How To Sell A Haunted House?

My house is haunted and I want to sell.  What can I do!

Selling a house that was the site of a murder, suicide, or haunting can be a daunting task.  These properties are known as “stigmatized” properties.  The big question many buyers and sellers want to know: is a seller legally required to disclose that a property is stigmatized?

The answer depends upon which state you live in.  Some states require that a Realtor and seller disclose that a property is stigmatized, including that it is haunted.  Wisconsin is not one of them – at least for Realtors.

In Wisconsin ,there is no legal requirement to disclose a “stigmatized” property condition unless that condition effects a physical component or condition of the property. Wisconsin law provide that a Realtor is not required to disclose “that a property was the site of a specific act or occurrence, if the act or occurrence had no effect on the physical condition of the property or any structure located on the property.” Wis. Stat. § 452.23 (2) (a).

Yet, Wisconsin law also requires a Seller and Realtor disclose any “material adverse facts” about a property.  If a property is widely known to be the sight of a gruesome death or the home of a notorious murderer, isn’t that an adverse fact? Wouldn’t that effect the future buyers’ ability to resell the home in the future?  A California court ruled against a Seller who failed to disclose that the home was the sight of a brutal murder, finding that the murders reduced he market value of the house.

Perhaps the Seller should disclose any stigma to potential buyers?  Perhaps there is a common law duty to disclose what the Buyer does not know?  The answer to these questions is hauntingly unclear.  What is clear is that a Realtor has no statutory duty to disclose unless the stigma also caused physical effects or damage.

💀 Boo! 💀

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Adjusting To Digital and Drive-In Closings

To protect the safety and health of our customers, clients, and staff, Homestead Title has made some significant adjustments:

• We offer Digital, E-Closings to Sellers and Cash Buyers
• We are handling in-person transactions as “Drive-Up Closings”

So, how well are these working? 

Digital, E-Closings

We’ve handled many digital closings over the last week and the reviews are positive.  Closing from home is obviously convenient and safe. And the time it takes to close is similar (actually a little longer to authenticate identities). Yet, just as working from home can be awkward and less efficient, so too are digital closings.  The technology is good and easy, but not perfect.  Voices sometimes echo or lag, video can cut out, and explaining documents is slightly harder. Anyone who’s participated in Zoom or other video conferences knows what we mean.  Given our current circumstances, the positives far outweigh the negatives.  In normal times, this will be one more tool in our tool-kit, but will not replace in-person closings.

Drive-In Signing

Homestead Title is handling all in-person transactions at our WEST office as “Drive-Up Closings.” We’ve received fantastic responses as customers appreciate our efforts to protect their health. And, the process has worked very well: Customers call when they arrive, we bring documents and a clipboard, and they sign in the car.  Customers take a little longer to sign. And we answer questions from 6 feet away or by phone.  We can’t wait to return to the closing room, but we’re proud to keep our customers and team safe.

With both Drive-In and E-Closings, we are offering to send all copies via secured, encrypted email.

Some of these adjustments are temporary.  In healthy times, we will not be doing “Drive In” closings — if we do, we’ll serve burgers and shakes on skates!  We likely will handle more e-closing when things return to normal. Yet, we anticipate most closings will return to the closing room with happy buyers, sellers, Realtors, and lenders celebrating together.

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What Does A “Shut Down” Mean For Real Estate?

Question:  Does Wisconsin’s Safer At Home order mean we cannot close our Sale, Purchase, or Refinance?

Answer: We are still OPEN and can handle your real estate transaction.  We will take extraordinary precautions to protect your health our ours.

Wisconsin’s Safer at Home Order is not a full “shut down” or “shelter in place.”  It exempts “essential businesses,” including Title Companies. Most real estate related businesses are exempted, “essential businesses,” including:

• Financial institutions and services. Banks, credit unions, and other depository or lending institutions; licensed financial service providers; and insurance services.
• Professional services, including:legal or accounting services,
  • insurance services,
  • real estate services
    • appraisal,
    • home inspection,
    • Title services
  • Note: these services shall, to the greatest extent possible, use technology to avoid meeting in person, including virtual meetings, teleconference, and remote work (i.e., work from home).
• Supplies for Essential Businesses: This may include trades necessary for lenders, realtors, and title companies to operate, such as sign installers, photographers, stagers, testers (Radon, mold, etc).
• CISA List. Any business or worker identified in the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA), Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, updated March 23, 2020, and any subsequent versions of this Memorandum.  This is a broad list. See CISA LIST.

How Homestead Title Will Protect Your Health

In accordance with this order, Homestead Title will take extraordinary measures to limit contact and protect the health and safety of our customers, clients, and team. These measures include digital signings for sellers and cash buyers, a skeletal staff in our office (90% are working from home), and “Drive Up” closings for all in-person closings.

