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Join me for a Housing Market Conversation with Lawrence Yun July 16, 2008

I don’t normally cross-post between 4realz.net and Rain City Guide, but tomorrow I’m having a conversation with the Chief Economist of the National Association of REALTORS that I think will interest many people in the Rain City Guide community.   We’re going to be talking about the effect that the recent news associated with the FDIC bailing out IndyMac and the Treasuring providing support to Freddie/Fannie will have on the housing market.

I fully expect this radio show to be interesting, lively and informative and welcome you to join.   As with Rain City Radio, there’ll be an associated chat, and I’ll be picking out questions from the chat room.   Please consider joining us!

One more story for the Bellevue mortgage fraud files July 11, 2008

The Seattle Times is reporting tonight that a federal indictment has been issued for a Bellevue loan officer and his assistant. 

A former loan officer at a Bellevue mortgage company and his assistant have been indicted on a charge of conspiracy to commit wire fraud in a scheme that prosecutors say involved using straw buyers to purchase dozens of homes at inflated prices and siphoning off the extra cash for their own use.

Christopher Brooks and Amani Moss allegedly obtained more than $27 million in fraudulent loans for the purchase of at least 54 homes beginning in 2005, according to an indictment unsealed this morning.

The charges allege that they recruited straw buyers, who would allow the men to falsify loan papers for them. At the same time, Brooks and Moss would use a realtor, who is identified in the indictment by the initials “L.A.,” to find home sellers who were willing to overstate the purchase price of their homes. The straw buyers were paid between $7,000 and $10,000 for each transaction, the indictment says.

Brooks, who worked for America Mortgage in Bellevue, would then prepare and submit the false loan papers to several lenders in the area, according to court papers.

The difference between the inflated price and the actual purchase price of the home ranged from $30,000 to $778,000 per home, and the charges allege that money was funneled through a business owned by Moss, Peachtree Development, and into their pockets..

Home sellers, if your home is not selling and someone from our industry approaches you with an idea to take your home off the market and relist at a much, much higher price, please turn the person in to his or her regulator. If you are not sure who the regulator is, contact one of us and we can point you in the right direction.

The DFI Licensee database shows America Mortgage in Bellevue as a licensed mortgage broker. I wonder how many of these loans went into early payment default and how many the broker was asked to buy back from the lender.

In order to commit fraud at this level, the Realtor and mortgage broker would have had some help from an appraiser as well as an escrow closer.

The pain of over pricing and poor photos… and how not to get bit by them, 9+ questions to ask your listing agent. July 3, 2008

I’ve noticed a trend in my business lately.  Several consumers are contacting our team for help in re-listing their home after having a poor experience with a prior agent.  While it is true that selling activity in Puget Sound is lower this year than last, there is still some positive selling activity occurring with some areas of Puget Sound continuing to grow in housing values.

So, with there still being some sales activity why is it that these folks are contacting us?

What I’ve seen as key factors in the lagging sales of these homes is poor pricing and presentation of the properties.  In one case the price had been overinflated by hundreds of thousands of dollars, plus it had poor presentation in photos and staging, so the home languished sitting on market for over a year.

In the majority of these situations things could have been handled differently with the past agent.  And, while I believe that me and my team provide a higher level of service than many others, we know we aren’t the only game in town that can figure out the right mix of marketing, presentation, and pricing for a property.  However, in these instances, I do believe the former listing agents could have done a better job - for certain - but, as a seller, it is also up to you to do a good job of interviewing a prospective agent.  A few good questions by the seller might have led to a different decision about how the house was marketed and led to a better discussion about what impacts the value of a home.  This, in turn, could have led to a more informed decision about where to place pricing.

So, to try and help those of you out there who are considering putting your home on the market, here is a list of 9+ questions you can use to qualify and interview your prospective listing agent.

1.   What methods of advertising do you use, and why?  Can you tell me which will likely be the most effective?  How comfortable are you using Internet advertising methods?

2.   Do you think my home will need prep work or staging to get it ready for market?  What types of things do you suggest for sellers and why?

3.   What is the typical timeline for selling a home that you have represented and how does that compare to the local marketplace?  What percentage of selling price do you typically get compared to list price?

