Saturday, October 31, 2009

Congress ready to extend the real estate bubble; Homebuyers' tax credit

Congress apparently intends to extend the tax credit now in place for first time home buyers:
Senate leaders have reached a tentative deal to extend the first-time homebuyers' tax credit that was originally passed earlier this year as part of the stimulus bill, Republican and Democratic sources told CNN on Wednesday.

The credit would be extended through April and a new credit of $6,500.00 would be added for existing homeowners to buy new homes.

[The following analysis was written mainly with the Central Pennsylvania real estate market in mind.]

While this news may be welcomed by the real estate industry, it contains hidden consequences. The real estate bubble burst for a reason. Houses were overpriced, lenders were overextended and the economy could not sustain the false prosperity. We cannot get rich as a nation by trading the same real estate with each other at constantly increasing prices. The government can reinflate the bubble only for so long.

The only real cure is to allow prices to fall so that the real estate inventory can clear. There are deals to be made and there is money to be invested, but that will not happen if the government keeps propping up prices and turning what should be a buyers' market into a sellers' market. I have personally witnessed sellers that stuck to their unrealistic bubble inspired asking prices because the tax credit program was feeding new buyers to them. I have seen first time buyers feel pressured into paying too much for a home (or into buying a home with defects) because of the approaching expiration of the tax credit program.

Buyers who see the immediate cash benefit of the tax credit often fail to realize that this tax credit is reflected in the price of the house.

With foreclosures at an all time high, this is supposed to be a buyers' market. We are bombarded with advertisements explaining how we can obtain good deals now at rock bottom prices. But it appears, instead, that we are seeing the worst of both worlds. Foreclosures continue at a record pace while prices remain high and unrealistic.

The real effect of the home buyer tax credit program will be to bail out sellers that paid too much for their homes during the bubble, while creating a whole new group of victims (the buyers) that will need to be rescued when the new bubble collapses.

Thursday, October 29, 2009

Seller's Property Disclosure Statement; Pennsylvania's real estate disclosure requirements; seller's refusal to provide disclosure; 68 Pa.C.S.A. 7303;

From April 2005 comes this blogpost about an attorney-seller that refused to provide the required disclosure form until after a buyer presented a written offer:
The following caveat appears in a listing for an Easton (PA) property: "Sellers Disclosure will be disclosed when offers are presented. None online. Investor has not lived in property."

The language quoted above conflicts with 68 Pa.C.S.A. 7303, which requires delivery of the disclosure form to the buyer "prior to the signing of an agreement." The Realtor in that case "had an appointment to show this property on Saturday and requested the disclosure. I was told that the seller would not release the disclosure until he had an offer in hand: "'He is an attorney and he knows the law.'"

The blog post concludes as follows - "We passed on that showing."

While the statute does not say "prior to presentation of an offer," any offer would become a binding agreement upon acceptance by the seller. Following the seller's instructions in the above case could very well create a binding agreement before the buyer ever saw the disclosure form.

The point I am trying to make by quoting this blog post is not merely to point out the disclosure law requiring provision of the disclosure form prior to execution of an agreement, but to point out the proper response by a buyer to a situation like the one presented above. The Realtor's response was correct. She passed on the showing.

Don't bother with sellers that appear to be cutting corners in the disclosure process. Sellers that act secretive are acting that way for a reason. Rather than confront the seller with the statute and try to force a disclosure out of him prior to making an offer, move on to another property.

In many of the cases that come to me regarding real estate fraud and nondisclosure of defects, the sellers had acted suspicously like the seller above. But in the cases that have ended up in court, the buyers had forced the issue rather than walk away prior to making an offer. Don't chase sellers whose behavior indicates that they have something to hide.

Wednesday, October 28, 2009

Strategic defaults, deficiency judgments and bankruptcy

I have written earlier about "strategic defaults," by which homeowners intentionally stop paying their mortgage company even though they can afford the monthly payments. The owners intend to abandon the home to the bank because the home has declined so far in value that the mortgage debt far exceeds the value.

