Refinancing Has No Effect Upon Property Taxes

do your property taxes go up in California when you refinance your property

This is one of those urban legends. People are concerned that because the house is appraised by the lender, the assessor is somehow going to find out that their property is worth more and send their tax bill soaring.



However, thanks to Proposition 13 in California, the formula for property taxes has little to do with what the home is really worth. The formula is based upon the purchase price plus two percent per year, compounded. If you can document that your home is worth less than this amount, contact your county assessor’s office. But if it’s worth more, they cannot increase it beyond this number.

Indeed, certain family transfers can preserve this lower tax basis. Mom and dad deed it to the kids, and the kids keep paying taxes on it based upon a purchase price of perhaps $60,000 (Plus thirty-odd years of compounding at two percent, so maybe $115,000) when comparable homes may be selling for $600,000.

There are two major exceptions. First, a sale. If you sell it to someone else, then repurchase, you don’t get the old tax basis back. Second, improvements. If you take out a building permit, the assessor will add the current value of your improvements to your tax bill. This can, in situations like the previous paragraph, result in a tax bill that literally doubles if you add a room. Indeed, this is one of the main reasons for the growth of the unlicensed contractor industry, because licensed ones have to make certain the permits are in order, and homeowners are trying to sneak one over on the county. This is why a very large proportion of properties in MLS have the notation that “this addition may not have been permitted.” They know good and well that the addition wasn’t permitted, and quite likely isn’t to code, either. If it’s built to code, subsequent owners can get forgiveness as innocent beneficiaries who bought the house like that, and so the purchase price included the value of that room (and occasionally, the state finds it worth its while to go after the previous owner for back taxes and possible penalties, and I believe that the incidence of this will likely increase dramatically in the next couple of years). If it’s not built to code, however (an offense unlicensed contractors often commit), the subsequent owner can be looking at a large mandatory repair bill, or perhaps even demolishing the addition they paid for if the county inspector deems it unsound. You want to be very careful about properties with the “addition may not have been permitted” disclosure.

Other states, by and large, still follow the assessment model California used to follow, pre-Proposition 13. They have county records of the property characteristics, and evaluate the home based upon those characteristics, whence comes your assessment, and hence, your property tax bill. This still encourages unlicensed contractors and working without required permits, with effects much the same as the previous paragraph, which is definitely not good, but in this case subsequent owners have nothing but incentive to keep improvements off the county books, where in California, subsequent owners have motivation to want improvements updated into county records. I am not aware of any state which follows a model whereby refinancing will alter your tax bill.

Caveat Emptor

Recording Errors and Title Insurance

I just got a google search where the question asked was “What if the mortgage is recorded in the wrong county?”

I’ve never actually seen this (and San Diego County, once upon a time, included what is now Riverside, Imperial and San Bernardino counties), but if it’s the mortgage on your loan, no big deal. You should get a copy of the recorded trust deed, and the county recorder’s stamp should tell you the county it was recorded in. You probably want to record it in your own county, as when the document is scanned in both recorder’s stamps will appear, thus making it obvious that these two documents are one and the same. There may be better ways to deal with it. Since the error was (everywhere I’ve ever worked) your title company’s, they should be willing to repair it to eliminate the cloud on your title. If and when you refinance this loan or sell the property, make sure that the Reconveyance is recorded in both counties, and references both recordings.

More dangerous is the issue of what if it’s the previous owner’s loan that was wrongly recorded. The previous owner is obviously no longer making payments on the property. The lender may or may not have been paid off properly; if they were there may not be any difficulties. It could just disappear into some metaphorical black hole of things that weren’t done right and were never corrected, but just don’t matter because everybody’s happy and nobody does anything to rock the boat. However, unlike black holes in astronomy, things do come back out of these sorts of black holes.

If the previous lender was not paid off correctly, or if they were paid but something causes it to not process correctly, they’ve got a claim on your property, and because the usual title search that is done is county-based, it won’t show up in a regular title search. Let’s face it, property in County A usually stays right where it’s always been, in County A. There is no reason except error for it to be recorded in County B. Therefore, the title company almost certainly would not catch it when they did a search for documents affecting the property in County A; it would be a rare and lucky title examiner who caught it.

In some states, they still don’t use title insurance, merely attorneys examining the state of title. When the previous owner’s lender sues you, you’re going to have to turn around and sue that attorney who did your title examination for negligence, who is then going to have to turn around and sue whoever recorded the documents wrong. If it’s a small attorney’s office and they’ve since gone out of business, best of luck and let me know how it all turns out, but the sharks are going to be circling for years on this one, and the only sure winners are the lawyers.

In most states, however, the concept of title insurance has become de rigeur. Here in California, lenders don’t lend the money without a valid policy of title insurance involved.

