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New Jersey Real Estate Closing Procedures: A Primer

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New Jersey Real Estate Closing Procedures: A Primer

A client approaches you to represent him for the purchase of a home from an estate whose executor is undergoing an exhausting divorce proceeding. Will marital separation have any affect on the fulfillment of his executor responsibilities? On top of that, the property is a condominium unit from an association in the midst of being sued by the town for an improper subdivision. What impact, if any, will this have on your client’s right to peacefully enjoy the property? Intricate and complex title issues can arise from even the most basic residential real estate transactions. This is true in New Jersey as well as everywhere else in the nation. New Jersey has its own particular process, established by custom, common law, caselaw, statutes and variations at the county and local levels. We will review the basic steps in the New Jersey real estate process, such as attorney review (for realtor-driven residential purchases), inspection, title search, mortgage commitment, judgment search, flood zone search, tidal and riparian search, obtaining a certificate of occupancy and the closing itself. We will touch upon the purpose of these contingencies: establishing a clear chain of title, free of encumbrances, securing adequate financing for the buyer, determining if easements and other property interests affect a parcel, and determining if judgments, divorce decrees and a host of other factors affect the seller’s capacity to convey a parcel and the buyer’s capacity to complete the purchase. We will also survey some of the primary things that can go wrong, such as finding mold in the attic or discovering an open permit when applying for a certificate of occupancy, and how to most expeditiously resolve these setbacks and keep the deal moving forward Finally, we will review the hallmarks of a thorough and effective real estate contract of sale.

Transcript

- Hello, my name is Peter Lupo. I'm a residential real estate lawyer. Today we're gonna be talking about New Jersey real estate closing procedures, a primer. So let me run you through this right here. We're gonna go over the contract, the return review, the deposit, home inspection, the appraisal, title insurance, judgments, payoffs, mortgage commitment, certificate of occupancy, and then the closing itself. And we'll go through each one of these in order. So let's go over to the contract. This is the governing document for the entire transaction. This is what guides everything and it contains all the key provisions regarding buyer and seller rights and obligations. So I have things about certificate of occupancy, the zoning compliance, risk of loss during the contract prior to closing, some sort of catastrophic loss like fire or flood that happens before it, and it has all key dates and timelines. The things that people really care about, the deposit due dates, usually have multiple deposits, you have your initial and you have your second one. You have a mortgage contingency date, that's a day which you need to have your mortgage by. Projected closing date, the date you're actually gonna close. And in New Jersey, with Realo contracts, we require a three-day attorney review contingency. So that's required by state law for both the seller and buyer. Some of the standard contract addendums that attorneys will include is a property sell contingency, typically by the buyer that they have to sell the current home or they can terminate the contract. They usually need the proceeds of that sale in order to buy the next unit. Condominium units, if it's a property that is a condo unit, then the financial wellbeing of the condominium regime is considered. You could kill a deal if the condo is in bad shape or if the membership of the condo association is necessarily causing difficulties. So thinking about some things that typically come about with condominium units are assessments. Say, for example, a roof, a pool needs replacing, an elevator has to be updated. The fascia, the brick has to be upgraded. Those are the types of things that may have unexpected costs for a period of time for the condominium association. Those are the types of things that might be concerns to buyers. Lead-based paint disclosure, one of the standard forms realtor provides. It's for homes built prior to 1978. And then you have different types of loans. FHA and VA loans typically add a little extra layer of administrative bureaucracy we give to federal governments. They typically have special conditions that someone has in the lease has agreed to, unless they are blindsided transactional proceeds. A lot of things that aren't required under conventional loans that FHA and VA loans have. So those are the types of things to look out for. Some of the additional addendums, solar panel are becoming very, very popular these days. A lot of people want to have help decrease their electrical costs from these traditional power grids and people are leasing, they often finance solar panels and you have to transfer them. Sometimes it's difficult to get in touch with the folks who own the solar panel companies. So you have to transfer those rights and that can be a headache in itself. So keep a lookout for solar panels on homes. Sell concession. They may offer a concession in order to induce the buyer to enter a contract and help reduce closing costs. Those are very common. New construction, you're required to have a new home warranty, and you see the code over here in the NJC5251. And then coronavirus. So, less of an impact now that it was a year or two ago, but a lot of parties may cautiously require COVID-19 terms being served in the contract, either by standard coronavirus addendum, or via an attorney view provision. Some other things in the attorney view to look out for, Make sure you understand that it is agreed upon by both parties once the contract is signed. You have 72 hour timeframe once fully executed by both parties. During your attorney view, agreed-upon changes can be made to the contract. So you might wanna scrub through it and, for example, what you might do is look over there and talk to your clients, see things that were included, excluded. Maybe share the layer, for example, that's specifically excluded. You might wanna talk to your client, make sure that was, in fact, agreed to, and you can make any changes to the actual attorney review form of any kind of nature, including items to be removed and items that stay. So either party could walk away without penalty to the other. They don't need an explanation during that three-day or 72-hour timeframe. Either party could just cancel for no reason at all. As you see over here, last bullet point of here, the attorney view could be just 'cause the sky is blue. No reason is required to give to the other party as to why you cancel during the attorney review contract. Just bear in mind that when you move forward after the attorney review is out, you need to have a contractual reason under that contract that I mentioned earlier to cancel. Some attorney review reminders, it applies to Realo-led contracts only. Contracts negotiation between council and signed by the parties are not subject to return to review, although still utilize contingency as a matter of convention and familiarity. Attorney views are familiar to most of the state attorneys when they first attempted practice on New Jersey. So, New York state, if you're in any one of the local, other contiguous states, Pennsylvania, Delaware, they don't do attorney review in most other parts of the country, or certainly not the ones surrounding