While this may seem like a viable option and a way to get rid of debt, homeowners in Pennsylvania must remember that the banks have the option of pursuing a "deficiency judgment" against the owner. Even if the bank forecloses on the home, the former owner remains indebted for the full amount of the loan less whatever the bank recovered by selling the home. The bank can pursue the former homeowner for the difference (or "deficiency"). Laws vary from state to state - and differences in state laws partially account for differences between states in the rate of "strategic defaults."

A former homeowner that is determined to avoid paying the deficiency can discharge any such claim by declaring bankruptcy, but there are pitfalls in this approach also. Both the foreclosure and the bankruptcy will create serious black marks against the former owner's credit (especially the foreclosure). A bankruptcy might result in the forced liquidation of some or all of the debtor's assets.

The bottom line is that you must be careful of financial advisors that present risky strategies that might not be tailored to Pennsylvania law.

Tuesday, October 27, 2009

Strategic Defaults

One of the newest trends in mortgage foreclosures is the "strategic default," where an owner abandons the home and simply stops paying the mortgage company, even though the owner can afford the monthly payments. Owners do this because the home has declined so much in value it becomes pointless to pay off a 30 year mortgage on a home where the owner will never recover his investment.

McClatchy posts details about this trend.

We are less directly affected by these strategic defaults here in Central PA, as market prices are somewhat more stable than in other areas of the country.

Monday, October 26, 2009

More casualties of the real estate bubble?; Stuyvesant Town and Peter Cooper Village; Manhattan disaster to cost Florida and California pensioners?

From New York City (via AP) comes the story of the largest ever U.S. real estate deal heading toward bankruptcy, foreclosure or both:
It was the most expensive real estate deal in U.S. history. Now it's poised to become one of the biggest flops.

At the height of the real estate bubble in 2006, an investment group led by New York City real estate firm Tishman Speyer Properties and BlackRock Realty Advisors paid $5.4 billion for a pair of gigantic Manhattan apartment complexes known as Stuyvesant Town and Peter Cooper Village.

Click here for more background on the original purchase. In addition to the bubble collapse that has devastated so much of the real estate market, this particular deal has been hampered by lawsuits from tenants resisting the new owners' conversion to higher priced units:
Tenants fought back, conversions happened much slower than expected and a state court ruled Thursday that about $200 million in the company's new rent increases were improper.

The AP article speculates on foreclosure possibilities. The bottom line is that a court's proclivity to limit rent may partially contribute to history's most costly foreclosure. If you are thinking "so what?" consider the following:
Some of the biggest equity investors in the deal are public pension funds that manage retirement system benefits for millions of government employees.

Florida's State Board of Administration had put $250 million into the project. It has already written off the entire investment as a loss.

California's two largest government pension funds, the California Public Employees' Retirement System and the California State Teachers Retirement System, invested a combined $600 million. CalSTRS has also already written off its $100 million stake.

The real estate bubble will affect everyone, even those who did not know that they were participating. The consequences in this case are being aggravated by rent limits being imposed by the courts.

Stuyvesant Town and Peter Cooper Village (New York Times photo)

Thursday, October 22, 2009

Seller's Property Disclosure Statement; Repairs and past conditions

If you are selling real estate, you should be certain to be thorough in completing the Seller's Property Disclosure Statement.

Many sellers believe that if they have fixed a problem, they are safe in answering "no" to certain questions. An example occurs in question 6 (a), where the seller is asked whether he is "aware of any past or present water leakage. . . ." Many sellers answer "no" because they replaced the roof in response to prior leaks and the problem no longer exists. It is a mistake to answer the question this way. This question (as well as others) asks about "past" conditions as well as "present" conditions. Just because you have fixed the problem does not mean you need not disclose the conditions about which the question is asked.

The buyer will eventually find out about past conditions and problems (usually after he moves in to the house and talks with the neighbors). If those problems reappear (or if new problems arise) the buyer will use any inaccuracy in the seller's completion of the form to justify a lawsuit against the seller. Any inaccuracy in the form will play very badly against the seller in court.

