What Buyers Need to Know About the New Distressed Properties Law

According to Washington State Attorney General Rob McKenna, the original draft of the controversial Distressed Properties Law intended to protect homeowners from equity skimming scam artists. It was originally very narrow in scope and specifically targeted certain individuals who promise aid to distressed homeowners, but who would end up stealing a distressed home owner's equity.

The original intent of this law was well-meaning when it was first drafted, however, when the draft reached the State senate, the senate added new language at the last minute that made the law very broad and harmful not only to Realtors, but also to buyers. Steps are being made to correct the harmful language of this new law. However, until then, buyers and their agents must take care to avoid the actions that would impose the "Distressed Home Consultant" designation upon them.

What buyers and their agents need to watch out for:

1. Do not make any offers to save a home from foreclosure

2. Do not contact lenders on behalf of the seller (buyers and their agents should not be doing this anyway)

3. Do not close (or set a closing date) within 20 Days of a scheduled foreclosure date (IMPORTANT)

4. Do not systematically contact distressed homeowners, for example, looking specifically for foreclosure properties to buy, etc.

What happens if a buyer and/or their agent becomes a "Distressed Property Home Consultant"

1. Under the new law, if the "Distressed Property Home Consultant" designation is imposed, buyers and their agents will owe fiduciary duties to distressed homeowners under consumer protection laws. There will also be cumbersome procedures that must be followed under this legal implication (see video below for more details). This is a bad situation for buyers to be in, as well as their agents. At this point, buyer's and their agents would need to consult with their respective legal advisers asap.

It is critical to understand that distressed property homeowners cannot waive their rights under this new law. Therefore, the best way to avoid the risk of implication is to avoid being exposed to this situation altogether.

Bottom line:

Until legislative officials remove or revises the adverse language contained in this new law, buyers and their agents will need to stay vigilant and aware--being very careful not to become ensnared in the flaws of this new law.


To learn more about this new law and find out what is being done about it, watch this video as Washington Attorney General Rob McKenna discusses the issue:

The Distressed Property Law: Next Steps & Solutions

To learn more about this law in general as well as its implications, watch this video produced by the Washington Association of Realtors, Northwest Multiple Listing Services, and supported by the Washington State Department of Licensing:

Distressed Properties DVD Chapter 1

For buyers contemplating the purchase of a residential property of 1-4 units or who have questions about this law, please consult with your attorney and be clear on how to proceed with your buyer's agent before stepping into the market. Preparation and planning will go a long way to prevent becoming a "Distressed Property Consultant."

Retainer Fees: To Pay or Not to Pay

I came upon a blog discussing the topic of buyer agents charging retainer fees. While there are some that are totally against paying retainer fees to a buyer's agent, there are others who understand the circumstances that would make the payment of a retainer fee valuable when it comes to retaining the services of a dedicated buyer's advocate.

Here is my comment:

From a buyer's perspective, I would want to know the buyer agent's policy regarding retainer fees before passing judgment. How will the agent or broker treat the retainer fee? Will they be returning the fee at closing, or will they be keeping the fee no matter what?

The answer to this question--in addition to the agent or broker's reputation--can determine whether a retainer fee is worth paying. Because, if a buyer's agent makes it clear that the retainer fee will be returned at closing, applied towards an appraisal, credited towards closing costs, etc., then one can safely assume that this agent or broker is only charging the fee to make sure that they are dealing with serious people; because, they only get paid when a transaction closes. They need to know that they are giving their best and dedicating their time, energy, and resources to serious clients only.

It is reasonable to assume that any employed person expects compensation for the work they do regardless of industry and regardless of whether they are on a salary, hourly wage, or any other form of compensation. How many here would go to work without the assurance of receiving a paycheck?

A good buyer's agent--especially, an exclusive buyer's agent with a good reputation for being a steadfast advocate for the buyer--is worth paying a retainer fee. When it is in writing that the fee will be returned upon the completion of a designated event, then this is a good indication that the agent or broker is not trying to "get rich" from charging retainer fees. Instead, they are merely looking for the assurance that they are dealing with serious people.