Drive-Up Closings

While the Emergency Order is in place, Buyers and Sellers will sign from their cars, in a designated area in front of our building, to minimize contacts. We will answer questions by phone (and will conference in lenders or Realtors), or from a 6 foot distance.

We will continue these precautions until the Emergency Order is lifted or modified.  The order currently expires on April 24, 2020.

We know we can get through this together and hope that these local, state, and nationwide measures will shorten the time it takes to get back to “normal.”

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Digital Closings Are Here!

We can close many transactions digitally from the comfort and safety of your home.

In response to the coronavirus/Covid-19 pandemic, the State and our underwriters have passed emergency rules to allow digital closings and remote notarization!

We will be able to accommodate almost all sellers and many buyers with “Remote Online Notaries,” (RON).  This will allow for fully remote, digital closings without the need to leave home.

Buyers with a loan will need their lender approval to conduct a fully digital closing.  Lenders have many considerations and challenges, including investors, underwriters, mortgage insurance, and legal issues. Some may not be able to offer this service right away and others may allow only some documents to be signed digitally.

Homestead currently uses Notarycam and is trained and setting up Pavaso – two nationally recognized, approved platforms.  We “host” closings with a certified, remote-online notary.  The Wisconsin DFI has temporarily allowed Wisconsin notaries to also become online notaries (without the need for including an out-of-state notary) and our team is also adding this service.

Please contact us if you wish to close remotely and we can determine whether this is an option and coordinate with you.  

 

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REMOTE DIGITAL CLOSINGS — Coming to your living room soon?

The self isolation and quarantines of the coronavirus/Covid-19 pandemic creates challenges and disruptions, including in real estate.  The title and mortgage industries are putting forth efforts to overcome these challenges.

Remote Digital Closings May be Available Soon!

A major effort is underway from title underwriters, legislatures, and administrative agencies to allow “Remote Online Notaries,” (RON) in Wisconsin.  This would allow for fully remote, digital closings without the need to leave home. While it would primarily be available to Sellers, some Buyers can also sign remotely.

Buyers with a loan will need their lender approval to conduct a fully digital closing.  Lenders have many considerations and challenges, including investors, underwriters, mortgage insurance, and legal issues. Some may not be able to offer this service right away and others may allow only certain documents to be signed digitally.

Homestead Title is already conducting digital, remote closings for “Cash” Buyers (where none of their documents are notarized and there is no lender).

Look for important updates on Digital Closings in the coming days.

 

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Homestead’s Coronavirus Response: We are Here to Help Buyers and Sellers.

Homestead Title has implemented a plan to maintain day-to-day operations in response to the Coronavirus (COVID-19) pandemic.

Homestead will continue normal operations, without disruption, during these challenging times. We do not anticipate any delays or cancellations as a result of temporary changes to our business. The majority of Homestead’s team will work remotely from home over the coming weeks. Phone and Email will operate as normal and we are available to help.

Closing officers will be available in our office for any scheduled sale or refinance. We will operate with minimal, in-office staff and appreciate your patience and understanding.

We are committed to supporting and serving our employees, their families, and all those involved in our real estate and title insurance transactions.  As we monitor developments and guidance from public health professionals, we will make any necessary adjustments.

Tips for a Healthy Real Estate Closing:

1. Only Signors in the Closing Room: Homestead will not allow anyone in the closing room other than necessary signors (Buyers, Sellers, and their attorneys).  We urge Lenders and Realtors not attend closing and will ask them to wait in our outside lobby.
   1. We will include Realtors and Lenders on all questions by phone.
   2. We will overnight commission checks at no cost to the Realtor or their broker.
2. Sign Separately and Social Distancing: We encourage Buyers and sellers to sign at different times.  We are waiving Seller pre-sign fees until at least June 1, 2020.  Alternatively, we encourage Buyers to arrive on time and Sellers to arrive 35 minutes after the start of closing.  This will allow for minimal contact and more “social distancing.”
3. Remote or Digital Closings: When possible, Homestead will offer remote or digital closings.  Remote notarization is not yet legal in Wisconsin, so fully digital closings are rarely an option other than for cash purchasers. We will explore all options to accommodate our customers and protect the well-being of our community.
4. Clean Office Space:  We are providing clean pens and separate paperwork to minimize contact between people. We are wiping down all surfaces with disinfectant wipe throughout the day.
5. When to Avoid Closing: If any Buyer or Seller is sick,  in contact with anyone diagnosed or suspected of having Covid-19, or has traveled internationally in the last 14 days, please contact us for alternative closing options
6. Celebrate: We are excited to help you buy, sell and refinance. Yet, we will be refraining from hand shakes, high fives, and other close celebrations.  These are scary times, but together we can do this!

