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The new consumer article for today is Segmented Real Estate Markets And Taking Advantage of Them. I've written about how hot the current market is in San Diego. But if you break it down into market segments and micro markets, some market segments are much hotter than others. This is called market segmentation, and I discuss how to take advantage of it.

The new consumer article for today is Multiple Offers: Weak But Increasingly Common, And It's Your Listing Agent's Fault, talks about multiple offer situations, what they mean to buyers, and what they mean to sellers.

Today's new consumer article is Mortgage Loan Modification, in which I discuss the basics of a program that lenders are cooperating with that keeps people in their homes and prevents the lender from losing money they don't have to.

I am excited about this. I will have two or three more articles in the next few days about this concept. I will be offering it myself to clients within a week.

Today's new consumer article is Desperation Mining: How a Buyer Hits Paydirt (and How Sellers Can Avoid it), which talks about the anatomy of a successful low-ball, both from the seller's perspective and the buyer's.

There is still an extremely lucrative but shrinking pool of such properties in the current market, especially if you're not intending to immediately flip the property. However, inventory is shrinking, and it's going to become a lot harder to find such properties once people figure out that we have hit bottom already here in San Diego.

Dear Mr. Melson, I was wondering if you could offer some insight re: the other side of the equation: what to do *after* you've bought a vampire property.

We bought one, quite by accident, despite a house inspection by a certified inspector and an additional mechanical inspection. Turns out we had a huge lemon. It was a combination of inexperience and bad luck. Some things were hidden really well. The owners were drug addicts, and their agent spent $6000 making the place look nice (we learned this upon closing, when we saw that $6000 of the profit was being paid to the agent on top of her fee). For the things that were more obvious, we thought the costs of fixing them wouldn't be as bad as they were, and our inspector didn't do a very good job of explaining his findings and their implications. The mechanical inspection was a joke. Our agent didn't represent our interests very well. And we were stupid, too caught up in the process to understand the red flags. Despite some poor representation, we blame ourselves.

We're not going to pursue a lawsuit with deadbeats since collection notices for their accounts continue to come to our house. So I guess I'd like to hear a professional perspective on how to handle a house like ours. Yes, we're looking into more work and income, but we have some limitations in that arena. We can't be the only idiots! If you have any suggestions, I'm sure there are a lot of us who'd appreciate it.

This is why I emphasize the importance of education and prevention. I am once again embarrassed on behalf of my profession, and offer you loads of sympathy, but there is no way to make it not happen. Unfortunately, this kind of scenario is all too common. People get caught up in the emotion of the fact that they're Buying a House! That We Will Own! It will Be Our Very Own! and then, because they were so caught up in the emotions of the moment to really examine the situation, they ended up buying a Vampire Property.

Indeed, a very large proportion of my profession makes a habit of building those emotions specifically so that you won't examine the situation. Not so much that they're intentionally trying to mess with folks, just that they don't care. They want a fast, easy transaction that results in a commission check, and they just don't care very much what happens after that.

I encourage everyone who reads this site to test their Buyer's Agent for attitude. Anybody can point out nice things in a property. But the true test of the attitude you want your Buyer's Agent to have is "Are they willing to say bad things about a property?"

Properties that are real bargains are never perfect. Actually, if it is perfect, odds are overwhelming that it will be overpriced. That's why the current owners put all that work into it: They want some innocent suckers to come along and plonk down way too much money because the property is "Just soooo beautiful!"

Now, as to your situation. You're right not to sue the broke deadbeats - sue those alleged professionals who did not represent your interests despite being paid to do so. To wit, the inspector and your buyer's agent brokerage. Depending upon your state, it may be that you even have a good shot at the listing agent and that brokerage. It's one thing if they honestly didn't know about the property's faults, but it's quite a different thing to spend $6000 hiding problems. That evidence puts a good strong bit of presumption on your side. Talk to a lawyer.

Not an optimal solution, but the reason I'm so big on education before hand and preventative measures is that once it's done, there is no going back to the way things were before. A lawsuit takes a long time, and doesn't make it all better, but it may give you some of the wherewithal so that you can make it better yourselves. In the meantime, of course, you're miserable.

Now the neighborhood must have been attractive to you, and odds are that you can improve the situation with some work. It might not be wonderful, but you probably have a property you can live in while dealing with the problems as you get the time and money to do so. "Make the best of the situation" is a rotten thing to be telling someone who thought they were getting their dream home, but we're all adults in the real world here. It's going to take time and money and a lot of work and it isn't going to be pleasant, but you can almost certainly improve your situation if you make the effort.

