1. Failure to Notify Listing Agent or Seller when an Offer has been Submitted:
What good is submitting an offer if you fail to notify the Listing Agent or Seller that it was sent? Sending an offer does not ensure receipt…examples include utilizing the wrong email address, landing in junk/spam folders or getting stuck in cyberspace due to file size. After submitting an offer, the Buyer or Buyer Agent should verify with the appropriate parties that it has been received. Time is of the essence – Do not send an offer at 10pm and expect a response by 6 am—that is disrespectful, rude and reeks of desperation. While the Buyer may think they are playing hardball as they may be concerned about trying to avoid multiple offers, the Seller is more likely to look at it as a play to prevent the Seller from having enough time to vet the Buyer, verify qualifications with the lender and have it professionally reviewed. Many Sellers are investors and work traditional business hours, therefore a Buyer should show respect and, at minimum, leave offers open through the end of the next business day. If a Buyer is truly concerned about multiple offers, write the offer to incorporate appraisal gap language, escalation clauses and/or a non-refundable earnest money deposit to sweeten the pot per se’.
2. Invalid, Outdated or Vague Lender Financing Letters:
Pre-approval letters should be current, dated, signed by the lender, and state the lender is licensed to lend in the state the property is situated in. I had an interesting situation in which a Seller received a backup offer for $10,000 more than the current contract on the property and requested that I look for a loophole to terminate the contract. The contract itself was well written. The Buyer Agent, a seasoned veteran in the industry, had proactively ensured all documents and inspections were facilitated in compliance with the timeline. However, in reviewing the documents signed by the loan officer, and having facilitated additional research via the state licensure board, I discovered the loan officer who signed the pre-approval letter was not licensed in Ohio and was covering for another loan officer who was on vacation. The purchase agreement had incorporated specific language requiring certain lender signed documents which are invalidated if signed by an unlicensed loan officer. While some may believe it was unfair to terminate the contract for such an oversight, my fiduciary duty was to represent the best interests of the Seller, and the Seller was within their right to seize the opportunity to increase their bottom line. The majority of preapproval letters are ambiguous, submitted without signatures and not worth the paper they are printed on. In a multiple offer situation, offers submitted with incomplete pre-approval letters are likely to be disregarded as they lack credibility and may be deemed problematic. It is imperative for the Seller to request a signed copy as fraudulent pre-approval letters are more common than one would think. The pre-approval letter should state the Buyer is qualified at or above list price, delineate whether the Buyer is required to Sell another piece of real estate or clear other debt to income deficiencies prior to closing, and verify the Buyer’s credit report has been pulled and reviewed. Additional concerns include the remaining stipulations such as asset, employment and income verification. The pre-approval letter should specify the type of financing being utilized by the Buyer. If the Buyer has selected a VA loan, does the Buyer have their DD-214 readily available, or will additional time need to be incorporated into the purchase agreement to allow the buyer to source the form to ensure compliance. The pre-approval letter should specifically state if the Buyer needs Seller assistance with Buyer pre-paids and closing costs and if so, how much. The Seller should not hesitate to call the lender to further vet the qualifications of the Buyer.
3. Verification of Funds:
Shockingly, I must disclose I have been presented with hundreds of cash offers without verification of funds! Cash offers should include verification of funds in the form of a letter signed by a banker, verifiable asset management company, or in the form of a recent account statement. It is acceptable to black out all but the last 4 account numbers for security purposes. Said verification should be recent. When in doubt, the Sellers should contact the asset management company to verify authenticity as pdf files and screen shots are easy to alter with technology available today.
Sellers should evaluate and negotiate any concessions. Lack of clarity often results in the underwriter requesting the contract be amended to reflect an accurate depiction as to where money is going. I often see verbiage that is ambiguous. Simple language such as ‘Seller to contribute 2% of the sales price toward Buyer Pre-paids and Closing Costs’ will often suffice, however if the Buyer wishes to facilitate an interest rate Buy down, the lender may require additional verbiage to ensure full disclosure clarifying if it is permanent or temporary. It is imperative the Seller facilitate their own research as it is common practice, even if the Buyer has substantial savings available, for Buyer Agents to over inflate the amount needed so the Seller is bearing the brunt of the costs and the Buyer is expending little to nothing of their monies. Certain loan products have limits as to what the Seller can contribute and if that amount is exceeded, the money will revert to the Seller, however most often the lender will find away utilize every penny to further their bottom line.