Let’s stop here for a moment and clarify a few things. When we’re talking about title insurance, there are, in general, two separate title insurance policies in effect. When you bought the property, you required the previous owner to buy you a policy of title insurance as an assurance that they were the actual owners. By and large, it can only be purchased at the same time you purchase your property. This policy remains in effect as long as you or your heirs own the property. The first Title Company, which became Commonwealth Land Title, was started in 1853, and there are likely insured properties from the 19th century still covered. If you don’t know who your title insurance company is, you should. Most places, the company and the order of title insurance are on the grant deed.

The other policy of title insurance is a lender’s policy of title insurance. This insures your lender against loss on that particular loan due to title defects, and when the loan is paid off (either because the property is sold, refinanced, or that rare property where the people now own it free and clear), it’s over and done with. Let’s face it, most people are not going to continue to make payments if they lose the property. If you take out a new loan, your new lender will require a new policy of title insurance. You pay but they are the ones insured by the policy. Their money; they set the terms for lending it out.

To get back to the situation, what happens when you order title insurance is that a searcher and/or an examiner go out and find all of the documents they can find that are relevant to the title of the property. These days, they typically perform an automated search, and sometimes documents are indexed and cross referenced incorrectly and therefore they do not show up when they should. Nonetheless, the title company takes this list of documents and tells you about known issues with the title, and then basically says “We will sell you a policy of title insurance that covers everything else.” This document is variously known as a Preliminary Report, PR, or Commitment.

It shouldn’t take a genius to figure out why you want a policy of title insurance. Around here, the average single family residence goes for somewhere on the high side of $500,000. You’re committing a half million dollars of your money on the representation that Joe Blow owns the property and that if you give him that half a million, he’ll give you valid title. I would never consider buying property without an owner’s policy of title insurance. Even with the best will in the world and my best friend whose family has owned it since the stone age, all kinds of issues really do crop up (Another agent in the office had a client who bought a property via an uninsured transfer – and there was an unrecorded tax lien. Ouch. Say bye-bye to your investment). The lenders are the same way. No lender’s policy, no loan.

So what happens when this old mortgage document is uncovered? Well, that’s one of the hundreds of thousands of reasons why you have that policy of title insurance. You go to your title company and say, “I have a claim.” Since they missed that document in their search, they usually pay off the loan (there are other possibilities). After all, if they hadn’t missed it, it would have been taken care of before Joe Blow got paid for the property and split to the Bahamas.

None of this considers the possibility of fraud, among many other possibilities, but those are all beyond the scope of this article.

So when buying, insist that your seller provide you with a policy of title insurance. When selling, it really isn’t out of line for your buyer to require it – it shows that you have a serious buyer. Some places may have the buyer purchasing his own policy, but most places that use title insurance, the seller pays for the owner’s policy out of the proceeds. Of course, anytime there is a loan done on the property, the lender is going to require you pay for a lender’s policy. If the quotes you are given do not include this, be certain to ask why. There really isn’t a good reason for not including that quote – they are going to require it, you are going to pay it. Better to know about it ahead of time, don’t you think? That way you can make a fair, accurate comparison between the loans you are shopping.

Caveat Emptor

Making Prepayment Penalties Illegal

I got a search for “which states allow prepayment penalties”. I’m not aware of any that don’t. If there are any, I’d like to know. Any such states should immediately be renamed “Denial”.

I really hate prepayment penalties, for a large number of reasons. Nonetheless, to make them illegal would not be in the best interests of consumers.

Let’s examine why. Let’s consider a hypothetical couple, the Smiths, who don’t have much of a down payment, and have difficulty qualifying for the loan. They want to become owners rather than renters, and it is in their best interests to do so.

The cold hard fact of the matter is that nobody does loans for free. Real Estate loans are complex creatures, and they don’t just magically appear out of some hyperspatial vortex upon demand. I may cut my usual margin by half if I’m the buyer’s agent as well, but that’s because I’ve found I’m going to do a large portion of the work anyway, have to ride herd on the loan officer, and stress out because it’s a major part of the transaction that can really hurt my clients that is not only not under my control, but I cannot monitor with any degree of confidence I’m being told the truth. I keep telling folks that the MLDS or GFE don’t mean anything. They are not contracts, they are not loan commitments, they are not the Note or Deed of Trust, and they definitely aren’t a funded loan. They are supposed to be a best guess estimate of your loan conditions, but with all the limitations and wiggle room built into them, the regulators might as well not have bothered. By themselves, they are worthless. None of the paper you get before you sign final loan documents means anything unless the loan officer wants it to. Unless the loan officer guarantees it in writing that says that someone other than you will eat any difference in costs, what you have is a used piece of paper with some unimportant markings on it. If I, as a better more experienced loan officer than the vast majority of loan officers out there, cannot monitor what another loan officer is doing with any degree of confidence, do you want to bet that you can?