For Buyer's agents, it really is all about attitude. I can teach newer agents everything I know about construction and negotiations and all that agent stuff a million times easier than I can teach attitude. It's about being willing to walk in and tell people "Don't buy this POS, let me find you something better," instead of trying to sell every property. That's the listing agents job. The Buyer's Agent's job is to debunk the Male Bovine Fecal Matter. It's about honest evaluation and compare and contrast the benefits and drawbacks of each property with those of similar properties, and working within your budget, instead of grabbing commission checks as fast as possible. Sure, I do it because I want to get paid, but when the transaction closes I want to be proud of myself, not want to take a long hot shower to get the slime off.

Preventative measures: If you know about an issue, don't take an agent's word, or an inspector's word, about what it's going to cost to fix. Get a contractor out there who's willing to give you a repair estimate during your contingency period at the latest. If someone who can fix it tells you how much they'll charge, that's better information than anything anyone else can give.

A good Buyer's Agent is not afraid to give you their best honest evaluation of the good and bad points of a property - not just for living in, but for resale when you eventually do. When I take prospects out hunting, most of them drop their jaws the first time I say something uncomplimentary about a property. How can you honestly represent someone's best interest if you won't tell them about the flaws you see? Nonetheless, many members of my profession won't.

You can sell properties by being honest. It just takes a little more effort. And everyone except the owners of Vampire Properties are a hundred times better covered against "unhappily ever after" I'm making two offers right now with prospects who know all the warts that I do. What happens if they find something else after it closes? They are going to know that it was something I had no clue about. They'll call and tell me, I'm certain, and I'll go look so as to increase my knowledge. But that will be the end of it as far as I'm concerned - they're not going to sue me. Even if they try, a good lawyer is going to tell them they're wasting their money. But they are going to know that I did my best to protect them, no matter what happens.

There is a move afoot to make being a real estate agent into being a transaction facilitator. Many agents, particularly at the big chains, are trained to make it clear that that's their job function. They are not inspectors, market evaluators, or anything else. But they simultaneously want to be paid an expert's commission. Not going to happen. If that's all you've got, disintermediation is going to eat your business for lunch. There's no reason why the same person who processes the loan can't do that for an extra $500 - as opposed to regular real estate commissions. The first question I ask discounters is why they should get paid as much as they do, because I can point to flat fee open listing services that work just as well for far less. But the average home buyer is not an expert, and is not financially equipped to undertake, or even to understand, the risk that the person at the beginning of this article was on the losing end of. The reason that I'm worth every penny of what I get paid is because I've taken the time to learn what is necessary to act as their expert, as well as coordinating the real specialists, and prevent this sort of problem before it happens.

After the above was written, I got a follow-up email:


Thanks so much for your response. I usually reply a little faster to emails, but I have a sick toddler and was in crisis mode for a couple of days. I do really appreciate your taking the time to write.

I'll talk to my husband about approaching a lawyer. I think he feels it's probably not worth the effort and money, and that given our situation, we should save what we have to fix the house. He might be correct, but we should talk to an attorney anyway.

I agree with you that it's about attitude. We asked our inspector and agent for their opinions on the house, and they both hedged. We asked because we didn't understand everything, and when we didn't get a real opinion from those folks, we tried to educate ourselves and get estimates. We didn't see the red flags, both with the house and with that type of situation.

It's a learning experience, albeit one that keeps us up at night. I'm looking for some resources/books on what to do when you're in a vampire; where to skimp or delay, where to put more effort and energy. Some of these decisions will be made for us, since things break pretty regularly. I'm also thinking of bringing in a realtor in a year or two to make suggestions (we might have to sell in 5 years) on what would make the place more appealing. If you think that's a terrible idea, I'd appreciate your thoughts.

I hope your article prevents others from making the mistakes we made. I tell everyone about what we've gone through. I know that people don't like to hear about negative things, but we want people to know that this can happen even when you think you've educated yourself & chosen good representation. In the days leading up to our closing, I had a really bad gut feeling, and I was talked out of it. People need to know that they should listen to their guts!

Not certain that it's always a good idea to listen to your gut. Allowing gut level, irrational fear to overcome reason is a recipe for disaster - or at least huddling in caves in the shadows of modern skyscrapers. But there's usually an unexamined aspect to the whole situation, that as soon as you do investigate, it becomes obvious that you were heading for the abyss, awaiting only that quintessential moment when Wile E. Coyote (Super Genius!) looks down. Since real estate transactions are so large, there are a lot of people out there hoping you don't notice the ACME logo, so that they can go their merry way with your money. Kind of like those old Medieval period maps that say, "Here be Dragons." You need a guide who, if they haven't been precisely there before, is at least a trained explorer. That's why you need someone who's determined to be the best advocate they can for you. I'll take a first time agent with the right attitude over a commission grabber with forty years of experience, every time. That newbie agent can get the guidance they need from veterans in the office. The commission grabber won't even try to spot the issues. In fact, many of them do their best to collude in covering them up, as you have unfortunately discovered.