5. Contingencies: EVERYTHING IS NEGOTIABLE!
- Strategies to Consider:
- An appraisal contingency can be accepted, waived or appraisal gap language can be incorporated to ensure the Buyer will either cover the entirety of the difference between appraised value and contract price, or a portion thereof.
- Dates delineated in the contract are to be adhered to, otherwise Buyer or Seller may be in the position to terminate the contract accordingly.
- Financing terms may vary by program whether Conventional, FHA, or VA and may incorporate additional requirements such as down payment assistance programs, grant money and more. Government backed programs often require the appraiser perform a cursory inspection on the home so ensure it meets the appropriate guidelines, and often a Buyer will waive an inspection knowing the appraiser will call out certain items, requiring said items to be fixed prior to closing. The Seller should have a basic understanding of lending practices, so they are not caught off guard. It is prudent for the Seller to reach out to the lender directly to clarify terms prior to accepting an offer.
- Home Warranty plans can be paid by the Buyer, Seller, split between the parties or waived.
- Inspections – I often see offers with the Buyer asking for 14 days to facilitate inspections. Why would the Seller want to tie up the property for 14 days in a market where the turn-around time is often 5 days at most? The Seller should negotiate the inspection timeline accordingly.
- Home Sale contingencies and kite tails – Is there a home sale contingency? If yes, is the property on market? If not, when will it be on market? Is the property already in contract? Does that Buyer have a home sale contingency? Kite tails are complicated. A kite tail indicator is when a home sale has another home sale contingency, and each home sale contingency is a knot in the kite tail. It is not uncommon to see 5 or more knots in a kite tale and if one knot comes loose the entire chain of deals falls apart. Sellers would be best served to negotiate language into a home sale contingency stating the Buyer will not accept any offers on their home with home sale contingency language incorporated therein. The Seller should also incorporate a 24-48 hour escape clause if agreeing to a home sale contingency.
- What conveys- Attached items convey with the property unless otherwise delineated in the purchase agreement. Even if chattel (unattached) items are specifically listed in the MLS as conveying, the MLS also incorporates language stating the information contained therein is deemed reliable, but not guaranteed. It is imperative if the Seller does NOT want something to convey, it is specifically delineated in the purchase agreement. Conversely if the Buyer wants something to convey, the Buyer should specifically negotiate the item into said agreement itself. Clarification is key to ensuring a smooth and successful closing.
6. Contract Timelines:
Buyer and Seller must understand that timelines are delineated as time is of the essence. A Buyer must do their own due diligence to ensure if they write an offer with a 15 day close incorporating a loan, their lender can accommodate that that timeline. Otherwise, the Buyer may expend hundreds of dollars on an appraisal and inspection to find their contract has been rendered null and void due to their failure to perform. This would allow the Seller to move forward with another Buyer. There have been numerous occasions in which a Buyer failed to follow through with timelines at which point I have negotiated a non-refundable upfront fee (often thousands of dollars) for an extension agreement. In a Seller market where there is limited inventory, it is imperative the Buyer and Buyer Agent pay attention to detail. Failing to do so may result in additional expenses and/or loss of the deal altogether.
7. Earnest Money:
Earnest money is offered as a sign of good faith, and the vast majority of contracts allow for the return of funds to the Buyer if inspections or financing fall through. However, when in a multiple offer situation, a commonly employed strategy to show determination and good faith, is to offer a non-refundable earnest money deposit in which the earnest money reverts to the Seller in the event the Buyer fails to perform for any reason with no additional signatures (release) required. I encourage every Buyer and Seller to request earnest monies to be held by the title company as a neutral third party. There have been numerous occasions in which Buyer Agents failed to follow through on facilitating collection of the earnest money deposit in a timely fashion which resulted in the Seller terminating the contract and moving forward with another offer. While some may say that is unfair to the Buyer, the reality is all parties must adhere to the terms delineated in the contract or risk termination thereof.
