The Single Most Important Thing to Know About the New Florida Contract for Sale

Feb. 20, 2017 – The real estate industry changes, and when it does, the Florida Realtors/Florida Bar contract gets updated. The latest version of the Florida Realtors/FloridaBar Residential Contract and its As Is companion debuted April 4.

Some changes are housekeeping tasks. Some require a bit more study, and a future article will focus on those. For now, however, the new version of Paragraph "8(b) Financing" clause deserves your focus. You need to understand what will change.

Changes prompted by lending industry

There are several reasons for the financing change, in part because the lending industry itself has changed. The contract no longer mentions "Loan Commitment," for example, because the lending industry has largely dropped the term. It's being replaced by the term "Loan Approval," and the term "Loan Commitment Period" has become "Loan Approval Period."

In addition, the default time for "Loan Approval Period" will also change back to 30 days from 45 days. This change was made because loan approvals are no longer being slowed down by TRID (TILA/RESPA Integrated Disclosure Rule), the financial regulations that went into effect in the fall of 2015.

Finally, a requirement in the current version of the contract – "this contract is contingent upon buyer obtaining a written loan commitment,"– has been changed, and the "written" component has been deleted.

Change in philosophy regarding buyer's right to cancel

In general, many members feel parts of the current financing clause are confusing. In particular, Florida Realtors has received many questions about either party's right to cancel the contract up to seven days prior to closing when a buyer didn't timely obtain a loan. The new version of the contract scraps this concept in favor of a new approach. As always, the devil is in the details.

The new financing clause requires a buyer to promptly notify a seller, in writing, when a Loan Approval is obtained. If a buyer does not obtain Loan Approval within the Loan Approval Period, then the buyer may notify the seller – again, in writing – and elect to either terminate the contract or waive Loan Approval. However, the buyer no longer has a unilateral contractual right to terminate the contract for failure to obtain Loan Approval after the Loan Approval Period.

Further details: If a buyer doesn't give the seller any kind of written notification during the Loan Approval Period, new language specifies Loan Approval will be considered obtained. This results in the buyer's deposit being at risk if he fails to close unless the buyer's failure is caused by items set out in Paragraph 8 (b)(vii).

There is an exception to the contract going forward if a seller has received no written notification at all – either that a loan has been obtained or the buyer cannot get one. The seller may unilaterally cancel the contract by giving buyer written notice within a three-day period after the buyer's Loan Approval Period has expired. But if the seller does nothing during the three-day period following the Loan Commitment Period, the seller has no further unilateral opportunity to terminate the contract based on the buyer's failure to obtain Loan Approval or failure to provide the seller a written notice.

Other highlights of 8(b) Financing clause changes

  1. If the lender requires that a buyer sell an existing property, this will not be considered Loan Approval.
  2. When applying for a loan, what is a "diligent effort" on the buyer's part? New language now specifies this requires the buyer to "timely" provide documents, information, payment of fees and charges per lender requirements.
  3. An additional clause authorizes the closing agent to share the settlement statement and Closing Disclosure with the seller and real estate brokers. Note, however, that this doesn't obligate the closing agent to share the documents and it might violate the lender's closing instructions.
  4. What if the buyer finds that he can't secure Loan Approval before the Loan Approval Period expires? This caused some confusion in the past, but no longer. A buyer who has used due diligence but is unable to obtain Loan Approval can notify the seller in writing at any time before the Loan Approval Period ends.
  5. One clause, 8(b)(vii), about returning deposits when a deal doesn't close because of a lender's "financial failure" was removed from the new version.

by Marcia Tabak © 2017 Florida Realtors

5 Legal Tips for Uncontested Divorces

 

When it comes to divorce, there are two basic kinds: contested and uncontested. In the former, the parties seeking to dissolve their union fight out their issues over who gets what in court. In an uncontested divorce, the parties still have to go to court, but there is no fighting involved. Rather, in an uncontested divorce, the parties simply ask the court to approve the divorce agreement they have come to on their own.

