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Sellers of Real Estate in New York

Long Island, New York real estate attorney Cynthia Burke answers questions clients frequently ask about selling real estate.

What are the primary concerns I should have when dealing with a real estate broker?

• Commission agreements need to be in writing, and you should be aware that you could negotiate the amount of commission due the broker.

• When a buyer is found, the broker may ask you to sign a binder.

• You should have an attorney review any documents a broker asks you to sign, including a commission agreement, because sometimes there are clauses in the broker's agreements that have legal consequences between you and the buyer.

• You also need to ask whether the broker is going to list your property on Multiple Listing Service (MLS), or whether the broker will be the exclusive agent. If the broker is the exclusive agent, then he has the right to find you a buyer, without opening up the process to other "selling brokers," which may limit the number of buyers who will have access to your sale.

• Even though the broker is representing your interest, and not the buyer's, I would recommend that you obtain your own lawyer, and not a lawyer recommended by the broker. It is important that your attorney to be loyal only to you.

What documents do I need to give my attorney?

As a seller, it is helpful to have a copy of your deed, a copy of your latest tax bill, your survey, and, if available, your title report. If you have a mortgage, you will need to give your attorney current statements, so that pay-off figures can be obtained for the closing.

What can I expect from my attorney once an agreeable sales price has been negotiated?

As your attorney, I will prepare the contract of sale for the purchaser's attorney to review. The contract will be negotiated, so that both sides are "happy" with the deal. Once a formal agreement has been reached, both you and the prospective buyer will sign it, and the down payment will be placed in my escrow account for safekeeping. The purchaser is usually given 45 days to obtain a mortgage in the amount specified. If they do not receive a mortgage commitment within the 45 days, the purchaser can ask for an extension of time to receive it. If the extension is not granted, then the down payment will be returned, and the deal will be over.

However, if the buyers receive their commitment, the parties will proceed to closing.
Prior to closing, the purchaser will order a title report, which will I will thoroughly reviewed. Any title issues will be addressed prior to closing. I will order payoff statements for each mortgage, and coordinate a closing with all parties. I will make sure that your rights are protected at the closing, and that you receive all money due you towards the purchase price and adjustments.

What title issues can arise?

The real estate contract will specify that you, as seller, will provide a certificate of occupancy for the dwelling, garage, and other structures added to the house, such as a deck, or add-on. If it is determined that there is no certificate of occupancy, or certificate of completion, as required, then it may be the seller's obligation to obtain these certificates prior to closing. Usually, an attorney or the bank will hold money in escrow to ensure that the certificate will be obtained within a certain period of time.

Other title issues may be judgments against the parties, which would have to be satisfied at or prior to closing. Any violations or liens directly against the property would also have to be satisfied. Other issues may arise, which I would also address.

What are adjustments?

A number of adjustments may be made on the final closing documents such as:

• Property taxes, which are pro-rated; the seller either receives or gives a credit, depending on whether the taxes have already been paid, or whether taxes are due, but are already a lien.

• Rents, if applicable, are also apportioned at closing.

• Water charges may also be apportioned.

• If the seller has an oil tank, an oil dip should be done a day or two before the closing, so that a credit can be given for the remaining oil.

• In the five boroughs of New York City, a final water meter reading needs to be done at or about the closing, so that the account can be transferred to the purchaser and the final bill paid by the seller. Utility companies must be called to transfer ownership as of the closing.

What if I am not ready to move by the date of the closing?

The Contract of Sale will have a clause that allows you to stay in the premises for five days beyond the closing date. It is recommended that vacant possession be given to the purchaser, because all issues will have been resolved at the closing. By staying beyond the closing date, an escrow agreement will be in effect, whereby your attorney keeps money in escrow pending your vacating the premises. Closing adjustments will be made as of the date of possession, and the purchaser will be entitled to his daily mortgage interest from the date of the closing to date of possession. Purchaser will also have another chance to make a claim that any appliances are not in working order, or that the premises were not in broom-clean condition when you left. Sometimes this cannot be avoided when trying to coordinate a move into another house and a closing date on your purchase.

Buyers of Real Estate in New York

Among common questions real estate buyers ask are the following:

What do I need to know when dealing with a real estate broker?

The most important thing to understand, when dealing with a real estate broker is that in most cases, the broker is representing the seller's interest. Brokers are required to have you sign a disclosure to advise you of whose interest they are representing. Before signing a disclosure, you should read it carefully and understand who is being represented - usually a "selling broker" who has found properties on the Multiple Listing Service. The selling broker find buyers to bring to the seller, and the seller pays their commission, which is beneficial to you, since you do not have to pay any part of the broker’s commission. However, if you want a broker who is only loyal to your interests, you will need to find a "buyer's broker" and enter into a Buyer's Broker contract with that person. A buyer’s broker may charge you a fee, or work out an arrangement with the seller to pay their commission.

If a broker asks you to sign a binder, make sure that your attorney reviews the binder, or any contract documents, before signing. There may be language that is legally binding if you sign a document without the benefit of a lawyer, and you may not be able to have that language amended at a later time.

If you decide to give a binder check, this is technically supposed to bind the seller to your deal. If you then find another house, you may not be able to get a refund of your binder.

Finally, if a broker tries to recommend that you use their preferred attorney or mortgage broker, I would suggest that you do your own research, or get a recommendation from a friend. You want your lawyer or lender to be independent and loyal only to you.

What do I need to do before signing the Contract of Sale?

