Posted by: The Tim

Tim Ellis is the founder of Seattle Bubble. His background in engineering and computer / internet technology, a fondness of data-based analysis of problems, and an addiction to spreadsheets all influence his perspective on the Seattle-area real estate market.

213 responses to “November Reporting Roundup: Distressed Edition”

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  1. ARDELL

    RE: David Losh @ 99 – ”

    Old Italian Proverb: “A bad agreement is better than a good lawsuit”.

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  2. Kary L. Krismer

    By interested @ 198:

    RE: Kary L. Krismer @ 193 – Kary may I ask why it would matter if you delivered the document on time to the listing agent if the seller could still say “nope I won’t sign”. I mean if I get into this situation the first thing I would do is to put a lien on the sellers property.

    I always thought it was a given if you cancel upon inspection within the given agreed upon time frame you get YOUR money back. But this has educated me I will say, because the next offer I make I will have an explicit addendum stating such.

    As I mentioned, there’s a difference between having the right to something and actually getting it. When you sign the purchase and sale agreement, you have the right to buy the property. Even so, you could still get to closing and have the seller refuse to sign the deed. They would be in breach of contract at this time, and you could bring suit. And if you brought suit for specific performance, I believe you could file a lis pendens on the property and tie it up.

    In the situation we’re discussing, it’s pretty much the same only the escrow would start the lawsuit to get the funds out of their account. You wouldn’t have a right to file a lien on the property, and I sort of doubt you would even due a pre-judgment writ because the funds at issue would already be on the court registry.

    I also don’t see how you could do an addendum to prevent this, other than the obvious which hasn’t been mentioned. That’s because the escrow is not a party to the purchase and sale agreement, so to a great extent they don’t care what the agreement says.

    There are a number of ways to avoid the problem. This is one of those areas where I’m not going to disclose what I do, but you could have the earnest money in the form of a note which isn’t due until after the removal of the inspection contingency. Alternatively, you might prepare limited escrow instructions, which the seller would have to sign, specifically authorizing the release on certain conditions. I’ve never tried that, so I don’t know how an escrow would react.

    There’s apparently been some discussion of eliminating earnest money altogether from the purchase and sale agreement. I assume it would be replaced with an optional clause for liquidated damages. I don’t think that would be good for either buyers or sellers, but I presume the reason they’re considering the change relates to earnest money being sent interpleader actions. I assume escrows hate having to do that.

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  3. Kary L. Krismer

    By David Losh @ 99:

    A good example, an inspector drills holes in the stucco to check for rot. He doesn’t have permission from the seller, but the listing agent did authorize it.

    I’m not sure if you’re talking about a specific transaction, but the standard inspection agreement would not authorize that. Any alteration of the property would require the seller’s approval. To the extent the listing agent authorized it without approval, that would be a problem for them.

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  4. Kary L. Krismer

    By ARDELL @ 100:

    The issue is not about the contract, so an addendum won’t necessarily help you. It is about the Escrow Company or your Agent’s Company requiring the seller to sign for the return of Earnest Money to the buyer to protect themselves, regardless of the contract terms. Consequently I don’t think adding clearer contract terms is the answer.

    Did someone hijack your account? That’s almost exactly what I’ve been saying–that the contract language doesn’t control how you get your money back.

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  5. Kary L. Krismer

    By ARDELL @ 1:

    RE: David Losh @ 99 – ”

    Old Italian Proverb: “A bad agreement is better than a good lawsuit”.

    Attorney Proverb: “A bad agreement leads to expensive litigation.”

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  6. Kary L. Krismer

    Since this thing won’t die, I’ve continued to look into it. Escrows are also licensed, and also governed by the Washington Administrative Code (WACs). WAC 208-680-410 provides:

    (b) [Authorized disbursals do not include:] To any person or for any reason before the closing of an escrow transaction, or before the happening of a condition set forth in the escrow instructions. You may make a disbursement before the closing of a transaction or before a triggering condition if you receive a written release from all principal parties of the escrow transaction or collection account. Unless the disbursement is disputed under WAC 208-680-560, you are permitted to disburse earnest money funds without a written release if the earnest money agreement terminates according to its own terms prior to closing and provides for such disbursement.

    http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=0&X=1213102624&p=1

    Note that if the escrow instructions say to disburse, they can, but the purchase and sale agreement are not escrow instructions, IMHO. Also, if the purchase and sale (“earnest money”) agreement terminates per its own terms, they can disburse. But for that to apply here, they would have to know proper notice of the inspection response was given, for otherwise the purchase money agreement did not terminate. The more common time that would apply would be if the transactions doesn’t close by a certain date and the P&S agreement provides that the money will be disbursed to one of the parties if that occurs.

    Another applicable WAC would be 208-680-560.

    http://apps.leg.wa.gov/WAC/default.aspx?cite=208-680-560

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  7. Chris Dowell

    Sales up, inventory down. That sounds like a great problem to have. Hopefully home values will start going up.

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  8. interested

    hmmm, would i buy a car this way — NO, so the bigger transaction – not spelled out clearly – well that won’t go. Yes, I can have any add on I want if the person want’s to sell they will sign I will protect me. I have to thank Kary for giving me something extra to think about and deal with.

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  9. interested

    simple solution to this problem for a buyer — ” I won’t put any money down for escrow in a crap market — unless YOU the seller agree if I find something wrong I get my “– and yes it is my MONEY back — hello it is the buyers money. geez just when I thought certain things were a given. Additionally I will say an addendum to a CONTRACT signed by both parties will protect you that is why they call it a CONTRACT — yes I took first year law — and then decided I wanted to do other things with my life.

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  10. David Losh

    RE: Kary L. Krismer @ 203

    It’s a real deal, did happen, and the buyer did get the Earnest Money back. A year later the holes were visible once again, Same seller had to explain time, and time again about why he was upset with the listing agent, no recourse.

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  11. David Losh

    RE: Kary L. Krismer @ 206

    Let me give a WAC in that. I quote ” any principal party that the ownership of the funds is in dispute” and “Upon notification of a bona fide dispute”

    Best of luck with either of those.

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  12. David Losh

    RE: interested @ 9

    Washington is an Agency State that deals in forms of agreement, it’s different than first year law.

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  13. Seattle Bubble • Top 10 Most-Commented Posts of 2011

    [...] 212 comments, 12/06: November Reporting Roundup: Distressed Edition [...]

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