4.  Do you offer any particular programs or services for each home that you sell such as a home warranty, professional photos, etc?  Does your fee determine whether additional services are included or not?

5.  If you don’t provide these additional services yourself - do you at least have companies you can refer me to that if I choose to use them directly to prepare my home more effectively, I can do so?

6.  Are there any special considerations I should have while selling my home such as security, prep for showings, etc?

7.  How often will you communicate with me about the sale of my home?  What kinds of reports can I expect?

8.  Will I get a chance to review and approve any of your advertising or marketing materials such as the flyer, MLS ad, or otherwise?  If not, why?  If I am not satisfied with a piece, will you work with me till I am?

9.  How will you determine the price that should be advertised for my home?  Will you include me in those pricing decisions and explain to me any reasoning for a price above or below my own estimate?

This list isn’t meant to be exhaustive but it will definitely open up a lot of good (or what should be good) conversation between you and the agent you are interviewing.  If the agent is unable to respond to any of these questions then you should seriously reconsider whether or not you will use him/her regardless of if it is a “family friend” or otherwise.  In today’s marketplace it is important that you make the right choice the first time, if you can.  The buying public is much more sophisticated today than even 10 years ago because of the Internet and because of the onslaught of home focused television shows and channels like HGTV.

Form 17 — an addendum to the contract?

As always, this is not legal advice. If you want legal advice, consult an attorney, not a blog.

Is the Form 17 part of the purchase and sale agreement (PSA)? Should it be listed in the “Addendum” paragraph of the PSA? In a word: NO! (At least if you’re the seller — if you’re the buyer, then YES!)

First, some background: Here in Washington, a seller is required to provide a fairly comprehensive Seller Disclosure Statement to any buyer of real property. Our local MLS provides this to sellers as its “Form 17,” so everyone in the biz refers to this legally required disclosure statement as the Form 17. Pursuant to the statue, the Form 17 “is for disclosure only and is not intended to be part of any written agreement between the buyer and the seller,” i.e., it is not supposed to be part of the PSA. On the first page of a PSA, there is a section in which the various addendums to the PSA should be listed so that there is a clear description of the complete contract and its terms.

In practice, many agents (and unrepresented parties) will list the Form 17 along with the various addendums that are typically included in the PSA (e.g., financing contingency, title contingency, inspection coningency, etc.). If you are a seller, this is a significant mistake. Conversely, if you are a buyer, this provides you with some leverage if the seller fails to disclose or misreprsents a defect in the house.

By listing the Form 17 as an addendum to the contract, the parties incorporate the Form 17 into the contract notwithstanding the statutory language. In that event, if the seller fails to disclose or misrepresents a defect, then the seller has arguably breached the contract. This would give rise to a breach of contract claim against the seller, which is an easier claim to prove than a claim of fraud, the typical claim arising out of a seller’s misrepresentation. Moreover, the PSA contains an attorney’s fees clause. Thus, if the buyer were to prevail on the breach of contract claim, he would also be entitled to an award of his fees and costs incurred (which will very likely exceed the cost to repair the undisclosed defect). Fees and costs typically are not available on a fraud claim (although the case below calls that proposition into doubt, a topic of a future post).

A very recent case helps to illustrate this point. Stieneke v. Russi, decided July 1, involved a seller’s failure to disclose a leaking roof. At trial, the court concluded that the Form 17 was part of the contract, even though the buyers signed it four days after mutual acceptance. The trial court reasoned that a seller should not be able to easily avoid liability for the contents of the Form 17. The court found that there was “an understanding” between the parties that the Form 17 was “part of the deal.” Accordingly, the seller was liable for breach of contract.

On appeal, the appellate court reversed the trial court. The appellate court focused on several issues, including the fact that there was no mention of the Form 17 in the PSA itself. Had the PSA referenced the Form 17 in the “Addendums” section, thus specifically including the Form 17 in the terms of the contract, the appellate court would have had a much more difficult time concluding that the Form 17 was not part of the contract.