So we have some folks who can just barely stretch to do the loan. In order to buy them a little space on their payments, so that any bill that comes in isn’t an absolute disaster they cannot afford, and also so I can get paid without it coming out of the money these people don’t have, I talk to them about the situation and we all agree to put a two year pre-payment penalty on the loan. This buys them a lower rate with lower payments, without adding anything to their loan balance. They don’t owe any more money, they get a lower rate, I get paid, and they didn’t have to come up with money they don’t have. Everybody wins, whereas without the prepayment penalty they would be paying $200 per month more, and perhaps they couldn’t qualify. No loan, no property, no start to the benefits of ownership. They certainly wouldn’t have that $200 per month cushion that’s likely to save their bacon from their first emergency. Leaving aside for a moment the issue that most folks want to buy more house than they can afford, that really stinks from the point of view of the people that those who would outlaw prepayment penalties altogether say they are trying to help, those who are trying to buy a home and just barely qualify.

Many folks have a long mortgage history, and they are comfortable in the knowledge that they will not refinance or sell within X number of years. They’re willing to accept a pre-payment penalty in order to get the lower rate. They want that $200 per month in their pocket, not the bank’s, and they are willing to accept the risk that they may need to sell or refinance in return. After all, if they don’t sell or refinance within the term of the penalty, it cost them nothing. Zip. Zero. Nada. For all intents and purposes, free money. I may advise against it, but it is their decision to make or not make that bet, not mine, not the bank’s, not the legislature’s, and definitely not some clueless bureaucrat’s, let alone that of some ignorant activist who only understands that lenders make money from them, and not the benefits that real consumers can receive if they go into it with their eyes open.

Pre-payment penalties get abused. Badly abused. I know of places that think nothing of putting a three year pre-payment penalty on a loan with a two year fixed period. There is no way on this Earth anyone can tell those folks truthfully what their payments will be like in the third year. I may be able to tell them what the lowest possible payment could be, but not the highest. I’ve seen five year prepayment penalties on two and three year fixed rate loans, and that situation is even worse. I’ve heard of ten year prepayment penalties on a three year fixed rate loan. I’ve seen even A paper lenders slide in long prepayment penalties on unsuspecting borrowers that mean they get an extra six or eight points of profit when they sell the loan. So there are some real issues there.

With this in mind, there are some reforms I could really get behind. The first is making it illegal for a prepayment penalty to exceed the length of time that the actual interest rate is fixed. Regardless of what the contract says, once the real interest rate starts to adjust, no prepayment penalty can be charged (This means no prepayment penalties on Option ARMS, among other things). The second is putting a prepayment penalty disclosure clause in large prominent type on every one of the standard forms, and making it mandatory that the loan provider indemnify the borrower if the final loan delivered does not conform to the initial pre-payment disclosure. In other words, if I tell you there’s no pre-payment penalty and there is one, I have to pay it for you. If I tell you there’s a two year penalty, and it’s a three year penalty, I have to pay it if you sell or refinance in the third year (in the first two years, it’s your own lookout because you agreed to that from the beginning).

But to completely abolish the pre-payment payment penalty is not in the best interest of the consumers of any state. Show me a state that has abolished them completely, and I’ll show you a state that has hurt its residents to no good purpose. Sometimes there is a good solution to a problem, as I believe I have demonstrated here. It’s just not the first one that springs to mind.

Caveat Emptor

What Does Escrow Do?

This is a question that gets asked a lot.

Escrow is nothing more or less than a neutral third party that stands in the middle of a real estate transaction and makes certain all of the i’s are dotted and t’s are crossed. They make certain that all of the terms of the contract have been met, and then they make certain that everyone who is a party to the transaction gets what is coming to them via the contract.

Many times folks complain about the escrow company or escrow officer, when it’s not their fault and the problem lies elsewhere. The escrow company is obligated to make certain all of the terms of the contract have been followed, not just most of them. I’ve talked before about how if the contract is not accepted exactly as proposed in the most recent modification, you don’t have a deal. There cannot be any points of disagreement, or you don’t have a purchase contract. Similarly for escrow. If it’s not all done in compliance with the contract, the transaction is not ready to close. Usually problems that the client sees are not the escrow officer’s doing, but rather someone else’s. Quite often, the person complaining is the person who caused the problem. The escrow officer can’t do anything without mutual agreement. If the loan officer doesn’t get the loan in a timely fashion, it’s not the escrow officer’s fault. If the agent doesn’t meet the inspector or appraiser so they can get their work done in a timely fashion, it’s not the escrow officer’s fault. If you can’t qualify for the loan, if you have to come up with more money, if you don’t get as much money as you thought, it’s not the escrow officer’s fault. But in many cases, the escrow officer makes a convenient whipping boy for the sins of others.

