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Tucker’s Tips for Realtors & Lenders

Tucker’s Tips for Realtors & Lenders | Charlottesville, Virginia

Real estate attorney William D. Tucker, III is a big believer in helping everyone in the Charlottesville real estate industry. For years he’s provided useful tips to our local Realtors and Lenders. We hope you find some of these tips useful as well….

Bill Tucker – Real Estate Settlement Attorney

Mary Ann Barnes – Land Partition Suit Attorney

Contact us today for a Settlement Fee Quote or Initial Consultation – It’s the first step to protecting your home and your family.

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When a One-Owner Title Search is Needed:

We have frequently encountered situations where performing a one-owner title search has been instrumental in averting potential complications. Below are several examples where such issues were discovered:

  1. Adding Someone to Title/Deed: We’ve identified judgments that would become a lien on the real estate once the deed is recorded.
  2. Deed Preparation in Divorce Cases: We’ve spotted judgments against either ex-spouse which could become a lien on the real estate once the divorce is final.
  3. Deeding to LLCs: We’ve discovered existing mortgages that would prohibit the deeding of the property to an LLC.
  4. Listing Real Estate for Sale: We’ve uncovered issues like deceased parties, existing judgments, and unreleased Deeds of Trust, which will need to be resolved before the closing can be final.

Conducting a one-owner title search early can prevent problems later.

How to Spot a Seller Scam:

With the growing capabilities of our ever-advancing technological world comes the threat of impersonation by scammers everywhere. It’s happened several times already across Virginia, South Carolina, and the nation. The good news is following these tips can help you avoid being a victim:

Be especially cautious of vacant land sales, as these are prime targets for scams

Scamming sellers will insist on a remote closing

Scamming sellers will certainly be in a rush to sell

Mistakes/misspellings on IDs are common

Scamming sellers will accept low-ball cash offers to close more quickly

Keep the saying “if it looks too good to be true, it likely is” in mind when considering a sale!

The tip: Being mindful of red flags that indicate a seller may be fraudulent can help you avoid selling properties without appropriate permission.

Selling Family Property With Multiple Heirs:

The Problem: Your client is not the only heir, but has been paying the real estate taxes and wants to sell. This scenario is one of the primary motivators for selling “Family Real Estate.”

The Solution: There are three realistic options:

(1) When all the heirs are known, it may seem like the easiest solution is for all heirs to sign a listing agreement. Realistically, however, somewhere in the process some of the heirs will balk. The reasons are many: They don’t want to pay back the heir that’s been paying the real estate taxes; they want to see a reduction in another heir’s amount that used the property in some way; or they decide they no longer agree to the division outlined in the Virginia Code.

(2) Another option, if it’s known for sure there are only a few heirs, is for each heir to sign a power of attorney giving one of them the power to sell. The power of attorney needs to cover the many aspects of a real estate transaction, including potential problems. Many times, this option fails for the same reason as the first option, or because of the inability to locate all of the potential heirs.

(3) The third and most effective option is to file a “Partition Suit.” Any heir can hire legal counsel and be paid back out of the proceeds of the property. This process generally includes a title search, survey and appraisal. Usually the most time consuming aspect is gathering information and documentation, including heir contact information, death certificates, wills, marriage certificates, list of heirs and proof of heir’s contributions to the upkeep of the property. At the hearing, the judge may refer the matter to a special commissioner to sell the property.

Be SmartIt’s been our experience handling partition suits that contracts under options one and two generally end up as partition suits anyway, especially if large numbers of heirs are involved. In most cases a partition suit should be considered from the beginning.

Bonus Tip: If you’re buying a parcel with several heirs – Get Owners Title Insurance, as situations like this are exactly why it exists.

Settlement Issues When Purchasing Raw Land:

The problem: The amount of time needed to process a raw land purchase can be just as time-consuming as a home purchase, even when using cash. A title search is still required, as are HUDs and CDs. Although one may not be dealing with a home inspection, a perc test may be required and right of way issues can and do come up.

The Solution: When determining the closing date, build in enough time for a full settlement process, including time for surveys, title exams, etc.

Be Smart: Try to avoid requesting a rush closing the last week of a month, especially during the spring and summer.

The Commission Disbursement Form:

The Problem: We’re seeing a rash of Commission Disbursement forms arriving late or incomplete. We understand the volume and pace of settlements has picked up, but the last thing we want to do is get your commission wrong.

The Solution: Providing a timely Commission Disbursement form with the following information will result in accurate payment of commissions:

  • Name of brokerage, agent, and mailing address for the check
  • Total amount of commissions with a clear split between the agents
  • Clear notes regarding any credits or reductions in commissions
  • A note as to whether you would like to pick up the commission check or if it should be mailed

Be Smart: Most lenders now require commissions to appear on the Closing Disclosure. Providing the disbursement form early in the settlement process will help lenders keep their process on track.

Local Real Estate Tax Rates for 2019:

The Problem: This is the time of year when localities are setting new tax rates for the year. This interim period always creates confusion for those providing closing cost estimates and preparing settlement documents.

The Solution: We’ve put together a chart below listing the most current locality rates in our area. This should help when estimating costs.