 

Typically, while courts will ensure that uncontested divorces meet minimum state requirements and that the parties are aware of and agree to the terms they set forth, that might be all the courts do. As such, divorcing parties trying to utilize the uncontested process may want to consider the following five legal tips.

1. Don’t Trust Your Soon-to-be-Former Spouse

Even though the decision to get divorced may have been reached amicably, trusting your soon-to-be-former spouse is not necessarily recommended. Do your own research and investigation to ensure that all assets and debts have been disclosed. The last thing you want is to agree to take on debts you don’t know about, let alone not get your fair share of community assets.

2. Retain Your Own Lawyer

Even when there may not seem to be anything to fight over, hiring your own lawyer to represent your interests is highly advisable. Apart from looking over, or potentially even drafting, the divorce agreement, your own attorney will be able to advise you about specific concerns that you may have never even considered. Remember, during divorce, debts are also divided. So even if there are no assets, you may need some help dividing debts.

3. The Personal Property Trade

When negotiating the division of personal property, it is common for separating spouses to negotiate over costly community personal property items like cars, furniture, electronics, and even collectibles. However, the value of these items can often be exaggerated. If there are hard to value items, it can be useful to hire a third party appraiser to assess the value so that a fair division can be made.

4. Early Mediation

If contested issues are discovered while working on the divorce agreement and division of property, rather than let the whole uncontested process blow up into a full blown contested divorce, the parties can engage a mediator to help them resolve their issues. While engaging a mediator is likely to increase the costs, compared to going through a contested divorce, mediation will be a drop in the bucket.

5. Measure Twice, Divorce Once

Because of the way an uncontested divorce works, it is important to really make sure that the divorce truly is uncontested. While an uncontested divorce can save parties considerable money, if it comes out during the hearing to approve the divorce agreement that there are contested issues, the costs savings can quickly vanish as the court rejects the uncontested divorce.

By George Khoury, Esq.

- See more at: http://blogs.findlaw.com/law_and_life/2017/03/5-legal-tips-for-an-uncontested-divorces.html#more

ICE Arrests Green Card Applicants During USCIS Interview

Federal immigration officers arrested five people in Lawrence on Wednesday when they showed up for scheduled appointments at a U.S. Citizenship and Immigration Services (USCIS) office.

WBUR has confirmed that at least three of those arrested were beginning the process to become legal permanent residents. U.S. Immigration and Customs Enforcement (ICE) says the agency had orders to detain each of the five individuals for deportation.

'They're In A Sort Of Catch-22'

Brian Doyle, the attorney for one of the three people who were seeking green cards before they were arrested, says he knew there was a chance his client would be taken into custody at the appointment.

His client, a Brazilian national who had been ordered deported before she married a U.S. citizen, understood the risks as well, but ultimately decided that she wanted to keep the appointment and begin the green card process.

This, Doyle says, is an example of the difficult situation for many immigrants living in the country illegally, who are forced to weigh the costs and benefits of keeping an appointment with an immigration official in light of new deportation priorities set by President Trump.

"Now, they're in a sort of catch-22 where, 'All right, I'm being called in for this interview. I want to have this first step approved.' If they don't show up, it's what's called abandoned ... USCIS just sort of assumes that they don't want to go forward with it," Doyle said. "But now, if they do show up, trying to take that first step and they're detained, it can lead to them being removed."

Because Doyle's client is married to a U.S. citizen, she is eligible for a specific application process sponsored by her husband. Both Doyle's client and her husband were present at the USCIS office for what's called a marriage petition interview, a process used to screen for fraudulent marriages. Doyle said his client, a small business owner with no criminal record, had just completed her 40-minute question and answer session when an ICE agent entered the office and informed her that she was ordered removed and was being taken into custody.

Doyle says ICE acted within its authority when taking his client into custody.

"Yes, they have the authority to, but you're typically not going to see that person detained in that environment, because they are taking that first step in obtaining status through whatever avenue that they have," he said.

Doyle's client is in ICE custody at the Suffolk County House of Corrections. He says his client could be detained, away from her three children and husband, for weeks while the legal process unfolds. Ultimately, she could be deported to Brazil — a country she has not visited in more than 15 years.