New Jersey. So, it's an unfamiliar concept for some attorneys who practice here, but something for you to have in mind. So at this point, let me just flesh out a little bit about the attorney view format right now. So this is something that I'll go over. We represent the buyers, so this is the situation right now, and I'll give you a little bit of a breakdown. So right here, we'll talk about paragraph one. We usually talk about this addendum, refer to it as an addendum that we amend and modify the above noted contract itself for real estate. All the terms, covenants and conditions, unless otherwise stated, will remain full-force in effect, standard boiler plate in any kind of contract. In the event of any inconsistencies between the terms of the contract and any amendment, the addendum or writer and this addendum, the terms of the addendum shall govern the relationships between the parties. So yeah, this one is a stronger document to one that prevails. In the event, paragraph number two, in the event buyers home inspection reveals asbestos, mold, EIFS, radon, other hazard substances or water receivage issues buyer has the right to cancel a contract and receive a refund of the deposit. Seller represent that the seller is unaware of any such conditions affecting the property. Again, we make this as a verbal attestation from service of written attestation and the seller doesn't have any active knowledge of this affecting the property. Another paragraph I put in there. Seller should delivered to buyer at sellers expense prior the close of title, the smoke detector certificate, carbon monoxide certificate, a certificate of occupancy as applicable and any other items or as required by governing the law. Again, this is typically, doesn't have to be, but traditionally in real estate sellers are the ones who typically provide a smoke detector or certificate and carbon monoxide. But again, the buyer could agree to it, but not, not common industry practice. Another paragraph I put in there. I put in there, if seller acknowledges gas and electric water utilities must remain on through closing for final walkthrough. Obviously you need to be able to turn on air conditioning on or heat on, depending what it is to make sure it still works. And obviously you wanna walk in there while it's still operating, unless of course, during a home inspection issue, discover it. And you agree to fix it after the closing, then won't be applicable, but most cases you wanna make sure all those utilities are on so you can check, make sure things like toilets flush. Next paragraph I might put in there, seller will keep utility accounts current and will make reasonable efforts to assist in transition utility accounts to buyer prior to the closing and afterward as it's reasonably necessary to affect the transaction. So kind of the common sense, make sure that they cooperate. So you can go ahead and transfer ownership and a responsibility for paying those utilities from the seller to the buyer. The other paragraph that including there, seller provide the approximate installation dates, the proper's primary systems and components. This includes roof deciding HVAC systems, hot water, heater, and windows. Obviously this might be limited if you're third or fourth buyer and was built 50 years earlier and you don't have it. You can maybe give you best estimation if you learned it, if the seller knew about it before they actually at the time of closing, but may not be something that they're aware of, but they might have done some upgrades to it, for example. Might have got a new water heater, might have got a new HVA system, boiler and such and very useful to know how old it is so that the buyer could factor into their costs of buying it 'cause obviously if you're getting a roof that's at the end of it's life expectancy, might be a very large cost you may occur shortly after the purchase. Another paragraph I include, may for example, adjust something into contract. So I might insert something in this case, as I'm reading it, may say that deposits money be held in trust account by the settlement agent for the transaction. What's the point of keeping an attorney trust account to only transfer it to the settlement, which the attorney in many cases in New Jersey, these days, aren't the settlement agent, when they could just go directly to them for ease of administrative bureaucracy at the end. Another provision I might include, if the property fails your appraisal purchase price, that the buyer may engage with the seller in an attempt to renegotiate the same. So we'll touch on this a little later, but this is a typical thing that might be a trip up for any kind of closing. If the parties are unable to arrive at an acceptable renegotiated price, then neither party may cancel the contract with no further obligation, return deposit money. So yeah, very simple. If you can't come to an acceptable dollar amount. The parties could walk away, no further obligation and get a full return of the money. Another provision kind of boiler plate in New Jersey is that buyers and sellers that wear whatever automatic waivers by the parties, liquidity damages and or forfeiture of deposit monies appear in the contract or a sale. And you write there too, same shall be admitted in its entirety. So as to leave the parties to the remedies at law. Another insertion I put in there, not withstanding anything to the all notices given under the contract, may be made by either facsimile, regular certified email or email to the attorney for the party with the exception of the time of the essence certifications, which we serve in accordance with the New Jersey law. That'd be by mail. All the time periods of the contract shall commence upon completion of attorney view, that's by state law, but it's always good to actually insert that directly to the contract. Another provision I insert, all realty transfer taxes and the estate charges shall be bore exclusively by seller. That is a typical seller a requirement, but again, in any contract, they can renegotiate it. The buyer could pay for as inducement for a property to buy a property. That's entirely possible. Unusual. Doesn't usually happen very much. I've never actually seen it, but it could potentially happen. Another provision I'll include, I'll put in something to the effect, the seller will provide evidence that all necessary municipal permits and require permit closeouts as required were issued for all upgrades on improvements. If any made to the premises. In addition, seller represents that any and all additions and improvements were completed in compliance with any and all local state and federal laws, rules and or regulations and agrees to provide the applicable permits for same, if applicable. Another one I'd like to include is underground fuel storage tanks. So make a representation here that any storage tanks of any kind under premises, the purpose to convey if an underground storage tank exists or is discovered. Buyer may cancel a contract without penalty and receive a full refund of monies. Then say you look at and to install is a mortgage commitment. So I'll put some language to effect saying if a mortgage commitment is not obtained within the timeframe specified in the contract, then the mortgage period may be extended with the consent of the parties. Sale went on reasonably with whole consent to an extension of the mortgage contingency. If buyers pursuing same in good faith. In no event will buyer's mortgage contingency be deemed automatically waived by the passage time. If buyers' mortgage commitments, withdrawn due to circumstances beyond buyers control, buyers shall have the right to determine the contract of sale and receive a full refund of deposit monies. Another