In summary

I work on retainer in my own real estate practice. However, I do not keep the retainers that I collect. Instead, I return them upon the completion of a designated event, which is ALWAYS in writing. I should also note that repeat clients NEVER have to pay retainer fees a second time and neither do the referrals they send my way. I am very dedicated to my clients' satisfaction. Their happiness means everything to me and I always give them 1000% of myself to inform, shield and protect the strength of their negotiating position. This alone substantiates the value of paying a retainer fee for my service--a fee that I return to clients in the end, which they do not have to pay a second time.

Buyer Beware: Washington State's New Distressed Property Law

Buyers and their buyer agents need to be aware of a new controversial law that took effect on June 12th called the Distressed Property Law HB2791. In a nutshell, if an agent, broker, or buyer says or implies certain things to a distressed homeowner or systematically searches for distressed residential properties (1 - 4 units), then under the new law that agent, broker, or buyer would then become "distressed home consultants" and they would suddenly owe fiduciary duties to the distressed homeowner under the new law, which falls under the category of consumer protection laws. That a buyer could even fall prey to this new law is truly unbelievable.

According to legal sources, the Washington Association of Realtors is working with the WA State Attorney Generals Office to correct the language of the new law which was passed at the last minute without any public comment. However, in the meantime, we all have to be careful (including buyers) until these legislative revisions have taken place. This law only pertains to residential properties of 1 -4 units. Properties of 5+ units are exempt from this controversial new law. The association explains how this law came to be:

How was this law passed without the Washington REALTORS® intervention?

The Washington REALTORS® closely monitored the legislation as it was proposed by the Attorney General as the legislation progressed through the House and the Senate. Both the Washington REALTORS® and the AG were satisfied that the Bill, as proposed and intended by the AG, did not include the adverse language now causing the problems. However, after the Bill was passed in one form by the House and in a slightly different form by the Senate, it moved into a process that occurs outside the arena where public comment or influence are allowed. It was at that stage that the adverse language was added and the Bill was immediately voted out of the Legislature without any opportunity for the AG or the Washington REALTORS® to testify about the problem.

Source link: "What You Need to Know About Washington State's New Distressed Property Law HB2791"

FHA Threatens to Ban Downpayment Assistance Programs

Today, the New York Times revealed the FHA's plan to do away with downpayment assistance programs offered through non-profits because they expect $4.6 Billion in losses, which they attribute to these programs. FHA commissioner, Brian D. Montgomery, warns that the F.H.A., "would have to renew its efforts to end the seller-financed down payment program, which accounted for 35 percent of its loans in 2007."

Rachel L. Swarns, the writer of this news piece explains how these seller-financed downpayment programs work:

"Under the program, a home seller arranges to cover the buyer’s down payment, using financial help from a nonprofit company, but typically adds that sum or more to the price of the house. The deal has been particularly attractive to financially struggling buyers and to owners in depressed markets, according to Congressional officials."

There is much debate with congressional leaders as to whether or not the FHA should ban these programs. On one side, critics say that these programs put overpriced homes in the hands of the poor. On the other side, supporters claim that banning these programs would make homeownership unattainable for low income families.

I believe there is a middle ground somewhere. Downpayment assistance programs are ok so long as buyers can afford them. The problem starts when buyers cannot afford the higher purchase price that results from adding the downpayment and closing costs to the purchase price so that the seller is willing to pay them on the buyer's behalf. Instead of banning these important programs, it would make more sense to implement stricter income qualifying requirements for buyers intending to use these downpayment assistance programs OR any other alternative to a straight ban on downpayment assistant programs.

Read full article here, F.H.A. Faces $4.6 Billion in Losses.

Multiple Offers: To Engage or Not to Engage, the Answer is up to You!

