Laws and Lending: Legal Aspects To Consider When Buying a Property
It’s been said many times, but bears repeating: “Buying a home is often the largest investment you’ll ever make in your life.” Most importantly it is a legal contract between you and the seller (initially) and then of course between you and your lender for the duration of your mortgage.
Because this is such a monumental investment and legal obligation, it’s important to make sure you’ve always read the fine print and consult an attorney when appropriate or when your realtor or mortgage professionals recommend you do so. Your realtor, working in conjunction with your trusted mortgage professionals, will be able to assist you in understanding all of the details in your purchase agreement:
Short sales
Is the home you are looking at a possible short sale? If so, how long will it take to get the banks’ approval to move forward with the transaction? Just because the seller agrees to sell the home to you, if there will be a loss by the bank, the transaction will need to be approved by the bank.
Contingency specifications
In California, removal of all contingencies must be done by active method (as opposed to passive). Most contracts have deadlines that should be adhered to. As a buyer or seller, don’t be afraid to issue Notices to Perform in order to protect your rights and ensure the transaction is firmed up as soon as possible. Your realtor will work with you to ensure that contingencies on your behalf are also removed on time.
Request for repairs
In California, sales are as-is and there is no implied warranty unless otherwise specified or agreed upon. As a buyer, if there are items that you want repaired on the property before you sign closing documents, you’ll need to ask for these items in writing. This is another negotiation between the buyer and seller and your realtor can help you to determine reasonable requests and negotiate on your behalf. Keep in mind though, that once all contingencies have been removed, you are at risk of losing your deposit, if you back out of the deal.
Condominium-specific concerns
It’s true that many Condo Associations (HOAs) are financially challenged due to the slow economy, which has resulted in some owners not paying their dues. Moreover, increased instances of foreclosure or short sales are common, further contributing to the problem. Your realtor, mortgage professionals and escrow company will help obtain a financial statement on the HOA so you can evaluate the financial health of the HOA prior to signing any closing documents.
Your right to arbitration
Should there be a dispute between you and the seller, arbitration is optional, while mediation has already been built into your California Association of Realtors purchase agreement. It is important that you realize however, that neither your realtor nor your mortgage professionals can provide you with legal advice. Make sure you clearly understand arbitration and mediation, when it comes to this part of the purchase agreement.
When it comes to the specifics of your loan, look to your mortgage professionals to specifically cover these items with you:
What if escrow closes late?
There is a penalty for closing late on some transactions. An Extension of Time form may be employed if necessary, but in general, the party who causes the delay in closing is typically responsible for the late penalty. Clarify and discuss this with your mortgage professionals and realtors up front so there are no surprises in the end.
Your right to choose your lender
The seller does have the right to insist that you obtain preapproval from their lender for the purchase, but they cannot insist you use that lender for your loan. You may use whatever lender you like, and whichever lender will provide your mortgage professionals with the most favorable terms and rates for you.
The Good Faith Estimate and fee sheet
You need to clearly understand each and every figure and fee presented to you. Do not sign any paperwork until you are certain you understand these crucial documents. The Good Faith Estimate must be provided to you within three days of your giving the mortgage professionals certain information about you and the transaction. The fee sheet is a tool that reputable mortgage professionals use to help you better understand the numbers in the Good Faith Estimate but is not mandatory, just helpful.
Is your loan “locked-in?”
If your loan is locked into a specific rate, make sure you know how long it is locked, and who is responsible for paying for an extension if necessary. It will be noted on the first page of the Good Faith Estimate.
Is your Lender Licensed?
This can be verified by checking the Nationwide Mortgage Licensing System at www.nmlsconsumeraccess.org.
Again, trusted mortgage professionals and realtors will easily be able to answer most of these questions and help clarify any issues that come up in a real estate transaction. However, a second opinion - especially in a complex legal matter - from an attorney will help you better navigate purchasing a home. So if you feel uncomfortable with any of the specifics of a purchase transaction, contact a real estate attorney. If you don’t know where to find one, rest assured your realtor or mortgage professionals will undoubtedly be able to refer you to a trusted attorney to help you feel at ease with this exciting purchase.
About the Author
Mortgage
Fred Arnold is a certified mortgage consultant, past president of the California Association of Mortgage Professionals, and mortgage professional at American Family Funding in Southern California. He can be reached at Fred@fredarnold.com or via phone at (661) 284-1150 x 109. His column reflects his own views and not necessarily those of the Santa Clarita Valley Business Journal.
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