part I'll put in there is none of buyer's contingencies shall be deemed time of the essence, no waived by the passenger of time. So we don't wanna have timely essence already built into any of the provisions. Say for example, we talk about closing date. Another provision I'd like to throw in here is notwithstanding anything to the contrary in the contract or addendum, buyer retain suitable remedies available in law and equity. So everyone can feel free to sue each other if you like. And then if the property is condominium, seller provide to buyers copy of master deed, bylaws and financial statements and homeowners association, HOA or seller will provide reliable point of contact, which buyer may utilize to obtain said documents for due diligence purposes. If buyers refuse HOA membership, then the buyer may cancel contract and obtain a full refund of deposit money. So now this is very important. I believe, especially with respect to the bylaws, you wanna look at certain things, for example, to see if there's anything that prevents a person from coming with a pet. A lot of people feel that pets are their little children. I understand that point of view and will wanna take the pet and be a rude surprise to find out they can't take fluffy into their apartment building. Another thing I'd like to look at is financial statements. I'd like to look at the financial statements and make sure they're solvent. You don't wanna see that they're becoming solvent or that a lot of the condominium owners aren't paying their dues. You also get a chance for financial standards to see any kind of up upcoming big capital costs, things like elevators and pools. You wanna make sure that nothing like that is gonna be there and the like, and another thing too is make sure will you be able for the buyer to talk to someone at the HOA to kind of discuss with them about membership dues and other things of that nature. Lastly, I like to include a coronavirus provision, so I like to include a language saying that sell one, take no action that will affect clear, marketable title, a title up until the recordation of deed, which such recordation may be delayed due to coronavirus related governmental administrative restrictions. As you all know with coronavirus and everyone's still catching up is enormous disruption in their recording of deed so it sometimes issues of catching up and may take months to record a deed. So the key thing is that once the seller, the transaction has gone through, titles been conveyed, that they won't do anything in that interim period before it's recorded and it's actually official on the county records to affect marketability and the goodness of the title. Next thing I like to discuss is the seller side. If you're representing seller side with attorney review. Now I really want to go into attorney review 'cause I think it really establishes a baseline for how you conduct yourself over the course of the entire negotiations and the course of the transaction. So I think it's key to get really hammered down on this. We did buyers already, attorney view form. I'm gonna go into the seller side. Obviously you have different interests when you represent other different parties. So let go over some of the kind of provisions I put into a seller's attorney view forum. So for example, I'll include a provision such as, the seller addendum shall amend and modify the above noted contract and I'll have the same exact kind of boil plate language with respect to modifications such as an agreement or if there's any kind of inconsistency between the language this and the contract itself. Prevails, standard boiler plate language. Another thing I like to say here is that, very critical for a seller, all sellers representations containing the contract and associated disclosures are amend to be preceded by the phrase to the best of seller's knowledge. So you always have plausible deniability. Obviously you want to encourage your client. You're representing them to be honest, but sometimes they can't be sure. They might have thought that the roof was done five years ago, might have done eight, nine years ago. So, the idea is to act in good faith. I like to put in to the best of seller's knowledge to protect them against being inaccurate, rather than false, but inaccurate. I also put in a provision in the same paragraph. Seller makes no absolute guarantees or warranties about the condition of the property or the status of any required permits or approvals, at least to the buyer's due diligence to determine the same. Again, caveat emptor. I put this in there in favor of the seller, again, for them to understand, for the buyer to understand, that it's on them to go ahead and get a good understanding of the property. Both from regulatory standpoint, the CFOs, any kind of regulatory approval they may need in ways of permits and variances. And of course the actual physical condition at home, which you find out through home inspection. So another thing you do to protect the buyers, I include inspection provisions. Buyers have a right to conduct a home inspection in order to determine the existence of material defects. Again, this represents the seller. Decorative stylistic, cosmetic, or aesthetic aspects of any system, structure or component of the property should not be included as defect that must be remedied in order to conclude the home inspection contingency. I like to call this the nickling diamond provision. This effectively says to the buyer, go ahead. If there's some sort of material defect, that's fine. We can come in to discuss it. Assuming there was no waiver of the home inspection, right? But assuming it's standard contract where there's a home inspection provision, this says to the buyer don't nickel in diamonds, don't come to us with little tiny nail pops and a scrape here, scrape there. It's gonna be done to major systems and the like. Home systems that are aging, but otherwise in good working order. Will that be a satisfactory reason to terminate the contract? So a lot of people say, "hey, the home inspector says that the dishwasher is at the end of its life expectancy. It's still operating, but then there was life expectancy that I could probably expect to replace in a year or two". Again, it's working, it's working. If it was broken, it's another matter. But if it's at or beyond its life expectancy, but still functioning and doing its purpose, that would exclude the buyer from coming to the seller during the home inspection contingency to seek some sort of remedy. Another thing I put in my contract is that buyers will not unilaterally cancel contract based on the results of any report, revealing presence of hazardous substances. So you can't do it unilaterally. You have to still give notice and ask. In such an instance, buyers will forward said report and sellers will have an opportunity to remedy or remediate the existing situation. Sellers may cancel the contract if he chooses not to remedy the existing issue, which is fine, but at least give the the right of first refusal. Look at it and say, "hey, I'll do it" or not. Buyers may cancel the contract if the parties cannot reach a satisfactory resolution of any existing hazardous substances issues. Again, it gives both parties ability to at least consider it, nothing unilateral. They can discuss it and consider it, but I think that's a fair way giving both parties an opportunity to consider all their options. Circling back to underground fuel tanks. If the seller's unwilling to cover the total cost of removal, the parties will make a good faith effort to negotiate an acceptable arrangement and cost sharing of tank removal and remediation prior to either party determining the agreement. Underground fuel tanks, depending