Now, "Vampire Properties" is just a label I invented because it seemed particularly appropriate. I've never seen it used elsewhere, although it's likely that I have "independently re-invented the wheel", because it seems like such a logical, appropriate, memorable phrase in retrospect. And it's not for nothing that they say, "Experience is what you get when you didn't get what you wanted."

Caveat Emptor

When I'm driving, and get to busy main streets, I hate turning left unless there's a light there. Traffic is coming hard both ways, usually at high speeds, and with only intermittent breaks in each direction. If you're turning left, you've got to wait for those intermittent breaks to happen from both directions simultaneously. So for at least the past twenty years, I've employed an alternate tactic. Instead of sitting there waiting to turn left, hoping the deities of traffic are kind or risking an accident by pulling into traffic and stopping, I'll turn right instead, go down a block, and shoot a U turn. At least nine times out of ten, the person who was there ahead of me waiting to turn left will still be sitting there when I go by, already on my way despite having gotten there later than him.

Real estate can be a lot like that. Sometimes the best way to get what you really want isn't the direct and obvious one. Sometimes, taking what looks like a detour can help you.

This can take various forms. Every once in a while, a question hits my site like "Lenders who do 100% financing with a 520 credit score." Three words: Not. Gonna. Happen. But there are alternatives. Seller carry-back or raise your credit score are the first two that come to mind. Given the market right now, a seller carry-back can be the little detour that gets both of you to where you want to be, if the seller has the option of doing it, which a good agent can find out. You'll pay a more than you might have with a good credit score and 100% lender financing, but it can be done. Raising your credit score is also surprisingly easy in many cases. I've gotten people's credit score up to 660 or even 680 in a couple of months. Pay your bills on time, know how to get rid of old derogatory items, a few other tricks. It takes some time and a surprisingly small amount of cash.

Those are comparatively easy. There's a much harder hurdle: "I can't afford anything I want!" The obvious - and deadly wrong - solution is an unsustainable loan like a Negative Amortization Loan or another unsustainable loan. What those have in common is that they are short term patches to a longer term problem. There are several better alternatives.

You can make your stuff last longer. No $600 car payments or $400 per month credit card obligations means that you can afford more for a house. Pay them off and keep the cars running and don't charge up any more. Assuming a 45% debt to income ratio, I've just added back as much into your housing budget as getting a $2250 per month raise - $27,000 per year. People who keep buying SUVs as opposed to compacts must want them more than they do a better dwelling place - and if they do want to drive an new SUV instead of an older compact more than they want to own a house, they are making the correct choice.

First time buyer programs such as the Mortgage Credit Certificate and Locally based loan assistance can help you stretch what you can afford. Between the two, it can make a difference of as much as twenty or possibly even twenty-five percent of your budget. They cost a little money and you have to jump through their hoops, which can include where and when you buy, but they make about the same real difference as choosing some of the more dangerous loans - and instead of a risky gamble, they turn it into something sustainable.

You can find a partner. Sure, you can only afford $275,000 by yourself - which might be enough for a two bedroom condominium. Put two people who can afford $275,000 together, though, and that's a $550,000 house. That's an above average 4 bedroom house with money to spare in a lot of areas. Put three of you together, and you've got an $825,000 mini mansion big enough for the three of you to rattle around in. It takes some legal preparation to protect the partnership from a bad partner, but it's not that difficult or that expensive. And it needn't be permanent. Let's say two of you buy that $550,000 house with zero down payment, instead of saving for a down payment at $500 per month each. If you were to save that money, earning 10% tax free for five years, you'd each have just over $40,000 each, or about $81,000 grand total. If the house appreciates at 5% per year (low for this area by historical computations) and you make regular amortized payments, the home is worth $702,000, you owe $515,000 if you never paid an extra cent, and net of the cost of selling, you're splitting $137,000 two ways, or not quite $69,000 each. That $425,000 3 bedroom house you really wanted to yourself has appreciated to about $542,500, but now you have a $70,000 down payment. Assuming you got annual salary increases of 3%, it's 7% more affordable now, instead of only 1% - equivalent to boosting your monthly savings to $850 - and it's unlikely you'll make 10% tax free, which that assumes. If you last ten years in the partnership, you come away with $183,000 each instead of $112,000 by investing your $500 per month tax free at 10% and the house you really want is seventeen percent more affordable instead of only five.