So, if you’re a seller and you receive an offer showing the Form 17 as an addendum, prudence would dictate that you strike that term and present the counteroffer back to the buyer. There is no reason to include the Form 17 in the contract, and indeed the legislature did not intend for it to be part of the contract as indicated by the statutory language. On the other hand, if you’re a buyer, go ahead and list the Form 17. Why not? It is common practice among agents and there is a good chance the seller will accept this term. In that event, you will have some additional protection to insure that the contents of the Form 17 really do reflect the actual knowledge of the seller. If the Form 17 does not reflect the seller’s actual knowledge, then you will have a good claim against the seller for the costs you incur as a result.

[Footnote: the damages in the Stieneke case, the cost to repair the leaking roof, was $72k, but the attorney's fees and costs were $175k. Clearly, as a buyer it is really, really good to preserve any ability to recover your fees and costs in the event you have a claim against the seller. In a future post, I'll discuss other interesting aspects of this case, including the basis for this award of fees even though there was no breach of contract claim.]

Pocket Listings in Seattle? June 23, 2008

I was a meeting this weekend with an agent in Southern California where he showed me a website he says he visits a couple times a week.   A competitor had built up a large repository of “pocket listings” for the Beverly Hills area and then stuck them behind a registration wall… of which he visited regularly.

photo of a neighborhood shot by wendy bakerBeing a Rain City Guide kinda guy, I’m not keen to put things behind registration, but I am fascinated by the idea of putting together a page of pocket listings as a resource for Seattle area agents and consumers.  If you’re an agent who serves any area supported by the NWMLS and you’d like to advertise a pocket listing on RCG, let me know in the comment below.

If I get 5 or more pocket listings in the comment section of this post in the near future, then I’ll assume there really is demand for such a tool in the Seattle area and I’ll start up a new page (right between “About RCG” and “Seattle Agent Recommendations”) for pocket listings.

Here’s the only information I need from you:

For obvious reasons, I’m assuming that most agents won’t want to list the address of the pocket listing, but if you want to include that information as well, all the better.  And just to be clear, this is a free service of RCG.   Assuming it becomes a lot of work, I may charge a nominal fee to cover my time and/or automate the system, but I honestly don’t see that happening in the near future.

Are there rules for getting your pocket listing on RCG? Most definitely!   But I don’t even know what they are yet.   However, I will definitely figure out some rules if people start abusing the system.    Some potential rules that come to mind: (1)  Only allow agents to list their top 3 pocket listings, (2) must let me know if a pocket listing gets listed on the MLS and/or (3) must let me know if a pocket listing is no longer available. But even those rules aren’t hard-and-fast yet until I get some feedback from the community.

So, if you are an agent intersted in getting some additional exposure for your pocket listings, let me know!

Not showing a less-than-3% SOC commission? That’s unethical and illegal June 11, 2008

This is not legal advice. For legal advice, consult an attorney directly, not a blog.

It’s common knowledge (based on those comments, at least) that some buyer’s agents will not show properties with an SOC of less than 3%. Is that a problem? In a word, Yes.

First, the ethics: The term “ethics” in this context refers to the code of conduct by which a professional is expected to perform his or her duties. “Ethics” in this sense usually — but not always — correlates with what a layperson would consider “right” and “wrong.” Generally speaking, “ethics” in the professional sense imposes an obligation to perform a professional duty in a fair and reasonable matter.

Admittedly, I am not up to speed on the rules of ethics that would apply to a real estate agent. Many agents are also Realtors, and I know that they are thus subject to a particular code of ethics. Attorneys are subject by law to the Rules of Professional Conduct, rules of ethics formulated by the State Supreme Court. I am unaware of any similar rules that apply to agents.

With that disclaimer, it certainly seems like this conduct SHOULD be considered unethical. Surely an agent has an ethical duty to diligently work for the client, including the identification and showing of any property that is or may be suitable for the client. From an ethical perspective, I would even argue that this applies to properties with no SOC whatsoever. Admittedly, in that circumstance, the agent has every right to and should discuss this with the client, as the agent need not work for free. Thus, the agent should, either at the initiation of the representation or when the issue arises, discuss with the client whether and how the agent will be compensated if the agent finds a house that does not offer an SOC. The parties may agree that, in that instance, the client does not expect and has no right to receive information from the agent about that property. Regardless, with this conversation, whatever its outcome, the client can knowingly consent to any limited scope of representation, and consent is the key when dealing with an ethical issue.