Be Smart: If the locality you need isn’t listed or hasn’t announced yet, you can call their Treasurer’s Office directly to find out the most current rate.

2019 Rates:

  • Albemarle County – .854 (New for 2019)
  • Charlottesville City – .95 (No change from 2018)
  • Buckingham County – .55 (No change from 2018)
  • Fluvanna County – .925 (New for 2019)
  • Goochland County – .53 (New for 2019)
  • Greene County – .82 (New for 2019)
  • Harrisonburg City – .85 (No change from 2018; Rate may change for 2nd half)
  • Louisa County – .72 (New for 2019)
  • Madison County – .68 (2019 rate not announced yet)
  • Nelson County – .72 (New for 2019)
  • Orange County – .804 (No change from 2018)

Adding Agent Cell Phone Numbers to Residential Contracts of Purchase:

The Problem: Page 10 on VA Form 600 (Residential Contract of Purchase) provides a space for the Selling and Listing Agent’s office phone numbers. However, trying to reach an agent using the company’s office number usually results in several missed calls, delays, etc.

The Solution: Although there’s no specific space on page 10 for listing an agent’s cell phone number, we recommend adding the agent’s cell number next to the agent’s name (Ex: Agent Name: Jim Smith 434-977-2222.) This will definitely help Settlement Attorneys and staff save time and reduce phone tag.

Be Smart: Please take time to confirm your current email is listed on page 10 as well.

Select a Closing Date That Works for all Parties Involved:

The Problem: When clients aren’t able to be present at closing, it can cause major chaos. The Settlement Attorney has to create a solution. The typical options have been to draft a specific power of attorney, conduct a mail-away closing, or reschedule the closing. The power of attorney has to comply with specific requirements for the buyer’s lender when used for a purchase.

In addition, the buyer’s lender may have very strict guidelines as to who can sign on behalf of the buyer. Mail-away closings for buyers also have been restricted with several lenders and become complicated to manage.

The Solution: When drawing up a Contract, select a closing date that works for all parties involved. Documents that are prepared for closing use the actual closing date from the Contract. It’s important that everyone who is required to sign documents be present if possible.

Be Smart: If a closing date conflict does arise, please alert the Settlement Attorney’s office immediately so they can start working on the issue.

Caution When Listing Multiple Parcels On Same Contract:

The Problem: Listing multiple parcels on the same contract can result in confusion when the properties aren’t clearly identified by lot, tax map number and legal description. This can result in a title search being done on the wrong parcel, or only one of the parcels, thereby delaying the closing while everyone is trying to figure out what is actually being bought or sold.

The Solution: Street addresses aren’t enough. Reduce the chance of a delay by listing each lot, tax map number and short legal description individually in paragraph one on the VAR contract. This ensures title work is ordered on the entire property intended for purchase.

Be Smart: During the initial communication, it’s helpful to notify your settlement attorney that there are multiple parcels listed in the contract. Additionally, it’s very helpful if the current owners can provide a physical survey (preferably), or at least a boundary survey, to ensure the proper lots are being conveyed to avoid potential post-closing issues.

Leaving Spouse Off REO Contract Can Cause Problems:

The Problem:  A non-borrowing spouse who was supposed to be on title was left off the REO contract. This becomes particularly problematic as the sellers of bank-owned properties are sticklers for exactitude when it comes to contracts. The usual remedy for an error is to draft a contract addendum and wait for the REO seller to approve and sign it again, which takes up valuable time, as REO/bank-owned closings are usually on a rather short deadline. Even then, sometimes the REO seller won’t allow a name change.

The Solution:  When drawing up a contract for clients purchasing an REO property, include the names of everyone who will be ON TITLE, regardless of whether they are on the loan. Also use the names your clients wish to take title in (Robert J. Jones, III vs. Bob Jones).

Be Smart:  More information is better! For ALL real estate contracts, add complete names, middle initials, Jrs. and Srs., street addresses AND tax map numbers of the parcels – the more information upfront helps to avoid confusion and bumps in the road later as the closing date approaches. Remember, if the names and address are correct on the contract, it’s less likely that an addendum will be needed.

Bonus Tip:  Please let your clients know that a non-borrowing spouse who will be on title still needs to attend closing and sign documents.

Preventing HOA Disclosure Packet Surprises:

The Problem:  The Seller is responsible for providing and paying for the HOA Resale Disclosure Packet.  As more HOAs switch to software generated disclosure packets, the option to pay for the packet at closing is often selected, yet the invoice (Dues Request-Escrow Instructions) provided to the settlement attorney doesn’t always note an amount due.  When this happens and the fee isn’t paid at closing, the Buyer can receive a nasty surprise invoice from the HOA for the unpaid fee.

The Solution: If the fee for the HOA Packet is prepaid, provide the “Paid Receipt” to the closing attorney. If the option to pay the fee at closing is selected, notify the settlement attorney before closing.

Be Smart: We know each closing involves innumerable moving parts. Overlooking the HOA fee is easy to do, yet the effort and frustration to resolve after closing is a huge time drain. If everyone adds this item to their checklist we can cut down on the required post-closing follow-up.

More Wells Failing Inspection:

The Problem:  Wells are failing inspection at a higher rate than normal. Closings are being delayed while everyone hustles to remediate the problem by chlorinating the well and then re-inspecting.