'Back Into The Shadow Of Immigration Land'

Susan Church, who heads the New England chapter of the American Immigration Lawyers Association, says she finds the arrests at the USCIS office not only troubling but also surprising.

"The detention of an individual under these circumstances and most likely the arrest would be something that is definitely new," Church said. "Because the priority system under the Obama administration instructed ICE officers not to arrest or detain individuals under these circumstances."

But that appears to be changing.

Church and other lawyers say that the fact ICE was notified is not necessarily unusual, but that people were taken into custody leads them to believe that this represents a shift in tactics.

"What this means is that people who are eligible to obtain their green card in the United States, who are following the law, who are following the rules, who are doing what the government is instructing them to do, are going to be too terrified to show up and follow through with the process," Church said. "And now a whole new category of people is going to go back into the shadow of immigration land and be living in fear."

In a statement, ICE confirmed that officers were "responding to an investigative tip" when arresting the five foreign nationals at the USCIS office in Lawrence.

"All five individuals have final orders of removal issued by a federal immigration judge. All five will be held in custody pending removal from the United States," the statement read.

When asked if the five people arrested had criminal records, an ICE spokesman said two of the people had no criminal record while the other three had "multiple traffic violations."

Written by Shannon Dooling.  Shannon is a reporter representing WBUR, Boston’s NPR News Station, on a team of public radio station journalists in the New England News Collaborative.

never buy or sell real estate without a lawyer

However, real estate transactions often represent the most expensive transaction that a person makes. Spending the extra funds to ensure that the job is done right is often a prudent choice. Real estate lawyers help in the following ways when you are purchasing or selling a home: 

Contract Drafting and Review

Real estate lawyers memorialize the terms of the agreement into a formal contract. They can ensure that certain provisions are contained in the contract that protect their client’s interests as well as to make sure that state laws are complied with. They can also address certain issues that may arise, such as purchasing a lease-back by the seller, handling existing tenants, using the property for certain uses in the future and include contingencies to protect the client. 

Many documents will manifest during the course of a purchase and sale of a home. Lawyers will carefully review all of these documents and not simply take the lender’s word for what the document is stating. If there is any troubling wording or legal issue that arises, he or she can address these concerns. 

Many home sales are based on a number of important contingencies. A seller may want to secure a new home and make the sale contingent on this ability, or the buyer may want to make the sale of his or her own home contingent on the transaction. There may be other contingencies as well that can be included in the purchase agreement.

Drafting Amendments

There may be changes made in the original agreement based on new information. It may have taken longer than expected for certain stages of the process to be completed. There may be changes based on the home inspection and agreements reached regarding any defects. A natural disaster may strike, causing damage to the property. Real estate lawyers can draft such amendments to keep the purchase agreement intact but to account for this new information. 

Reviewing Liens

A real estate lawyer often conducts a title search on a property to determine if there are any encumbrances against it or anything that is clouding the title. This search helps clarify whether the seller has the legal right to sell the property and whether there is anything that may block the sale. For example, the seller may be required to pay off a lien or judgment before selling the home. A real estate lawyer can also secure proof that the judgment or lien has been satisfied. 

Transferring Property

A real estate lawyer helps to draft deeds to effectuate the transfer of real estate. Additionally, he or she can review any contracts related to the real estate transaction that have to do with a corporation, partnership or trust so that no terms of the charter agreement are breached. Without the proper legal protocol, the opposing party may be sued if the agreement is violated.

Fulfilling Additional Legal Requirements

The purchase of certain properties may require additional steps. For example, there may be special requirements if a home is considered historical property. If a property is on wetlands and building permits are not secured, the entire structure may need to be rebuilt. If the property is ultimately going to be used for a commercial use, certain zoning restrictions may apply. 