This is not to say that it’s never the escrow officer’s fault that something goes wrong, but if one party or the other is not in compliance with the terms of the agreement, the only thing the escrow officer can do is get an amended agreement or get them into compliance. Nonetheless, I have seen many transactions fall apart because the escrow officer was a bozo. The really good escrow officers are like chess masters – several moves ahead of the whole game, and when I find one, I want to use them all of the time. Unfortunately for buyer’s agents, the seller is the one with real control over where the escrow transaction goes, and when the seller’s agent decides they want to use some bozo, that’s probably where it’s going. I can do all kinds of things that should move them, but the bottom line is they want to use their broker’s pet escrow (who is more likely to be staffed by bozos than any other escrow company, as they’ve got captive clients), I as the buyer’s agent cannot force them to go elsewhere.

As the escrow process moves forward, the escrow officer collects documentation that the various requirements of the contract have been fulfilled. When they have all been fulfilled, the transaction is ready to close and record.

The loan is usually the last thing left hanging after everything else is done. There are a variety of reasons for this, most obvious of which is that the loan’s conditions are likely to include everything else being done before the loan funds. Appraisal, grant deed, inspection, etcetera and ad nauseum. When the borrower meets underwriter’s guidelines, they go and sign loan documents. Signing loan documents does not mean the loan will fund, and it is a major misapprehension to believe so. It is legitimate to move conditions from prior to docs to prior to funding if doing so serves some interest of the client, such as funding the loan before the rate lock expires. If they go to documents before the client’s income and occupational status have been verified, that’s an unethical lender looking to lock the client into their loan or none at all. Always demand a copy of outstanding conditions to fund the loan before you sign loan documents.

Once the loan documents are signed is when the real fun begins, because that’s when the underwriter takes a step back and the funder steps to the forefront. The loan funder is an employee of the lender who fulfills much the same function as the escrow officer – make sure all of the conditions have been met before they release the money. The loan funder has responsibility only to the lender, though, not the borrower, not the seller, not anyone else. It’s their job to ask such questions as when the homeowner’s insurance got paid (and where is the proof?), has the final Verification of employment been done (assuming they aren’t required to do it themselves), or work out a procedure whereby they get proof that all of this stuff is satisfied before the funds get released. If the loan officer has done their job correctly, the funder is working primarily with the escrow company. If I have to talk to the funder as a loan officer, that’s usually a sign I should have worked a little harder earlier on, because my part should be done before the funder gets involved.

Once all of the conditions to fund the loan and close the transaction have been met, the escrow officer records the transaction. In point of fact, it’s the title company who usually is set up to record the documents, something they will charge for. Until the transaction is recorded, the lender can pull the funds back. It’s not the escrow officer’s fault (in most cases) if they do this. It’s because something about the borrower’s situation changed, and now the lender is unhappy. Only rarely is it caused by a bozo of an escrow officer who doesn’t understand what’s going on, and tells the funder something that causes the lender to get nervous. Remember, they are loaning a lot of money, and the list of reasons why lenders justifiably get nervous is fairly long, especially as a certain percentage of all mortgage applications are fraudulent.

Once the loan is funded and the transaction recorded, the escrow officer has some final stuff to do. Send out the checks to everyone who’s getting one, complete with an accounting of the money. Make certain all charges relating to the transaction are paid, for which they will usually keep a small “pad” for last minute expenses, so that the buyer and seller are likely to see a check a few days later after the escrow officer has made certain everything is paid to the penny. And so ends the transaction, and this article.

Caveat Emptor

Transparency, National Security and Shield Laws

Asymmetric Information has an excellent article on what journalistic ethics are and are not, much to the chagrin of Juan Cole. As I stated a few days ago, I would not make it illegal for the press to publish anything, so long as they’re willing to defend its factuality in court. That they publish a given piece of information may disclose all sorts of moral and ethical failings on their part, and they perhaps should face economic consequences as a result, but should not be subject to legal action for the act of publishing factual information that someone would rather remain private.

The immediate issue raised by Ms. Galt has to do with writings that were supposed to be limited in distribution that were exposed to a far wider audience than intended, but it has much broader applicability. To my mind, it includes everything, includes national security information. Those who divulge classified information to the press should face severe legal consequences, which is one of many reasons I oppose shield laws for journalists or anyone else, but the journalists themselves are doing their jobs. They signed no loyalty oath, promised no secrecy, obtained no security clearance. Indeed, their livelihood is something of the opposite.

And as for national security information itself, better that we know it is compromised and how it was compromised than think it wasn’t. If a journalist could find out about it, it wasn’t as secure as it needed to be, was it?

And if partisans of one political party are willing to spend time in prison to bring things to the light of public scrutiny, that is a valid point in favor of their viewpoint. If they are only willing to betray national security in order to score political points if they can escape the legal consequences, that is an equally big point against them.

The Fallacies of Index Fund Investing

It seems I can’t hardly turn around in the investment world without a paean to Jack Bogle, who preaches the advantage of the index fund.

