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Offers vs. Purchase and Sales Agreements – Which one is a contract?

February 29, 2012

Answer: Both.

There’s a common misconception, especially among first-time home buyers, that an offer to purchase real estate is merely an understanding that the buyer wants to buy a particular home.  That’s true – Up to a point, the buyer has total control of the situation…until the offer is accepted.

At this point the offer becomes a legally binding contract on all parties.  The buyer takes on certain obligations to see the sale through and the seller gains certain legal rights to hold the buyer to the offer.

The next stage is negotiating and signing the purchase & sales agreement.  Buyers need to know that the standard form P&S is a SELLER-biased document.  Per this contract, the seller may extend the closing date or keep the buyer’s deposit in certain situations.

As the buyer’s attorney, I review the contract and draft further language to protect my client’s money from the get-go.  In short, if there is ever a need to terminate the transaction, my buyer clients will most likely receive their entire deposit back.  Remember, a home is the largest investment that most people ever make.  Buyers need additional contract language in the offer and the P&S to fully protect their money so they don’t end up losing it if a real estate deal falls through.

Want the best deal on a house? Buy from the bank!

February 22, 2012

If you have the money, now is the time to invest in real estate.  You have the perfect storm of low home prices mixed with low mortgage rates plus many motivated sellers.  Real estate investors or anyone that can afford to buy a home, in cash or with a mortgage, are in prime position to take advantage of today’s real estate market and get great value.

A recent survey was published by the Warren Group, an organization that collects real estate data and studies market trends, which listed towns in Massachusetts with the largest decrease in average sales price since 2005.  Topping the list was Athol, MA which experienced a 56.5% decrease in average sales price.  A house that sold for $178,000 in 2005, now sells for around $79,000.   Other more popular towns on the list were Brockton – 44% decrease; and (surprising to me) Hyannis with a 41% drop.  The average home sales price in these towns today is under $190,000 according to the Warren Group’s study.  These areas have been a hotbed for investors recently because they believe the market can’t get any lower and therefore, risk is minimal.

Why have these towns been hit so hard?  The low prices are due to the large concentration of foreclosures and bank-owned properties in these areas.

The foreclosure and bank-owned property markets are THE place to find a great deal for the lowest price.  On average, these homes sell for 30% less than a traditionally sold property.  Huge savings…However, what a buyer saves on price, he sacrifices in freedom during the sales process.  These are not properties that I would recommend considering without an adviser if you’ve never had experience in this market, especially if you’re a first-time home buyer.  The banks and their lawyers have very strict procedures that must be followed in obtaining these properties.  If you make an offer that is accepted and they’re guidelines are not adhered to, you could lose your deposit.  Further, it is not unusual that the closing date or any other contingency deadlines will need to be extended in order to resolve title issues with the property.

In short, foreclosures and bank-owned real estate should be considered if you’re looking for the most bang for your buck.  There are great deals to be had.  At the same time, this is not an area for the faint of heart.  Patience and knowledge is key to keep these deals on track.  A good real estate attorney will keep you informed and get you to the closing table as quick as possible.

The Marital Seatbelt

May 31, 2011

As the weather heats up, so does the wedding season. It seems like there are more and more weddings to attend (or plan) every year. Picture this: You’re spending some quality time with your favorite engaged couple. You’re discussing the plans for the wedding and the exciting future in store after the wedding. You figure the time is right to pop the question: “Have you guys thought about a prenup?” I would imagine their faces would cringe as they both squirm uncomfortably at the thought the subject. Welcome to the wonderful world of a family law attorney!

Prenuptial agreements are probably one of the most misunderstood concepts of the marriage process. Most people attach an array of negative connotations to “prenups,” and unjustifiably so. One common misconception is that a prenup sets the marriage up for failure because the happy couple is anticipating a break-up. That’s not really true though – a prenup is more like a marriage seatbelt. When people get in a car, they wear their seatbelt to protect them from injury in case of an accident. That certainly does not mean that someone is anticipating getting into a car wreck every time they put on their seatbelt. In fact, the vast majority of people who ride in cars wear their seatbelts and expect to reach their destinations accident-free. The seatbelt is worn for protection in case of an accident, not because anyone assumes that they will crash. If they do crash however, they’ve done what they needed to do to protect themselves from physical harm. Prenuptial agreements run along the same lines; it is a protective device for couples to minimize the emotional and financial harm that is inevitable in a divorce situation. It does not mean that you expect the marriage to fail, just like putting on a seatbelt does not mean you expect to be involved in a 10-car pileup every time you drive.
Is a prenuptial agreement something that’s fun to think about? Not at all. If it was fun, you wouldn’t need an attorney. Similar to how an an estate plan forces you to think about your death. You have to do it to protect you and your family – but once it’s done, you don’t necessarily have to think about it again. You buckle up every time you drive (or almost every time if you’re like me) and you get where you’re going. Consider what’s best for you and the love of your life’s emotional and financial well-being, now and forever. Buckle up and expect to reach your destination. Hopefully, you never need the protection of your marriage seatbelt.