Now, the legality: This conduct is almost certainly illegal (at least where there is something more than a 0% SOC), but there is very little chance that it will give rise to liability. How is it illegal? RCW 18.86.050 is the relevant statute. It requires a buyer’s agent to “make a good faith and continuous effort to find a property for the buyer,” except that the agent need not “show properties as to which there is no written agreement to pay compensation to the buyer’s agent.” In addition, the agent is relieved of this obligation entirely IF the buyer agrees otherwise in writing after receiving the required “Laws of Agency” pamphlet. So, assuming the property offers a commission in some amount (i.e., greater than zero), I believe the agent has a legal duty to bring that property to the client’s attention.

So why no liability if the agent fails to do so? That turns on general legal principles applicable to wrongful conduct. Where such conduct causes an injury, the wrongdoer is liable for the harm caused. Here, assume an agent fails to show a “dream house” to the client because of a 2% SOC. The client subsequently buys another house for the same price. The client then finds out that he was denied an opportunity to buy his dream house because his agent did not tell him about it. What is the injury? Given that they are the same price, there is no way to quantify the client’s injury. Under those circumstances, it will be difficult to find the agent liable. Note, however, that if the house actually purchased cost MORE than the dream house, the client may be able to recover the difference.

From a practical perspective, too, there is little chance of the agent being held liable. The whole claim turns on what the client did not know. So, in order to even raise the claim, the client has to learn that his agent failed to inform him of his dream house. Needless to say, it is hard to even fathom a situation where the client would learn of this information after the fact.

So, it ends up being one of those unfortunate facts of life where — as of today, given the laws as they exist — there is no real remedy for the injured party. Unethical? Yes. Illegal? Probably? Any way to stop the behavior? Unfortunately, probably not.

Fishing season is officially open! June 4, 2008

To this title you might ask, “which salmon is available?”  Well, I’m not really talking about fish with scales and fins here.  What we’ve noticed over the past month is that the fishing with low offers is getting pretty common in a lot of price ranges.  These occurred in neighborhoods ranging all over the area too including Greenwood, Phinney Ridge (x2), Bellevue (Bridle Trails), and Mercer Island.

Some of these properties I can understand the desire of investors to lowball and get a bargain.  One of these homes I had listed was already priced to be a good value for the neighborhood so my clients completely ignored some extremely low all cash offers from an investor because they weren’t THAT motivated to sell - meaning, we’d only been on market for about 30 days.  Now, 2 years ago being on market that period of time would have made some people nervous but, realistically, most homes take longer than just a few hours to sell or even just a couple of weeks. So, we ignored the first 2 ridiculous offers and another one came along (still low). We put forward a counter with a very small price change and the buyers took it. WAKE UP CALL!  We’re not in a buyer’s market in the Puget Sound region.  We’re in a balanced market.

What I’ve noticed in talking with all of the agents submitting offers for these various listings I have is that they’ve all bought into their client’s mindset of thinking that “it’s a buyer’s market” and they should be able to really drop prices via their offers. But the agents aren’t helping their clients by doing the work associated with helping “sell” those offers.

Yes, there are some sellers out there that are still hanging on and desperately wishing for the days of the high flying markets we had for 5+ years, but reality is kicking in for most and the scales are becoming more balanced.  This isn’t the rust belt where the economy has sunk and houses have sunk lower.  If you’re a listing agent you had better be able to justify your pricing.  And, if you’re a buyer’s agent you should do the same for your offer.  One lowball offer we received my partner went back and asked the guy to submit his comps that supported the offer.  The agent’s reply was, “well, I don’t have any, it’s just what they wanted to offer.”  Our client almost completely ignored their offer except for some details we pointed out that led us to believe they’d accept a counteroffer with a minor price change - and it worked.

Another listing had an agent providing comps but they just solidified my client’s view that our pricing was right on. We did go ahead and submit a counter with a faster closing date and some small concessions that we expect will be accepted.