Disclosures

State laws dictate what types of information must be disclosed about a property. Real estate lawyers can help request these disclosures as well as prepare the disclosures if they are representing the seller. Without a real estate lawyer, the likelihood of being sued regarding a disclosure increases. A real estate lawyer can also be sure to put a home inspection clause in the buyer’s documents so that any unknown defects are realized before the transaction concludes. 

Recording

Property law is full of cases involving properties that were purchased but no deed was ever recorded, creating legal nightmares for buyers. A real estate lawyer can ensure that the deed is properly filed and recorded. If a deed is not properly recorded, the buyer may not be considered the legal owner. His or her income and estate taxes may be levied. 

Legal Assistance

To best protect their interests, many home buyers and sellers choose to retain the services of a competent real estate lawyer. He or she focuses on protecting the client’s interests and ensuring that all applicable rules are adhered to in order to avoid potential problems that could arise in the future.

 

Best Practices To Handling Real Estate in a Divorce

In many divorces, the biggest single assets are the retirement funds and the residential real estate. Sometimes, the only issue preventing an agreement is what to do about the house.

Some of the options for dealing with the marital residence are:

Award it 100% to one spouse;
Sell it and divide the sales proceeds;
Keep it as a joint asset after the divorce; or
Award it to one spouse but allow the other to reside in it for some specified period after the divorce.

Award 100% Of The Residential Real Estate To One Spouse

The most common means of dealing with the house is to award it to one spouse. There are a variety of reasons for this:

1. It can be the least disruptive for children.
2. It makes more sense to award the home to the lower-earning spouse if he or she is unable to purchase a home after divorce.
3. One of the spouses might have a strong sentimental attachment to the home.
4. The mortgage payment could be less than is now available to either spouse.
5. The mortgage payment might be less than the rent for an equivalent residence.

Residential Ownership And The Mortgage Are Separate

People sometimes assume that when a divorce decree awards the residential real estate to one spouse, the mortgage automatically changes so the one who wasn't awarded the house is no longer responsible for the loan. This is erroneous. The mortgage company has two signatures on a loan. Simply because those two people divorce and one of them no longer owns a part of the house does not change the loan. It is analogous to a co-signer who is not a part owner but co-signs the loan. The only way to take a person’s name off of a mortgage is to pay off the loan, sell the property, or refinance it. Refinancing requires the spouse who will receive sole ownership of the house be able to qualify alone based solely on his or her income.

In Florida, A Deed of Trust to Secure Assumption can be used when both parties will remain liable for the mortgage after the divorce.

In most cases, awarding the home to one spouse in a divorce decree is not sufficient to convey ownership. Although a divorce decree can be sufficient, most do not usually contain all of the language used in a deed. Years after the divorce, the spouse who received the home could have problems with a title company when he or she tries to sell it. Usually, the spouse who will no longer own part of the house signs a Special Warranty Deed. A Special Warranty Deed’s primary purpose is to aid with the sale of the real estate by the spouse to whom it is awarded. It is recorded with the county’s real property records and shows a clear chain of title from the original seller to the spouses jointly, and then solely to one spouse after the divorce.

Sell The House And Divide The Proceeds

This is relatively simple. The parties simply agree, or the judge orders, the property will be sold and the proceeds divided according to a percentage. The details of who will have authority to choose the realtor, set the listing price, and accept an offer must be worked out in advance, as well as who will live in the house and how the mortgage will be paid while it is on the market. As with everything else in divorce, if the spouses cannot agree about this the judge will decide.

Keep The House As A Joint Asset After Divorce

It is not generally a good idea to be in business with your ex-spouse. With all of the emotions involved, and the need to move on with your life, try to avoid joint ownership of real property after divorce. Occasionally, it is the best option under particular circumstances.

Award The Home To One Spouse But Let The Other Live There

When the children will live with the parent who cannot permanently afford the house, it is sometimes good to award it to the one who can afford it. Then let the other live there until the children graduate high school. This might require the parent who will ultimately receive the house to pay more than the child support required by law. The paperwork required for this arrangement includes the two deeds described above, and then the parent who will remain in the house temporarily leases it from the other after the divorce.

