Almost every real estate contract that comes across my desk includes a mortgage contingency clause. My clients always have tons of mortgage-related questions for me, many of which I am not qualified to answer since I am not a mortgage broker or in the lending business. But when I represent a buyer during a real estate transaction, I always explain the legal ramifications of the mortgage contingency to him. Moreover, I have to protect my client's interests with respect to their loan, and it helps if they understand why.
The mortgage contingency period (also known as the mortgage commitment period or the mortgage approval period) is extremely important to the buyer. Just like the attorney approval and inspection periods, a mortgage contingency period is just that -- a contingency. The contract is contingent on the buyer obtaining a loan, typically within three to five weeks after the contract is executed (although the term could be shorter or longer). Most form real estate contracts include some language protecting the buyer's ability to obtain financing. Developers' contracts, on the other hand, tend to have more limited mortgage commitment language that favors the builder.
A buyer or his attorney need to look for the following points to make sure the buyer is protected -- a) There must be enough time to obtain a loan commitment; b) The buyer should specify the maximum interest rate he is willing to pay; c) The buyer should clarify whether or not he is willing to pay points to obtain a more favorable interest rate; and d) The contingency should specify that the Buyer needs to obtain a FIRM mortgage commitment, not just any mortgage commitment. A commitment which is not firm includes conditions that must be satisifed prior to final loan approval. In today's lending market, a commitment pretty much means nothing until there are no outstanding conditions.
On the date that the buyer's mortgage contingency expires, one of the following three things should happen: 1) The buyer has a firm mortgage commitment that he is satisfied with in his hands; 2) The buyer's attorney asks for an extension of the mortgage contingency period because the buyer's loan is still being processed; or 3) The lender has denied the buyer's loan, in which case the buyer's attorney sends a copy of the rejection letter along with a request to cancel the contract and return the buyer's earnest money. If the buyer doesn't have a firm mortgage commitment and fails to notify the seller as stated above, he is bound to purchase the property. There have been many instances where a buyer failed to request an extension and was later unable to obtain financing. In such situations, buyers typically lose their earnest money. Technically, buyers can also be sued for specific performance, i.e. to complete the transaction. But the reality is that most sellers understand the buyer doesn't have the money to complete the purchase, which is why such litigation is uncommon.
Buyers should actively follow up with their lenders throughout the transaction. In fact, for a smooth closing, all parties to the transaction should communicate regularly!
Thursday, May 29, 2008
Thursday, May 22, 2008
1031 Exchange -- The Basics
What is a 1031 exchange? What are its pros and cons? Clients ask me this question at least a couple of times each month, and I think it's time for a simple answer.
With respect to real estate transactions, a 1031 exchange is a way for you to sell your investment property and use those funds to buy another investment property, without paying any capital gains tax on the property you sold for the time being. Pursuant to Internal Revenue Code Sectin 1031, the real estate you sell and the real estate you purchase must both be in the United States to qualify for a 1031 exchage. Sounds great, right? But there are a few things you should be aware of:
1) A 1031 exchange must be arranged prior to the closing of your sale. Your real estate attorney should be notified in advance so she can make arrangements for the title company to transfer funds directly to one of the many companies that handle 1031 exchanges. These companies are known as Qualified Intermediaries. Paperwork must be completed at or prior to the closing by both parties to the transaction, and you will have to pay a fee to the Qualified Intermediary. You CANNOT take the proceeds of the sale home with you, or have it wire transferred to your account, and then decide later that you want to do a 1031 exchange. For the exchange to be valid, the funds must be transferred to a 1031 company at closing.
2) Within 45 calendar days of your closing, you must identify up to three properties that you are interested in purchasing with your 1031 money. If you would like to, you can identify more than three properties, but then you are subject to the 200% rule, which means that that the total value of everything you identify has to be less than twice the value of the property you have sold. If you don't identify any properties within 45 days, the 1031 exchange fails and you can request the Qualified Intermediary to refund your money. If you identify properties and later decide you don't want to purchase any of them, you must wait until 180 days have lapsed from the time you sold your property to get your money back.
3) The closing of any new property or properties that you are purchasing using the the 1031 money MUST close within 180 calendar days of the property you sold. If you do not close within that time frame, the 1031 exchange fails, and you can request the Qualified Intermediary to refund your money.
4) The same entity that sold the initial property must be the buyer of the new property. For example, Joe Investor sells his apartment building and deposits the money with a Qualified Intermediary to do a 1031 exchange. Joe finds a shopping plaza he is interested in purchasing, and decides to form a company, Superstores LLC, to purchase the shopping plaza. Joe cannot do this. If Joe Investor sold the building, Joe Investor must be the buyer of the shopping plaza. This requirement makes it especially difficult when a company with multiple owners sells a property. Oftentimes, one of the owners wants to complete a 1031 exchange, but the other owners do not.