which town you're in, they were kind of common before conversion to natural gas. So you'll find that in many areas that they're abandoned underground fuel tanks, very few in a way of active ones, they're still out there of course, but there's a good amount of abandoned underground fuel tanks and depending on the owner and what they would do at the time, sometimes they would actually pull a permit for it. They may extract all the remaining fuel in there and then put some sort of dirt or inner dirt that was compliant at the time to fill it up so that it would absorb any excess petroleum in the storage tank. Others never did anything at all. They just disconnected it to the furnace and then had a natural gas connection and just kind of abandoned it there. Maybe in some instances with oil in there, naturally these things rust over time and they'll start spilling it and pervading into the ground. Something of very big concern, be very, very expensive to remediate that. A lot of times you have to get a license company has a DP license number. You have to extract all the soil and then have to test to make sure none of the soils still impacted by it or contaminated by the oil. And then you have to dispose of the oil. Sorry, the soil that was soaked with oil and probably dispose it. All that as you can imagine, very expensive. So something that you wanna be cognizant of when you're doing it, could be a potentially big DP issue. The other thing I like to include here is that the party shall attempt in good faith to negotiate a resolution through the home inspection contingency and other related inspections to the satisfaction of both parties. So again, imposes good faith on both parties, a good faith principle on both parties to negotiate home inspection contingencies. You like to assume that everyone walks in operating in good faith, but this kind of puts it official into the actual attorney view contract. Then I also like to include in errors of admissions provision. I include a provision that says the parties agree that any admission or errors in making the final judgment, final adjustments at the time, the closing, shall be corrected and paid within 15 days after notifications such error by either party is given to the other party. This representation shall survive, closing a title. So again, a lot of things in terms of home inspections usually cease at the time of closing, except in case of willful hiding if you could be able prove it, which is very difficult, but this provision actually survives the closing of title, which is pretty important. Last I'll include a provision that the parties acknowledge that the property is being sold subject to a sale. So sometimes in this case, the seller is putting a provision that pursuant to the terms of the addendum, regarding buyer property sale contingency, buyer shall immediately notify seller in the event of a change of circumstances that will cause delay or termination of the buyer's home sell contract. So something that you would definitely wanna have a notification of. So I think that really kind of covers up the attorney review forms. I covered both sides. So from the standpoint of the seller and a buyer, and I think this will serve you very well moving forward. Home inspection. One of the big reasons why a lot of contracts fall apart and I always tell the client and it's put in the actual contract itself, buying a home is one of the biggest investments most Americans are gonna make and making sure that asset is in, and having at least an understanding of the condition of the home before you buy it is very, very important. So it gives you an opportunity if you represent the buyer, to determine the condition of the property, conventional home inspection looks at the foundation, looks at the roof, basement, garage, windows, fireplace, any kind of appliances, dishwasher, oven, that sort of thing. HVAC, all the big ticket items that are very expensive to replace. And then what happens is they'll list all the items they wanna be remediated or credited by the seller. So you might have a licensed home inspector send their report, usually takes about three to four days of the day they actually do the inspection, get it back to us. And then we'll talk to the client and we say, "Hey, you know, Mr. and Mrs. Smith, we know there's a number of items over there, which items would you like credited, or would you like remediated?" And then I'll tell you what they want. We say everything. They have certain list, certain items on there. And depending on the market, if it's a hot market, you don't wanna give a very long list of items because it may tank the deal. So something to bear in mind and counsel your client, but ultimately it's their dime, it's their money, it's their investment, they can do what they want in terms of these credits and repairs. Another big thing you come across is wood destroying insects. You'll have, termites is the most common, there are other types of destroying insects, but termites are the most likely one. And a lot of lenders require that evidence of wood destroying insects, if there's any evidence of current or past activity, that they'd be provided a one year warranty, to prove that that there's no active infestation. So that'll be something from the lender. You have really little control over. Radon tests and these apply to certain areas, usually in New Jersey, it's more Western New Jersey, places where there's a rock, radon tends to aggregate and is a issue in places where there's more mountainous, less so when you get to the coastal region, but certainly another thing to look out for and a home inspector should also do a radon test. They typically take a canister and they put it in the basement and leave it there overnight. And if you don't have a basement, the first floor, obviously, but they'll make sure it has the state mandated less than that threshold you see over here. And then as is purchases, now that circles back to destroying insects and conventional home inspections. The buyer forgoes any inspection contingency rights. They may go ahead and do the inspection themselves. It's more for informational purposes, but they waive it. Some of the issues you may come across. If there's wood destroying insects for example, if you do an as is purchase, that gets a little hairy, because then you can't go back to the seller to ask for a certificate and a treatment if there's active infestation, because it is infected as is purchase, it may have to be the buyer that has to go and actually get that treatment and that warranty. So some more challenging inspection issues is mold. Can be very expensive to remediate, especially when places like crawl spaces or in the attic. That's typically where you find it. Places where the attic leaks, it starts getting to the insulation or it's a wood. And then it creates mold. And naturally, if you have children or anyone for that matter, wouldn't wanna be in house with spores. Yeah breathing it in could cause asthma, other type of respiratory issues. So sometimes the buyer may want some sort of extraordinary amount of evidence of being done. And then each party naturally has a vested interest in spending as much or little money as possible, depending which side you're on. And you kind of have to get into an honest discussion about what they're willing to accept. Otherwise you risk termination. Leaks, you commonly see staining on the ceilings. Sometimes in the basement, sometimes pooling of water in the basement may come through the windows or through the foundation. It can be very time consuming to get rid of that. And sellers don't wanna take it on. It's time consuming and expensive. What mostly happens in these cases, especially if time is permit, is