Mr. Bogle’s reasoning goes something like this: Looking at the world of mutual funds, relatively few funds beat the S&P 500 Index, so why not just buy the whole S&P Index?

This is nothing short of the most successful sales pitch based upon a straw man argument in history.

Index funds are huge. Mr. Bogle’s own original fund is the largest mutual fund, and both of the two largest mutual fund families base their pitches (in large part) upon their large number of Index Funds based upon various indices. That’s how successful the pitch has been.

What Mr. Bogle doesn’t tell you is that Index funds aren’t the Index either.

There’s a bit of Red Herring in the argument also. Index Funds aren’t some ideal investment package that doesn’t have expenses. They may be low (21 basis points per share for the biggest the last time I looked), but they are there. So in an ideal universe, they lose to the index by this amount. Plus they do have the same need managed funds have to hold some cash. Since the market goes up about 72 percent of the time (over the course of historical years), and they lose an amount of gain or loss proportional to their cash holdings, over time they lose more than they gain on this. By comparison, the measurement made of managed funds is after all such inefficiencies.

In other words, the Index Fund sales pitch reduces to “Most of these other finds don’t beat this measurement. Come to us where you’re guaranteed to fall short!” The thrust of their sales pitch is holding themselves out to a a perfect idealization, which in fact they are not.

There are other reasons to avoid Index Funds. The most famous, best known and largest are all built upon the S&P 500 Index. This is a market capitalization based Index. The Fund buys into these companies based upon market capitalization. It should be no surprise to anyone that this means that whatever the largest company in S&P is, it will be several times the size of number 500, so the funds investment in them will be correspondingly weighted, while having zero investment in number 501. This means (because Index funds are such a large portion of the overall market) that Index Funds cause demand for those companies which are a member of this universe to have larger demand than they otherwise would, therefore artificially inflating the share price of those companies somewhat.

Now, one of the reasons people gravitate towards mutual funds is instant diversification of investment. You put in your $1000, and because it’s is in turn invested as a part of a much larger investment pool, you have much more diversification than you would otherwise be able to purchase with that same investment were you to purchase stocks directly. One of the reasons I worked almost exclusively with mutual funds (and mutual fund-like subaccounts) when I was in the business is that if you want to build a diversified direct stock portfolio in an efficient manner (buying whole, as opposed to odd share lots), it takes about $100,000. This is more than most folks are willing or able to invest in a single shot.

But one of the open secrets of the mutual fund industry is that many, if not most, funds are over-diversified. Their holdings are so diluted that when they pick a winner, their shareholders see comparatively little benefit because they’ve made too many bets. When you bet 100% of your money and the stock doubles, you get 100%. When you bet 1/500th of your money and the stock doubles, you get 0.2%. This dilution effect is directly proportionate to the number of investments (bets) they have made, while the benefits of diversification are only proportionate to the square root of the number of investment holdings they have. In other words, the fund with 400 holdings is sixteen times more dilute than the fund with 25, but only four times as protected by diversification. One of my favorite fund families, in which I myself continue to invest for other reasons which outweigh this, had 432 holdings in its growth fund the last time I got a report. That is way too many. Mathematical models have determined that the optimal number of holdings for a fund is in the range of twenty to thirty, getting good protection of diversification while not suffering from over-dilution of good investments. I am becoming, more and more, a fan of “focus” model funds, where the investment managers are forced to be choosy by limiting the overall number of investments to a certain number of securities.

Index funds typically have way too many funds to qualify for this. Of all the major indices, only the Dow Jones ones have a small enough base to be considered as having a near optimal number of components. I just don’t hear about people wanting to invest in those. 20 Transportation? 15 Utilities? They’re derided as sector investments, and not good ones. 30 Industrials still seems to have some cachet, but by comparison with S&P 500 or even the Russell Indices (1000, 2000, and 3000), the amount invested in Dow Industrials is microscopic. Perhaps because it’s not a “true” index, but is selected by the publishers of the Wall Street Journal, theoretically for the components representation of the entire market.

Index funds are not without their benefits, of which their mindless vanilla nature is probably the greatest. If you want an investment you can just make and not watch and not worry about unless the entire asset class tanks, Index funds are fine (S&P is large cap blend). For market-timers, index funds are unmatched, particularly since their cost of putting the investment in and taking it out tends to be low. But I am not a mindless vanilla investor, and for one step up the mental chain, index funds can be beaten by periodic investment class reallocation. Furthermore, I am an investor, not a market-timer. So any time somebody’s recommendations for investing include index funds, I’ll pass those recommendations by.

Caveat Emptor

The Escrow Process and Reasons for Falling Out

There are all sorts of reasons why escrow falls through, but they fall into three main categories. They can best be described as failures of qualification, failures of the property itself, and failures of execution.

