The Referral Responsibility: Are You a Man Or a Mollusk?

Classic risk aversion for the liability-phobic mandates that an agent make no actual referral to an auxiliary service provider in the course of a Real Estate transaction. Need a lender? Here are the names of three professionals. Need a home inspector? Sift through this stack of business cards and let me know who you choose to hire. The very thought of shimmying out on a limb to recommend a capable practitioner sends shivers up the clenched backside of some in our ranks. Cold anticipation of the potential commissionectomy that attends a referral gone bad trumps the tug of responsibility.

No businessman walks around looking for a financial colonic, but the very real potential for having his inner sanctum legally hollowed out exists in each and every transaction he undertakes. As such, it has become customary for many to simply ward off as much exposure as possible by abstaining from any form of guidance that can later be labeled malfeasance or conflict of interest. Heaven knows, if the contractor you recommend for repairs screws the electrical pooch, any rabid attorney worth his salt will gleefully encourage the client to pursue the deep pocketed brokerage (and agent by proxy) as well as the contractor for damages. Why put yourself on the line by recommending a home inspector when the potential for blow-back on a balky A/C unit can put you directly in the cross hairs? For that matter, why even bother to attend the inspection if the due diligence can be misconstrued for interference? Why attend closings if your review of the documents places increased responsibility upon your shoulders for their accuracy?

Because risk deflection is not my job.

My job is to fulfill my fiduciary obligations to my clients to the very best of my ability. That means recommending pros who have proven their worth to me countless times in the past, rather than crossing my fingers and hoping my clients receive competent service. That means attending inspections to physically see any defects, so as to better advise my clients and argue their cases. That means attending the closing to ensure that the settlement statement jives with the negotiated terms of the contract.

Doing the eeny-meeny-miney-mo thing with a referral does not serve the client, and neither does calling in “neutral” to the appointments that demand an ally. Such laissez faire Real Estating is designed only to mitigate the agent‘s risk. While it is understandable, given the litigious nature of our culture, it’s just not how I roll. You need a lender, I give you the name of the best lender I know. You need a home inspector, I give you the name of the most thorough one in the rolodex.

I would argue that recusing oneself from the crucial junctures and decisions of a transaction is not only negligent, but self-defeating. As the surest invitation for catastrophe is to stand aside and watch the transaction happen, the best defense is, and always will be, a good offense. Fixing potential problems, rather than hiding from them, has kept my clients happy, and me out of legal hot water to date. Active involvement serves the interests of all parties.

I wear my big boy pants to work every day. I put them on with the knowledge that certain forces will always be beyond my control. Secure in that understanding, I’d much rather stand behind the repercussions of my actions than my inactions. Standing on the sideline, not attending inspections & closings, carefully avoiding opinions … seems to me that ascribing to the Caspar Milquetoast model of risk avoidance is, ironically, the surest route to the ruin that one would desparately scramble to avoid. Decreasing the standard of care for the client is akin to an RSVP for trouble.

And trouble never sends its regrets.

Need a Referral to a Local Professional? Give me a ring. I’m not afraid of my own recommendations.

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Why Your Offer Loses

Tired of getting your teeth kicked in by competing buyers on the homes you try to buy? Wonder what sellers are thinking when they reject your offer time after time?

You’ve landed on the right blog. Let’s take a quick look at a few critical components of an offer through a seller’s eyes to find out exactly what is keeping that elusive new home out of your reach.

  • Pre-Qualification

This is a big one, particularly in a competitive situation in which the seller is entertaining multiple offers at the same time. Back in the day, virtually anyone with a pulse was a good bet to secure the necessary financing to complete a transaction due to lax qualifying standards. These days, the banks want a faxed copy of your baby as a pre-funding condition. As such, you are banging your head against the wall if you don’t have an iron-clad pre-qualification letter from your lender to present with your offer. And I’m not talking about a bare bones letter in which the qualification is based solely upon a conversation, you’re going to want to have the boxes checked that indicate your pre-qual (pre-approval is even better) is at minimum based upon a tri-merged credit report and review of recent bank statements. Got two years of tax returns and recent pay stubs to your lender already? Even better.