if you get the buyer to agree to an inspection credit. So they assume these issues, the mold and leaks, knowing what the cost is gonna be. And you agree to some sort of compromise or full credit, depending on how it goes between the parties where you get inspection credit. The result is that the seller may offer credit to the buyer to resolve the inspection issues and keep the deal afloat and that's very common. A lot of sellers don't want undertake those repairs and understandably so. And buyer, if they're have the personality type will accept it and assume it as is. And then the councils mediators effectively between the parties keep level heads and hopefully come to an agreement about the credit amount and a good attorney represents a client or the vigorous advocate for the client, but also keeps a cool heads level. So that's the idea for a good real estate attorney. Another issue that comes about, and I fear that it might be more now at the market with interest rates going up and home prices invariably going down, is appraisals. That's the next big part in terms of the contract is attorney reviews, we first discuss, then it's going to be the home inspection and then the appraisal, which usually happens some point after, but although not necessarily, after the home inspection and you may come with comments that come down to less, sorry, higher than the prevailing market value, or you might get cold feet from appraisers, knowing that values will start going down. They don't want to have to appraise something. Knowing that home price is gonna go down and then be looked at for liability if it does. But anyway, what they typically do is look at near right properties to determine its market value. So they assess similar size homes in the area that sold recently to make sure that the comps match up with the purchase price. So the banks aren't over extended. So low appraisal will cause buyer to want to renegotiate purchase price, which is only fair. No one wants to pay more money than the home is actually worth. A lender may also pull the plug based on a low appraisal. They say, "you know what, we're not gonna do it. It's not right for us. We're gonna pull a plug." The buyers can forgo the appraisal contingency and agree to come up with any difference in the amount of that result from our lender, lowering its mortgage due to a lower appraisal. So what they'll do is, you might have somebody that under appraises and what'll happen is the buyer may agree to pay that difference. Typically, a good contract and at least an attorney review, is an actual express provision that the buyer agrees to make up that difference between the appraisal amount and the contract price, and will make up that difference. So the mortgage will be lowered and then at the closing the buyer will make up that difference. As you see my last point, it could be a potential graveyard for residential transactions. It could be very problematic and a lot of buyers don't want it. No one wants to pay more for what something's actually worth. Just that basic human nature. Title insurance. So another big issue that comes up when you're selling a home is the actual title. Make sure you have something that's saleable because no buyer wants to come in and no attorney wants to represent somebody to buy something that's that has a lean against it of some kind, because that could undermine the interest of the home. So the title examiner and this will be done by the attorney. They'll go ahead and send a title request over to their title company of choice. And the title examiner refused a chain of title to make sure the current seller has ownership and convey the property to the buyer. So that's something that they do. Seller judgments, a judgment search. One of the things that'll happen from a title company. They'll do a judgment search in the state superior courts for all parties in the contract. And seller must clear up outstanding judgements prior to the issuance of title assurance policy. So that may require some amount of funds depending on what we're looking at. And typically they could either pay it off themselves before closing, or if they don't have the money at the time of closing, what may happen is the title company or the settlement agent will go ahead and pay it out of the proceeds. And then they'll go ahead and pay it directly that way. Survey, another issue, make sure the meets and bounds. The actual property buying isn't being infringed upon by a neighbor or the like, so the buyer may order a survey, always encourage buyers to get a survey it's an extra, depending on the size of the property, six to hundred to $1,200 or so to get a survey. But I think it's really good to understand your exact property boundaries, make sure everything's on the up and up, make sure that some encroachments or undisclosed easements affecting the property that may not have been disclosed on the contract. Very useful to have. So forms of ownership, this is something that's gonna come up on the deed. You'll find out you have a single owner, it'll be a loan seller, maybe divorced and make sure you make the determination before you're proceeding as a buyer. So you wanna make sure that you have a legitimate divorce and that the entire interest is in one single owner in the case of divorcee. And the reason for that is you may only get convey incomplete title. So if there is a wife and a husband and the wife alone signs off on it, and the husband doesn't sign off on it, you would not have a complete transfer of ownership. And that you would have defect in the ownership of the property from the stand standpoint of the buyer. Very important to understand that. Married couples, that's known as, if you could go back to your law school days, if you can recall your real estate class, you remember that it's tendency by the entirety and it's only available for married couples in New Jersey, so that the additional element in order to have tendency entirety, of course, is marriage. An estate, so you'll typically have an executor who has signed the sale conveyance documents on behalf of the estate. Make sure appropriate documents and any wills and testaments must be provided by the seller to determine executive rights to convey the property. Very important to make sure you have the proper person conveying it again. You wanna make sure you don't have a defect in your chain of title in conveyance. A trust is very similar to an estate. The trustee typically conveys property, but again, what you wanna make sure that you have the proper person, who's got the signatory authority to convey the property over to the buyer. And then of course the last is the corporation or LLC. The business entity owns and conveys the property. The confirmation of the business is good standing. You wanna make sure that they're in fact with the state, that the proper signatory signs off for the conveyance document, which again, you wanna see formation papers and who has the authority and right to go ahead and convey that property. Seller judgements, some potential of things. And I'm just dealing with some of these issues right now, overdue child support payments. Those are kind of common. They have to be resolved before the closing. So it has to be paid beforehand with the family court division or paid outta proceeds. Otherwise it'll carry over and attach itself to the property and you'll expose the buyer to liability. So make sure you keep a lookout for overdue child support payments. Medical expenses, another common thing, oxygen tanks, operations, any kind of medical care, make sure you contact the creditor and see if a deal can be struck. I try to do that very often. A lot of times the person who's got the lean or judgment may be willing to go