If you are planning to have a formal inspection of the premises, it should be done before the Contract of Sale is signed. A Contract of Sale, unless it specifies otherwise, will state that the premises are being sold in "as is" condition (except that plumbing, heating and electrical systems will be in working order at closing, and the roof free of leaks). Although a buyer may not be successful in re-negotiating price based upon an Engineer's Report, if there are major problems not encompassed in the purchase price, it couldn't hurt to ask the seller to make repairs or give a credit. Once you receive the seller’s response, you can decide if you still wish to proceed with the purchase. In a buyer's market, the seller may not wish to lose the buyer. At a minimum, an inspection is needed to make sure the premises are structurally sound, or whether there are major problems you would not want to deal with. If the house is undervalued, or it is a seller's market, you must be willing to lose the deal if the seller then finds another buyer who is willing to take the house "as is" in the meantime.

You also need to meet with your lender or mortgage broker to make sure that you will have enough money at closing to purchase the premises. Closing costs include a title search, title insurance, termite inspection costs, mortgage recording, mortgage tax, deed recording, bank points, bank legal fees, bank processing charges, appraisal fee, application fee, bank attorney fees, and other miscellaneous fees the bank will deduct from your mortgage.

In addition, you may have to pay the seller adjustments for real estate taxes already paid, but for a period of time after the closing. The bank will pick up an escrow for future real estate taxes, and may ask the title company to pick up the next quarter taxes, if they are coming due. You will also have to pay "per diem" or a daily interest amount from the date of the closing to the end of the month. Your mortgage broker or lender is required to give you a "Good Faith Estimate of Closing Costs", which should be reviewed with your attorney before signing the Contract of Sale.

You need to know the amount of the down payment you are plan to make, and how much you will need to borrow, if you need a mortgage. Once you receive a commitment in the amount of the mortgage indicated in the contract, you are bound to proceed to closing. If you default on the contract after receiving your mortgage commitment, then you will forfeit your down payment. Therefore, it is best to try to negotiate as small a down payment as possible. However, some sellers will insist on ten percent or close to it.

What needs to be done after the Contract of Sale is signed?

After all parties sign the contract, you will need to give a copy to your lender or mortgage broker so that the mortgage application can be processed. Your contract will require that a prompt application be made, so it is important not to delay making the application to your lender to avoid breaching the contract. A termite inspection will need to be done within approximately ten days from the date of the contract. If termites are found, the seller has the option to treat any infestation and repair any damage, and provide a one-year guaranty, or to cancel the contract. As a practical matter, sellers will not allow a contract to be cancelled, and will provide the one-year guaranty.

When is a title report ordered?

Your attorney will order a title report shortly after the Contract of Sale is signed, so that any issues can be addressed as soon as possible, and not delay the closing.

Will I need to have a survey done?

Unless there is a very recent survey, I would recommend that a new survey be ordered for each purchase. A survey will tell you if there are any title problems, which need to be known before closing. Title insurance will "except" any issues that would have been shown on an accurate survey, which means if there is a fence that encroaches onto your property, and a new survey would have shown this, it is not something that is covered by title insurance. A survey costs approximately $500 and is well worth the cost.

Are there any title issues that I need to be concerned about?

If the Seller does not have a Certificate of Occupancy or Certificate of Completion for buildings or add-ons to the premises, the Seller will need to obtain them or place money in escrow until the documents are procured. The Seller has the option to cancel the contract, but this usually does not occur. You may also negotiate with the Seller to take the premises without the Certificate(s), but you will need to be aware that your lending institution may require that the document(s) be obtained as a prerequisite for the mortgage, and that you will be faced with the issue when you sell. You may also receive violations from the municipality for the illegal structure(s).

All title issues are resolved between the attorneys and the title company at or prior to closing. For example, the Seller will be required to pay off any mortgages, judgments or liens against the property at or prior to closing.

What needs to be done to get ready for the closing?

A walk-through of the premises needs to be done approximately 24 hours before the closing. You need to check the appliances, the plumbing, heating, lighting, the ceilings for any leaks, and for any damage done by the move-out, or any major change in condition from when you first saw the premises. Any problems need to be reported to your attorney as soon as possible. If you do not tell your attorney at or before the closing, once you receive the deed, your opportunity will be gone. If there is a post-closing escrow agreement, and the Sellers are remaining in the premises, then you will have another opportunity to advise of any problems. However, do not depend upon this and fail to conduct pre-closing inspection.

You need to go over your closing costs with your attorney, including the title bill, what is being deducted from your mortgage, and the amount you will need to bring, in the form of a certified check, to pay the seller the balance owed, after deducting the down payment.

What happens at the closing?

I will represent your interests at the closing, including a review of all mortgage documents that you will sign, to make sure the interest rate and terms are what you were promised. All title issues are resolved, and transfer documents signed by all parties. You will be given keys to the premises, unless the seller is remaining, in accordance with a post-closing escrow agreement. In that event, money will be held in escrow with the seller's attorney, and if the sellers do not vacate within the specified time, they will have to pay an agreed-upon daily penalty until they vacate. Adjustments will be as of the date of your possession, and you will receive your daily mortgage interest amount as well.

What happens after the closing?

After the closing, you will receive a closing statement outlining the monetary transactions at the closing, along with a copy of pertinent closing documents. You will also receive a title policy from the title company. Any post-closing escrow agreements will be monitored until the appropriate party completes them.

Nassau and Suffolk County lawyer serving clients in Hempstead, Garden City, Mineola, Rockville Centre, Baldwin, Long Beach, Freeport, Uniondale, Oceanside, Elmont, Franklin Square, West Hempstead, East Meadow, New Hyde Park and towns across Long Island.