Conventional wisdom is placing blame for increased well problems on the long-term wet weather pattern we’ve been experiencing.

The Solution: Schedule well inspections as soon as possible per the VAR contract (Normally no sooner than 30 days before actual closing.)  It’s better to have wiggle room if you need to treat the well and perform a second inspection, thereby reducing stress on yourself and your clients.

Be Smart: We’ve learned some realtors are recommending that sellers “shock” their well before inspection to kill any bacteria in the system.  Although we provide legal advice on a regular basis, it’s probably prudent to seek advice from your favorite well guy.  The Virginia Cooperative Extension website also offers excellent advice on “shocking” a well.

When Not to Schedule a Closing:

The Initial Problem: We occasionally receive contracts with the closing date falling on a Federal or State holiday.  This causes a bit of initial scheduling concern; however, we usually catch it early enough to resolve the issue without too much difficulty.

But that’s not the real problem. The true scheduling chaos occurs when the local Clerk’s decide to close their offices early before a holiday.

Be Smart: Although the State publishes an annual holiday schedule, our local Clerks will often add additional days off or close early the Friday before a Monday holiday. Please try to take this into account when scheduling a closing around a holiday. You can always call my staff if you’re not sure when to schedule a specific closing. We’re happy to help.

Awareness: Based on the Federal and State holiday schedule, the local Clerk’s offices will be closed on the following dates:

  • New Year’s Day (1/1/2019)
  • Lee-Jackson Day (1/18/2019)
  • Martin Luther King, Jr Day (1/21/2019)
  • George Washington Day (2/18/2019)
  • Memorial Day (5/27/2019)
  • Independence Day (7/4/2019)
  • Labor Day (9/2/2019)
  • Columbus/Indigenous Peoples Day (10/4/2019)
  • Veterans Day (11/11/2019)
  • Thanksgiving (11/28-29/2019)
  • Christmas (12/24-25/2019)

When Railroad Crossings Are a Problem:

The Good News: Most railroad crossings in Virginia are over a State Road and there are no issues with the legal ability to cross the railroad tracks (Just remember to obey the railroad signals and to look carefully both ways before crossing).

The Problem:  When the railroad crossing is not on a state road. There are many instances in our localities where the railroad crossing is over a private road and/or right of way. For example, the railroad track has been there for years with a house on the other side of the tracks. The only access to the house for the last forty years is over the railroad crossing.

The Question: Will the title insurance company insure the crossing? Unfortunately, without a recorded right of way or a license from the railroad, the title insurance underwriter will probably not insure access to the property. Even though the prior owners of the property have driven over the railroad tracks for years, the property may be unmarketable due to lack of access.

Railroads do not want to grant a right of way or license over their tracks because of liability issues. They do not mind you crossing the tracks; they just do not want to give you the legal right to cross. Without a legal right to cross, the title insurance company will not insure access to the property.

Be Smart:  There are solutions to these problems; however, they take time to resolve. Accordingly, if someone wants to sell a property located on the other side of a private railroad crossing, the situation needs to be researched as soon as possible. Be sure to immediately request a title search, or review the prior title policy, in order to determine the extent of the problem. Consult a real estate attorney for advice on how to attempt to solve this problem.

Surveys & Plats:

We have recently experienced an epidemic of problems with physical surveys (especially in the City of Charlottesville.) For example, a garage that actually encroaches on the adjacent property, a fence on the City right of way. Please try to provide the settlement attorney with a copy of an existing physical survey, if available. Sometimes, even a plat of the boundary lines can be helpful. If no physical survey exists for the property, please explain to your client that it is extremely import to know where the house and all improvements are located on the property, and if there are any encroachments or set back violations. Therefore, ordering a new physical survey is very necessary, otherwise, the Purchaser is buying the Seller’s problems!

Settlement Dates and Month End:

The last day of the month seems to be the most popular day for closings, and unfortunately the most crowded. If possible, try to avoid scheduling a closing for the end of the month, especially if the end of the month falls on a Friday. When this occurs, there is a possibility that the closing may not be completed by the end of the day. The loan package and final lender review could be delayed. The actual settlement may also get backed up with last minute closing problems (these seem to happen more often now.) Finally, if the Seller has an FHA loan to pay off, any delay in closing may result in the loan payoff increasing by an additional month of interest.

Local Lenders:

As we encounter more and more last minute problems with lenders and underwriters, it is important to use local lenders. A local lender means there is someone to meet with and discuss these last minute issues, instead of an “800” number or email to who knows where. We are extremely fortunate in our area to have many excellent local lenders still providing various loan produces and opportunities. I can not overemphasize the number of times these local lenders have saved a closing.

Survey Affidavits:

One of the issues with each purchase of a home is whether or not the Purchaser needs a physical survey showing all improvement. The lenders do not usually require a survey unless the title insurance company requires it for the lenders title policy. Unless the property is new construction, most title insurance companies will provide lenders title insurance without a physical survey.

Most real estate attorneys believe that a physical survey is very important to protect the Purchaser from such things as fence encroachments, setback issues, etc.  At the very least, the Purchaser will know exactly where the house, driveway, etc. are relative to the boundary lines.