I will admit though that with a couple of my buyer clients, who are not in a hurry to buy, we’re doing some of this offer roulette.  We submitted an offer on a MI house for about $100k less than asking price but we also put forward our pricing analysis and comps that supported the price point.  The house had had several large price drops based on other agent feedback as well and it was definitely a cosmetic fixer.  It might have worked out for my clients except that the house got another offer the same day - it was still a very low offer but not as low as ours so the seller started negotiating with them.  But, that’s okay because my clients are willing to wait for the right deal for them.  This house was going to need roughly $200-400k in updates over time so from a cost perspective the price we offered was what they were willing to spend knowing the costs they’d incur later.

Having watched the low offers come in for one of our listings my client provided the impetus for this post by saying in an email, “well, it looks like fishing season is officially open!”  I’m glad that she’s got a good head on her shoulders and a good sense of humor too.  These are the clients you really enjoy working with especially when you can have sensible discourse with regard to your work together, market conditions, strategy, and more.

Happy fishing! 

“It’s just like a normal auction, except… May 30, 2008

…instead of the price going up over time, it goes down.” ~Bothell home owner

Trend?

When it’s good to know a “wiseguy” May 7, 2008

If you’ve ever watched a show like the Sopranos you know that there is a term out there called wiseguy that has a potentially dangerous undertone.  Well, yesterday, for one of my new listings I was thrilled to know a wiseguy, or rather a Wise Locksmith, Chris Weissman.

While driving from Renton to Bellevue’s Bridle Trails neighborhood, to show this listing, I get a phone call from another agent who has shown up to view it with a client.  He’s having trouble with the door and wants to know if I am aware of any problems or special way of handling the lock to make it turn.  “No, I haven’t had any problem with the lock before and neither have the other agents that have viewed the house already”, I tell him.

Come to find out, after calling one of the sellers, there is a way from the inside of the house to turn a little switch that would lock the home from the interior and it would make it so the master lock wouldn’t work.  Not good.  *Note to sellers - always let your agent know about quirky things like this so we can stop it from happening in the first place.*  Not only was I losing this viewing but the pending showing I was about to do would possibly be lost too.  On top of it, I lost one other possible buyer showing when yet another agent came by while we were working on getting the problem fixed.  My inner MacGyver kicked in.  I wasn’t about to do some fancy trick with a paper clip but I could quickly sort out a possible way to solve the problem.

And here is where my wiseguy comes in.  Chris is actually a former client of mine.  He and his girlfriend, Maridee, sold a condo and purchased a home through me about 18 months ago. I learned at that time that he was a locksmith and I’ve referred him to several clients since that time, with very good results I will say.  So, Chris gets a call from my partner, Michael, to see if he can help and he’s on top of it immediately coming over from the Seattle area during rush hour and actually making it within about a 20-30 minute time frame. I was thrilled.  One of the great things about working with various people and different types of contractors day in and day out is that when you need something fast - most of these wonderful folks will drop everything to come help you.

His first instinct was to try various methods and tricks he’s learned throughout the years to find special ways of opening locks. Unfortunately that didn’t work.  The second attempt through the garage didn’t work but mostly because it is on an electric opener, so then he had to tear off the existing door handle and replace it with a new lock.  I’ll say that it’s a little disturbing to see how easily some of this stuff can be taken off a property - although Chris did say that since he does this all the time he makes it look easy.  He just hates having to destroy stuff.  He didn’t damage the door though and that’s all good.

It ended up that the buyers that wanted to see the house at my scheduled showing ended up coming back (I rang their cell) and we had a successful viewing.  One of the other agents is planning to come back too but I likely won’t know if that 3rd agent comes back.  Either way, the house is accessible again and all is well that ends well.  Since the clients aren’t looking at offers till next Wednesday we should be set but I’ve got Chris on speed dial now, just in case….

The Commission-Based Fee Structure: it’s Bad for Buyers April 22, 2008

This post is not legal advice. For legal advice, consult an attorney in person, not a blog.

