Real Estate

A Buyer should show their private home inspection report to their lawyer, so that the lawyer can properly write an inspection notice to protect the Buyer’s interest.

When buying a home, an important part of the due diligence process is getting a private home inspection. This inspection helps the Buyer better understand the current state of the house they wish to purchase.

A private home inspector walks through the home, does a visual inspection, takes pictures of things that appear dangerous, are deteriorating, or might not up to code. They also test the various systems in the home, such as electrical, gas, heating and cooling, and sometimes the kitchen appliances. An inspector can go up on the roof, look at the brickwork and determine what type of shingle, siding and tile has been used on the house.

Most contracts allow for an “Inspection Period,” during which Buyers can request repairs or otherwise object to the condition of the house. During this time, the Seller has an opportunity to fix the problems cited by the Buyer.

In many St. Louis home sales, the Buyer provides the Seller with an Inspection Notice during the Inspection Period. The Inspection Notice details what repairs or replacements Buyer wants made prior to closing.

It is very important for the Inspection Notice to be properly drafted and sufficiently detailed to avoid confusion between the Buyer and the Seller and to be enforceable in a court of law, if necessary. For these reasons, Buyers should consider showing their private inspection report to their attorney before finalizing the notice.

At the very least, Buyer will want to show their attorney the language Buyer or their agent wrote, in order to sharpen the language for Buyer’s benefit.

Your attorney will likely have dealt with many inspection situations in the past and is trained to write the notice in a manner that will make it most likely to be enforceable.

If you have questions about your private inspection report or would like to discuss your situation, please contact us at 314.862.2237 or at mjacob@marcjacobesq.com

There are many people and companies involved in a home purchase. Some of the familiar ones are the:

• Buyer
• Seller
• Lender
• Buyer’s and Seller’s Agents
• Buyer’s and Seller’s Lawyers

In addition, there are a number of parties that the home buyer may be less familiar with, such as:

• Private home inspector
• Specialized inspectors, for:
  • Termites
  • Radon
  • Lead-based paint
  • Sewer-lateral line
  • Roof
  • Plumbing
  • Electrical
  • Gas-lines
• Municipal or County Inspectors
• Fire District Inspectors
• Appraiser
• Title-company
• Surveyor

Each of these plays a unique role in the home buying process and these lists are not meant to be exhaustive. We find that having trained experts involved in the process minimizes the inherent risks of purchasing real estate

To learn more about types of inspections available, please read this post.Or,  To find out how to find a private home inspector, please see this previous post.

If you are in the home buying process, please contact us at 314-862-2237 or at mjacob@marcjacobesq.com

Federal law requires Sellers of older homes (those built before 1978) to disclose whether they have any information about the existence of lead-based paint. That is why Buyers are generally given a “Lead Based Paint Disclosure” from the Seller or the Seller’s agent.

To learn more about the dangers of lead-based paint, the Environmental Protection Agency has published a pamphlet available here:

Lead based paint can be harmful to young children, infants and fetuses. It can enter your body in multiple ways. Each family should therefore be aware of its danger and should take it seriously. Whether or not you decide to get your own lead-based inspector is up to you and may be very fact specific to your situation.

In our practice, we do not see many Buyers get lead-based inspections, even for homes built prior to 1978. This may be because they are unaware of the existence of lead-based paint, or because they plan to repaint the home. Whether or not repainting protects against lead-based paint should be investigated prior to making the decision on an inspection.

If you have questions about lead-based inspections, please contact us at 314.862.2237 or at mjacob@marcjacobesq.com

For Buyers who need financing to purchase a home,  the home purchase contract may give them some time to get a “Loan Commitment” or “Loan Approval.”  The Buyer must get either of these before the Loan Contingency Deadline.

In addition to these terms, there are other terms that often get thrown into the mix, and that are helpful to understand. There is some variation across lenders, and the definitions below may not fit all lenders.