Another way of putting leverage to work for you is to buy what you can afford, now. If you can only afford a two bedroom condominium, better you should buy that and the kids have to share a bedroom in a property you can afford, than that you buy something you cannot afford. My uncle raised a family of four in an 762 square foot two bedroom place - and he had my grandmother living there also when his daughters were teenagers. Most two bedroom condos are bigger than that now. If he could do it for twenty years, you can do it for five. This is why, for example, certain Asian and African immigrants are doing very well despite being only a few years from having nothing and living in an apartment. It certainly beats the alternative. $69,000 and change net proceeds from the sale in five years, and once again you've got that 7% affordability increase after five years, and seventeen after ten - without saving one extra penny.

When you buy with a sustainable loan, you place your cost of housing forever under your own control. You step off the escalator of rising rents, and rising housing costs. The math in my examples assumes marriage, but it's more strongly in favor of ownership if you are single because the standard federal tax deduction is lower.

You can rent a storage closet for the stuff you don't use every day.

You can drive a couple miles further.

You can rent out a room.

You can take a second job, and use the difference to save money. It'll also leave you less likely to buy stuff you don't need.

You can invest some time and money and effort in improving your value to prospective employers.

I am well aware that "settling" is not attractive to most folks. I'm also aware that some neighborhoods are less desirable, and others are considerably more so, some living conditions less desirable and others more. We live in a culture accustomed to instant total gratification. Nonetheless, if by accepting some delays and some costs you get what you want and end up in a better situation, isn't that something to consider, as opposed to crying that you can't have what you want right now and so you're not going to do anything?

Doing nothing means that you miss out completely because the situation isn't perfect. How does that help the situation improve? Do you just wait and hope that housing values crash? What is likely to cause such an event? Interest rates rising drastically is the only thing I can think of, but then the loans and their payments get commensurately more expensive. Instead of being unable to afford it when it costs $425,000, now you can't afford it even though it only costs $225,000. It also leaves your future subject to factors beyond your control. Suppose housing prices don't crash? We're close to twenty-five percent plus down, locally, and it's looking like things are starting to recover. We've got an ongoing and increasing scarcity problem in San Diego - not building enough new housing to cover the population increase. Even if rational growth policies took over all the planning commissions and departments tomorrow, do you think the environmentalists and NIMBYs are just going to roll over and play dead in court? I can hope, but that's not the way to bet.

I hope this gives all of you some you some useful alternatives to consider. There is usually more than one way to get something that you want. Sometimes it means that you have to go a bit out of your way, or do something that isn't quite as satisfying for a while. And if you're not willing to do a little bit extra, but expect it handed to you, then either you don't want it very badly, or you are extremely likely to get burned by people who put you into a situation that you were trying to avoid.

You can usually get what you want. Sometimes it just takes intelligent planning, and a step or two in between. For those who want to plan, here's my contact information. We can come up with a plan that gets you there.

Caveat Emptor

A while ago a reader gave me a heads up that Illinois HB 4050 was hurting residents of certain poverty stricken Illinois Zip Codes. Now I have to pick on our own state:

California law generally requires special handling of sales transactions to protect homeowners in foreclosure. This law, called the Home Equity Sales Contract Act, generally applies to transactions that meet all of the following four conditions: the property is one-to-four family dwelling units; the owner occupies one of the units as his or her principal place of residence; there is an outstanding notice of default recorded; and the buyer will not use the property as a personal residence. The Home Equity Sales Contract Act does not apply if one of these four conditions is unmet. If, for example, a seller occupies a property in foreclosure, but the buyer will be occupying the property as his or her personal residence, the home equity sales law does not apply.

If all four conditions are met, however, the buyer must use a home equity sales contract, such as the C.A.R. standard form "Notice of Default Purchase Agreement" and attachments. This agreement gives the seller, among other things, a five-day right to rescind the contract. Furthermore, the home equity purchaser cannot be represented by an agent. More accurately stated, the law requires a buyer's agent to be bonded by an admitted surety insurer, but C.A.R. is unaware of any insurer currently offering the bond.

Actual Code Here

This is so brain damaged it has to be the idea of some clueless person out to save the world without first stopping to consider the Hippocratic Injunction to "First, do no harm."

Now, in the business, the term "equity sale" or "equity purchase" is most commonly used in conjunction with a sale subject to existing trust deeds. So this is a significantly different meaning to a similar phrase. Keep in mind that there are four conditions that need to be met:

1. Residential property (1-4 units)
2. Owner occupies one unit
3. Notice of default recorded
4. Buyer does not intend to occupy.

But what happens with such properties? Who buys them? Investors, that's who. Guess what? The owners want them sold! What happens if they don't sell? They go to auction, and the owner basically gets nothing, whether the property sells at auction or it doesn't, in which case the lender now owns it.

