up the difference. Although the closing help is disclosed to the lender and recorded on the settlement sheet, this transaction could be illegal. Federal law (18 U.S.C. 1014) forbids providing false statements and/or willfully overvaluing land to influence a lender’s behavior in providing a loan. In fact, a New Jersey State Judiciary committee stated that an attorney knowingly participating in such a transaction is ethical misconduct.

In today’s market, it is tempting to look for creative methods to sell or buy a home. However, before you agree to any creative financing proposal, consult with an attorney to determine its validity and legality.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of March 17, 2008. Copyright © 2008 Dan Krell.

Appraising the Mortgage Crisis

by Dan Krell

Although the mortgage meltdown and crisis is not new news, new information continues to shed light on what led to the mortgage meltdown. In addition to the scandals and fraud allegations at many levels, many are still unaware of the impact of appraisal practices on present market conditions.

Stories of appraisers being coerced into inflating values or providing favorable appraisals are not news. However, as Justice Department probes expand beyond subprime lenders to some of the country’s largest lenders, we may hear more about how underwriting and appraisal practices played a part in creating the bubble that burst. As the probes expand, we may begin to hear more about appraisals that were artificially inflated by coercion, collusion, and/or fraud. Some appraisers purportedly have already come forward to report how they were forced to provide appraisals that were consistent with an inflating market. Supposed consequences for not complying with lenders’ demands would result in loss of business for the appraiser.

Along with other factors, artificial, fraudulent, or misleading appraisals have played a role in historical mortgage crises, such as the Savings and Loan Crisis (of the 1980’s) and the flipping schemes (of the 1990’s). Prior to the critical mass of the S&L crisis, obtaining a real estate loan seemed relatively easy (at the time); the result was a $120 Billion (plus) government bailout. An article published in the CPA Journal (December 1989) reported that a 1988 FLHBB (now the FHLB) report to Congress referred to fraud and insider abuse as the leading factors leading to the S&L collapse; other factors identified by the report leading to the crisis was the collusion by thrift management, borrowers and appraisers to conceal losses and liabilities.

As a result of the S&L crises, the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) was created. FIRREA was to ensure that type of fraud and abuse that occurred in the S&L crisis would not happen again. Consequently, title XI of FIRREA led to licensure of appraisers, the creation of the Appraisal Foundation, as well as the Uniform Standards of Professional Appraisal Practice (USPAP).

In the mid to late 1990’s, mortgage and appraisal fraud hits again in the form of flipping schemes. Although not as widespread as the S&L crisis, the flipping schemes hit the subprime mortgage market very hard. In many cases, flipping schemes used artificially inflated appraisals to net a large gain to the seller (the loan officer, appraiser, and/or title agent were often in collusion).

Interestingly, real estate market declines followed both the S&L crisis and the flipping scandals. The large buyer’s market and recession occurred at the tail end of the S&L crisis in the early 1990’s.

Currently, investigations are reportedly focusing on practices to hide decreased portfolio values sold on secondary markets. In addition to the allegations surrounding appraisals, lenders’ have also used Broker Price Opinions (BPO) to ascertain values on portfolios as well as for lending purposes. BPO’s are usually completed by real estate agents or brokers who typically have no appraisal training; additionally the BPO typically does not follow USPAP.

If it is not yet clear, history is repetitive and cyclical. Our response this time, however, can undermine the next real estate crisis.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of March 10, 2008. Copyright © 2008 Dan Krell.


(Post Script – Today, Congress is to release report outlining causes for present mortgage crisis.)

Buying "as-is" means as-is; or does it?

by Dan Krell

The home seller, unless exempt, is obligated to provide a property disclosure or disclaimer to the home buyer. Sometimes a home seller will disclose the home’s condition by answering all the questions on the form; other times the home seller will provide disclaimer statement that you are buying the home “as-is.”

There really isn’t one answer why a home seller would provide a property disclaimer, although there are many situations where providing a property disclaimer is appropriate.

The disclaimer statement practically states that the home seller makes no representations or warranties as to the property condition. Additionally, you, as the purchaser, agree to accept the property “as is” with all defects, including latent defects- except as otherwise stated in the real estate contract of sale. The statement says it all, you basically take the home “as-is.”

This is all well and good, except that the contract has a condition of property/equipment, maintenance and condition clause (depending on the contract your Realtor is using) as well as a termite inspection clause. The condition of property/equipment, maintenance and condition clause states that the home will be delivered in essentially the same condition as at time of contract acceptance and that mechanical items (such as HVAC, electric, etc.) will be in good working order at time of settlement.

The termite inspection clause essentially says that seller is responsible for remediating any termite or wood destroying insect infestation and damage. However, the Maryland Association of Realtors Residential Contract gives the home seller the option to void the contract if the cost of treatment and repair exceeds 2% of the sale price and the home buyer does not want to pay the excess.

Additionally, a home seller is required to disclose all known latent defects. A latent defect is described as being a defect that a home buyer would not know of even through a careful inspection, and could pose a threat to their health or safety (as described in the Maryland Residential Property Disclosure and Disclaimer Statement).

In addition to the property disclaimer, there is an “as-is” clause in the Addendum of Clauses. This “as-is” clause states that all clauses pertaining to the property condition and termites are considered deleted from the contract. This “as-is” clause still requires the home seller to deliver the property free and clear of debris and trash.