Pre-qualification means that the lender evaluated the potential borrower’s financial picture based only on information the borrower provided, and indicated the mortgage amount for which the borrower could possibly qualify. The lender has not reviewed the potential borrower’s credit, or any other supporting documentation.

Pre-approval is a different term and is somewhat more involved. To get pre-approval, the lender verified the potential borrower’s financial background, checked their credit, and reviewed the mortgage application and other supporting documentation. If pre-approved, the lender can provide the potential interest rate that the borrower would qualify for and may also allow them to pre-lock a rate.

 Although a borrower may get a “Pre-qualification” or a “Pre-approval,” it is the Loan Approval or Commitment that are really the important benchmarks when it comes to the loan contingency deadline.

A borrower will therefore want to discuss with their lender what is required to get documentation that assures that the lender will provide financing.

A lender may not want to discuss appraisals or final underwriting until it gets closer to closing. This can be an area of contention between the borrower and the lender. If the lender has not finished underwriting, but has issued the approval or commitment, the borrower may be on the hook to purchase the house even when the bank is not yet fully committed to funding.

For this reason, we suggest that borrowers discuss the issue with an attorney if their lender is not willing or able to give them a satisfactory commitment or approval.

If you have questions about obtain a loan commitment or approval, please contact us at mjacob@marcjacobesq.com or at 314.862.2237

Many home purchase contracts today will give the Buyer a certain amount of time to get a “Loan Commitment” or “Loan Approval,” if the Buyer seeks financing to purchase a home. The Buyer must get either the Loan Commitment or Approval by the Loan Contingency Deadline.

The terms “Loan Commitment” and “Loan Approval,” are often used to mean the same thing in some standard real estate contracts and even in a number of court cases. One could argue that a loan commitment is stronger than a loan approval, or vice versa, but we have not yet seen any clear distinction in Missouri.

Although the lender may offer you a “Pre-qualification” or a “Pre-approval,” the Loan Approval or Commitment are really the important benchmarks when it comes to the loan contingency deadline.

A borrower will therefore want to discuss with their lender what is required of them to get a document from the lender that assures them the lender will provide financing.

Often lenders do not want to discuss appraisals and final underwriting until it gets closer to closing. This can be an area of contention between the borrower and the lender. If the lender has not finished underwriting, but has issued the approval or commitment, the borrower may be on the hook to purchase the house even when the bank is not yet fully committed to funding.

For more information on what happens if the lender does not commit to funding, read this.

For this reason, we suggest that borrowers discuss the issue with an attorney if their lender is not willing or able to give them a satisfactory commitment or approval, or if they want some help navigating this process.

If you have questions about obtain a loan commitment or approval, please contact us at mjacob@marcjacobesq.com or at 314.862.2237

Anytime you are preparing to enter into a major financial transaction, it is wise to review the underlying contracts and other documents. In a home closing, those documents might include:

• The Sales Contract,
• Amendments to the Contract,
• Inspection Notice,
• Final Walk-through Notice, and
• Any other documents that require either of the parties to provide something at or prior to closing, such as additional funds, certificates or other documentation.

In our experience, some of the things that often get overlooked are:

• Whether Seller is required to provide a home warranty;
• Whether Seller is required to provide lien waivers, due to repairs at Buyer’s request;
• Whether Seller is required to provide a passing gas inspection;
• Whether Seller is required to provide a passing local government or fire district inspection;
• Whether Buyer or Seller needs to provide a Certificate of Trust, if they are acting in a Trustee capacity.

If you have an attorney, he or she will likely review these documents prior to closing. In addition, both you and your attorney should review the HUD-1 Closing statement and other closing documents provided by the title company and lender. Read this post for more information on closing documents.

Properly preparing for closing in our experience leads to a much smoother closing of the transaction.

If you have questions about your documents, please contact us at 314.862.2237 or at mjacob@marcjacobesq.com

A “standard form contract” is really just a contract like any other. It is drafted for the benefit of the client who hired the lawyer to draft the contract. Buyers and Sellers should therefore be very concerned that the terms in the contract were not written for their benefit.