Furthermore, they're requiring that the buyer's agent have a bond that is not available, and has not been for ten years. So if whether they're working with a shark or with an investor who is actually going to give the people a decent price, the buyer's agent cannot be compensated. So what are most buyer's agents going to do? Answer: Wait until after the trustee's sale! As the buyer's agent, they have no fiduciary responsibility to that seller, and no ability to get paid. But the owner wants to sell before the trustee's sale. The chances of them getting anything from a trustee's sale or afterwards are about equal to one my grandfathers giving birth to triplets.

Now, this does theoretically create an opportunity for certain people who might be willing to live in the property to buy for lower prices, since investors are (mostly) out of the picture. So we are robbing Peter (the current owners) to pay Paul (in search of new housing). There are also some truly outstanding issues. What happens if my buyer client is lying to me about whether they intend to live there? The contract is already written, the terms of the transaction set, and the buyer's agent can't back out at the last minute when they change their mind about whether they're going to live there. Also, what happens if everything is fine when the contract is written, but the lender drops a Notice of Default on the sellers the day we're set to close?

In the current market, most of the folks in default do not have large amounts of equity. Matter of fact, the typical seller who is delinquent is really hoping that the lender will sign off on a Short Payoff. This is not shark investors swooping in and buying granny's $500,000 property for $80,000. With the number of people there are pushing Reverse Annuity Mortgages, that's not going to be the case any time in the foreseeable future. Granny can get a RAM, after which she can last long enough to sell for a good price. Instead, what's going on is that the properties are going to foreclosure, costing the lenders more money, adding to the fees the owners pay, and lengthening the odds against the current owners coming out of the situation with anything. They want buyer's agents on the job, finding these bargains for their clients so that the sale gets made before the trustee's sale. Keep in mind that the seller is always allowed an agent, and the seller can always say "no," to the offer. Which is preferable: Not getting as much as you might have gotten for a sale under ideal conditions, or getting nothing?

Henry David Thoreau had some words on this situation:

If I knew for a certainty that a man was coming to my house with the conscious design of doing me good, I should run for my life, as from that dry and parching wind of the African deserts called the simoom, which fills the mouth and nose and ears and eyes with dust till you are suffocated, for fear that I should get some of his good done to me -- some of its virus mingled with my blood. No -- in this case I would rather suffer evil the natural way.

Caveat Emptor

This is something that often happens with highly appreciated properties where the owner can no longer keep up the payments, they get hit with a notice of default, and along comes Joe or Jane seemingly riding to the rescue on a noble white steed, offering to buy the owner out of the property "subject to" existing deeds of trust.

This is a terrific position for the buyer to be in, and a rotten position for the seller. Nor are the prices usually very good for the seller - that white knight usually ends up looking a lot more like a thief. So why does it happen? Why does the seller agree to it?

Here they are sitting on this highly appreciated asset, with loads of theoretical equity, and they cannot make the payments. If they go through the foreclosure process, chances are better of flying to the moon by flapping your arms than of getting any of the equity back out. Yes, in California it's got to sell for at least 90% of appraised value or it doesn't sell at auction, in which case the lender owns it. But those appraisals are intentionally low, because the lenders don't want to own them. Furthermore, all of the payments that weren't made, and the interest on them, all gets piled into the loan, as do fees for the default process and the trustees sale. If you have a mortgage loan, read your contract. Sight unseen, I'll bet you a penny there's a clause in there saying they can sock you for "reasonable" fees in the event of default or foreclosure.

So you have a $450,000 property which you paid $120,000 for and owe $320,000 on, but something has happened and now you can't make the payments. You put it on the market for $450,000 and don't get any takers. Then along comes someone and says, "I'll take over your payments and pay you $20,000 if you sign the property over to me."

This is certainly a gray area, legally. The loans have "due on sale" clauses, and the lender can call the notes as due in full in such situations. The buyer basically tells them, "tough", knowing that if they foreclose, the lender ends up in the situation they didn't want to be in in the first place, of owing the property, not to mention that the person who bought "subject to" can cost them a lot more money by delaying it in court. Meanwhile, if they don't act quite so hard-nosed, this new owner is making the payments. They have the option of refusing the payments, but then we're dealing with the foreclosure process, and in the meantime, the checks for payment are there every month. What do you think most lenders will do? They will accept the payments!

Notice, however, that I didn't say the payments get there on time. This is the second raw deal that the seller has to swallow. The buyer's cash flow is a little tight, and the payment gets there 40 days late on a consistent basis. Who gets marked late? Whose credit gets dinged every time this happens? Not the buyer's. That buyer never applied for a loan with that lender on that property, the lender doesn't have their signature on a contract that says, "I agree to pay..." It's the seller's credit that gets hit. Kind of a nice situation to be in, no? Make a late payment any time you feel like it and your credit doesn't suffer! Not only that, but since the loan is still in the seller's name, the payments don't hit the buyer's debt to income ratio, allowing them to qualify for more loans, with larger payments, than they really should. Trying to leverage their investments like that is one reason why the folks who make a habit of "subject to" deals usually have tight cash flow. They don't want to let the property go into default, but as long as they don't get to the stage of being 120 days late (90 in some places), they have the best of all possible worlds!