ahead and resolve the judgements without paying the full amount and that takes a little tact and negotiation skills, something you do on behalf of your client. MVC, the motor vehicle commission finds assessments, make sure they contact the motor vehicle commission to resolve prior to the closing. And then of course, list pendants, not an actual judgment, but notice that a lawsuit has been filed against a seller that could really seriously disrupt a property sale. So no one wants to buy a home once this list penance is attached and has come up in a search. So you wanna make sure it's cleared up prior to the closing. You wanna make sure you contact the plaintiff and determine steps needed to resolve that pending lawsuit. Retainer agreement. You required to make sure you disclose what you're going to charge for the closing and any additional fees that may come up. I always like to make sure I have a good solid retainer agreement so that the client has full fair disclosure as you're required to by ethics. So I'd like to, when we first introduce a client, I get a referral. I like to call during early stages to avoid confusion and the issues later on, it's just better to have that out front and give fair disclosure as it requires you by law anyway. Uncomfortable to discuss, but it's necessary step to ensure that your fee is placed unchallenged on the closing disclosure and when you actually go to closing. Fees may creep up due to inflation. Everyone is under pressure right now because of inflation, gas prices, for example, and any anything else. So it's been creeping into every aspect of society, including for attorneys. Know your worth, but it's probably wise not to go too high unless you lose business competitors. You wanna make sure you contain a breakdown of the services you will provide as counsel to your client. Includes any instances where additional fees will be assessed, such as for services that specify the retainer for mailing and printing fees. Sales residency certification is a form as required by every deed for every closing in the state of New Jersey. You can't file deed without having one, it'll be rejected. So you don't wanna do that. Obviously you wanna get all the signatures in one foul swoop when you're there. But in many instances, you'll get it rejected from the county clerk's office in almost, in every instance in fact. If the sellers moving outta state, she will need to pay the estimated income tax payment of the closing. That is if she does not qualify for one or more of the exemptions listed on form, such as that property was used as a principal residence. Even if moving outta state, seller not need to make an estimated tax payment if he used a property as his primary home. So bulk zoning standards. So we'll go over some of these. Noncompliance often reveal during application for certificate of occupancy. It often surprises the seller when the issue was not discovered when seller originally purchased a property. Each inspector is different. Some focus on physical condition of the property and permit closeouts, while others go deeper, looking for zoning and land use violations, excuse me. You'll see that it varies by municipality. One big issue is side and rear yard setbacks are typical culprits. You'll see that typically with places like pools. So pools do require setbacks from the side and rear area. So sometimes people build pools and would pull permits. They would check these important issues like setbacks, and they get stuck at the end when they try to sell their home. You'll find this with decks. You'll find this with even things like with barns and sheds. Those are big issues as well. So some of the solutions to this is that the seller may need to apply for a zoning variance to obtain a certificate of occupancy or seller will have to relocate structures on the property to comply with applicable bulk regulations. For example, shed may have to be pushed forward a little bit into the yard to go away from side or a setback or rear yard setback. You'll find for example, with, especially with sheds, people like to put 'em as far back on the property as possible by the property line. So you have the most maximum use of the property. That as I mentioned over here, it does sometimes become an issue with zoning regulations. Right, pairing grants, New Jersey, beautiful state, that we live in. 130 miles of coastline. A lot of people have homes along that coastline, and you have lots of different size homes along shorelines inlets, along rivers and such. Few real estate attorneys enjoy a career without representing a buyer or a seller in a sale of a shore property 'cause of that 130 miles of coastline. The state lays claim to tidal waters. Now preemptively claimed by the federal government, which is a lot of it, a lot of the state. Properties along these waters must obtain rights to use adjoining water through either repairing grant or lease and grants have been phased out in recent years, leaving leases and licenses as the primary means by which the homeowner acquire repairing rights. Grants are obviously preferred over a lease or license, but that's the reality of how things are going in the state within New Jersey state DEP. Other things depending where you are in the state. Pinelands, highlands and wetlands and pinelands, they're in certain designated areas, a lot by in Burlington county, as you might be familiar, have certain regulations about erecting structures and how you use the land, highlands mostly in the Northwestern part of the state, and then wetlands, or could be anywhere in the state where you have frequent flooding and you also have a certain type of soil that allows for that water to pool rather than drain and penetrate to the ground. So New Jersey closings occasionally bump into these and fire up issues. So you have radon levels. You have pairing rights. We also have these issues, wetlands or wet wetlands buffer region may exist on a parcel. Strict regulations governing development of fresh water and tidal wetlands. Down on places like Ocean Atlantic counties, the pinelands are wide, widespread, they're all over the place. Developing in this region involves an intersection of local state and federal regulations. Be mindful of that. If your firms up to the challenge, you're represent your client through these environmental challenges. But if you're not familiar with it, could be a help. It could be very Byzantine law, body of law, trying to figure out it, could be a little complex, but certainly something, if you feel up to, you can handle. Otherwise, bring on special counsel, work with them to resolve environmental issues in the best interest of your clients. Other issues we hear of flood zones. Hurricane Sandy and its aftermath resulted in crackdown by local town FEMA and insurance providers on the application of flood zone construction standards. Obviously places, I could think of my own town, where I had a short house in Belmar. There hadn't been a flood there in over a hundred years. And a lot of residents there weren't required by the banks and the lenders to have flood insurances because it didn't meet the requirements because of the rarity in which the area flooded. But now they there's a whole slew of requirements, not just in Belmar, but a lot of coastal areas in all the coastal areas in New Jersey to make sure you have flood zone construction standards. And the title companies perform a flood zone check to determine if a parcel is located in the flood hazard area. That's something that they do. Any good title company will do that as a standard protocol. Flood elevation certificate determines how far above sea level, the first floor of a home must be built. And that drives what kind of construction you need. You