Don’t save the pre-qualification step for the last minute when you’re frantically trying to submit an offer on a hot, new listing. Taking the time to prepare a rock solid pre-qual in advance can be the difference between being a buyer and being a shopper.

  • Financing Type

Most buyers are somewhat hamstrung on their financing options these days as down payment options tend to dictate the ultimate vehicle chosen. That said, it is important for you to know what the seller sees as a limitation of each loan type so as to find a way to overcome the likely objection(s) within the framework of your program.

FHA Loans – Dormant, by and large, during the boom when low (and even no) down payment options were plentiful in conventional financing, FHA loans have made a comeback in a big way in the Scottsdale market. Sellers will have two major concerns with your FHA offer.

First will be closing costs. As most people opt for FHA because it opens up the door to a 3.5% down payment, it is not uncommon for these buyers to have a little less saved up for the closing costs that piggyback a home purchase. If you are loading 1-3% of your costs onto the seller, be mindful that you are not actually offering the price you put on the first page of the contract. All that matters to the seller is the net. If you are trying to get your closing costs covered, you might have to boost your offer price commensurately.

For example, your 150k offer on a 150k listing is not truly full price if you are asking the seller to pay 5k in closing costs. To make your offer reflect an effective net full price, you’ll need to offer 155k.

And hope the appraisal can justify that amount.

Which leads us to the second major financing concern, the appraisal itself. Not only do FHA loans require FHA-certified appraisers who scrutinize the condition of the property for inhabitability (no exposed wires, utilities must be on and functional, etc), but sellers and their agents will expect the appraiser to be far more conservative with the ultimate evaluation due to the high loan to value ratio. The lower the down payment, the higher the risk to the bank. That tends to bring a little more heat down on the appraiser to bring in a value that will survive heightened scrutiny from a constipated underwriter.

VA Loans – VA loans are like their FHA cousins on steroids, at least from a seller’s perspective. We all love our troops … until they try to buy our homes. A seller sees your 100% financed loan and does not see an army of one, he sees an even more anal retentive appraiser and underwriter who would like nothing better than to blow up the sale of his home.

Peeling paint in a home built before 1978 (subject to lead)? He’s gonna have to scrape it and repaint.

Last good round of sales comps older than six months old? That’s bad enough on a conventional loan in which the bank is only investing 80% of the home’s value, but at 100%?

Shoot …

Sellers also expect to get stuck with buyer closing costs (sellers MUST pay certain costs with a VA loan), so it’s not the favored financing type for many.

Let us not forget about the time factor. Most lenders will want about 40-45 days to process both FHA and VA loans, due in large part to the red tape created by the government backed programs. For the seller who wants a more standard 30 day close, this is not as appealing. You might have to build in some additional incentive for the seller to select your offer with the longer close, such as additional earnest money at the midway point, slightly higher purchase price, etc.

Conventional Financing – Conforming to Fannie Mae guidelines, conventional loan programs typically require higher down payments (5-20%) than their kin. Sellers like this because it means you have more ‘skin in the game’. The appraisal is less of a white-knuckle experience given the lower LTV (loan to value ratio), and the seller expects you will be much more likely to ultimately secure the loan and close escrow. While certainly not outside the realm of possibility, a 20% down conventional buyer is less likely to ask a seller for closing cost assistance.

Outside of the cash offer, the granddaddy of them all, conventional financing is looked upon most favorably by most sellers.

  • Down Payment 

Touched on this above, but bears isolating for repeat. The more money you are showing as a down payment in your offer, the stronger I, as a seller, think you are and more likely to close. Your lender will not be as hypercritical in approving a loan with 60% LTV versus 95%. The appraisal will be less of a hurdle, and failing to hit the sales price won’t be insurmountable (you have the resources to pony up cash to bridge the shortfall). Further, I expect you have some leeway on potential inspection issues if you have deeper pockets. The guy putting everything he has in the world together to complete the purchase won’t have much room to make improvements/repairs after closing.

That scares me as I expect you are going to try to kick my ass for every loose screw and squeaky hinge in the inspection report.