Suppose, for whatever reason, it becomes a short sale? Well, since the seller is the one that violated the loan contract, there will be recourse on them, not the buyer. Many times the buyer makes side deals for "pay me" type stuff and manages to make money, or at least get their money back, even though the property doesn't sell for enough to pay off the existing liens.

If you are getting the idea that agreeing to a "subject to" deal isn't the smartest thing in the world, why do buyers agree to them?

Desperation and Panic. They listened to the agent that told them that they could get more money than was likely by market conditions, or they listed with the cheap bump on a log agency that really doesn't do anything to market the property, or they just sat in denial until far too late. Nothing happens instantly in real estate; it always takes several weeks at a minimum to get a property sold, even if you get a fantastic offer on the very first day. In some cases, I can get a loan done in one or two days, but that's not a situation you want to be in, because I don't know anyone who won't charge more in such a situation, and all of the usual loan caveats apply. But for whatever reason, the owners let the situation go too long, let themselves get behind the power curve, and suddenly realize that they are not going to catch up. They are looking at losing the property and getting nothing, so they panic. This is only one of the many reasons why staying ahead of the situation in real estate is so important. At the point where you're looking foreclosure square in the face ten days from now, there's not much else that can be done. I can offer you entire supertankers full of sympathy, and it won't make any difference. So if you're in this kind of situation, get the property on the market quick, price it attractively, and find an agent who will market it effectively, so that you avoid getting into the situation where the shark's offer is the best one you're going to get.

Caveat Emptor

First of all I love the information on the site. I've done some research into buying a home and have talked to several people who have bought homes and I can never believe the stories I've heard. My response is always "why didn't you just walk out . . it's only a $2000 deposit . . . you're paying that in the first year with the difference in interest you are getting now" but after reading your site it seems to me you would have to get lucky to find a good mortgage broker and get a good loan where what you are told is what you get. The rule seems to be if you want a house "getting screwed" is just a part of the process. In this market (DELETED) you would need to be especially lucky to find someone who is willing to be honest . . . it's a risk and, again, it seems to me being honest is will just lead all clients to the fibbers who, frankly, tell people what they want to hear.

Anyway, back in May 2003 I was looking for a house and a friend of mine was looking to invest $70,000 (that he got from another land sale) so he wouldn't have to pay taxes on it. We ended up buying a $150,000 home where I live now. By "we", I mean "he" because my name couldn't be on the loan for tax purposes (at least that's what they told us . . . it's hard to get good information). And, I know, I know, I have no rights and he can do whatever he wants and I understand that. If anything I've had a place to live where the rent was relatively low (but it sucks that I didn't get a house when they were affordable). I've been living in this house and paying the mortgage for more than 3 years now. I'm in a much better financial situation now and I'd like to buy the house from him. He also has another $70,000 from another land sale (I'm not sure of the details but suffice to say he is thinking about paying off the mortgage). Anyway, once all this happens I want to buy the house from him at a price way below market (similar houses are now around $300,000 but there is no way I'm paying $300,000 when I could have gotten it for $150,000 when I moved in). My question is: can a seller also be a lender? Where do I start? I've talked to a few people and they won't touch it . . . in fact, they have no advice whatsoever beside for me to move out and get my own house (which they would be happy to help me with). What are the tax implications of all this?

Thanks again.

If it was inevitable that you would get screwed as part of doing a real estate transaction, most of the information on this website would be useless and pointless. Furthermore, if it was inevitable, I'm not certain it would be appropriate to call it "getting screwed," if it happened on every transaction. What I'm trying to do here is give folks the tools to get correct relevant information, make rational informed choices, find honest competent service providers (it is not as difficult as I may make it seem sometimes, but neither is it easy!), and in general have a better outcome, which is the target you really want to hit. How much effort you want to spend is up to the individual reader. If you want to do only the easiest and most basic items, it should still make a significant difference. If you want to go whole hog, you should see much larger benefits.

Now, as to your specific situation, here are the issues I see:

First off, I have never heard of a situation where you cannot be on the title "for tax purposes." The only tax purposes that would serve is allowing the other person to get the entire deduction, which he would anyway from being the only person on the loan. As soon as the loan is recorded, there is no reason why there could not have been a quitclaim from him to him and you (in whatever manner you desired to hold it, most likely tenants in common in this case). This would have started the clock on having you on title, and since you cannot refinance for cash out within six months of having your name put on title via quitclaim, this constrains your options as well as putting you at your friend's mercy. You may have been paying the mortgage, but even if you can prove it this is unlikely to give you any legal rights if your friend decides not to play it straight.