Even though a new physical survey is the best protection for the Purchaser, there are many instances where a prior existing physical survey will be sufficient. The current Seller may have had a survey prepared when they bought the property and there have been no changes since. Most title insurance companies will accept a survey affidavit from the Seller that the existing survey is accurate.

Accordingly, it is recommended that the Sales Contract contain a clause that “the Seller will provide any existing physical surveys, and if requested will sign a survey affidavit.” (There have been several instances lately where the Seller will not voluntarily sign a survey affidavit even when an existing survey is accurate.)

Scenario with Non Local Settlement Agent:

A recent Tucker’s Tip encouraged buyers to use a local settlement agent since Central Virginia has practices that are different from other localities around the Commonwealth.

Here’s a hypothetical scenario that highlights some of the issues that can arise when a Purchaser uses an out of state settlement agency:

  1. The seller’s closing paralegal advises the buyer’s out of state closing agent in writing about Central Virginia closing procedures, namely that seller’s side needs a wire for all seller side disbursement prior to releasing the deed. The closing paralegal provides these closing procedures to the buyer’s side a full THREE weeks before closing. The buyer’s agency agrees to close the Central Virginia way.
  2. On the day of closing (a Friday), the buyer’s side suddenly refuses to close the Central Virginia way. The seller’s side contacts the senior title underwriter, and a compromise is reached. But not for long…
  3. The local agency of the actual Title insurer refuses to budge. They insist on making all seller disbursements post recordation. The out of state settlement agency threatens to return the lender’s wire, stating that the closing will just not occur. The out of state agency requests that the seller’s side UPS/FedEx the original Deed from Virginia to their out of state office so that it can be “processed” and mailed back to record in the local clerk’s office.
  4. The seller’s side offers to facilitate the transaction, i.e., sit with the buyer for closing, supply a conference room, update title, and record. The buyer’s side does not accept the offer and sends a traveling notary to meet the buyer at the property to sign closing docs.
  5. The traveling notary is late.
  6. The day of closing passes…
  7. Negotiations continue into the next week. It makes no sense and does not protect the Seller to send the executed Deed out of state without any guarantee as to when or if the sales proceeds will be paid to the Seller. Just when it seems as though no compromise will be met, the closer from the buyer’s agency calls the seller’s closing paralegal and asks if she will be willing to record and update. The buyer’s closer says she will send all seller disbursement except the payoff but will send confirmation of payoff immediately after recording and sending her wire. Buyer’s closing agent agrees immediately as it is now Tuesday afternoon of the next week.
  8. The Deed is finally recorded Wednesday. Also, the Seller’s loans were paid off a full week after closing, adding several days’ additional interest.

If the above scenario sounds convoluted, use it as a reason to encourage buyers to use local settlement agencies!

P.S. The real estate commission was mailed directly to the listing realtor from the out of state settlement agent. Unfortunately, it was mailed to the wrong address and took an additional week to get to the realtor.

For REO Purchases, Choose Your Own Settlement Attorney:

Tucker’s Tips especially recommends choosing your own (local) settlement attorney or settlement agency when purchasing from an REO seller. Never choose the settlement agent selected by the bank as the seller. That settlement agent’s primary relationship is with the REO bank.

Recently Tucker’s Tips encountered a closing situation where the REO selling bank had prepared the new deed based on the deed description from three owners prior! Needless to say, the “Being” clause and the deed were completely wrong. In this case Settlement was not delayed because the closing paralegal on the purchaser’s side spotted the discrepancy while reviewing the proposed deed and comparing it to the property description in the title work and binder. (Had the purchaser selected the bank’s settlement agent, this error would have gone undiscovered as the bank’s settlement agent prepared the incorrect deed.)

Remember, the REO seller’s offer of “free” title insurance is not really “free”, as it requires using the REO’s choice in settlement agency which can create a whole host of unnecessary problems.

Waiting Times After Adverse Event:

For a Short Sale – Expect four years to pass from the completion date before applying for an FNMA loan. You can get an FHA mortgage three years from the date of sale. A USDA mortgage is similar, three years from the short sale. There are no short sale guidelines for obtaining a VA loan, however you may not have had more than one short sale.

For a Foreclosure – You need to wait seven years from the completion date for an FNMA loan, and three years from the completion date for an FHA or a USDA loan. Two years from the foreclosure date must pass to be able to qualify for a VA loan.

For Chapter 7 Bankruptcy – Four years from the discharge or dismissal date must pass for an FNMA loan. Three years from the discharge date for a USDA loan and two years from the discharge date for an FHA or VA loan must pass.

For Chapter 13 Bankruptcy – Two years from the discharge date or three years from the dismissal date must pass for an FNMA loan. For FHA or USDA, one year of payout must elapse, with payment being satisfactory and made on time. Buyer must receive permission from court. For a VA, one year of satisfactory payments must have been made and the buyer must also receive permission from the court.