8. Home Warranty:
Most purchase contracts have a field to delineate the home warranty company, amount and who is paying for it. I can’t tell you how many times this has not been properly completed. There have been numerous occasions in which the Buyer Agent delineated the name of the Home Warranty Company, amount of the policy and omitted who was paying for it. Prior to closing, when the Buyer Agent discovered their error, the Buyer Agent tried to coerce the Seller into footing the bill. The Seller had not agreed to pay for said policy, and I was not going to empower the Buyer agent to bully the Seller on the backside. Each time this occurred either the Buyer paid for the Home Warranty, or it was deducted from the Buyer Brokerage proceeds at closing.
Caveat Emptor- Buyer Beware…The Buyer needs to thoroughly vet the qualifications of their choice of home inspector and have a thorough understanding that the inspection report will contain extensive language relieving the inspector and inspection company from any liability or omittance with reference to said report. Home inspectors in Ohio are simply licensed to be “Home Inspectors.” This does not mean they are certified or licensed as an electrician, HVAC expert, plumber, roofer, structural engineer, or anything else. It is all too common for a Buyer to facilitate inspections and then ask the Seller to pay for myriad of licensed contractors to inspect and evaluate the home inspector findings at Seller expense. The Seller has already given the Buyer the opportunity to facilitate the inspections of their choice. If the Buyer fails to retain inspectors who are licensed in each field of practice during the agreed upon timeline, that is on them and should not be an expense incurred by the Seller. When negotiating a request to remedy it is not uncommon for a Buyer Agent to try and coerce the Seller by stating they need to disclose all findings on the property disclosure form. Caveat Venditor – Seller Beware…The fact is, if the home inspector is not certified or licensed in any field of concern and has incorporated language that a certain item should be evaluated by a certified or licensed professional due to the home inspectors’ lack of qualifications, and their report has additional disclaimers relieving them of any liability for providing inaccurate information, it is inappropriate for the Buyer Agent to coerce the Seller into stating something is wrong with the property when there is no factual “qualified” evidence to support the claim. The Seller is required to disclose any information to the best of their knowledge, this does not mean they are required to disclose the opinion of someone who has alleviated themself from any liability for said opinion and acknowledged they lack the certification, licensure or skillset to render such a professional opinion.
10. Transfer. Closing and Conditions:
Often the purchase contract will delineate the property is to be left broom clean, which in of itself is ambiguous. One may interpret that to mean the home is left in good condition whereas another may interpret it to mean the floor is swept. Once possession has transferred, anything remaining at the property belongs to the Buyer unless specifically agreed in writing between Buyer and Seller. In short, all parties must adhere to the timeline and that includes removing personal items in a timely manner. Most purchase contracts state the property is to be in the same condition as it was when the Buyer entered into contract. This does not mean the Seller needs to repaint the home because pictures that have been removed from the wall left images of framing due to sunlight and aging of the paint. The Seller should is not expected to patch the hole of each little picture hook, HOWEVER if the Seller creates a gaping hole while removing an item-they are expected to repair or have it repaired prior to transfer. What could cause a gaping hole? TV mounts. To be clear, TV mounts are attached to the wall so they must convey unless agreed in writing between both parties. The television itself is negotiable and if the contract does not specifically state it is to remain with the property, it does not convey. Best practices require complete disclosure of what shall or shall not convey. The property is to transfer to the Buyer pursuant to the terms delineated in the contract upon closing and funding. Post closing occupancy agreements are often incorporated into purchase contracts which will modify the date of possession. Seller should contact all utility companies to provide a forwarding address and request final readings as well as ensure all keys, remotes, accessories and security codes are provided to the Buyer.
Selling your home on your own without the assistance of a full service Real Estate Brokerage will require both commitment and due diligence for which you may be rewarded by saving thousands of dollars in commissions. Maximizing marketing exposure is key. I have been in this industry for 4 decades, have SOLD well over a BILLION DOLLARS in Real Estate & Saved Sellers Millions of Dollars in Real Estate commissions. Please contact our team to learn how the For Sale By Owner Flat Fee MLS Listing Options at Ohio Broker Direct will enhance your marketing exposure to ensure a more expeditious sale, yielding a higher price with better terms that suit your specific needs. Reach out to us directly, visit our blog page or sign up for our newsletter to receive the latest information to ensure you have the knowledge to maximize your profit.
Joan Elflein, Broker / Ohio Broker Direct Ohio Broker Direct & its Brokers or Associates assumes no responsibility or liability for any errors or omissions in this blog, we advise all participants engaged in the buying or selling of Real Estate to enlist the services of a Real Estate Attorney.