I recently came across an interesting discussion among peers regarding the dynamics between buyers, sellers, and their agents and whether a buyer's offer is kept secret when presented to a seller and his or her agent. While the discussion was technically not about multiple offers, the discussion evolved to include this subject because the original post mentioned some of the things a seller's agent might do when there are multiple offers on a home; for example, when the author said, "Often the seller will counter the most qualified buyer with the higher price of another offer from a less qualified buyer. Technically they didn’t 'reveal' your 'offer,' but they used your price as the counter price to a different buyer."

These are the kinds of things that buyers need to be aware of before deciding to engage in a multiple offer scenario because ultimately the goal of a situation like this is to get the highest price possible for property. Depending on the situation, and the people involved, this scenario often leads to compromising the strength of a buyer's negotiating position. A good buyer's agent should work to shield, inform, and protect a buyer's negotiating position because through this strength a buyer has the best chance of negotiating the best deal possible. A compromised negotiating position means that a buyer has lost all of his or her bargaining chips and must now deal on the seller's terms if he or she wants to pursue that seller's property. Some agents might argue that some homes are worth pursuing in a multiple offer situation, but the decision of "worth" is ultimately the buyer's to make once they fully understand the rules of engagement because a situation like this truly falls under the seller's rule. Instead of negotiations, the transaction will seem more like an auction and the multiple buyers involved become levers in the seller agent's quest to get the highest selling price possible for their seller. In my opinion, buyers should not oblige, but it is up to the buyer whether or not they wish to engage.

A multiple offer situation is the best possible scenario for a seller, period. Indeed, it is quite the opposite for a buyer. Even under the advice of a buyer's agent of whether or not to engage in a multiple offer situation, the choice to engage is still the buyer's decision to make.

Click here to read the full post:

Is your offer a secret to be kept?

Home Buying Experts Warn - Builder Loan Fine Print Could Cost You Thousands

Here is an interesting news release by the National Association of Exclusive Buyer Agents about what buyers should look out for when dealing with a builder's mortgage company:


AVONDALE, Ariz., May 19 /PRNewswire/ -- The home loan packages offered by builders are often touted as being very convenient. But when it comes to evaluating the true benefits the picture is often quite different, according to the home buying specialists at the National Association of Exclusive Buyer Agents, (NAEBA). Recent difficulties in the mortgage marketplace bear this out.

"Mortgage shopping can take a significant level of sophistication. In addition, negotiations with a builder's mortgage company can sometimes be stressful and costly," stated Barry Nystedt President of NAEBA. "Home buyers still need to compare the builder's loan offerings to what is available on the open market. Complications arise when the buyer becomes obligated to the builder's lender without being able to compare the rates and fees other lenders may offer months later when the home is complete. Sometimes the builder's lender takes advantage of a buyer by providing an overpriced loan, which the buyer accepts, not wanting to risk losing the builder's incentives."

Read the full news release from the National Association of Exclusive Buyer Agents (NAEBA)

The Ummel Verdict Is In - Buyers Need to be Careful in Choosing Their 'Buyer Agent'

Here is a news update on the Ummel case as reported by the National Association of Exclusive Buyer Agents:

AVONDALE, Ariz., April 17 /PRNewswire-USNewswire/ -- The verdict is in and a California jury has decided that a real estate agent did not violate the law by failing to disclose to his buyer client information about comparable homes on their same street that were selling for substantially less money. In a case of first impression, Marty Ummel attracted national attention when she sued her buyer agent and his company, for allegedly duping her and her husband into overpaying for a $1.2 million home."Not disclosing comparable market data to a buyer client may not have been perceived as a violation of law by this jury, however it would certainly violate the Code of Ethics of our association," stated Barry Nystedt, the President of the National Association of Exclusive Buyer Agents (NAEBA). "Real Estate practitioners in traditional real estate firms that usually represent sellers may not have the commitment and skill to fully protect the financial interests of the home buyer. Home buyers would be smart to hire an agent from a firm that specializes in representing only home buyers and subscribes to a higher standard of performance," Nystedt added.

Read full press release.