Wednesday, October 21, 2009

Seller's Property Disclosure Statement

A real estate seller is required under Pennsylvania law to disclose to any potential buyer known material defects in the property.

most real estate defects will not be this obvious

The Pennsylvania Association of Realtors (PAR) provides a disclosure form that goes beyond the requirements of Pennsylvania law for disclosure of defects. The basic disclosure requirements are found in the Real Estate Commission's form here at the Pennsylvania Department of State website.

If you are a buyer, you are better off using the PAR form, especially in light of the increased risk of fraud in today's real estate environment.

Tuesday, October 20, 2009

Seller's home inspections; seller-Realtor disputes.

I have written previously about the use of home inspections in real estate transactions, including the potential for sellers to hire their own inspectors prior to entering into a sale.

One advantage for the seller of hiring his own inspector is the ability to avoid conflicts with his own Realtors. Often when a buyer sues a seller (and the Realtors) over a defect discovered after the transaction is complete, the seller and the Realtors dispute among themselves whether such a defect was disclosed. The seller often claims to have reported the defect to the Realtor, thus blaming the Realtor for failing to disclose the defect to the buyer. The seller will also downplay the Seller's Property Disclosure Statement, claiming to have written only what the Realtor instructed him to write.

Sellers and Realtors fighting between themselves often make it easier for a buyer to prove fraud

A written inspection report can limit many of these seller/Realtor disputes. When a seller hires his own inspector and provides the written report to the listing agent, both the seller and the Realtors will be limited in what they can claim the other told them. It will be clear that the seller disclosed everything that is on his own inspection report (and probably nothing more).

There are always areas where problems slip through the cracks. The Realtors and the sellers must make sure that the Seller's Property Disclosure Statement is consistent with the inspection report and that the report is given to the buyers, no matter how negative. All parties must make sure that any inspection activities are not interfered with or influenced. If the seller takes steps to influence his own inspector or prevent the inspector from finding or reporting problems, the resulting disputes will be worse than if no inspection was arranged in the first place.

Thursday, October 15, 2009

More foreclosure bad news; CNN

CNN reports more foreclosure bad news today:
Despite concerted government-led and lender-supported efforts to prevent foreclosures, the number of filings hit a record high in the third quarter, according to a report issued Thursday.

"They were the worst three months of all time," said Rick Sharga, spokesman for RealtyTrac, an online marketer of foreclosed homes.

CNN cites nationwide data and specific data for Nevada and Vermont. My own observations (and those of associated professionals) is that central Pennsylvania foreclosures appear to have been generally steady during 2009.

The bad news relates to foreclosures that are still to come. Banks have been slower to initiate foreclosures (both nationally and locally) than in prior years:
[T]he RealtyTrac statistics may understate the depth of the foreclosure mess because lender and government actions have delayed many filings. As a result, some delinquencies have not been counted on the foreclosure tallies. That means the crisis may not end quickly.

Lenders are also slow to dump delinquent properties back on the market for fear of causing a free fall in real estate prices. Foreclosures tend to depress real estate prices in general, not merely the prices of foreclosed properties. If real estate prices spiral downward, existing homeowners will not be able to sell or refinance their homes due to lack of equity. This problem will result in more foreclosures and a worsening real estate downward spiral.

We are witnessing the bursting of a very deep bubble.

Wednesday, October 14, 2009

US flag banned at Oaks Apartment apartment complex in Albany, Oregon

From KATU in Albany, Oregon comes the story this week of an apartment complext that has ordered residents to remove all flags, including the U.S. flag, from windows and other visible areas.

KATU photo - flag banned from motorcycle at Oaks Apartment complex in Albany, Oregon

According to KATU:
Resident[s] we talked to who had been approached to take down their flags all told us the same thing: that management told them the flags could be offensive because they live in a diverse community.

Would such a ban be upheld in court in Pennsylvania? It depends. If the landlord refuses to renew a tenant's lease at the expiration of the term, the landlord generally does not have to provide a reason. The landlord can refuse to renew a tenant's lease even if the reason is the tenant's display of an American flag. [This analysis would be different if the real reason involves discrimination against minorities or other protected classes.]