may have to go and retrofit the home in some cases. So that's something you keep, keep in mind. Crawlspace garages, things that are low lying or below sea level may lie below that flood elevation level. And it results in shore homes being erected, the top huge columns and other supports kind of look like stilts. You'll see that. And that's the way the home is built in order to avoid flooding. Another thing look out for is existing tendencies. So landlords cannot perform self help. There's a whole body of law dealing with landlord tenant law and landlords can't demand that someone leave because they're selling a home. Neither could the buyer obviously. You have to go through the process to get rid of a tenant if they're holdovers or if they're defaulted of their lease. But no self-help. The buyer and seller can come to agreement on the timeline for tenants to vacate the premises. You may have, for example, a buyer looking get into a home or buy or purchase a home, and the tenant has four months left. So they may very well agree to let the tenant stay there, but give 'em notification that they're gonna be moving in. And the intend not to renew the lease. Always at risk, because if the tenant does leave, they'll have to go through the landlord tenant process of evicting and may find themselves living in other circumstances until they actually have the tenant legally removed. Tenants are not party to these agreements, which leaves a measure of uncertainty. Again, as I mentioned, you have no control over a tenant if you're a seller getting out, you can do your legal requirements, but doesn't mean by the day that you close or the time is supposed to vacate the property, they'll actually do that. So that's a bit of a risk and that's an unknown factor. So any agreement between the buyer and seller and the resolution of existing tendencies must be made with their understanding that neither the party has absolute control for the part of the tenants and something I always like to give fair disclosure, especially for the buyer who may be relying on the tenant to vacate by the time they look to move in. And as I mentioned before, no self-help removal of tenants, must abide by landlord tenant laws in the state. Some prorated expenses to seller pays up on property taxes beyond the closing date. He's refunded money on a probated basis based on the day of the closing. So for example, if you're closing in August, July might be the due date you pay for the quarter for the property taxes. It might be for sewer, it might be for water, whatever it is. You may be paying prospectively and the seller is entitled to it. And usually the settlement agent in this case, it might be the title company. We'll go ahead, call the utility provider, the water company and say, "hey, when was it paid? How much it's left?" It'll calculate based on 90 day increments, usually how much money is been prepaid by a seller, and then reflect that on the settlement disclosure. Also applies to water sewer charges, as I mentioned, and it's determined by a settle agent. It's spelled on the closing disclosure document. A lot of times it may confuse a buyer who feels he's paying a seller's expense, but you explain to him that was already prepaid and that in equity, the seller should be reimbursed for that based up through the day of closing. Some rarely sited contract provisions, the standard contract template employed by New Jersey realtors in residential transactions contains the number of provisions that rarely if ever apply to a given sale. Some things over here is air safety and zoning notice. Only applies only to properties between the airport safety zones. I have personally represented hundreds of clients and have never come across this as an issue. However, there's no reason to strike it from the contract. Bulk sales applies to sellers, which are businesses selling off their assets as well as single family sellers, exempt from this provision, it rarely applies to typical residential sales, but something you should be aware of. Default, so the default provisions, if either the buyer is seller are unable to complete the transaction or in breach of one or more contract terms, then they're at default. Default design simply mean the termination of the deal. You have a right to cure. If buyer is unable to secure a mortgage within allotted timeframes, determine if the seller will agree to an extension. The bank money, for example, give 'em extra time. The buyer, in this case, they find another lender or cure the defect for which the mortgage mortgage underwriter reach out to them. To request that the buyer shows evidence of forward progress, forward toward a final loan commitment. So you see them that they're making some good progress and they're resolving issues. The seller may say, "hey, you know what? We'll stick with them. Looks like they're making some good progress. And it looks resolvable in a reasonable time." They may agree to an extension. And then you go ahead and do an addendum to the contract attorney reviews, and have both parties sign. The seller cannot resolve over permits and is unable to obtain the certificate of occupancy, determine if buyer will buy the property in leu of one and round the issue himself prior to moving in. And again, see if you come up for compromise. If you're representing the buyer, they do like the property, they really attached to buying it, give 'em full disclosure, of course, but find another solution. Often what's the big issue is time. So seller may have the time for the proposed closing date in which to resolve those issues. And the buyer may be okay with it. And you may be able to give some guidance to the buyer, how you resolve those issues and obtain a certificate occupancy, something to keep in mind. There are many ways to resolve defaults. Again, a lot of it is keeping level heads. If, you don't, you know, what I always like to do is don't let people's tempers get in the way of something that might be good for them or something that they want. So there's always a solution to any problem. And if you deal with people who have, who are open-minded, and you can guide 'em through the process, you can make the deal, go through. Broker commissions, make sure you reach out to the realtors for commission statements prior to the issues of the final closing statement, you wanna make sure it's properly captured. Otherwise it can be potentially be a lean if it's not paid. Don't assume the title company would do this. They often will, but make sure you manage it. It's your client and it is your deal. So you wanna make sure you manage everything. Realty transfer fee. One thing to look out for it's something that RTF is required by county and by state law be paid, but make sure you look at things like say if your client is a combat, maybe entitled to certain types of waivers or reductions. If they're handicapped, if they're elderly, if they're a combat veteran or different standards that you may qualify for. So you make sure you check that to reduce the cost. Most common I find is age related. This applies to every real estate transaction in New Jersey. Homestead rebate. It's a property tax reduction applied by the municipality. Lest buyer will need to pay back to the seller for a proportion of the homestead rebate that covers the timeframe with seller still on the property. Again, in equity. That's something that the buyer will need to reduce and address. Closer on the buyer side. They do a final walkthrough. We're getting kind of one airway down to the end. Realtor and buyer perform a mini inspection right before the closing to confirm that the property has been properly maintained. That they agreed upon repairs been completed. Another big thing that's frequently