5) The new property or properties must be of equal or greater value than the property sold. So if Joe Investor sells his apartment building for $500,000 and has $200,000 in proceeds that he deposits with a Qualified Intermediary, Joe must spend at least $500,000 on the next investment property he purchases if he plans to complete a valid 1031 exchange. If he spends less, he will have to pay taxes on the difference between $500,000 (his sales price) and the price of the new property he is acquires.
6) Contrary to popular belief, a 1031 exchange is not a way to avoid taxes. Rather, it is a way to DEFER taxes. So while you increase your buying power now, someday you will end up paying all of the capital gains tax you avoided along the way. That can be a hefty chunk of money that becomes due all at once. Additionally, if the capital gains tax rate increases over time, you could end up paying more taxes in the future than you would have if you had paid the tax along the way.
Unfortunately, that's not all; this article is just a very basic overview. The 1031 rules are very complex and each situation requires individual attention. The smallest mistake can cause your 1031 exchange to fail, making you liable for the capital gains tax you thought you didn't have to pay this year.
With respect to real estate transactions, a 1031 exchange is a way for you to sell your investment property and use those funds to buy another investment property, without paying any capital gains tax on the property you sold for the time being. Pursuant to Internal Revenue Code Sectin 1031, the real estate you sell and the real estate you purchase must both be in the United States to qualify for a 1031 exchage. Sounds great, right? But there are a few things you should be aware of:
1) A 1031 exchange must be arranged prior to the closing of your sale. Your real estate attorney should be notified in advance so she can make arrangements for the title company to transfer funds directly to one of the many companies that handle 1031 exchanges. These companies are known as Qualified Intermediaries. Paperwork must be completed at or prior to the closing by both parties to the transaction, and you will have to pay a fee to the Qualified Intermediary. You CANNOT take the proceeds of the sale home with you, or have it wire transferred to your account, and then decide later that you want to do a 1031 exchange. For the exchange to be valid, the funds must be transferred to a 1031 company at closing.
2) Within 45 calendar days of your closing, you must identify up to three properties that you are interested in purchasing with your 1031 money. If you would like to, you can identify more than three properties, but then you are subject to the 200% rule, which means that that the total value of everything you identify has to be less than twice the value of the property you have sold. If you don't identify any properties within 45 days, the 1031 exchange fails and you can request the Qualified Intermediary to refund your money. If you identify properties and later decide you don't want to purchase any of them, you must wait until 180 days have lapsed from the time you sold your property to get your money back.
3) The closing of any new property or properties that you are purchasing using the the 1031 money MUST close within 180 calendar days of the property you sold. If you do not close within that time frame, the 1031 exchange fails, and you can request the Qualified Intermediary to refund your money.
4) The same entity that sold the initial property must be the buyer of the new property. For example, Joe Investor sells his apartment building and deposits the money with a Qualified Intermediary to do a 1031 exchange. Joe finds a shopping plaza he is interested in purchasing, and decides to form a company, Superstores LLC, to purchase the shopping plaza. Joe cannot do this. If Joe Investor sold the building, Joe Investor must be the buyer of the shopping plaza. This requirement makes it especially difficult when a company with multiple owners sells a property. Oftentimes, one of the owners wants to complete a 1031 exchange, but the other owners do not.
5) The new property or properties must be of equal or greater value than the property sold. So if Joe Investor sells his apartment building for $500,000 and has $200,000 in proceeds that he deposits with a Qualified Intermediary, Joe must spend at least $500,000 on the next investment property he purchases if he plans to complete a valid 1031 exchange. If he spends less, he will have to pay taxes on the difference between $500,000 (his sales price) and the price of the new property he is acquires.
6) Contrary to popular belief, a 1031 exchange is not a way to avoid taxes. Rather, it is a way to DEFER taxes. So while you increase your buying power now, someday you will end up paying all of the capital gains tax you avoided along the way. That can be a hefty chunk of money that becomes due all at once. Additionally, if the capital gains tax rate increases over time, you could end up paying more taxes in the future than you would have if you had paid the tax along the way.
Unfortunately, that's not all; this article is just a very basic overview. The 1031 rules are very complex and each situation requires individual attention. The smallest mistake can cause your 1031 exchange to fail, making you liable for the capital gains tax you thought you didn't have to pay this year.