If the landlord seeks to terminate a lease during the lease period solely on the basis of the American flag display, the landlord would probably lose in court, as long as the American flag was the only violation. But that is only speculation, as the real answer would depend on the judge and whether the judge believes that an American flag display constitutes a material violation and whether a ban on such displays can be lawful or enforceable.

Tuesday, October 13, 2009

Seller's home inspections.

Click here for a previous article on the use of home inspections.

I have written on the advantage to home buyers in using home inspections prior to closing on their house, but there is an advantage for sellers also. A seller can arrange and pay for his own inspection prior to listing the home for sale. The inspector will prepare a report that the seller can give to his realtor and to any potential buyer.

Many sellers resist having their own inspections done because they prefer not to know the defects in their house. They believe that if they are not told about a defect, they will not be responsible for it. But whether they know of any defects or not, they can still be sued over said defects later on. And they might lose any such lawsuit, depending on who the jury believes. It is easy for someone to say they are unaware of something. The jury is able to reach its own conclusion. If the seller provides a written inspection report at the start of the process, it is much more clear exactly what the seller knew.

There are pros and cons to this approach, which pros and cons I will address in a future post.

Monday, October 12, 2009

Home Inspections and pitfalls

I have written about the use of home inspectors to prevent yourself from becoming the victim of real estate fraud. I stressed that hiring a home inspector is only the beginning of the process. The buyer must follow through to determine what areas the inspector's report may have missed. Inspectors will not move items in the house and will not speak with the seller. Piles of boxes or furniture can easily conceal a defect.

Inspectors have missed roof leaks and other areas of water seepage. Inspectors have missed floor damage as well as mechanical failures. That the inspector missed these items does not relieve the seller of responsibility for fraud, but the buyer should not wait for the outcome of a lawsuit to protect himself.

The same policy that causes inspectors to miss concealed items often causes them to report items as faulty that have nothing wrong with them. Inspectors confronted with unplugged items have reported those items as faulty rather than plug them in before completing the report. The inspectors' refusal to alter the status quo may be quite sound from the perspective of protecting the inspector and the buyer from claims for damaged items in the home, but that policy places limits on what the inspection might accomplish.

As I wrote before, use home inspectors when you purchase your home. But know the limitations of the inspection process and work to overcome those limitations.

Thursday, October 8, 2009

Home equity, savings and the current economic crisis.

A recent quote from David Goldman ("Spengler") helps put the role of home equity in context in today's economic crisis:
Americans have saved almost nothing during the past 10 years, relying instead on home equity that now has vaporized. The proportion of Americans over 60 will jump to 25% from 19% during the next 10 years, an unprecedented shift. Americans must save to compensate for past profligacy, from a lower starting point after the destruction of so much wealth, and with lower prospective returns.

Remember, equity in an inflated asset does not take the place of actual savings.

Wednesday, October 7, 2009

Home Inspectors - the beginning of the story; hidden home defects;

I have written previously about the use of home inspectors for buyers seeking to avoid being defrauded on the purchase of real estate.

If you are a buyer, do not simply send a home inspector to the home you wish to purchase and expect that any issues will be discovered with no further effort on your part. Sellers have become good at hiding defects from inspectors. Sellers will frequently leave debris piled up against walls that otherwise would bear obvious signs of water leakage or other defects. Inspectors will not move any item in the house. If a defect is somehow concealed, chances are that the inspector will not find it. The inspector will identify all obstructed areas on his report. It is up to the buyer to demand that all obstructions be removed and arrange for followup inspections.

Talk to the inspector, ask him how difficult it would be to expose common areas. Ask him how common it is for defects to exist in the particular type of obstructed area in the home you are buying.

The inspector's report is only the beginning. A buyer must follow through and make sure that the report is as complete as it can be before the buyer closes on the deal.

previous - Mortgage foreclosures - a catalyst for real estate fraud?