Basics For the Busy Season: As springtime comes into full swing, and the busy and hectic real estate selling season along with it, facilitating a smooth closing is more important than ever. We’ve already discussed the benefits of communication and patience for all parties involved. Here are a few more practical tips that can help lenders and realtors provide their purchasers with a wonderful, streamlined closing experience:

  • Make sure that the contract has correct names. The names on the contract should be exactly the same as the names the Purchaser uses to apply for a loan. Full legal names may not always be used, but there should be no nicknames, and be sure to pay attention to the spelling, the suffixes, and the middle initial.
  • If the Purchaser has questions regarding contract language, call a real estate attorney to get legal advice to help with drafting. The VAR basic contract provides an excellent foundation but may need to be tweaked or amended for special circumstances.
  • Ask the listing agent for copies of the Seller’s title insurance policy and physical survey, if available. These may save money for the Purchaser and will help prevent possible title problems.
  • Instruct the client to shop for Homeowner’s insurance and to include car insurance as discounts may be available. Remember this is a closing expense which will be paid every year the Purchaser owns the house.

Title Underwriters Protecting Against Fraud:

Title insurance underwriters are starting to require more proof that deeds of trust and mortgages have been paid off. A recorded certificate of satisfaction is not necessarily enough.

The underwriting industry is experiencing a higher than usual volume of fraudulent releases of Deeds of Trust or Mortgages. The seller makes it seem like the deed of trust has already been paid off, and then receives the proceeds from the sale without paying off the still unpaid loan.

It is rare for a borrower to pay off a loan before selling or refinancing. Therefore title insurance underwriters see a “red flag” when a property with a deed of trust is being released with no concurrent refinance loan or sale of the property taking its place.

If you have a seller who has finished paying off his or her mortgage, and the mortgage has been released, the releasing lender should be contacted to confirm payment and validity of the release. If the homeowner has received a letter from the lender stating that the loan has been paid in full, this will usually suffice as proof.

Preventing Underwriting Delays:

Recently more lenders are requiring that the termite inspection be signed by all parties in order to get through underwriting. If the termite inspection report is ordered well before closing (such as 10-15 days before), then there is ample time to provide the report to all parties and collect the necessary signatures so that closing is not delayed.

Also, just a reminder, title work needs to be obtained prior to final underwriting. The quicker title is ordered, the less likely that the underwriter will be delayed. Some lenders even require the title binder within a short timeframe (for example five business days). Tucker’s Tip recommends that the title search and binder be ordered at least as soon as the inspection is satisfied (if not before).

Communicating about who is ordering what and when, can make the whole closing process smoother and less stressful for all, which may certainly be necessary with the coming RESPA/CFPB changes!

Underwater Homeowners and the Right to Sue:

Distressed homeowners, strung along by mortgage servicers who do not evaluate their loan modification applications now have some recourse. The Federal Real Estate Settlement Procedures Act (RESPA) is bringing changes in other areas besides to closing procedures.

On January 10, 2014, new regulations became effective requiring loan servicers to follow certain rules when offering loan modification applications and other loss mitigation packages to their underwater borrowers.

Up to this point, for someone attempting to do a loan modification or other type of loss mitigation the scenario often played out like this: The borrower submits a loan modification application. Bank/servicer does not receive the application, or states the application is incomplete. The borrower submits more paperwork, to complete the application. The servicer says it has not received this paperwork, and still does not have a record of a completed application. Meanwhile the lender/servicer initiates foreclosure. Eventually the borrower is foreclosed on, loses his home and has no recourse for any incompetency on the bank’s part.

This new regulation/law requires servicers to evaluate borrowers for all loss mitigation options available to the borrower and to provide the borrower with written notice of the servicer’s determination within 30 days of receiving the borrower’s application for loss mitigation. If a complete loss mitigation package has been received, then the lender cannot foreclose on the borrower. Above all, borrowers now have the right to sue the servicers and lenders for violating the new RESPA regulations.

As court cases are being brought forth against lenders and servicers by borrowers since the regulations took effect in early 2014, we are now starting to see how the RESPA regulations will affect the procedures for loan modifications and other loss mitigation packages.

NO HOA – Double Check!:

The VAR Contract, in Paragraph 23, “The Property Owners Association Disclosure”, indicates whether or not the property being purchased is within a Home Owners Association (HOA). However, just because the “Is Not Located” box is checked does not necessarily mean the property is free from a set of governing covenants, conditions or restrictions (CCRs).

To qualify as an HOA, there has to be the ability to collect dues and/or there is common area to maintain. Usually a Home Owners Association Board is in place and most definitely a recorded set of restrictive covenants (CCRs). These CCRs are provided to the Purchaser with the required “Association Disclosure packet”.

However, if there is no required HOA packet, there still may be a set of CCRs that govern the property being sold. Remember, just because there are no dues, does not mean there are no rules or restrictions on the property. There could also be other restrictions (such as road maintenance agreements, subdivision restrictions, etc.) that affect the Purchaser’s title to the property.  (Typically these types of restrictions without HOAs can be found in old established neighborhoods and subdivisions.)

Therefore it’s always a good idea for the listing agent to ask the Seller for previous title work to see if there are restrictive covenants (maybe even a road maintenance agreement) that needs to be reviewed. The VAR Contract in Paragraph 15, entitled “Title”, provides that the property be “subject to such restrictive covenants…which do not materially and adversely affect the use of the Property for residential purposes or render the title unmarketable”. This way the Purchaser will not get any surprises at (or even after) closing, if the Purchaser intends to do something with the property that may not be allowed according to the CCRs.