looked at is that it's broom swept. That's a common requirement that it is in fact broom swept and ready at the time of closing. And is in some sort of presentable condition. Cash in closing, as we discussed before, the buyers brings a cashiers check and the amount require to complete the purchase. So that's the final amount due after the deposits and the mortgage. So, as I discussed before I give the example of where the buyer agrees to make up the difference between the appraisal price and the sales price. So that might be a type of dollar amount type of figure that might be included in that cashier's check in order to complete the purchase. So you get any number of things in there, but that would be another type of likely culprit. Buyer signs mortgage documents, and required affidavits in the presence of a notary. Something that's gonna be required. It gets recorded and a notary is required on hand. Typically, when you go to the closing, either myself, I come there with a stamp or there's another notary on site, and they'll go ahead and notarize documents. Some of the things they'll do is keys warrant information of the last minute items are exchanged between the parties. If you're condominium, for example, it might be the keys in the mailbox. It might be a keys in the garage or a garage door opener. For example, those are a type of common things. A lot of times that'll involve the broker or the agent because they don't have knowledge of that. And at that point, it's time to open up the champagne bottles and it's time to celebrate because it's exciting for a lot of people, people who are selling, moving out life, up sizing, downsizing, moving to a different state, different job or whatever it is. Buyer always exciting to move to a new home. And especially in the case of a first time buyer getting a new home is a big milestone in accomplishment of life. So it is a joyous thing I would say. So from the standpoint of a settlement agent, title companies that perform settlement standards as the standard practice in most counties in New Jersey, so make sure representing this buyer less initially heavy than representing seller. They do a lot of the settlement, which is a big help, and that they do it in such high volume that they have such expertise. I think it's a great thing for a lawyer. Back when I first started in the nineties, we used to do sediment statements, it used to be called the HUD or the RESPA, and you'd have to do it yourself, which is fine, but it was a lot more liability. It was just a very initially heavy. It was very useful to have the title company to come in. So it results of more time serving client's interests as council and less time completing documents of paperwork. Obviously some attorneys still do the settlement statements. I rarely ever see any attorneys who really do themselves, usually done by the title company, but the title company does have all the same fiduciary requirements in terms of trust accounts, maintaining it and of course dispersing of funds. It also means less risk to law offices. So you no only have to maintain trust accounts and process closing costs, issue checks, and the like. Ensure that the escrow account matches the final closing disclosure to the penny. Obviously, you are required by state law of your IOLTA accounts to make sure you have the exact accounting of everything. A lot of stress that has now been removed away from the attorney and now on the title company side. Again, a great service for a real estate attorney to have. Conveys documents if you're representing the seller. Seller signs deed, the affidavit title, the 1099 reporting form and non for far certification, we kind of touched that before. Certificate of occupancy required by most buyers prior to closing any outstanding conditions to obtain a certificate or cleared prior. Discussed a little while ago about broom swept condition, basic thing that's required in any kind of standard contract that the seller given some sort of presentable conditions. So what they call broom swept. I mean it doesn't have to be immaculate, but they do have to make sure all of the major, all the furniture's out and any kind of real obvious debris out and swept. It's kind of common sense the way, if you were buying a home, how you'd wanna walk into a home. Seller removes all possessions, except those agreed upon in the contract to be left behind. We can kind of discuss that a little while ago. When I first open up the conversation, we wanna make sure that you discuss with the clients. Say, "hey, are you sure you want to leave behind the barbecue?" You may not barbecue. You may not want it. You may look at as junk for example, or it might be old. You like, I do wanna barbecue, but this is an old barbecue. And I don't wanna use it. Make sure that the sellers move it before we move in, which is a reasonable thing under the circumstances. Then seller moves in, seller moves onto their chapter in life. Closings are frequently emotional undertakings. And for both parties could be a joyous moment for both parties. Seller proceeds, for many sellers, the most important part of the transaction is when, how do I get my money? That's what they wanna know, which is fair enough. It's a lot of money. They spend many years building equity at home and they need it for other purposes. Some may receive this proceeds from a sale in the form of a bank check or wire transfer. Bank check is very useful if the people are there, but wire transfers are very useful when someone is far away or just don't wanna have to deal with depositing it. Wire transfers usually immediately available, especially if they wire in the morning. So wire transfers are preferable for many people. In unusual circumstances, there are the means receiving consideration, such as like swaps of property, very unusual. I don't think if I've ever experienced that, but something to be aware of. These type of deals go beyond the scope of the real estate closing procedures overview and for another course, but something to be mindful of. So let me go ahead and go ahead with the key takeaways. Now in summary, simple residential transactions can contain remarkable levels of complexity. The attorneys there to explain these to the client and advise risk and obligation. We kind of went over some of the complexity. The attorney is not there to make the actual decisions, that is left to the client. So you guide them. You give 'em the risks. You let 'em know the obligations and some of the downsides to the decisions, but they ultimately make the decision, that's to them. But our job is to give them as much of our experience and legal downsides to their decisions. New Jersey real estate market will continue to evolve and develop meaning that informed and expert real estate lawyers likely remain a key component of property transactions. Best practices, the law versus legal counsel that a realtor salesperson avoid direct development purchase price renegotiation. We're not experts, unless you happen also be have your realtor's license. We're not experts in price, that is their profession. They're the subject matter experts. I always defer to them. I never get involved with actual pricing and pricing homes. You advise and guide your client and you don't dictate instructions. So if you have any questions, I do deal with all matters real estate. I do deal with aspects of the tidelands and environmental. I deal with resolving judgments and the like, if you have any questions as a professional, feel free reach out to me. This is my contact information. And looking forward to working with you or hearing from you.

Presenter(s)

Peter Lupo
Founder and CEO
Hoplite Communications, LLC

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