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Time to Refinance?

Is it time to refinance your mortgage?  Probably!

The rate on a 30-Year Mortgage has steadily dropped from already low rates. Although rates can vary by region and lender, the national average has dropped from  nearly 4.5% to under 3.5% over the last 6 months.

The drop in mortgage rates corresponds with a recent drop in the 10-Year Treasury Bond.  The market for these bonds does not directly effect mortgage rates, but it is good indicator of their direction.  In fact, movement of the 10-Year Treasury Bonds almost exactly mirrors movement of 30-Year Mortgage rates over the past 5 years:

As of February 24, 2020, the yield on the 10-Year Treasury bonds were near record lows.

Does this suggest record low mortgage rates?

Yes!  The current mortgage rates are already near record lows.

Will mortgages rates drop further (don’t they drop when the bonds drop)?

Not Necessarily.  Mortgage rates are not directly effected by bond rates — there are many factors that determine mortgage rates.  And, a drop in bond rates may reflect market conditions that are already “baked in” to current mortgage rates.

The recent precipitous drop in bonds may be largely a reaction to the coronavirus, and fears of its effects on the global economy.  Yet, those fears and the current bond yields at least hint at a continuation of low rates, if not a drop in rates.

Disclaimer – if we could predict where mortgage rates will go, we would be on a tropical beach, not writing this blog.  Rates could go up or down. Mortgage rates are already CRAZY LOW and its probably time to refinance if you haven’t already!

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Using The Wrong Form When Drafting an Offer

Virtually all real estate transaction in Wisconsin involve the standard WB forms approved by the State.  Unique forms apply to different kinds of properties, including:

• WB-11 for Residential;
• WB-14 for Condominiums;
• WB-13 for Vacant Land;
• WB-15 for commercial property;
• WB-16 for a business with real estate.

Licensed Realtors are required to use these forms, and most attorneys and FSBOS also use them.

Using the wrong form can lead to confusion, misunderstandings and liability for the parties and their Realtors.  As a title company, we’ve seen hundreds of transactions where the parties used the wrong form, many of which have turned into ugly disputes. Here are three examples:

Incorrectly Using The WB-11 on the Purchase of a Condominium:

When Realtors fail to use the WB-14 form on a condo, the offer can overlook critically important things like: rights or ownership in Parking and Storage Units; association fees and assessments; and the buyers’ right to rescind the offer after receipt of condo disclosure documents.  Using the WB-11 means that the parties may not be aware of these rights and may not adequately disclose or even transfer storage or parking units. Disputes over these issues can lead to failed closings and lawsuits.

Incorrectly Using The WB-11 on the Purchase of a Business and Real Estate:

When Realtors fail to use the WB-16 form on the purchase of a business, they overlook various business issues; environmental issues; and the value of the non-real estate assets, such as inventory, accounts receivable, and good will.  The WB-11 is missing these critical terms and contingencies, and a buyer can have serious liability based on these oversights.  That liability is heightened when the transaction involves more complicated and expensive commercial or business issues.

Incorrectly Using The WB-11 on a Vacant Property

The WB-11 does not address important considerations relating to vacant land, such as future uses, maps and surveys, and environmental considerations.  Using the wrong form can mean buyers are unable to do the proper due diligence or protect themselves with important contingencies.

Consequences of Using the Wrong Form

In the worst case scenario, using the wrong form can lead to a lawsuit and serious liability for the parties and their Realtors.  Even without a lawsuit, Realtors can be subject to discipline by the DSPS for violating REEB 16 (use of approved forms) and Wisconsin Statute 452.133(1)(b) (the duty to provide brokerage services with reasonable skill and care).  When representing a seller, Realtors should insist that the Buyer and their agent use the correct form.  When drafting offers, Realtors must use the correct form and should seek guidance if they are unsure.

Attorney Peter Zarov represents brokerages and Realtors throughout the State of Wisconsin.  His practice specializes in real estate, brokerage, and title issues.

 

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Who Must Sign What?

One of the most common mistakes that sellers and Realtors make is having the wrong people sign documents.  This can cause major problems, liability, or the loss of a Realtor’s commission. Sellers and Realtors often sign incorrectly because they don’t realize who really owns the property, who can sign on behalf of entities or estates, and who must sign.

It is important that Realtors and their Sellers understand exactly who must sign documents. The following is a brief summary of scenarios and rules in Wisconsin.  For more detailed discussion and answers, contact Homestead Title.

First, all sellers must sign all “conveyance” documents.  This means they must sign the deed and closing documents and they also must sign the offer to purchase and other contract documents.