VAR Contract and HOA Restrictions:

In some situations where there is “no HOA,” there still may be a set of restrictions and covenants that limit the Purchaser’s use of the property. If a recorded set of CCRs or other type of restrictions governs property not in an HOA, to protect the Purchaser, insert the following into the blank “Other Terms” Paragraph 31 of the VAR contract:

“In the event the Property is not in an HOA, the Purchaser’s obligations under this Contract are contingent on Purchaser reviewing and approving any recorded covenants, conditions, and restrictions (CCRs) including road maintenance agreements. Said review and approval shall occur within ____ days of receipt of any applicable CCR and/or road maintenance agreement.”

This way, the Purchaser will have the opportunity to determine if any recorded restriction which is not subject to the Virginia Property Owners’ Association Act, (and therefore is not provided in an HOA disclosure packet), would inhibit the Purchaser’s intended use of the property. Since the VAR contract states that the Seller is conveying the title to the property to the Purchaser subject to any recorded restrictions (“Title” paragraph in the VAR), including the above language protects the Purchaser, if the CCR contains provisions that the Purchaser does not like.

Tucker’s Tips had heard of a situation where the Purchaser intended to have donkeys on the property. There was no active homeowners association and all the neighboring properties had other farm animals, so donkeys did not seem out of the ordinary. However, at the time of closing, the parties discovered that there were CCRs which dictated donkeys could not be kept by property owners. Since the contract stated the Purchaser was accepting the property subject to all CCRs, there was nothing the Purchaser could do but continue to close on the property and never have donkeys as a pet.

Practice Tip: Review title work at the time of listing, especially for properties without active HOAs or in old developed neighborhoods. Keep an ear open to a prospective Purchaser’s intent to use the property, especially if it sounds out of the ordinary. 

The No Financing Affidavit:

Assuming the Seller has no outstanding loans on the Property being sold (Deeds of Trust, HELOCS, Equity Lines), the Purchaser’s title company, while doing the title search, will find there is no mortgage on the property. The title company will accordingly request that the Seller sign a “No Financing Affidavit” to confirm that there is no loan on the property.  In this situation, to make the closing smoother and to protect the Purchaser’s interest, consider inserting the following into paragraph 31 of the VAR Contract:

“Seller is required, if applicable, to sign a No Financing Affidavit for the Purchaser’s title insurance Company.”

The failure to sign the No Financing Affidavit could create additional work and/or delay for the Purchaser. Inserting this sentence in the contract during execution, when all parties are eager to make a deal, could save hassle later on for the Purchaser.

In the same vein of making the closing process smoother, please also consider inserting the following into Paragraph 31:

“The Seller agrees to provide to the Purchaser, if available, copies of any physical surveys and/or owners title insurance policies or binders. In addition, if accurate, the Seller agrees to sign a survey affidavit stating that the prior physical survey is still accurate.”

Again providing these documents to the Purchaser can actually save money, time and possible future problems.

TRID – Last Minute Changes on the CD:

Here is another example of why it’s important to stay flexible during the closing process now dictated by TRID regulations. Although lenders theoretically have to tell the Purchaser how much money is needed for the closing well in advance of the actual settlement, it still doesn’t always work that way.

Providing the Purchaser with the CD three days in advance of closing has helped resolve questions regarding the breakdown of various closing fees. The CD can give the Purchaser a good idea of how much money to bring to closing. (An answer to the Purchasers’ most frequently asked question, “How much money do I need for my closing?”) However, the actual CD at closing can still change between the three-day delivery and the actual closing, thus causing a last minute change in the amount the Purchaser must bring to closing.

The good news is that any such changes are normally not a large difference.

Tip: Remind your Purchasers that the final numbers on the CD could vary at closing from the CD version they were provided three days prior, and that a last minute change in the amount needed to bring to closing is not uncommon.

Choose Your Own Settlement Agent:

Never choose the settlement agent selected by the REO bank as the seller. That settlement agent’s primary relationship is with the REO bank. Tucker’s Tips encounters time and again how using the REO selling bank’s closing agent causes needless issues and delays for a settlement.

For example, we encountered a situation where the current seller of a property had used the REO seller’s closing agent when they purchased it. A boundary line adjustment had increased the parcel’s size and went unnoticed when the REO bank foreclosed on the previous owners. When transferring the property to the new owner, the REO closing agent prepared the deed and property description without taking into account the full title search, which would have revealed the boundary line adjustment to the property. Thus the REO bank transferred only a part of the property to the new owner, which again went unnoticed because the new owner had not used his own settlement agent or attorney.

Fast forward to when the new owner wants to sell, and the big title problem, that of not transferring the whole property, finally emerges.

So remember, the REO seller’s offer of “free” title insurance will rarely really be free, as using the REO’s choice in settlement agency can create a whole host of unnecessary problems.

Tucker’s Tip: Remind Purchasers to choose their own (local) settlement agent or attorney when purchasing from an REO seller.

New Wiring Instructions Scam Alert:

Tucker’s Tips has learned of a new spin on a fraudulent scheme that scammers are using in our area! Scammers are attempting to hack into email addresses, to take over communication and gain information so they can change wiring instructions to direct funds to their own accounts.