When should I start thinking about an estate plan?

May 11, 2011

Good article on the subject from boston.com:

http://articles.boston.com/2011-05-10/business/29528871_1_property-estate-planning-retirement-plans

One of my areas of focus at Oreste Law is estate planning.  If you have any questions, don’t hesitate to contact me.  Your initial consultation is free and I’ll help you figure out what you need for an estate plan.

First Time Homebuyers – Your bodyguard is your real estate attorney

March 24, 2011

 

Having buyer representation is very important, especially for the first time homebuyer.  My overriding role is to serve my client’s best interests – When I represent the buyer that means protecting the buyer from any terms or conditions that may be too seller-biased, like a purchase and sale agreement for a house “as-is.” It also means you have someone scheduling, tracking and reminding you of all important contingency deadlines.

A house is the largest investment most of us will ever make.   Ideally, a buyer should have an attorney representing them before they even make an offer on a house because I’m the only one with a duty to protect your money.  In today’s market, buyers should really have someone navigating the pitfalls for them in the real estate buying process.

If you or someone you know are first-time homebuyers or looking to buy a house this season, I can see to it that you get through closing as efficiently as possible.  Home buying can be stressful enough on its own.  You should have someone on your side to make sure your investment is protected.

The Effect of a Defect: From Sun Chronicle 1/23

January 31, 2011

This was my column that ran on Sunday, January 23 in The Sun Chronicle. I reprinted it here as enough people have asked me for it:

For most people, buying a home is one of the proudest moments of their lives. It is also one of the most stressful. The vision of being saddled with hundreds of thousands of dollars in mortgage debt is intimidating. When going through the real estate process, a large number of homebuyers do not hire someone to advise them such as a real estate attorney. As a result, no one is really looking out for the buyer’s best interests. For everyone who decides to buy a home on their own, I have one piece of advice: Buy an owner’s title insurance policy.
Before moving forward, here are two quick disclosures: Owner’s title insurance is optional in Massachusetts and lawyers make more money if you buy it. Having said that, buying an owner’s title policy is a one-time cost and it protects you against any title defects that may prevent you from either selling or refinancing your home.

If ever there was an event that should caution future real estate buyers who don’t get title insurance, it happened this month here in Massachusetts in a case called US Bank v. Ibanez. In a decision that made national headlines, the Supreme Judicial Court (Massachusetts’ highest court) came down on the foreclosure practices of banks who were selling mortgages to other banks without properly assigning ownership. In short, the Court found that these banks were foreclosing on mortgages that they did not own. The decision has shaken the foreclosure industry and the widespread impact of the Ibanez decision is still unknown. Hundreds, maybe thousands of mortgages across the state could be affected.

The biggest losers could be anyone in your community who bought a foreclosure in the last several years. As of now, it is very possible that they do not legally own their homes and are stuck in ownership limbo, unless they have title insurance. If so, they should be able to recover their investment from the insurance policy, which will be significantly easier and less costly than having to go to court against the big banks. For those that don’t have title insurance, there could be big problems ahead.

Buying a home is the largest investment most people will ever make – treat it as such. The Ibanez ruling is a cautionary tale to homeowners, present and future, urging them to protect themselves from anyone else that may claim ownership rights in the property. The additional cost is worth it for peace of mind.

Massachusetts Foreclosure Meltdown…

January 21, 2011

Good article on what’s coming up in regard to foreclosures:  http://www.bloomberg.com/news/2011-01-21/faulty-foreclosure-case-in-massachusetts-high-court-may-hurt-home-buyers.html

The lower court ruled that home buyers of foreclosures don’t legally own their homes…The Supreme Judicial Court is going to review the decision.

I’m a writer (again) and a lawyer – Lookout Grisham!

January 20, 2011

If you’re in Southeastern Massachusetts this Sunday, make sure you pick up a copy of the Sun Chronicle.  I’m the new legal columnist for the “Lawyer’s Log” in the Living Well section.  Very excited to be writing and published again.  You can pick up a paper here.

There’s a difference between justice and revenge

January 7, 2011

I was recently in court for the beginning of a heated trial between a brother and sister (and their attorneys) who were arguing over their deceased father’s estate. The estate was worth somewhere in the vicinity of a million dollars. A short summary of the case: Sister is trying to have her father’s will thrown out because it disinherits her and she believes her brother improperly influenced her father into doing so. Brother has lived in the same house with mom (now deceased) and dad (same, obviously) for almost his entire life.