Wednesday, May 14, 2008
City of Chicago Leases -- Landlords Beware
Whether you lease out one unit or dozens, if you are a landlord in the City of Chicago, you must be careful to adhere to the requirements of the Chicago Residential Landlord and Tenant Ordinance (Municipal Code Title 5, Chapter 1). All residential rental units in Chicago are covered by this Ordinance, except those in owner-occupied buildings with less than six units, dormitories, hotel or motel rooms, hospital rooms, residential living space provided by an employer to an employee, and any residential unit in which the tenant is under contract to purchase the space from the landlord. The Ordinance specifies the landlord's obligations and the tenant's remedies for landlord's failure to act as required by law. In order to avoid costly lawsuits from litigous tenants, a landlord should utilize a proper Chicago apartment lease that takes the Ordinance into account.
Landlords must be especially careful when dealing with the following lease-related issues:
1) When receiving a security deposit, the landlord must provide a written, signed and dated receipt of the security deposit. The receipt should include the landlord's name and the address of the property that is subject to the lease. If the landlord fails to provide such a receipt, the tenant is entitled to an immediate return of the security deposit.
2) The landlord must hold the security deposit in a segregated account and pay the interest accrued on it every twelve months. Furthermore, within forty-five days after the lease ends, the landlord must return the security deposit, minus unpaid rent and a reasonable amount for repairs if the tenant damaged the unit. Otherwise the tenant may be awarded twice the security deposit, plus interest.
3) The landlord must provide his or his management company's name, address, and phone number when the lease is signed, or the tenant may terminate the lease. If the tenant requests this information and the landlord fails to provide it, the landlord can become liable for additional damages.
4) Any late payment fees cannot be greater than $10 per month for the first $500 in rent, plus 5% of any amount in excess of $500. If the landlord attempts to enforce a late fee in excess of this amount, the tenant may recover up to two months' rent.
5) If a landlord enters a tenant's unit unlawfully, the tenant can obtain injunctive relief or terminate the lease.
These are just some of the items that a Chicago landlord should be aware of prior to entering into any lease. Indeed, anyone interested in renting out property in Chicago should familiarize themselves with the Ordinance to avoid running afoul of it. Penalties assessed against landlords can be severe, and landlords should proactively review their leases to ensure compliance with city law.
Landlords must be especially careful when dealing with the following lease-related issues:
1) When receiving a security deposit, the landlord must provide a written, signed and dated receipt of the security deposit. The receipt should include the landlord's name and the address of the property that is subject to the lease. If the landlord fails to provide such a receipt, the tenant is entitled to an immediate return of the security deposit.
2) The landlord must hold the security deposit in a segregated account and pay the interest accrued on it every twelve months. Furthermore, within forty-five days after the lease ends, the landlord must return the security deposit, minus unpaid rent and a reasonable amount for repairs if the tenant damaged the unit. Otherwise the tenant may be awarded twice the security deposit, plus interest.
3) The landlord must provide his or his management company's name, address, and phone number when the lease is signed, or the tenant may terminate the lease. If the tenant requests this information and the landlord fails to provide it, the landlord can become liable for additional damages.
4) Any late payment fees cannot be greater than $10 per month for the first $500 in rent, plus 5% of any amount in excess of $500. If the landlord attempts to enforce a late fee in excess of this amount, the tenant may recover up to two months' rent.
5) If a landlord enters a tenant's unit unlawfully, the tenant can obtain injunctive relief or terminate the lease.
These are just some of the items that a Chicago landlord should be aware of prior to entering into any lease. Indeed, anyone interested in renting out property in Chicago should familiarize themselves with the Ordinance to avoid running afoul of it. Penalties assessed against landlords can be severe, and landlords should proactively review their leases to ensure compliance with city law.
Wednesday, May 7, 2008
Transferring the Condominium Association from the Developer to the Homeowners
This week’s post is an amalgamation of two ideas – a client’s suggestion about a possible blog topic, and an idea I had after speaking with another client who is concerned about the transfer of management at her new association. If there is a topic you are interested in hearing about, please do not hesitate to let me know!
The Illinois Condominium Property Act requires developers to turn over control to condominium owners within sixty days after 75% of the condominium project is sold, or in the alternative, three years after the condominium declaration was recorded. When all parties are working together and the developer has kept proper documentation, turning over control to the homeowners is a clear-cut process.
First of all, upon at least three weeks’ notice to all homeowners, the developer has to call a meeting to start the election process for the first Homeowners’ Board. If the developer fails to do so, so long as at least twenty percent of the homeowners are in agreement and they provide notice to the developer, the homeowners can call the first meeting. Regardless of how the meeting is called, the developer may only continue to manage the association for a maximum of another thirty days after the first meeting. During that time, the homeowners should elect the first Board.