The next issue, relatively minor, is that you have no verifiable history of paying either rent or mortgage payments at this point. Those checks you have been writing to pay the mortgage in your friend's name? Well, that mortgage is being reported as paid, but your name is not on it. Rent? Not there either.

However, assuming this really is a friend who intends to play it straight with you, this situation is very workable. If it was someone who wanted to work you over, you would be well and truly hosed. Now, you bought for $150,000, of which your friend furnished $70k. The loan for the remainder that you have been paying for sure looks like your contribution to me! By my reading, this makes him approximately 7/15ths owner, and you 8/15ths, but if your friend has been playing it straight, he's done you a pretty big favor not just by tying up his money in the down payment, but by allowing his credit to be used for your loan. This has effects on his debt to income ratio if he wants another loan, among other things. I wouldn't mind ceding him a larger share of ownership in your case.

Whatever the amounts of ownership you agree upon, however, you are also going to need to agree on a method for valuation. I'd probably agree to something like the average of a Comparative Market Analysis of sold properties in your area, and an appraisal. Appraisals are not what you could get on the market in the current conditions, and don't try to think that they are, but both measurements can be manipulated. Pay for each of them in equal shares. As compared to each of your investments, it's small potatoes, and a worthwhile guard.

You have an agreed valuation, and an agreed upon share of ownership. Out of that, you currently have a loan on your share, but that should probably be your issue, not the partnership's. So from that, you can figure what your friend's current share of ownership is, and therefore what he is due upon buy out. You should still have a pretty good ownership equity, roughly $80,000 by the rough amounts and ownership shares in the previous paragraph. So you need to come up with about $80,000 to pay off the current loan, plus about $140,000 (again, by the computations as to ownership share above, subject to revision per your agreement) to pay off your friend. Total owed: $220,000.

Now, your friend actually want to go from owner to lender, and I don't know of anything wrong with that, although in all truth I've never encountered it before in this context (seller carrybacks happen all the time in this market). Furthermore, he wants to invest an additional $70,000 in being the lender. Whereas this will not qualify for 1031 tax deferred treatment as far as I can see (consult a tax professional), this means you are going to have two loans on the property, one from a regular lender, and one from your friend. The specifics of this are difficult to see without more information, and shopping your situation around (I'm not licensed in your state, so I can't put my wholesalers through that for no potential pay off!). It could well be that your friend's loan ends up in second position, but it strikes me as more likely appropriate for a first, as the guidelines for Home Equity Loans and Home Equity Lines of Credit are more likely to have this whole situation be acceptable to your lender for the balance.

Now, as to the structure of the transaction, it's going to look like a sale, but don't expect real estate agents to want to work through that without a commission, which you are probably not going to want to pay, because all of the hard work to the transaction is kind of irrelevant in your case. On the other hand, good loan officers do these all the time. However, the commission structure for Home Equity Loans and Lines of Credit leaves them not making a whole lot of money unless you agree to pay them a flat fee for going through all of this, and for all the times I tell people that transactions aren't as difficult as some loan providers would have you believe, this is a very difficult transaction. I normally work on less than one point of total compensation for loans but I'd probably want to see about $6000 in order to put this transaction through, and that's if everything else is perfect. I don't know about your state's predatory lending law (most states have one, limiting total loan costs to a certain percentage of the loan), which may well prevent them from getting paid enough to make the transaction worthwhile for them. By comparison, on a loan of about $80,000 plus transaction costs, which is what the computations above suggest, California's predatory lending law limits total cost of the loan (and also total lender compensation via another law) to $4800. In most cases, direct lenders can basically ignore this by jacking the rate up so that they can sell the loan for more on the secondary market, but brokers cannot. And whereas that's way more than plenty in most situations, in this case it is not.

The reason why I'd want that much money is that, on top of everything else, this is a related party transaction. You are effectively selling from a partnership to one of the partners. That is going to mandate shopping lenders not only for price, but for willingness to do the transaction based upon the situation. We're going to need a very flexible lender, probably sub-prime. A paper Fannie Mae/Freddie Mac is right out. We are going to have to document an awful lot of stuff, and there are a number of points on which the loan can fall apart. You're also probably going to want this to be a short term loan without a pre-payment penalty, so that you can refinance after you've been on title six months or so, because you'll be able to get a better rate then (unless rates have skyrocketed). All this stuff adds to the complexity, and whether the loan will get funded or not is not something I can control by paying attention to underwriting guidelines like I can in other cases. This requires a lender who's willing to issue some waivers and exceptions, and I might have to submit this loan several times to different lenders over a period of months before it actually funds. That's probably the reason nobody wants it: They can't get paid enough to make it worthwhile. The predatory lending law may have good intentions, but in this particular case it's making life difficult for the consumer because brokers can't get paid enough to make it worth their while, and any given direct lender (especially the ones that consumers see, which tend strongly toward the high quality cookie cutter loan) is unlikely to have sufficiently flexible guidelines. You could go to a hard money lender, of course, but those rates are about fourteen percent or so, which causes most consumers to say, "Never mind!"