Seek Legal Advice

A house is just one part of a divorce. It can be more complicated than most people realize. Few try to sell or buy a house without a realtor and a title company. If you are in a divorce or thinking about one, and you own a home, it may not be a good idea to try to complete the legal process without the assistance of an attorney.

Impact Of President Trump’s Executive Orders on Caribbean Nationals

On November 8, 2016, the American people voted and Donald J. Trump secured the majority of the Electoral College votes defeating Hillary Clinton (304 to 227).   On the campaign trail, President Trump noted border and national security as a top priority for his Administration.  Given this reality, it should be no surprise that President Trumpissued Executive Orders on immigration https://www.whitehouse.gov/briefingroom/presidentialactions/executiveorders).  The impact of these Orders is a developing situation.

The Department of Homeland Security (www.dhs.gov) is responsible for the enforcement of the president’s Executive Orders in a manner that ensures the safety and security of all U.S. citizens.  In this regard, DHS retains the right to revoke visas at any time if required for national security or public safety.   As an immigrant, lawful permanent resident, or a visa holder, it is therefore incumbent on you to be mindful of all the requirements of your travel to and from the United States.   In addition, please note that DHS retains the discretion to conduct any security screenings for entry to the United States, consistent with its immigration laws and judicial orders.

Though some of the underlying tenets of U.S. immigration law is family unification and protecting those fleeing war or persecution,  no Caribbeannational, without ties to the United States, has any automatic right to request or demand entry into the United States or to receive immigration benefits in the United States.   Nonetheless, we must be vigilant in educating ourselves of the proper procedures to preserve the relationships of our families, protecting our families from oppression, and availing ourselves of any due process rights or remedies.

As you may be aware, a NY federal judge granted the American Civil Liberties Union’s request for a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports under President Trump’s executive orders.   The ACLU, along with several groups, filed a lawsuit this past weekend on behalf of two Iraqi men who were en route to the United States on immigrant visas when President Trump issued an executive order banning many persons, specifically from Syria, Iran, Iraq, Somalia, Sudan, Libya, and Yemen.

Though both men were granted immigrant visas, they were detained at JKF Airport for no other reason than the impact of President Trump’s executive order. In recent cases in Alexandria, Virginia; Boston; New York; and Seattle, federal courts have ruled against the detention of individuals at airports. The rulings appear to be limited to those people already at U.S. airports or in transit.  Subsequent legal proceedings are pending.

Here are a few practical facts and tips in sifting through the noise of the past few days:

FACT

  • The executive order on international travel ban of new arrivals affects only nationals and citizens, specifically from predominantly Muslim nations of Syria, Iran, Somalia, Sudan, Libya and Yemen for 90 days; Though the impact will disproportionately impact persons of the Muslim faith, the travel ban affects all individuals from these countries irrespective of religion.
  • It is advisable that any persons born in or citizens of any of the seven countries listed in the Order, including lawful permanent residents and US citizens, refrain from travel at this time or seek advice of immigration counsel.
  • Lawful permanent residents from non-listed countries should be mindful of any international travel. While the President’s Order is directed only to nationals of the seven listed countries, reentry to the United States is not guaranteed for any lawful permanent resident. Customs and Border Patrol (CBP) agents have the discretion at all times to question U.S. citizens or permanent residents coming from the above seven countries or from any other country.
  • The executive order applies only to non-U.S. citizens. If you are a U.S. citizen, whether naturalborn or naturalized other than dual citizens from the countries above, you should be mindful, but not concerned.
  • For 120 days, the Order bars the entry of any refugee who is awaiting resettlement in the U.S.
  • If you’re not a U.S. citizen and an immigration agent requests your immigration papers, you must show them. If you’re over 18, you should carry your immigration documents with you at all times. If you don’t have immigration papers, say you want to remain silent. Under no circumstances, please do NOT lie about your immigration status or provide fake documents.
  • If you are an immigrant or refugee of any of the seven countries above (or any country for that matter) with fear of repatriation and you are denied entry and detained at any airport or port of entry, you have the right to demand hearing before an immigration judge and the right to speak to legal counsel. In addition, if you are a lawful permanent resident , you have the right to resist any demand to abandon your permanent residency (by signing Form I-407).   
  • To maintain the validity of your U.S. permanent residency, be sure to (1) renew your green card; (2) maintain employment in the U.S.; (3) file your U.S. tax returns; (4) maintain a U.S. address, bank account, driver’s license and credit card account; (5) retain ownership of property in the U.S.; (6) keep your dependents in the U.S.; (7) obtain a reentry permit if you’re going to come close to the six-month red line outside the U.S.;
  • Most importantly, if you are a lawful permanent residents for more than five (5) years domicile (or three (3) years when married to a U.S. citizen) in the U.S., you are eligible for U.S. naturalization (Form N-400: https://www.uscis.gov/n400) and should apply immediately.