[Sorry, no links or cites here, but I think the following historical perspective is undisputed:] Originally, real estate agents (and brokers, referred to collectively in this post as “agents”) represented only the seller. The “listing” agent signed the contract with the seller that entitled the agent to a commission. This agent then informed other agents about the house now available for purchase by posting on the Multiple Listing Service. Another agent, the “selling” agent, would see the listing and show it to a potential buyer. Even though the selling agent then assisted the buyer in purchasing the property, she actually — and legally — worked for and owed a duty to the seller only. Because the “selling” agent assisted with the sale of the property, the “listing” agent would then split the commission paid upon the sale. The system made sense, as only the seller paid the commission to the listing agent, the listing agent then offered to share the commission as means of finding a buyer, and both agents eventually assisted with the sale. Indeed, some agents today still look at commissions in this light. As James Melanowski, an agent, said in a recent comment (#20):

There is one commission. I get paid x% to sell your property and with that x% I will do everything in my power to do my job. That may include paying a buyer’s agent, it may not. I may want to pay that agent y%, y-1/2%, or y+1/2% to bring that buyer to the table. The point is, x% is what you pay ME and it is to do with as I please.

Unfortunately, in this system, buyers usually mistakenly believed that “their” agent represented them in the transaction, when in fact they had no representation at all and “their” agent worked for the seller. With the evolution of consumer protections, many states revised this system. In 1996, Washington passed RCW Chapter 18.86, which by law altered this arrangement. Since then, in Washington a “buyer’s” agent owes a duty only to the buyer, regardless of the source of compensation, while a “seller’s” agent represents only the seller. Notwithstanding this new legal arrangement, the term “selling” agent is still used today by the MLS to describe a buyer’s agent(much to the chagrin of enlightened agents — right, Ardell?).

But if the buyer’s agent now represents the buyer, why is the buyer’s agent paid by the seller? This alone is enough to create a conflict of interest that could potentially impact the quality of the buyer’s representation (see RPC 1.08(f)). Furthermore, if the buyer selects her agent and works closely with the agent to find and buy a house, and the agent owes a duty only to the buyer, shouldn’t the buyer have the ability to decide how much to pay the agent? Under the current system, based on an outdated and no-longer-applicable model of representation, it is the seller — not the buyer — who ultimately determines the buyer’s agent’s compensation.

In addition, agents can and do represent both buyers and sellers. Thus, they have a vested interest in a system that promises a significant commission for both sides of the transaction. With flat fee listing and FSBO, the listing agent commission has come under increasing price pressure, and indeed it is not uncommon for listing agents to reduce their commission from the previously “standard” 3% (often times as long as the seller will also use the same agent for the following purchase, thus allowing the agent a subsequent and “full” 3% commission). The “selling” agent commission, however, is immune from such price pressure given the current business model. Indeed, as Kary Krismer, another agent, said in a comment (#31) to a recent post in reference to a buyer’s agent’s commission of 2.5%, rather than the standard 3%:

Well, it’s not that it’s a waste, but it’s not a wise decision at all. We’ll show buyers 2.5% properties, and have actually had a number of transactions in them. But there are some agents that won’t, or that subconsciously might down-talk the property.

Agents may argue that they are “entitled” — or, more accurately, earn — a full 3% given the time and efforts they invest in a sale, but that alone cannot justify this failure to show properties with a slightly lesser commission. After all, even 2.5% is a reasonable — to say the least — paycheck given the average house price (2.5% of $400k is $10,000). Thus, whether consciously or subconsciously, a signifcant number of agents fail to best serve their clients’ interests (by showing them ALL suitable properties and giving honest and accurate advice about each) simply because they won’t make as much money. While that is not absolutely wrong, at a minimum the buyer should be aware of this “limited” representation. How many buyer’s agents — who discriminate against commissions of less than the “full” 3% — have that conversation with their clients?

Finally, because the commission is a transaction cost, it stands to reason that a decrease in that cost will benefit either buyers or sellers or both (either prices remain the same with less costs and more money to the seller, or prices are reduced to reflect the reduction in costs, or both). With the current system, there is virtually no incentive to reduce this cost — or, for that matter even an ability to do so, unless the buyer is willing to forego an agent and either use another professional (say, ahem, an attorney) or self-represent.

So, the current commission-based fee structure, based on an outdated and now inapplicable model, leads to increased transaction costs (than what would be available in a truly competitive market) and a decreased quality of buyer’s representation. I’d say that’s bad for buyers.

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