Before I get into the main subject matter of the article, I need to define a contingency period. This is a period built into the beginning of the escrow process when one party or the other can walk away without consequences or penalty, usually for a specific reason. For instance, the default on the standard forms here in California is that all offers to purchase are contingent upon the loan for seventeen calendar days after acceptance. If the loan is turned down on the sixteenth day and the buyer notifies the seller that they want out immediately, the seller should allow the deposit to be returned by escrow. If it happened on the nineteenth day, the buyer should be aware that their deposit is likely forfeit. A contingency, just like anything else, is something negotiated as part of the purchase contract. If it’s in the contract, you have one. If it’s not, you don’t, although some states may give buyers certain contingency rights as a matter of law.

Failure to qualify means that something goes astray with the buyer’s quest to acquire necessary financing. They cannot qualify for the loan, they do not qualify within the escrow period under the contract, they allow their loan officer to spin all kinds of fairy tales about what the market is doing or likely to be doing when the plain fact of the matter is that the loan officer just can’t do the loan on the terms they indicated when the poor unsuspecting consumer signed up. Maybe it existed at one time, or maybe they just hoped it would. In any case, it wasn’t locked in and it certainly doesn’t exist now, so rather than pay the difference out of their commission, the loan officer delays and hopes for the market or a miracle to save them. Or they told the consumer about a loan they thought they might be able to qualify them for, only to find out they don’t, and they’re stalling, hoping a better alternative will open up. Fact is, that if a loan officer can’t get the loan done in thirty days, I’ll bet money they can’t do it on the terms stated in the initial documents. Jokers like this are a large part of the reason you should have a back up loan if you can find someone willing. Chances are much better that both loans will be ready to go with a lot fewer games played.

Sometimes it does happen that consumers don’t qualify for the loans due to real problems that just don’t come up until the file is in underwriting. Since this can cause you to lose your deposit, it’s a good idea to ask your loan officer about any potential problems before you make an offer. You know your personal financial situation but you probably don’t know what all of the potential disqualifying issues for a lender. The loan officer should know what the issues are that may cause lenders to have difficulty approving your loan, but they don’t know your history unless you tell them. Many things that underwriting will catch do not necessarily show up on a loan application or credit report, so if you have an unpaid collection, monthly expenses that might not show up, a lien, a dispute in progress, any issues with your source of income, or anything else in your background that you have any questions about whether it could impact your loan, it’s a good idea to ask right upfront, before you get into the process. Sometimes these issues mean that you flat out do not qualify, sometimes they mean that instead of 100 percent financing, you only qualify for 70 percent. Unless you have that extra 30 percent of the purchase price lying around somewhere, the transaction isn’t going to fly, and the sooner you find out, the better. A loan officer who can’t show you a loan commitment with conditions you can meet before the end of the contingency period is not your friend.

The second category of reasons escrow fails are failures of the property. Some defect is disclosed by the inspection process that the owner does not want to correct or is unable to correct, and the buyer decides that the property is not for them under the circumstances. Mold, termite damage, seepage, damage to the foundation, and all of the other usual suspects fall into this category. Title issues are here also, although they usually become unsolvable when they impact the loan. If the seller can’t deliver clear title, the title company won’t insure it, the lender won’t lend the money, and any rational buyer should want to walk away. Why do you want to give someone money when they are likely not legally entitled to sell you the property?

For defects, both structural and title, providing it was discovered within the contingency period, it’s up to the seller to convince the buyer they should still be interested. After the contingency period is over, things are more complicated as there is the possible forfeiture of the deposit to weigh. Good agents that you want to recommend to your friends get out and get the inspections done right away to avoid this issue. Agents that are looking to line their own pocket wait until the contingency period is over before doing so, as this gives the buyer more incentive to stay in the transaction. Let’s say you’ve got a $5000 deposit on the line and seventeen days to remove contingencies, as is the default here in California. Would you rather your agent got an inspector out within a couple of days, or waited three weeks? Keep in mind that you’re going to pay the inspector, but that’s money you’re going to spend regardless. The first possibility means that you find out about potential defects while you can still recover your deposit, while the second possibility means the seller can likely keep that deposit. I know which situation I’d rather be in.

Failures of execution are likely to be because someone messed up. The seller didn’t do this. The buyer didn’t do that. One agent or the other dropped the ball. The escrow officer didn’t do their job. Loan officer failures would be here if loans weren’t a whole category on their own. This category covers all the little details in the purchase contract, each of which has to be met before the escrow officer can close the transaction. These failures may or may not be actionable, in the sense of you being able to hold them responsible for their failure. Many times, the escrow officer is used as a whipping post for the failures of other parties, but some escrow officers do screw up big time. Sometimes it takes an outside expert to dissect things dispassionately in order to figure out what went wrong where and whose fault it was, but outside experts cost money, so most of the time everybody just fades into the sunset pointing fingers at each other, unless there’s some pretty significant cash involved. The transaction is dead and it’s not coming back. Unless there’s a good possibility of recovering enough money to make it worthwhile, let it go.