In the meantime, the developer should assemble all of the documents he will need to transfer to the new Homeowner’s Board. The developer should provide original copies (or certified copies, if originals are lost or unavailable) of the recorded Condominium Declaration and Bylaws, incorporation documents from the Secretary of State, Rules and Regulations (if any), Annual Reports, and contracts and leases affecting the condominium association. The developer should also prepare a list of all personal property owned by the association, if any, and describe where that personal property is located. If the association is involved in any litigation, governmental proceedings, or disputes with homeowners, full disclosure should be made to the new board. A copy of the association’s insurance policy should be included, as well as a copy of all tax bills available. And of course, the developer must provide a complete and thorough accounting of the association’s income and expenses during the time the developer or his agent was managing the condominium association. All of these documents must be provided to the new Board within sixty days of the new Board’s election.
In order to manage the association, the developer may have contracted with a management company, scavenger service, snow plow service, landscapers, handymen, or other contractors. In fact, developers often hire their own affiliates to complete many of these jobs during the time the association is under developer control. Based on the rates and/or the quality of these services, the new Board may wish to cancel some of these services and hire its own contractors. Under Illinois law, the Board can cancel any of these contracts within six months of its election, so long as the contracts extend for at least two years after the date of election.
Once the new Board takes over, it has a fiduciary duty to the other homeowners at the association. Because operating a homeowners’ association is a significant and time-consuming responsibility, and because it sometimes causes discord between neighbors, many boards relinquish these duties to a management company. Other associations choose to avoid the expense of a management company and self-manage the property. Regardless of the method of management, good bookkeeping and thorough accounting is needed for all associations.
Lastly, when a developer turns over control to the Homeowner’s Board, he is not absolved of his contractual and warranty obligations. Homeowners who have outstanding punchlist items or are still within the warranty period should continue to contact the developer for these repairs.
The Illinois Condominium Property Act requires developers to turn over control to condominium owners within sixty days after 75% of the condominium project is sold, or in the alternative, three years after the condominium declaration was recorded. When all parties are working together and the developer has kept proper documentation, turning over control to the homeowners is a clear-cut process.
First of all, upon at least three weeks’ notice to all homeowners, the developer has to call a meeting to start the election process for the first Homeowners’ Board. If the developer fails to do so, so long as at least twenty percent of the homeowners are in agreement and they provide notice to the developer, the homeowners can call the first meeting. Regardless of how the meeting is called, the developer may only continue to manage the association for a maximum of another thirty days after the first meeting. During that time, the homeowners should elect the first Board.
In the meantime, the developer should assemble all of the documents he will need to transfer to the new Homeowner’s Board. The developer should provide original copies (or certified copies, if originals are lost or unavailable) of the recorded Condominium Declaration and Bylaws, incorporation documents from the Secretary of State, Rules and Regulations (if any), Annual Reports, and contracts and leases affecting the condominium association. The developer should also prepare a list of all personal property owned by the association, if any, and describe where that personal property is located. If the association is involved in any litigation, governmental proceedings, or disputes with homeowners, full disclosure should be made to the new board. A copy of the association’s insurance policy should be included, as well as a copy of all tax bills available. And of course, the developer must provide a complete and thorough accounting of the association’s income and expenses during the time the developer or his agent was managing the condominium association. All of these documents must be provided to the new Board within sixty days of the new Board’s election.
In order to manage the association, the developer may have contracted with a management company, scavenger service, snow plow service, landscapers, handymen, or other contractors. In fact, developers often hire their own affiliates to complete many of these jobs during the time the association is under developer control. Based on the rates and/or the quality of these services, the new Board may wish to cancel some of these services and hire its own contractors. Under Illinois law, the Board can cancel any of these contracts within six months of its election, so long as the contracts extend for at least two years after the date of election.
Once the new Board takes over, it has a fiduciary duty to the other homeowners at the association. Because operating a homeowners’ association is a significant and time-consuming responsibility, and because it sometimes causes discord between neighbors, many boards relinquish these duties to a management company. Other associations choose to avoid the expense of a management company and self-manage the property. Regardless of the method of management, good bookkeeping and thorough accounting is needed for all associations.
Lastly, when a developer turns over control to the Homeowner’s Board, he is not absolved of his contractual and warranty obligations. Homeowners who have outstanding punchlist items or are still within the warranty period should continue to contact the developer for these repairs.
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