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Updated: Saturday, October 25, 2014

Semantics Wont Avoid Liquidated Damages Limit

If it walks like a duck, and quacks like a duck You know the rest. Common sense tells us that you cant change the nature of a thing simply by deciding to call it something else. In at least one situation Allen v. Smith et al. a California Court of Appeal seems to agree with common sense.

The issue at hand was an attempt to circumvent Californias statutory 3 limit on liquidated damages in a residential purchase agreement.

Liquidated damages are an amount that contracting parties may in advance agree to be the measure of damages that would be suffered should there be a default. Thus, if there is a default there will be no need to prove how much the injured party has been damaged. The amount will already have been agreed upon.

Liquidated damages provisions are commonly used in residential purchase agreements. When buyer and seller agree that the deposit and sometimes a second, increased deposit will be subject to liquidated damages they are saying that, should the buyer default, the deposit amount is the damages amount that will be owed to the seller. California Civil Code section 1675 generally limits the valid amount of liquidated damages in a residential purchase agreement to 3 of the purchase price. This limitation is specifically stated in most residential purchase contracts.

Sometimes sellers want to be able to exact more from defaulting buyers than the 3 liquidated damages limit; and sometimes their agents can get creative in trying to help them do so. That is what happened in Allen v. Smith, and the court didnt like it.

Allen submitted an offer to the Smiths to purchase their Rancho Santa Fe home for 1,775,000. With the offer Allen submitted a 20,000 deposit along with an agreement to increase the deposit by 33,250 after the removal of inspection contingencies. The entire 53,250 3 of the purchase price would be subject to the liquidated damages provision.

The Smiths wanted to receive a larger amount, specifically 100,000, if Allen were to default. In order to get around the 3 limit the agent wrote this in the counter offer: "Buyers increased deposit to be 80,000 -- total deposit of 100,000 to be >

Allen agreed to the counter offer, the deal went forward until, you guessed it, Allen defaulted. Naturally, the Smiths held on to the 100,000, so everyone went to court.

Allen, or Allens lawyer, said that the Smiths shouldnt be able to keep the full 100,000 because they had "sought to circumvent the policy of the law concerning liquidated damages in residential sales contracts through a sham mechanism in which [they] labeled the deposit monies falsely as option monies."

The San Diego County Superior Court agreed with the Smiths and let them keep the 100,000 "nonrefundable option fee"; but the Fourth District Appellate Court disagreed. On examining the contract they found that it had none of the characteristics of an option, except for the reference to the deposit amount. For that reason the court agreed with Allen. It allowed the Smiths to keep the 53,250 3 of purchase price but required that the rest be returned, along with Allens court costs.

There were other issues in Allen v. Smith,and I have presented a simplified version here in order to keep focus. Still, a general lesson emerges. While creativity may be an admirable quality in real estate agents, be careful when it extends to attempting to change reality.

Bob Hunt is a director of the California Association of Realtors. He is the author of Real Estate the Ethical Way.

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Developers Must Be Honest

Note: Although the material discussed below deals with high court cases in both Washington, D.C. and Maryland, courts in many other states will begin adopting the reasoning and the decisions of these two cases.

Did you know that if you bought a new condominium in the District, you can sue the developer if the unit wasnt in the good condition you expected it to be even if it wasnt the one selling it?

And if you bought a resale condo in Maryland, did you know you can sue the association and property management for misrepresentations they made in the resale package, even if they were not the ones selling the unit?

Thats the decision of the high court in Maryland..

When you are considering buying an older unit, the condo association is required to prepare a resale package. This contains lots of material about the association, including declaration, bylaws, rules, and plats and plans as well as financial data and insurance information.

Marylands law is based on a case called MRA Property Management v. Armstrong. In that case, a number of buyers alleged that a property manager and the Tomes Landing Condominium Association in Port Deposit, provided resale packages which failed to disclose major defects in the condominium buildings - defects which were known at the time of the disclosure.