A true story about “as-is” and latent defects: A family purchases a home with a pool in “as-is” condition. The home buyers attempt to open the pool for the summer, however the pool company they contact explains that the pool cannot be opened unless it is repaired. The pool had major cracks and leaked when filled. When contacted, the home seller stated that he had no knowledge about the defect. The home seller could no longer deny knowledge of the defect and eventually came clean when he was confronted by a long list of witnesses (including the pool company) who would testify that he knew of the pool problems. In the end the home seller paid for the pool repair.

Because “as-is” can have different meanings in a real estate contract, it is always a good idea to consult an attorney on your obligations when entering into an “as-is” transaction.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of March 3, 2008. Copyright © 2008 Dan Krell.


Want to Buy Real Estate Online? (I have a bridge to sell you!)

by Dan Krell

Technology is great, isn’t it? You can do almost anything online these days; you can buy anything online, including real estate. Technological advances in the real estate industry have exploded in the last ten years to make it easier to for home buyers and real estate agents to complete transactions. Present technology allows you to almost complete an entire transaction from your desk. Now you can even bid on homes, from mansions to foreclosed homes, on various internet auction websites.

Sure, buying a home online might save you time, at least initially. But if there are problems with the home, you can bet you will spend lots of time and money to fix it. Nothing (at this present time) fully replaces physically viewing homes to get the full experience of the home and its surrounding neighborhood. Problems commonly encountered with real estate sold by internet auctions may include poor property condition, title issues, and location problems.

Would you buy a home from an online auction…without ever seeing the home in person? The term “buyer beware” may have more significance in this scenario as purchasing a home via internet auction may limit you on your ability to inspect the home.

Regardless of whether you are purchasing a home the traditional way or online, it is a good idea to have a home inspection. According to the American Society of Home Inspectors (ASHI), a home inspection will assist in your decision to purchase the home by revealing any major deficiencies and issues that need immediate attention. Additionally, the home inspection could provide information on regular maintenance as well.

Another problem that arises from internet real estate auctions is that you may be unaware if the property is land locked. Some believe it is safer to buy a vacant lot online than a home because there is no structure to worry about. Unfortunately, a property may physically sit behind other lots or homes with no access to the road. Without access, you would have to park your car and walk through your neighbor’s property to get yours.

If you are buying a lot online with the intention to build a home, having restricted or no access to the lot will pose a challenge. Without road access to the property, delivering materials and equipment necessary to build the home is almost impossible. Additionally, getting utilities to the home may also be a challenge as well, as there may not be a utility right of way or utilities may not be available at all.

Finally, buying a home through an internet auction may also restrict your ability to conduct a thorough title search. Hiring a title attorney to conduct a search and examination of the property’s title, will allow you to know if there are title issues (such as foreclosure, liens, or broken chain of title). It is important to make certain that you are being given a clear and marketable title.

Moreover, some question if internet real estate auctions are considered a binding purchase.

Perusing home listings on internet websites may be easy and tempting, however it is important to do your homework. No matter how you intend to buy a home, it is always a good idea to consult competent real estate professionals.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of February 25, 2008. Copyright © 2008 Dan Krell.

Checking Up on Your Buyer Agent

by Dan Krell

Is your buyer agent showing you all the homes that match your search criteria? Let’s face it, there are presently thousands of homes listed for sale. You can’t realistically visit all the homes for sale, so how are you going to limit the homes you actually visit? If you rely solely on your buyer agent to show you homes that match your search criteria, you may be missing out on seeing other attractive and desirable homes. As most buyer agents act within their duties to their clients, some place their needs before their clients’; some buyer agents steer their clients for financial incentives and just plain convenience.

As some home sellers are offering financial incentives to home buyers, some are offering financial incentives to buyer agents in the form of bonuses and/or higher commissions. Additionally, some real estate brokerages offer financial incentives to their agents for selling intra-office listings in the form of bonuses. It’s easy to see that a buyer agent stands to make more money when they steer their clients to listings that either pay the highest commission and/or offer bonuses. If you ask your buyer agent, they will give you every detail of a home-except how much commission is paid and if there is a selling bonus offered (most agents do the right thing by disclosing selling bonuses to their clients when they submit an offer).

Additionally, some buyer agents look to show homes where the home seller can settle without delay. If there is any indication that it may be a prolonged settlement, the listing is excluded from the list provided to the home buyer. Typical reasons a home seller may need a prolonged settlement include finding a home of choice or requiring third party approval (which include short sale, probate, or bankruptcy sales). Some of these sales can take more than two months.

A small number of buyer agents are just plain lazy; they will only show you the homes that are convenient for them to show. Rather than making appointments and scheduling their time around their clients, some agents will only show vacant homes or homes that do not require any advanced notice. As many listed homes are occupied, some do require appointments or notice to show because of tenants, pets or infants.

As the real estate industry strives to be at the cutting edge of technology, information (albeit sometimes too much information) is available to everyone on the internet. To be certain you see all the homes that interest you, compare a search that you conducted to your agent’s search. One of the best ways to search for homes online is to go directly to the local MLS. is the consumer website offered by Metropolitan Regional Information Systems, Inc. (the local MLS). This site provides up to date information as listings are updated daily. You can search for homes based on your criteria as well as email your buyer agent for additional information.

Vigilance may be too strong of a word, but your home purchase is one of the largest purchases you will make in your life. You must be aware and attentive to all aspects of the home buying process.

This article is not intended to provide nor should it be relied upon for legal and financial advice. This article was originally published in the Montgomery County Sentinel the week of February 18, 2008. Copyright © 2008 Dan Krell.