Caveat Emptor

Timeshares, Pro and Con (mostly Con)

I realized that I hadn’t covered timeshares, and decided it was time.

I suppose I should define what a timeshare is, just in case. A timeshare is a property where you buy the rights to use it for a certain amount of time every year. The most typical time share is a two week period.

Timeshares are attractive to developers because they can get more money for building the same property. You might have a high-rise full of condos where the market price might be $200,000 each. But they can sell each of twenty-six timeshares for maybe $20,000 each. Because it’s not such a big bite, their potential market is far wider, and they can sell to way more people. People are willing to pay more for vacation lodging than regular housing.

Developers also make money off of the financing, and off of the monthly dues for management expenses, which are analogous to association dues in a condominium association, paid to keep the complex maintenance up (and usually maid service, etcetera). Furthermore, since very few lenders want to finance timeshares, the interest rate can be (and usually is) outrageous, not to mention that you should be prepared for severe interest rate sticker shock if you’re financing one somewhere outside the United States. The developer can gouge because most lenders won’t touch timeshares, and it’s not like the buyers are going to do any better elsewhere. Title insurance companies don’t like timeshares either.

Developers love to tell potential buyers that timeshares are an investment, because they are real estate. The fact is that timeshares are like cars – there’s a large initial hit on value, the instant the transaction is final. Nor do they tend to recover. There are at least two websites that specialize in helping you sell your timeshare, because most people figure out within a year or two that they’ve been taken. I don’t deal with them any more than I can avoid, but I have never even heard of someone recovering their investment in a timeshare (except the developer).

Sometimes the time you buy is always the same two weeks in the same unit, but this can very. Quite a few have a yearly drawing among owners of a given unit for the most desirable time frames, and a few even put all units and all owners into the pool. Read the individual sales contract carefully for how this is accomplished. If you have or draw a time that’s unusable to you, most of the same places that will help you sell the timeshare in its entirety will also help you sell or trade your time slot for the year. Nor do folks generally get back their annual cost of the unit by selling their time slot, but it can be a good way to buy a vacation time slot cheap if you are prudent and plan ahead.

Furthermore, of course the timeshare is always in the same place. This is great if you want to return to Honolulu every single year, but not so great if you want to go a different place every year. Many developers tout swap programs, often to swap your slot in such desirable locales as Ultima Thule for one in Tahiti. Not likely to happen, or if it does, likely to require a good deal of cash outlay in the direction of the people who bought in Tahiti.

Additional issues are that maintenance can be problematical. Since no single owner is responsible for the complete upkeep of any given unit, let alone the entire complex, the management is often lax about repairs and preventative maintenance. After all, if they put that new roof off for a year they can just pocket the money. Where even condominium owners have to deal with any problems pretty much every day, timeshare owners are there for a couple of weeks per year.

All of this is not to say that there are no happy timeshare owners. If you are going to go to Las Vegas for two weeks every year and your schedule is flexible enough that you can go no matter what time slot you end up with, more power to you, and a timeshare might be the way to go. If you need to go during the summer months because that’s when the kids are out of school, or if you don’t necessarily want to go there every year, not so much. I’ve never owned one myself, but I understand some nasty fights break out among co-owners for time slots, as well. Most people think the idea of a timeshare in Phoenix is to go there in the winter and play golf while the rest of the country is freezing, not go from perfectly acceptable weather elsewhere on July 4th to a modern day version of the La Brea Tar Pits because the temperature is 125 degrees Fahrenheit where the asphalt melts and people sink in and get trapped.

Caveat Emptor

The Perfect War

(originally written 20 years ago, republished because it’s worth keeping. I do not favor war with Iran)

Another blogger has a wonderful article about the demand for an antiseptically perfect war, with no collateral damage, no casualties (certainly no bystanders), and everything wrapped up in a nice little package before the attention span of the American public, attuned to half-hour television programs, begins to wane.

The first thing I want to ask the people who expect this is: When is the last time you saw a casualty-free game of chess? I used to be fairly good, not a master but good enough to win two class championships. I have never seen a game that didn’t have casualties in the form of pieces taken from the board. For all the chess stuff I used to read, I’ve never heard of one. A so-called Fool’s Mate (The fastest possible end to the game) takes a pawn, in addition to the king. Furthermore, it’s ridiculously easy to guard against, and even attempting it between players above the level of rank novice is considered insulting. Furthermore, stronger players have in their repertoire the ability to take advantage of the fact that their opponent even makes the attempt.

This translates over to real war, as well. Yet there are those that would have us act as if our opponents were rank novices, and act as if not doing so is obviously stupid and unreasonable. Karl von Clausewitz, whose 1832 manuscript “On War” has one of the defining quotes of warfare in general: “War is very simple, but in War the simplest things become very difficult.”