The Maryland Court of Appeals decided that the manager and association violated the Maryland Consumer Protection Act, despite not being the actual sellers of the units. In this case, the plaintiffs reviewed the misleading resale package and based their purchase decision at least in part on >

In the District, prospective new condo buyers receive a public offering statement, which contains a lot of information on improvements the developer made, such as the installation of a new roof or replacement of outdated plumbing and wiring.

In D.C., a dispute between condo buyers and developers is playing out in a suit filed by Adam Wetzel and Jonathan Rushbrook, who signed a contract to buy a new condo unit. Before they took title, they were living abroad and did not see the property. According to papers filed in the case, Wetzel and Rushbrook "had >

However, before they went to closing, the first-floor area was destroyed when large amounts of rain entered through the walls and the windows. After buying, they spent more than 14,000 just on mold cleanup.

The defendants accused the developer, Capital City Real Estate, of fraud and violating the Districts consumer protection laws. The case made its way to the Court of Appeals, which came to the same conclusion as in Maryland: You can sue the developer even if it was not the actual seller of the property. The case was sent back to the Superior Court where it is pending.

"Developers will need to be very careful in making representations about residential homes and condominiums in which they are involved, including on developer Web sites and in other advertising, public offering statements, sales contracts and other materials provided to consumers," said Roger Winston, a real estate attorney with the law firm of Ballard Spahr in the District.

Whatever the outcome of the Wetzel case, the takeaway is this: Buyers in Maryland, the District and Virginia which has no similar reported cases should beware.

Obviously, if you plan to buy into a community association, you must carefully read the documents about the property. But you must do more.

Go over to the building on a weekend, introduce yourself to some of the owners and ask them about the project. Talk directly to the president of the board; ask if there are any problems with the building units or if there are special assessments in the planning stage but not yet formally authorized.

Its your investment. Do your homework.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.
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Financing You Can Feel Good About

The mortgage industry has a history of screwing things up. Maybe the intentions are good but the process couldnt be more confusing. Throw in all the confusing lender jargon like amortization or APR and the borrower gets foggy at the outset.

Mortgage loan officers can have a hard time translating what they know into language the borrower can understand. Try to compare a 30-year loan with 20 percent down to a 20-year loan with 25 percent down. Throw in paying a point on one loan but not the other and you can see why comparing loans leaves many borrowers ready to give up and just do what their loan officer tells them to do.

One borrower was so frustrated with the process of refinancing her home, that she started her own software company two years ago to take the confusion out of purchase loans or refinancing. Based out of New York, Nicole Hamilton founded Tactile Finance to provide loan officers with a patent-pending tool that visually displays mortgage loan choices instead of simply quoting an interest rate. Its a "data visualization meets the mortgage industry" thing and loan officers can use it to explain various mortgage choices for their clients.

From that, a consumer site was born called, where consumers can log in on their own and enter various financing scenarios to see how their choices affect building equity over time, financing costs and accrued interest. Theres even a tool that shows borrowers what they would net out of the sale proceeds should they sell their home at a specific point in the future. Thats kind of amazing.

Whats even better, its a lender-free zone. There are no banner ads nor does Tacfi sell borrowers information. If the borrower does want to speak with a loan officer, they can find one on the site but theres no requirement to do so. The site also contains articles about the lending process as well as a fun-to-read blog written by Realty Times alumnus David Reed.

When a loan officer quotes rates, this comparison is sent to his prospect. You can compare different scenarios and move the "mouse" that appears on the equity screen.

Immediately below, notice the "Share Screen" button. Its a patent pending app that allows a loan officer and multiple borrowers at different locations to share the loan officers screen as the loan officer walks them through different scenarios. Its similar to "Gotomeeting" but theres no need to download anything, its all in the email link.

To see the benefit, you should get your hands on the site and get the tactile feel for yourself. Youll find its very different from going on a lenders site and getting a rate quote or looking at a bar chart that may be far afield of what you can actually expect from the loan.