Previously, scammers have sent out emails to closing agents purporting to be from the Seller informing the closing agent to wire funds to a different bank account than the one originally given by the Seller. The scammer hopes that the fraudulent email is not discovered until several days after the money has already been wired to the wrong account. This scheme can be avoided by strict instructions between the settlement agent and the Seller regarding where to send the proceeds.

Now scammers are targeting Purchasers. Posing as the settlement agent, the scammer emails the Purchaser with new wiring instructions and instructs him to send the money needed for the closing to the new (wrong) account, instead of the correct one that the settlement agent originally gave to the Purchaser when they began working together.

As before, the scammer’s email address looks deceptively similar to the authentic email address, only varying by one letter or number.

Stay vigilant and be aware, especially when communicating through email. Tucker’s Tips suggests advising your clients of the fraud attempts and have procedures regarding the verification of wiring instructions. Also, Realtors should make sure to have their own safeguards in place in the event they plan to receive real estate commissions by bank wire.

Who is on Title?:

Make sure the settlement agent or attorney knows of everyone who will be on the deed to the property, especially if they are not going to be on the loan. Individuals who are not going to be on the loan are sometimes not listed in the contract. It is therefore important to share this information as soon as possible during the closing process.

The non-borrowing co-owner does not need to sign most of the loan documents. However, there are some loan documents and other necessary documents such as title work, title insurance, and homeowners insurance which require the names of all owners (whether the borrower or not). Also the deed will need to be prepared with all correct names of the owners. The non-borrowing individuals will also then know ahead of time that they too need to be at closing to sign paperwork.

If the new owners want to take ownership in the names of their trust, this has its own set of issues. The lender may need to see the trust and sometimes obtain an attorney opinion letter regarding the terms of the trust. Also the attorney preparing the deed for the Sellers needs certain trust information to properly prepare the deed.

Tucker’s Tips has found that communicating this information from the start will make the settlement process a more positive experience for all parties involved.

The TRID Experience:

With the new TRID laws in place for over four months, Tucker’s Tips has made the following observations about how TRID is affecting settlements:

  1. Closings are taking about a week longer than before TRID. (This experience is apparently not just in our area. They are taking on average about a week longer across the country.)
  2. It is a confusing process for all, especially lenders who need to present all financial figures to the Purchaser for the closing much sooner than before (three day CD Review.)
  3. Some lenders are closing loans with errors, knowing the CD will need to be corrected during post-closing review.
  4. Some lenders are directing their loans to fewer title/settlement agents (to the ones who are very proactive working with lenders.)
  5. Various lenders have interpreted the TRID requirements differently from other lenders. As a result the actual closing process, including CD preparation and review, may be different with each lender.
  6. The actual delivery of the closing package to the settlement attorney is still usually right before the scheduled closing (not with the delivery of the CD three days before the closing.)  

TT Advice: “Just go with the Flow.” The new TRID procedures will eventually work out and become more routine and uniform.

Correction to last week’s Tip 7-2016: Thanks to the sharp eye of Peg Gilliland, we incorrectly stated that page 9 of the VAR Contract of Purchase needed to be completely filled out, when we should have stated page 10. Thanks, Peg.

Sharing Information Can Make TRID Easier:

Navigating a closing with the new TRID laws can prove difficult, especially when completing the CD which requires more information than the HUD and/or GFE. Tucker’s Tips has found that including certain information in the Contract can help make the closing process under TRID go much smoother.

Under TRID, lenders now need certain information such as realtors’ full names and license numbers for formulating the CD. Having this information at the beginning, on the signature page of the purchase contract, (page 10 of the VAR Contract of Purchase), can be very useful. Also include realtors’ phone numbers, email addresses, and the real estate company’s mailing address. In other words, complete page 10 of the VAR Contract of Purchase in its entirety.

Finally, as mentioned in prior Tucker Tips, please include in the Contract the Purchasers’ full names (not “Bobby”), to correspond to exactly how the Purchasers want to take title on the Deed and how they will be applying for the loan. Specifically ask the Purchaser what names they want to use. If the names are consistent on all three documents (VAR Contract of Purchase, Loan Application and Deed), the process will be more efficient.

TRID – Recommended Contract Language:

One of the goals of the new TRID regulations was to protect Purchaser’s and Seller’s financial information and other non-public information. Also, TRID requirements provide for Closing Disclosures (CD’s) to be prepared for both Purchasers and Sellers.Many lenders for the Purchaser require that they be provided with information from the Seller’s CD. This requirement unfortunately makes it more difficult and time-consuming for lenders and attorneys to timely ascertain the most accurate numbers from the Seller’s CD since they need to obtain permission to have the information disclosed.Usually obtaining this information occurs when the lender is trying to meet the three day review requirement for the Purchaser. Add to this the TRID requirement of protecting the Purchaser’s and the Seller’s “non-public information” and chaos can occur. (Also the realtors and the other parties to the transaction may require information from both the Seller’s and Purchaser’s CD’s.) To resolve these problems of allowing timely disclosure of this information, Tucker’s Tips recommends that the realtors add the following language to Paragraph 31 of the VAR Contract of Purchase: “The parties agree to provide and consent to the disclosure of any and all information requested by any party, real estate agent, lender, settlement agent or attorney involved in this transaction to comply with applicable state or federal law or regulation relating to real estate settlement practices and reporting, including the TILA-RESPA Integrated Disclosure (TRID) rule”. With this language, all parties can obtain the financial information they need to double check that all numbers are accurate and save valuable time in meeting TRID deadlines.