  • Earnest Money

One of the easiest places to score points with the seller is the bolstering of the ‘good faith’ money you place in escrow upon contract ratification. In our market, 1-3% would be considered a typical earnest deposit. The more you can put down, the more appealing to the seller. With several ‘outs’ along the way to reclaim this money in the event of a poor home inspection, loan denial, low appraisal, etc, the shrewd buyer will offer to place an eye-catching deposit in escrow. If the deal goes south, provided that it is not due to your own breach of contract, this money is recoverable. If the deal goes through to closing, it is applied to the total due at closing. It IS NOT an additional fee.

If you can afford to do so, go outside the box a little with your earnest deposit when you know you are competing against other buyers. It doesn’t end up costing you anything more unless you breach the terms of the deal.

Don’t do that.

If you reflected, say, $500-1000 in earnest money on your last stab at a $200,000 house, you limped in with your offer, regardless of the accompanying terms. Show weakness in the good faith money you show me, and I think you are either a) not committed to the deal, b) broke or c) both.

  • Terms

Believe it or not, sellers pay attention to those little throwaway items in the contract outside of price and ability to close.

That home warranty policy you want the seller to pay? That’s $350-550 off the bottom line. While a typical buyer request, you need to be cognizant of circumstance before automatically checking the ‘seller’ box in the contract. Is it a bank property? Are there other offers on the table (or likely to be due to the great value, time on market, etc)? Might want to rethink its inclusion in some cases.

Likewise, don’t check the boxes in the HOA addendum (if applicable) loading all transfer cost onto the seller without some thought. If it comes down to you and another comparable offer, don’t be the guy that sabotages himself over a couple hundred bucks.

The inclusion of personal property in your offer can be a mistake in a competitive market. Sure, those Maytag Neptunes are great, but do you really want to scuttle your chances of getting the house over the washer and dryer? You can ask for the fridge if there are no other offers at play. Deal?

Writing your offer subject to the sale of a current residence? That’s a huge no-no in a competitive situation. As a listing agent, I tell my seller that there is still a property that needs to sell for the deal to work, so you are no closer to the closing table. Worse, you now have no control over the property being sold. Banks and short sale sellers feel the same way. Get your home sold before approaching sellers if you want to stand a chance in a competitive arena.

Give the seller his/her preferred title company. This one is easy. As long as the company is reputable, it’s easy to score points with the other party by acquiescing on items that don’t cost you anything. A pre-requisite of purchasing a bank property to accept the seller’s choice of title company, it’s not a bad idea to include the question of “Does the seller have a title preference?” in the conversation with the listing agent that precedes your offer on a mom & pop resale, too. You know, the same conversation in which you ask about preferred closing dates and such?

Purchasing ‘As Is’ is fairly common in the current market as few sellers have the equitable wherewithal to actually make repairs. If you are looking at short sales and foreclosures, it is a given. You can sweeten the deal for a resale seller and differentiate your offer from competing ones by making your offer ‘As Is’ for his property as well. If framed properly, you will still maintain your full rights to a property inspection, with the ability to cancel the transaction if the home’s deficiencies are too numerous/costly. You alleviate the seller’s obligation to repair broken items, but you are not obligated to complete the transaction if you are dissatisfied. Offering to purchase ‘As Is’ can be a good tie-breaker in a multiple offer scenario, but employ with caution.

And for Pete’s sake, don’t let your agent write a short story’s worth of verbiage into the constructive language section of the contract. Not only do agent’s get themselves and their clients into trouble by unwittingly practicing law through the amateur construction of legal terms, but filling this page up is the antithesis of a ‘clean’ offer. Keep it simple, and don’t scare the seller off with Perry Masonesque flair. Half the stuff that shows up here with regularity is already covered (more adequately at that) in the boilerplate.

Remember: The AAR contract is nine pages (plus addenda) of carefully crafted legal verbiage that was composed by attorneys smarter than you and your agent.

  • Price

I saved this one for way down the page because it should be the most self-evident truth this side of pain hurts. You lose the privilege of complaining about non-accepted offers if you keep trying to negotiate more off the asking price than the market permits.