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Your House Usually Isnt Worth As Much As You Think

Your house is super badass. Its easily the nicest home on the block. Great updates and a corner lot. Youre going to make a fortune when you sell. You might even set a new record for the neighborhood. Its all about making as much as you can, right?

Especially in a sellers market. Those two words get everyone thats about to put their house on the market all giddy. But "sellers market" doesnt mean license to be a real estate snob. Somewhere between what the last people paid for a house like yours and the highest price suggested to you by a REALTOR - thats your sweet spot. But pinpointing it isnt always easy. Here are five tactics that will help.

1. Choose the right agent

The right agent is not necessarily the one that wants to list your home for the most money. In fact, an agent whose recommended list price is significantly higher than the other agents you are interviewing may be a red flag.

"Local agents have an inside track on what local buyers care about and what they will and will not spend. Talk to your agent about it, but dont forget to actually listen to and consider what your agent has to say," said Forbes. "If you dont trust what an agent is telling you about where you should list your home, talk to several agents -- if the consensus is a recommended list price range lower than what you had in mind, thats a sign you should reconsider."

2. Get comps

Comps, otherwise known as comparables, will tell you what other houses are selling for. It will also show you a pattern of sales trends over a period of time. But it can also be dangerous for anyone seeing dollar signs above all else.

If youre tempted to price your home high, check the comps, said Forbes. Active buyers do not "want to overpay for a home, and most will view your home as overpriced and not worth the hassle or the haggle if it is out of whack with the recent sales prices of similar homes. Similarly, appraisers will use these numbers when figuring out your homes value. Even if you do get an offer at a higher-than-justified price, if the buyers appraiser finds that your home is overvalued compared to other nearby recent sales, it can cause major delays in your buyers mortgage process -- or derail it altogether.

The bottom line: Heed your agents advice...he/she will be able to delve deeper into the trends and provide further context around them. Which brings us to:

3. Listen to your agent

You probably already have a good idea of the price you want for your house. But is it based on reality or is it simply a number that sounds good? Perhaps its what you need to comfortably get out of your house and into something bigger. But that doesnt mean youll get it.

"Heres a real estate fact that every home seller should know: Buyers determine the right price for a property, not sellers," said the Washington Post. "The market price for a home is determined by what an able and willing buyer ultimately pays for it. There are certainly things that homeowners can do to influence buyers perceptions of their homes value and hence increase the price buyers are willing to pay for it. But, ultimately, the buyers will set the price."

4. Do additional research

In todays day and age, you can easily gather a mountain of information to help you understand the market in general, and, specifically, the market in your neighborhood. Pay special attention to the number of homes on the market in your projected price range. The more inventory, the more competition, the more pressure to make sure your home is priced right.

5. Consider the consequences

Pricing too high is a danger in that a house that sits on the market unsold will eventually have to lower its price. Chasing the market down is not something any seller wants to do. Plus, the longer a house sits on the market, the more momentum it loses from being a new listing. And all of this means one thing: money lost.

"Making a mistake on price can cost sellers thousands of dollarsnot by under pricing the value of the home, but by overpricing it," said NH Homes.

Pricing right, or even lower, thereby creating interest and possibly even a bidding war, is the easiest way to get your home sold. Your fear of leaving a few thousand dollars on the table upfront should pale in comparison to what could happen if you cant sell quickly, or at all, at your "preferred" price.

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Five Ways Bargain Hunting For Homes Can Backfire

Its natural to want to save money when youre making a purchase as large as a home. You want to buy the best home in the best neighborhood at the best price, and to do that, you may think you have to shop in the bargain bin.

FSBOs for sale by owner, foreclosures, and short sales arent as plentiful as equity listed homes -- homes listed with a real estate agent by the seller. You may even scour the MLS multiple listing service for signs of desperate sellers, such as homes priced AS-IS, or homes that have been on the market for months.