TRID Closings & Winter Weather:

Inclement weather causes delays in more than one way. Bad weather can cause Clerk’s Offices and other government agencies to close, and as a result general delays in settlements. But now it can also cause delays regarding the 3-day requirements for CDs to be delivered to the purchaser. Due to weather, settlement agents and attorneys who may need to review the CD might not be able to get into the office to do so.

Lenders may not be able to obtain information they need to generate the CD. Termite inspectors’ and surveyors’ offices could be closed. Conducting a termite inspection may be limited due to snow. Obtaining propane readings may be near impossible if the propane tank is buried under snow. Accordingly, account for the possibility that inclement weather can cause additional delays in meeting the 3-day time period purchasers have to review the CD.

Plan ahead with the inclement weather, and build in extra time. As this past weekend has demonstrated, with significant winter storms, it is more important than ever that everyone involved with a real estate closing stay flexible and be prepared!

Lenders Need Settlement Fees Sooner:

One of the biggest changes with the new TRID laws is that the lender must provide a “Loan Estimate” (LE) within three business days of the loan application. The LE (which has replaced the GFE) contains all of the estimated closing costs, including the total cash to close and the estimated mortgage payment (PITI).

As lenders are responsible for the accuracy of the LE, they will want this financial information to be as correct as possible to avoid creating “tolerance” issues. Accordingly, having Purchasers select service providers (settlement agent, title insurance, homeowners insurance, etc.) much sooner than before TRID was in place, could be very useful.

Because the lender will need various fees from the settlement attorney, the Purchaser may want to select the settlement attorney at the loan application stage, instead of at a later stage as had typically been the case before TRID. Purchasers should also consider selecting a homeowners’ insurance agent earlier since the lender will want to include the homeowner’s insurance premium information on the LE.

New Forms Under TRID:

Most loans will now require use of the Loan Estimate (LE) and Closing Disclosure (CD) forms. Loans that are not applicable under TRID, such as cash purchases, Home Equity Lines of Credit, Mobile Home/chattel only loans, Reverse Mortgages, private loans, institutions originating 5 or fewer loans per year, will still use the existing HUD and/or GFE forms. The LE form is broken down into seven categories, “unbundles” the GFE and preliminary TILA fees, and discloses the amount of money needed to close as well as the monthly PITI. The categories are:

  • Lender Origination Charges
  • Services the Borrower Cannot Shop for (from the lender)
  • Services the Borrower Can Shop for (survey fee, title search, title insurance, attorney fee)
  • Taxes and other Government Fees (recording costs)
  • Prepaid
  • Initial Escrow Payments at Settlement
  • Other (Owner’s Title Insurance, HOA fees, Seller items)

The CD replaces the final TILA and HUD-1 forms. There is a separate CD for each loan. On the CD, there is no longer an individual comparison of the items, but page 3 of the CD shows a total comparison of the closing costs and cash to close. The CD is prepared by the lender.

Closings May Take Longer Under TRID:

From loan application to settlement, now that TRID is underway, closings that fall under it may take longer than before. The previous quick closings of three to four weeks may be difficult to accomplish and “domino” closings could be a thing of the past.

One change that could make the process to Settlement longer is the new waiting period. The Borrower now has three business days to review the Closing Disclosure form prepared by the lender before Settlement can occur. If the Closing Disclosure form is not delivered by hand, then there is another three business-day delivery period for delivery of the Closing Disclosure to the Borrower. (The three-day delivery period can be shortened if the Borrower acknowledges receipt, but it is still unclear what constitutes “acknowledgment.” Lenders may ask their Borrowers to sign an acknowledgement of receipt to shorten the wait.) This means that assuming the Closing Disclosure is mailed or emailed rather than hand delivered and there is no earlier acknowledgement of receipt, the actual time from Closing Disclosure to Settlement (including weekends) is at least seven days.

P.S. Although a lot of commentators are worried about potential longer closing periods (six to eight weeks at a minimum), We believe that with a little practice, most of our local lenders will figure out a procedure to shorten this period.

TRID Impact on Local Realtors:

October 3, 2015 is upon us and so are the new TRID laws for most loan applications starting October 3rd. There are many new rules that lenders and consequentially realtors, closing agents and lawyers must contend with; new forms, time lines, tolerances are just a few of the changes.

I’m offering a presentation analyzing how the new TRID laws could impact our local realtors. Please contact me if you’d like to set up a presentation or meeting for a group of realtors to discuss changes coming to our local practice, related to the new TRID laws. Also if individual realtors have questions about these changes, please feel free to contact me directly.

During this transition it is most important to be flexible, patient and communicate with all parties involved.

Your Next Step:

Contact us today for a Settlement Fee Quote or Initial Consultation – We’re ready to help.

We have two offices conveniently located in Charlottesville and Lake Monticello, Virginia for your real estate settlements.  Please note: We don’t handle real estate settlements in our Harrisonburg office.

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