FICTION

  • The recent Executive Orders from President Trump also created travel bans of non-immigrants, permanent residents, or U.S. citizens of Caribbean descent (WRONG).
  • The Department of Homeland Security has issued preferential visa allocations, approval processes and treatment for Caribbean nationals (WRONG).
  • Caribbean nationals who are lawful permanent residents will not be subject to any screening OR normal discretionary questions at the border (WRONG).
  • Lawful U.S. permanent residents do not have any legal rights at the airport or any port of entry (WRONG).
  • Lawful permanent residents can remain out of the United States as long as they wish without any intention to return to the U.S. (WRONG).

Bottom Line:  Check all news from social media or any stock text messages prior to sharing and most importantly make a plan for your personal travel or to unify your family months in advance in order to ensure that you are in full compliance with all immigration laws and regulations.

Written by Marlon Hill and published on Jamaicans.com

Stefan McHardy is managing attorney of DSA Legal Group, PLLC and past Executive Board Member of the Caribbean Association.

US 30-Year Mortgage Rate Falls to 4.1%

WASHINGTON (AP) – Jan. 12, 2017 – Long-term US mortgage rates fell this week, the second week of declines after snapping a nine-week run of increases.

Mortgage buyer Freddie Mac said Thursday the rate on 30-year fixed-rate loans eased to an average 4.12 percent from 4.20 percent last week. That was still sharply higher than a 30-year rate that averaged 3.65 percent for all of 2016, the lowest level recorded from records going back to 1971. A year ago, the benchmark rate stood at 3.92 percent.

The average for a 15-year mortgage declined to 3.37 percent from 3.44 percent last week.

Mortgage rates surged in the weeks since the election of Donald Trump in early November. Investors in Treasury bonds bid yield rates higher because they believe the president-elect's plans for tax cuts and higher spending on roads, bridges and airports will drive up economic growth and inflation.

That would depress prices of long-term Treasury bonds because inflation would erode their value over time, a prospect that caused investors to demand higher yields.

In the latest week, a report from the government on employment in December pushed the price of the 10-year Treasury bond higher, dampening its yield. The Labor Department report issued last Friday showed that U.S. employers added 156,000 jobs last month, capping a year of slower but solid hiring.

Though the unemployment rate rose to 4.7 percent from a nine-year low of 4.6 percent, it did so for an encouraging reason: More people began looking for work. Because not all of them found jobs immediately, more people were counted as unemployed in December.

Bond yields move opposite to prices and influence long-term mortgage rates. The yield on the 10-year Treasury bond fell to 2.37 percent Wednesday from 2.44 percent a week earlier. That compares with 1.87 percent on Election Day Nov. 8. The yield declined further to 2.33 percent Thursday morning.

To calculate average mortgage rates, Freddie Mac surveys lenders across the country between Monday and Wednesday each week. The average doesn't include extra fees, known as points, which most borrowers must pay to get the lowest rates. One point equals 1 percent of the loan amount.

The average fee for a 30-year mortgage was unchanged this week at 0.5 point. The fee on 15-year loans also remained at 0.5 point.

Rates on adjustable five-year loans fell to 3.23 percent from 3.33 percent. The fee increased to 0.5 point from 0.4 point.