While some people are successful buying a bargain basement home, you may not be so fortunate, if you put price first. Here are five ways a low price can backfire on you:

The home doesnt suit your needs. A home is a good buy only if it suits your familys needs for space, features, comfort, and function. If you buy a home without enough bedrooms or baths, its not as comfortable or functional.

A bad fit costs you later. To get out of a home thats too small, too old, or too far from where you need to be, youll likely to pay more in transaction costs to sell the home and buy another than if youd chosen more wisely in the first place.

Bargains are rare. If a home is priced lower than others in the area, theres a reason. Sometimes bank-owned home will appear to be a bargain compared to other similar nearby homes, but you may notice a real difference in the way its been maintained. Its not much of a bargain if you find out that all the appliances have been stolen or all the copper wiring has been pulled out of the walls.

The home needs updating. A home priced below market value usually requires expensive repairs or updates. Are you willing to perform the work or pay someone else to do the work? Any remodeling you do will be at todays prices. Before you buy, get a home inspection and then talk to professionals who can help you bring the home up to todays standards.

You lose ground trying to lowball the seller. Just as you want the home you buy to appreciate in value, sellers purchased their homes as investments, too. They want to net as much as possible, because theyve already taken on the risks of buying and maintaining a home. That makes sellers less willing to negotiate on homes that are well priced and well maintained.

If a home has been on the market for a long time without a price reduction, theres usually a good reason. You have an unmotivated, unrealistic, or upside-down seller, any of which could waste your time unmercifully.

An unmotivated or unrealistic seller simply wont negotiate to your level. For example, for-sale-by-owner homes are typically priced the same as listed homes, even though the sellers arent paying real estate agent commissions, including for your agent, if you have one. Why would you pay the seller not to represent your interests?

Furthermore, a bank foreclosure or bank-approved short sale could take months to close. What if interest rates go up before you close? You may get the home at a bargain price, but the savings could evaporate in higher interest payments.

Right now, home prices are still below previous market highs. Mortgage interest rates are hovering near historic lows. And inventory levels are improving in most areas.

Under these circumstances, youre buying a home at a bargain already. The best strategy for today is not to try to beat the seller down, but to offer a fair price for the home you think is best for your household.

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10 Things You Have To Do With a Pumpkin Right Now

Its the season of the pumpkin. Theyre everywhere - in your coffee, in your pie, spilling out of supermarket aisles, and on everyones front porch, stoop, stairs, and walkway. Its not even Halloween yet, and were already tiring of all the bright orange.

You too? Good. Then youll get some great use out of our timely pumpkin guidea guide specially constructed to take the almighty squash and make it just a little more interesting.

Here are the 10 things you have to do with a pumpkin right now.

1. Paint it

Acrylic paint will give you decent coverage and numerous color options if you want to paint it black, white, or neon pink and then get crazy with stripes or polka dots, or even create Frankenstein.

2. Spray it.

Or, take the brush out of the equation and use spray paint. Its fun and easy. Even more so when you tie into a design trend, like metallic. For an extra special look, pick up a few different colors of spray paint.

"Gold. Silver. Bronze. Sophisticated enough to sit on the mantel or step in as a table arrangement. This years harvest gets the Midas touch," said Real Simple.

3. Bedazzle it

Grab a white one or some paint to splash onto an orange one if white isnt available, and then go crazy with sequins. Extra points for the super fabulous spider.

See more ideas at Making Lemonade, and steal their tip that uses pre-glued rhinestones in patterns.

4. Carve it.

But forget about that normal carving stuff. You have to be creative with your pumpkin carving these days. Thankfully, you dont really need to be all that talented. Get yourself a stencil and you can be Van Gogh. Or, you can carve a nifty backlit cat.

5. Decoupage it

Go elegant using this crafty technique of attaching paper or other printed materials onto the pumpkin with Mod Podge. This version from HGTV uses printed napkins.

6. Simplify it

Slice, scoop, glue, googly. This low-maintenance pumpkin couldnt be easier, and its so cute youll be easily forgiven for not being a carving master.

See more ideas here.