  • The Listng Agent Never Received Your Offer

Your offer was good. Your offer was clean. The home will be yours by Halloween.

Or it would have been had the listing agent ever received it.

Sad but true fact, I have received numerous offers over the years without so much as a headsup call that one was on the way, let alone a followup call from the buyer’s agent to confirm that it actually arrived. For all you know, the offer you spent a day or two considering and several hours drafting might have ended up in a spam folder or faxed to Sri Lanka if that simple precautionary step is not taken.

Inconceivable? It happens all the time.

Further, if you don’t let the listing agent know an offer is en route, you risk the possibility of the seller accepting another offer in the interim.

Don’t let your agent be lax. Make sure your offer gets where it’s going.

Sidenote: When I receive an emailed/faxed offer that is not preceded by so much as a phone call from the buyer’s agent, I know it’s going to suck. Food for thought.

  • You Are Competing for the Wrong Properties

Allow me to move from the seller’s side of the table back to yours, doffing my cap as your friendly buyer’s agent. If you keep losing properties despite gussying your offers up in accordance with the advice herein to make them as attractive as possible to unimpressed sellers, it is quite likely that you have simply set your self up for failure by targeting the wrong homes. This phenomenon is most prevalent in the lower price ranges where investors and second home buyers make it difficult for cash-strapped, first-time buyer to compete. Competing against cash or high down payment conventional financing, the poor SOB writing clean, full-price FHA offers doesn’t stand much of a chance.

Stop throwing your hat in the ring on properties you won’t get unless you really don’t care for your hat. Cause it’s gonna get trampled.

You will have much better chances for success by targeting homes priced a little higher and negotiating down rather than starting at the basement where the Daddy Warbucks of the world are busy chasing the prices up.

Go find the lonely seller who is priced just above the scrum.

Getting drubbed in the bidding wars at 150k? Look at the inventory for comparable properties at 175k. Odds are, despite the discrepancy in list prices, the ultimate selling prices won’t end up that far apart.

Bolster the weak points in your offers, isolate the right properties and you, too, can have success in this market.

Now get back out there and make someone an offer they can’t refuse.

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Forever Views

Abe Flemming studied the open notepad on his desk. A daunting list of phrases stared back at him. There was a golden egg hidden within the black chicken-scratch, he just needed to find it. He started at the top and worked his way down.

This Home Does Not Suck!

Abe chuckled at his first entry, quickly moving past the throwaway writing prompt to the genuine attempts that followed.

Housing Nirvana … Smells Like Value, Not Teen Spirit!

He cringed, moved down a line.

$hort on Equity, Long on Charm!

Jesus, Abe thought. These sounded a lot better in his head.

Why Settle for Cookie Cutter When You Can Have a Cookie MONSTER?

Definitely not what he was going for, he moved on to the next candidate.

If You Lived Here, You’d Already Be Home!

Abe drew an angry line through the barely legible cursive, annoyed that he’d let a well-traveled cliche infiltrate his quest for fresh, unique verbiage in his advertising.

At the End of the Day, Aren’t We All Bank-Owned?

Abe groaned as he skipped this one, too, making a mental note to mine the thought for future blog fodder.

Diamond in the Guf!

Too biblical.

Where the West Was Wondered …

“What the hell is that supposed to mean,” he demanded of the empty room.

Abe dropped the pen and snatched a half-full can of Coke Zero off the desk. He took a deep pull, savoring the sweet cola’s aroma as much as its taste.

He glanced at the notepad.

Territorial Delight … Wanna Party, Cowboy?

Nearly spitting the dark liquid all over the desk, Abe was instead treated to a sudden rush of carbonation up his considerable schnoz. His eyes teared up as the resulting inferno threatened to ignite the thatch of grey-black kindling that protruded from each flared nostril.

“That’s it,” he declared, turning to his computer as the burning subsided.

The flashing cursor was poised on the blank title line, imploring its master to yield to the inevitable.

With a heavy sigh, Abe obliged.

He typed Forever Views! and printed the flyer.