Multiple Owners

If multiple people own the property, they ALL must sign the offer to purchase and all closing documents. It is not uncommon for sellers or their Realtors to cut-corners an allow only one owner to sign the offer, intending that the others will sign at closing.  An offer to purchase is not valid and enforceable if only some of the owners sign.  A Seller could be stuck with an unenforceable contract and Realtors risk violating their ethical and statutory duties by not assuring that all owners sign.

Trusts

If a property is owned by a trust, the trustee(s) must sign.  The Trust agreement will name the trustees and determine exactly who must sign.  A trustee can almost never delegate their authority either informally or by power of attorney.  Trust agreements rarely allow delegation or power of attorney signatures.

 Corporations or LLCs

Property owned by Corporation or LLC requires the signature of an authorized representative.  In each case, that will be determined by the corporate documents or agreements.  For most corporations, the president, secretary, or other officer can sign.  LLC’s must sign documents by either a manager or managing member(s).  The LLC Operating Agreement will determine which person must sign.  As with Trusts, it is almost never acceptable to delegate signing duties by power of attorney.

Deceased Individuals

When a property owner dies, it is critical to determine who must sign any sale documents.  Some properties are owned with “survivorship rights,” meaning that the deceased person’s property rights automatically transfer to another person (usually a spouse).  In other cases, the deceased person’s interest must be conveyed by a person appointed by the probate court.  In those cases, the court must appoint a personal representative or special administrator who has the authority to convey the property on behalf of the deceased person’s estate.  When addressing the sale of a deceased person’s property, it is wise to consult with a title company and/or attorney.

Married Couples

Under Wisconsin law, property that is solely owned by one spouse as a “homestead” or residence, cannot be sold without the other spouse’s signature.  This is called the “alienation of homestead rights.”  Both spouses must sign even if (a) the other spouse has never owned the property, (b) there is a marital agreement, or (c) there is a pending divorce.  When parties are selling a house in which either spouse lives as a residence, they almost always need both spouses to sign the deed and offer to purchase.

Power of Attorney

A power of attorney is a document that allows one person to sign on behalf of another.  This document must be approved by the title company and buyer’s lender and can only be used for living, individual people.  A power of attorney cannot be used for a dead person and can almost never be used for a trust, corporation, or other legal entity.

Guardianship

A guardianship exists when a court determines that someone is unable or incapable of making decisions or handling their own affairs.  The Court appoints a guardian to oversee the affairs of that person, known as the ward.  The ward cannot sign contracts or documents and all documents must be signed only by the Guardian.  In addition, the court will need to approve any sale, including its specific terms.  A commission agreement or offer to purchase signed by a ward that is subject to a guardianship is void and unenforceable.

Each of these topics are subject to in-depth analysis, rules, and occasional exceptions.  Attorney Peter Zarov is available to discuss these and often teaches courses to Realtors and Brokerages on proper signatories and assuring avoiding the consequences of having the wrong person sign.  Please contact us for information on courses and materials.

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Be Prepared for Closing – Don’t Forget Lien Waivers

Sitting at the closing table, the closing officer turns to the seller with a smile and asks, “Have you done any construction, work, or improvements on the property in the last six months?”

The seller replies, “just the floors, some drywall, painting, electrical and plumbing work.  It was about $5,300 and I paid for most of it.”

Ohhh boy!  The title company cannot close without assuring that all contractors were paid and waived their rights to put a lien on the property. The closing is delayed!

Owner’s Affidavit and Construction Liens 

While the title company can search for most liens, some liens are hidden or “secret.”  Construction liens are one such “secret lien.”

If a contractor does work on a property, they can file a construction lien for the amount they are owed.  They have six months after the last time they performed work to file the lien.  But, the lien is effective as of the date the contractor started work.  So, if an electrician rewired the attic a week before closing, he can file a lien 6 months later but that lien will be effective as of a week before closing — before the buyer purchased the property.  In other words, the buyer will purchase a property with a lien against it!

In order to insure against this happening, the title company asks the seller to swear in an Owner’s Affidavit that no work, labor, or improvement was done in the last 6 months.  And, if any such work was done, the title company will ask for signed lien waivers from each contractor.

Realtors and Sellers Should Be Prepared

Sellers and their Realtor should be prepared with lien waivers for any work done prior to closing.  Addressing this issue for the first time at the closing table can lead to delay or even cancelling the closing.  Realtors should communicate to sellers that they will need all lien waivers and that a cancelled check or PIF invoice likely is not enough (although, some title companies will accept those if the amount is very small).  By avoiding surprises and preparing the seller for closing, the Realtor will assure a smooth closing, a happy client, and avoid delays.

As always, if you have questions about this or other title issues, call Homestead Title and we’ll guide you through.

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