7. Beach it

Who says you have to forgo your beach chic-ness once fall hits? A little ingenuity, a little sand try a craft store or even a pet store, in the reptile section, and a visit or two to Pinterest creates a unique coastal display .

8. Draw on it.

The Sharpie is your friend. And so is Pinterest.

9. Bleach it.

A cool trick for making your pumpkins last longer, a few sprays of bleach should be all you need to preserve your masterpieces this year.

10. Cook it

Or, more specifically, roast it and fill with bubbly homemade soup from the Food Network. Yum.

For more carving ideas, see Southern Living.

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Is Airbnb The Goldmine Youve Been Waiting For?

Your tenants are moving out when their lease is up and you arent sure its the right time to sell.

Youve been increasingly staying at your girlfriend or boyfriends place, leaving yours mostly empty. You thought about renting it but dont know if you want to tie it up for a whole year.

You live in an area favored by tourists - or at least one that hosts an event or two every so often that brings in a big crowd.

What do these three scenarios have in common? They may each offer a great opportunity to use Airbnb.

What is Airbnb anyway?

Airbnb describes itself as "a community marketplace where guests can book spaces from hosts, connecting people who have space to spare with those who are looking for a place to stay."

With Airbnb, you can list your home, or even just a room if youre so inclined, for travelers from all over the world. They stay, you get paid. Its a growing alternative to hotels and works particularly well for those places that are located in a desirable travel spot or one that attracts large sporting or entertainment events or conventions. But the exciting news for those with a property "to spare" is the potential income generated.

How much income are we talking?

Well, a lot, depending on how well - and how much - you use it. Consider this Fast Company story that profiled an entrepreneurial Airbnb host who expects to make a six-figure income just from renting out his spaces.

Or this account from Business Insider that details how one man made enough money through Airbnb to buy a house. "He was charging 200/night and paying 1,900/mo. in rent, staying with his girlfriend whenever the apartment was rented out," they said.

And dont forget to check out their inside look at Super Bowl Airbnb rentals -- a way to make a serious buck and something that has us thinking very seriously about how to use the NFL connection in our city. Hmmmmm

What kind of responsibilities are involved

Not unlike being a landlord, being an Airbnb host comes with a list of have-tos for basic care and maintenance. You are responsible for providing bedding, dishes and other items for daily living, as well as cleaning and replacing them as needed.

Easy tip 1: Shop at IKEA Mr. Six Figures referenced above reportedly outfitted his one-bedroom apartments for 8,000 each including all the furniture. Easy tip 2: Get a cleaning crew.

If youre thinking of taking the Airbnb plunge, these additional tips from Huffington Post should help, as should these nine hospitality tips from the Airbnb blog.

Beware the legal issues

As Airbnb has grown Wikipedia reports the company founded in 2008 now has more than 800,000 spaces around the world and a valuation of 10 billion, so has its critics. Not surprisingly, that is led by the hotel industry that is losing business to Airbnb.

A few cities around the world have raised the question of hotel taxes, while the company and the New York State attorney general have also famously tangled over subletting laws. If you are planning to Airbnb your place, be sure to check your state and local regulations to make sure you stay on the right side of the law.

You can read more about pending legal issues and how Airbnb has responded to them here.

You can also calculate how much your space is worth on their site. But, you probably want to use it as a starting point. Their estimation proved to be low when we did further research. For the best idea of what you can charge, estimate on their site and Google other Airbnb listings in your area.

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Updated: Saturday, October 25, 2014

Your House Usually Isnt Worth As Much As You Think

Your house is super badass. Its easily the nicest home on the block. Great updates and a cor...
> Full Story

Five Ways Bargain Hunting For Homes Can Backfire

Its natural to want to save money when youre making a purchase as large as a home. You want ...
> Full Story

10 Things You Have To Do With a Pumpkin Right Now

Its the season of the pumpkin. Theyre everywhere - in your coffee, in your pie, spilling out...
> Full Story

Copyright © 2014 Realty Times®. All Rights Reserved

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