For example, most of standard form residential contracts we see are drafted for a local, private, association of real estate brokers and agents. The lawyer(s) who drafted those contracts did so on behalf of that association to help its members facilitate home sales in the most efficient manner possible. The drafting lawyers may not have been not very interested in giving the Buyer (or Seller) the protections that Buyer (or Seller) would want to have in a fully negotiated agreement.

This leaves Buyers and Sellers in danger. They often think they are protected because a contract is called “standard” and many people use it. But without modifications to that contract based on the specifics of their deal, the protections Buyers and Sellers want are probably not in that “standard” contract.

If you would like our office to review your contract or draft a custom one, please contact us at 314.862.2237 or email at mjacob@marcjacobesq.com

Many clients worry about upsetting their agent if they hire an attorney to assist in the home buying/selling process. A real estate agent should not get upset that you have hired an attorney if they really care about what is best for you.

It is against the law in Missouri for a real estate agent or broker to dissuade you from hiring an attorney. (See 20 C.S.R. 2250 -8.110(3)). Furthermore, the standard residential contract your agent helps you fill out states on the first page “If you do not understand everything in this contract, then you should consult an attorney,” or something similar depending upon which version they use. It should be a big red flag if your agent does or says anything to indicate that you do not need an lawyer.

We have had a number of agents express some surprise when our clients bring us into a residential property deal to help explain things to them or make certain modifications to the contract documents. We think the surprise is rooted in at least two things:

• First, the agent may not have had personal experience working with a transactional attorney on a real estate deal in the past, as is common in may other cities and states.

• Second, agents have a very reasonable concern that if something goes wrong, the attorney will “kill the deal,” and then the agent will not collect a commission.

On the other hand, agents who have experienced working with a transactional lawyer in the past understand the added value and protection a lawyer brings them and their clients. Law firms like ours help facilitate getting the deal done from contract to closing without compromising on this protection for the client.

In 2011, the New York Times printed an article on the desirability of hiring a lawyer, and the pitfalls associated with not doing so. We think it is worth reading: The Case for Hiring a Lawyer

Even the National Association of Realtors® believes that hiring a lawyer for home sales or purchases is often in the client’s best interest.  Read: Do I really need a real estate attorney?  So does Nolo. Read: Real Estate Attorneys for Home Purchases.

If you would like to hire a lawyer for the sale or purchase of a home, please contact our office at 314.862.2237 or email us at mjacob@marcjacobesq.com

Most residential sales contracts include a provision for real property tax prorations at closing. This means that a certain portion of the annual real estate taxes will be Seller’s responsibility and the rest will be the Buyer’s responsibility.

If you are closing at a title company in Missouri that provides title insurance, generally that company will provide a HUD-1 “Settlement Statement.” This is the closing statement that lets the parties know what they are being charged, how much money they need to bring to closing (usually the Buyer), and how much money they can expect to take home from the closing (usually the Seller). For more information on closing documents, read this post.

Many contracts we see state that the Seller is responsible for real estate taxes up to, and including, the date of closing. For example, if the overall real estate taxes are $3,000 for the home and the closing is to take place on June 30, then $1,500 is the responsibility of Seller and $1,500 is the responsibility of the Buyer.

Since most closings do not take place on June 30, the calculation should be done carefully and may need to take into account the following issues:

• Does the contract indicate that proration is adjusted to assume all months are 30 days in length?
• Is the proration based on the current year’s taxes or the previous year’s taxes? Be aware that depending on the terms of the contract, if proration is based upon the previous year’s taxes, the Buyer may or may not have any recourse against the Seller if the current year’s taxes end up being more than the previous year’s taxes.

If you have questions about closing, or if you are closing without title insurance, please contact us at 314.862.2237 or at mjacob@marcjacobesq.com