Both sides had holes in their arguments – The brother has huge credibility issues because of his past conduct. The sister does not seem to have enough evidence to persuade the court to rule against the brother. The judge clearly did not want to rule in the brother’s favor – but based on the evidence the judge did not think she would have much choice when the time came to make a judgment.

After listening to both attorneys’ opening statements, the judge urged both parties to settle before “Armageddon” happened – meaning there were so many issues in dispute that if both parties continue along the route they’re on, everyone will spend so much time and money arguing that they’ll all turn to ash, including the money in the estate.

This particular judge did a great job at imploring, if not directing, the attorneys to come up with a reasonable solution while the trial was going on. It was clear the two attorneys didn’t like each other either. What was also apparent was that even if the sister won, she would still only receive about $100k from previous estate plans. Another reason the judge saw settlement as a very good possibility. But the sister and her attorney were not persuaded, it was not just about the money. It was about her brother’s underhanded conduct and undue influence over her parents too. The judge stopped the sister’s attorney from saying anymore, looked at the sister and said: “If you’re looking for vindication, this is the wrong place to find it. This is not a court of vindication – we divide money here…If there’s any left.”

The brother was clearly not a good person and probably did influence his father to rewrite his will in some way – but the sister could not prove it. Therefore, the court will have to hold its nose and rule for the brother. Settlement is probably the best opportunity for the sister to get something because at least the other side indicated they would be open to it.

In today’s litigious society, so many people look to the courts and confuse revenge with justice. No matter the result – win or lose – they are still unhappy because they don’t get everything they asked for or worst case scenario, they fight and fight, and ultimately lose. What also is lost is the opportunity to recover anything from the other side.

Maybe it’s the word “settle” that people in disputes back away from – they don’t want to settle, they want to win. In that case, even after a trial win, those waving the victory flag are usually left with empty pockets, broken relationships, and a gigantic legal bill.

If you go to court to force the other side to act reasonably, you’ll have justice. But anyone expecting to make the opposition beg for mercy from the court will be sorely disappointed.

Desperate Housewife No More

November 29, 2010

Eva Longoria walked into my office today and said “Attorney Oreste, I’m getting divorced from my husband Tony Parker and I want you to represent me.”  I responded, “Of course, Ms. Longoria – Let’s talk about why you want a divorce before we move forward.”  She leaned back in her chair and answered, “He’s a liar and a cheater.  I want the world to know I’m divorcing him because he’s an unfaithful SOB.”

The only truths to the fictional scenario above are that I’m a pop culture geek, and, more importantly, Eva Longoria and Tony Parker, the star-studded couple, are getting divorced.  Celebrity divorce is a Hollywood cliché these days because it happens so often. However, what all divorces have in common are hurt feelings and tension for all parties involved – especially when the reason for divorce is adultery. 

In these type of divorce cases, the victim (Eva) wants to file a divorce based on the adulterer’s (Tony’s) conduct. Eva is devastated and extremely hurt, therefore she wants to make sure that the court knows – and the court records show for that matter – that the only reason for this divorce is Tony’s affair with his teammate’s wife.  Eva insists adultery be the grounds for divorce.  This is a common initial reaction with clients.  But, as counterintuitive as it seems, it’s harder to get a divorce if adultery is the only grounds because then, the party that brought the divorce must prove the adultery.  This may involve bringing Tony’s mistress, Erin Barry into court to testify.  Divorce proceedings are stressful enough without adding another party to the mix to recount the gory details of an affair.

If Longoria and Parker were getting divorced in Massachusetts, I’m sure Eva Longoria’s attorney (hopefully that would be me) would advise her that the best way to get a divorce is through a no-fault divorce where the grounds are the more general “irretrievable breakdown of the marriage.”   An irretrievable breakdown still has to be proven but, in Eva’s case, if she testifies that there was a breakdown, a court will rarely go against her word even if Parker tries to contest it.

The hardest part on two people getting divorced is getting past the anger and hurt in order to get the process over with as quickly as possible.  For many going through divorce, they can’t get past their emotions and see the other side of the tunnel.  They desperately need the support of family and friends as well as a good lawyer who is able to help the client make rational decisions at a very difficult time.  With proper guidance and support, the client can begin the healing process as soon as possible and move on to the next chapter of life. In Eva’s case, sooner is much better than later because she’ll need to have that tattoo of her soon-to-be ex-husband’s jersey number removed from the back of her neck.