Tuesday, October 6, 2009

Dr. Seuss, inflation and the reinflation of the real estate bubble

It has been eight months since Congress passed the nearly 800 billion dollar "stimulus" bill. We continue to await its effects on the economy in general and on inflation in particular. Most of the stimulus money has yet to be spent by the federal government. There are those who hope that the stimulus money and the $8,000 new home buyers credit will spur real estate sales and, in effect, reinflate the bubble. For those of this mindset, nothing could be better than another round of inflation to restore real estate values and start the good times rolling again. If you are one of those people, remember the old phrase, "Be careful what you wish for."

Most people do not know that Dr. Seuss used to write political cartoons before he produced books for children. I found this cartoon from April 19, 1942 on the University of California at San Diego website.

Dr. Seuss on inflation

Do not be in such a hurry to see the government spend the "stimulus" money. Once Washington begins forcing the money through the economy, you won't like the consequences.

Monday, October 5, 2009

Inflation adjustment clauses in leases.

Ever since the "stimulus" bill was passed in February by Congress, we have been waiting for the inevitable inflationary results. We do not know how bad the inflation will be. We do not know how fast the government will force the new money into the economy.

In any case, real estate investors should prepare for the worst. If you own property and lease it to tenants, it would be wise to include a clause in your lease that allows the rent to be adjusted to keep pace with inflation. Otherwise, you will see your expenses skyrocket while your rents will be locked in by the term of your lease. This is especially true in commercial leases that last longer than one year. Over the course of a year or more, inflation could skyrocket more than we have seen in our lifetimes, depending on how fast the government lets the new "stimulus" money percolate through the system.

Friday, October 2, 2009

Real Estate Prices, Diana Olick, inflation, Richard Daughty, stimulus money

Earlier this week, I summarized the conflicting forces that may affect housing prices:
Long term price trends will depend on whether the FED's next rate hike and the next wave of foreclosures will take effect before the "stimulus" money has a chance to generate inflation.

If the foreclosures and higher interest rates win the race, long term trends will favor lower prices. But if the stimulus money percolates through the economy first, then nothing will stop the price of housing (and everything else) from skyrocketing.

Diana Olick of CNBC believes that the foreclosures and general economic bad news will win the race over the inflationary stimulus money:
There is now an estimate out there that rising foreclosures will add 7 million homes to the for-sale inventory over the next two years. Inventories of new and existing construction have been falling, but that could U-turn this fall, as foreclosures rise, banks let go of the homes that didn't qualify for modifications, and job losses push good quality borrowers into default. Pile that on top of seasonality, and I'd watch for home prices to dip again as we get readings on the fall months
Diana Olick - [CNBC photo]

On the other hand, the federal government and the Federal Reserve are trying to reflate the bubble so as to avoid this outcome. Richard Daughty of the Daily Reckoning has tried to place the stimulus package and related efforts in context:
. . . the Federal Reserve (as expressed in their secret motto "We Are Evil") created, out of thin air, a new US$29 billion in bank credit! Wow!

The interesting part is that the Federal Reserve used that new money - and a lot more - to buy $62 billion of US government debt last week! . . . . . And now here - here! - is Greenspan successor Ben Bernanke’s monetary insanity to create, in One Freaking Week (OFW), $62 billion whereas it took old Greenspan an entire month to come up with $10 billion!

This type of currency expansion cannot exist without disastrous consequences for prices in general. [Daughty's column appeared in April, but it reflects the worst trends in monetary policy for the past year.]

If the stimulus package has its predicted effect and results in disastrous inflation, all prices, including those of housing, will rise. But the price of housing in real terms relative to other products may still fall due to the inventory and foreclosure concerns voiced by Olick. If you rely on real estate values to keep up with inflation, you may find yourself falling behind quickly.

Thursday, October 1, 2009

Home Inspector organizations; NACHI, ASHI, NAHI

I have written previously about the use of home inspectors to assist buyers in avoiding real estate fraud. Using an inspector does not guarantee that a buyer will discover every defect in the home, but using an inspector is a good start. Make sure that your inspector belongs to one of the three main home inspector organizations - ASHI, NACHI or NAHI. A qualified inspector can show you his credentials and his proof of affiliation. Do not use an inspector with no affiliation.

There are additional steps you must take to make sure that you will get the most out of your inspection process, as I will discuss in future posts.