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Realtor Flips Script, Reviews Customers

Scottsdale, AZ – Tired of being the one under a microscope, a local Scottsdale Real Estate agent has turned the tables on the service review paradigm.

Barry Wong, a residential Realtor with Prickly Pear Properties, says the time has come for consumers to enjoy the same level of scrutiny to which service providers are subjected.

“I’m not a toaster,” Wong stressed when reached for comment at his ‘mobile office’ in the parking lot of the Goodwill on Scottsdale Rd between Thomas and McDowell.

“Nor am I a used Pontiac or a sandwich shop,” Wong continued. “Yet everyone feels the need to put a numerical value on the ongoing, long-term service I provide nowadays.”

Asked to quantify the difficulty of ranking the unique, involved relationships that agents share with their clients on a scale of 1-10, Wong rated it an ‘8’.

“There are far too many variables from transaction to transaction, and relationship to relationship for clients to rate me effectively on a simple, translatable scale,” Wong argued. “Especially when much of the job takes place behind the scenes, the customer never realizes the true value of what has been provided.”

Wong was less conflicted by the ability to rank consumer behavior, however.

“It’s simple,” Wong noted. “They either screw you over or they don’t.”

Adopting a four star rating system for the online repository that he hopes will help his fellow professionals avoid the all too common, non-profitable encounters with shiftless time-wasters, Wong envisions a national platform that will fully illuminate this dark side of the sales equation.

“Four stars are for successful closings within six months of initial contact,” he explained. “Three stars will reflect clients who purchased or sold a home beyond the six month threshold.”

Not everyone is convinced that the attempt to level the playing field is a prudent course of action in an era of consumer empowerment.

“The online evaluation of those who would bring you business has never been attempted,” Gustav Merkins of the consumer advocacy group Are You High? claimed when reached for comment. “That’s because it is patently idiotic.”

“If I can save just one agent from driving all over town with some grifter with a history of shining salespeople on, it will all be worth it,” Wong asserted in the face of such naysaying.

Asked to clarify the significance of the final two points in the rating scale he created during a night of binge drinking on the heels of a lost listing, Wong obliged.

“Two stars are for customers who never buy or sell anything,” he confirmed. “One star is reserved for customers who grade agents poorly on online rating sites.”

“Look,” Wong concluded. “I am a firm believer that the customer is always right, except when he’s not. That’s where shame and public humiliation comes into play.”


— Paul Slaybaugh, BSRE News ©2011

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On This Day In Real Estate

On this day in Arizona Real Estate:

11/23/1881 – The first Real Estate disclosure laws go into effect for the young territory on the heels of the sale of a corral in Tombstone with a non-disclosed stigma. Claiming he would have paid considerably less for the property had he been aware of its recent history of people getting shot in the face, Jebediah Tippins also holds the distinction for the first ‘For Sale By Owner’ purchase in the Southwest.

11/23/1912 – Edward Reems of Copper Crest Realty & Insurance double-ends the first sale of a covered wagon park in state history. He is later found hanged by a fellow agent for alleged ‘buyer rustling’.

11/23/1937 – Eli Smokes invents the lockbox in Prescott, AZ and immediately gives out the combination to the town drunk.

11/23/1974 – The Arizona Association of Realtors introduces the Arizona Regional Multiple Listing Service, responds to immediate consumer demands for full online access to the raw listing feed by noting that the internet has not been invented yet.

11/23/1987 – Timothy Barnaby of Tucson is the first to cross out ‘7%’ in the boilerplate of a listing agreement, sparking a revolution against Real Estate fees that would be a boon for consumers in their pursuit of affordable, crappy service.

11/23/2004 – Arizona Real Estate buyers lose their collective minds.

11/23/2007 – The party’s over as lending institutions turn out the lights on all programs geared towards borrowers with sub-eight hundred FICO scores who earn less than seventeen million dollars a month.

11/23/2011 – Paul Slaybaugh with Realty Executives prepares to give thanks to his faithful clients for helping him successfully navigate another crazy year in the ever-changing waters of the Scottsdale Real Estate scene.

Thank you, Arizona. Looking forward to another year of firsts, both real and imagined.

– Paul

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