There is one other alternative. He could use that cash to buy you out, at which point he is left with basically his current loan, and I think this might even qualify for 1031 deferral (but consult a qualified tax professional before doing anything). If he can't rent it out for enough to have a positive cash flow under those circumstances, something is very badly wrong. He verifies that you've been paying rent/mortgage/whatever, and away you go with $70,000 or so in your pocket and all the leverage a qualified buyer has in a very strong buyer's market, and yours becomes a very easy transaction. I think you could do very well for yourself, given what little I know of your particular market at this point in time.

Caveat Emptor


I just last week closed a transaction where my clients did not make the high bid (or even close), but did get the fully negotiated purchase contract and the property. By building an airtight case that this client was capable of promptly consummating the transaction, I persuaded a rational seller to accept less money than they might theoretically have gotten from another interested party.

Let me make it very clear that this does not work every time. It takes a seller with a certain amount of knowledge of the market to make it work, and their agent cannot be clueless either. Your first time home seller with no knowledge of the reasons why transactions fail, or how frequently, is not likely to realize where the probability of money is. So after that seller eats carrying costs for the property for two to three months at several thousand dollars per month before they discover that the buyer cannot consummate the transaction, they might start to get rational about what's important - providing they haven't lost the property to foreclosure in the meantime.

The better the agent is, the more likely they are to be on the side of the more certain transaction. Over forty percent of all escrows started in the last year locally did not result in consummated transactions. Why did all those transactions fall apart? The loan couldn't be done. No other reason but "the loan couldn't be done." Transactions that fall apart for other reasons - newly discovered major repairs, and all of the little problems with interpersonal relationships that strike between contract and recording - are mostly unknowable in advance. We can all spot the purchase offer (or seller's counter) that says "Danger, Will Robinson!" but most of them aren't that bad. And the fact is, no matter how unwilling sellers may be to deal with newly discovered issues, they're stuck with them and the buyer isn't. Nobody's going to buy a house where you can't flush the toilets, as I had to explain at length to a listing agent about a year ago (Indeed, both law and lenders will make it very difficult). The most important question in the mind of any rational seller or listing agent has got to be, "What assurance do I have that this buyer can consummate this transaction in a timely fashion?"

As a buyer's agent, that's what you want to sell in a competitive bid situation: increased certainty of the transaction happening.. Confidence that you and your client can make it happen, given the opportunity. Show the sellers why these buyers are qualified. Telling nothing but the truth, paint a coherent picture of an easy transaction. This is one of the big reasons why real estate agents need to understand loans, whether they're on the listing or buying side. Walk the walk, don't just talk the talk. If your clients are all cash buyers, pound the point home - and get rid of that financing contingency! What's the credit score? What's the income, how stable is it, what's the debt to income ratio? The loan to value ratio? With client approval, you can even remove the account numbers from statements, and show them where the funds for the down payment are coming from!

Pre-Approval or Pre-Qualification letters will not get this job done. Neither one of them means anything real. I'll write them, but the only one I trust is one that I wrote. Why should I expect any other agent to give them any more weight?

The more qualified the buyers, the bigger the down payment and deposit they're bringing in, the better this works. A good sized deposit says you and your buyers are confident you can get it done, particularly if you'll waive one or more of the usual contingencies.

You do need both a good agent and a good loan officer to make it work. If the loan officer and agent are both the same person, that's even better, but this isn't happening with a discounter if the listing agent has more than an hour in the business, even if they're a discounter themselves (although I've never had a competitive bid situation happening with a discounter's listing. I don't wonder why, and you shouldn't either).

This pretty much can't work if you're in a Dual Agency situation. That agent counsels the owner to take the offer made where they get both halves of the listing commission, but the owner gets less money? Ten minutes in court or a regulatory hearing and that agent is toast. Yes, some agents are that stupid - but this is a mistake nobody makes twice, because once puts them out of the business. Not to mention that that owner is going to figure that the agent is out to line their own pocket at their client's expense.

For my buyer clients, I'm always looking for something valuable to the seller that isn't cash, or isn't purchase price cash. This is one of the best, because it doesn't cost my clients a darned thing, and yet it really is valuable to sellers.

Caveat Emptor

Copyright 2005-2014 Dan Melson. All Rights Reserved

 



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