War is not a chessboard. Real War, particularly the war we find ourselves in at the moment, is nothing like a chessboard, and yet there are principles that translate. There are at least two participants who are doing their absolute best to inflict defeat on the other. The board does not stand still; you need to figure out what your opponent is going to do while you’re doing what you intend to them. You need to frustrate your opponent’s designs at the same time carrying out your own. Opportunity is where it happens or where you make it. And there is no such thing as the Perfect Game or the Perfect War outside of the realm of fantasy.

When you assume your opponent is incompetent, you lay yourself open to serious losses when they prove you wrong. Indeed, this itself is a strong indicator of incompetence, and Arminius is one of the earliest recorded leaders to take such advantage of a lazy, incompetent opponent who thought he could never be seriously challenged, although he’s hardly the only one.

Our opponents the Islamists are not incompetent. Militarily, they cannot match our soldiers, but the evidence is overwhelming that at least their upper echelons are well aware of this. Economically, they cannot hope to match us in the logistical support we give our soldiers. Wars are fought with money and supply lines as much as with bullets and men; indeed history records examples from Pyrrhus of Epirus and Hannibal Barca forward where the men of one side outfought the other, but that side lost the war anyway.

But the most important leg upon which a war effort is founded is the will to resist, as we rediscovered in Vietnam. Our soldiers outfought the communists, our economy out-supplied the communists, but our people lacked the will to carry through to victory, and so we suffered an ignominious defeat whose consequences we are still suffering today. I’ve mentioned this before, but Sun Tzu’s words from 2500 years ago never stop being true: “Supreme excellence consists in breaking the enemy’s resistance without fighting.” Will to fight is the all-important consideration in war. You can have the best soldiers, the best equipment, the most ammunition, the best leadership, the best strategy, and everything else.

But if you haven’t got the will to use them, you shouldn’t have bothered. You’ve wasted your time, your money, and your effort to procure them.

Now, there will be those reading this who will say, “That’s precisely my point!” because they want the money it took to produce and use these things spent elsewhere. They don’t want us to ever use our military, many do not even want us to have one. They want the resources used elsewhere, so they fight their use in military applications. This is a political self-fulfilling prophecy, and their will not to fight is the closest thing to an insurmountable barrier we face in this war. They have, from the beginning of this war, been doing their best to wear down our will to fight from within. Going back to the first principles from The Art of War, they are doing everything they can to break our resistance from the inside. “Showing the 9/11 images is upsetting,” and so they don’t get played in the media or emphasized as needed by our government. Do you think Roosevelt, George Marshall, or our media of the 1940s allowed our grandparents to forget about Pearl Harbor? Not on your life. The reminders were all over the place until well after VJ day.

The argument the anti-war crowd is making most consistently is “Our leaders have made mistakes!” Now, if you’ve studied military, political, or mercantile trade history in any depth, you know this is about the same as saying “water is wet”. Mistakes are going to happen in any war. It is endemic to any situation where you have an active intelligence planning against you, and war is certainly that. It’s like saying “fire is hot,” because the inevitable consequence is some people are going to get burned. It is one of the strongest reasons to avoid war; war is nonetheless sometimes the least harmful course – provided you have the will and make the effort necessary to win. But there is no such thing as a Perfect War. We often hear cheerleading about World War II, but the fact is that FDR and George Marshall didn’t have to deal with a hostile media and anti-war organizations doing their best to tear down the plans the whole war, not to mention opportunistic political opponents willing to do anything for power or the hope of power. Indeed, the Republican candidate for president in 1944 pointedly refused to criticize the war effort despite such spectacular mistakes as putting off the invasion of France in favor of the Italian campaign that wasted a year and tens of thousands of lives. Churchill’s “soft underbelly of Europe” was anything but. Whereas it may have looked to the politicians an easier target, the generals knew better but obeyed their political masters (Our troops were still fighting in Italy when Germany surrendered). Indeed, although our domestic oppostion to the war is horrified by the idea of slavery, their intellectual tradition dates back to the Copperheads of 1864, who would have made peace with the Confederacy on generous terms, allowing slavery to continue with no definite end in sight.

More Sun Tzu: “The best warfare strategy is to attack the enemy’s plans, next is to attack alliances, next is to attack the army, and the worst is to attack a walled city.” Well, walled cities are different than they were in Sun Tzu’s day, but that does not effect the validity of his point. The most elementary, bottom level plan of any war has to be to stay in and keep fighting until the enemy gives up. If you cannot do that, you might as well not start, and indeed, you shouldn’t start. It doesn’t matter if you’re leading the marathon, ten miles ahead of the next runner. If you give up and walk off the course with five meters to go, you didn’t win and you didn’t finish. Everyone who simply didn’t give up will beat you. You are a loser.

“But you’re missing the point!” some of you will say, “We shouldn’t have been in this war at all!”

To which I respond: No, you have missed the point. The time to make that argument was before the war began. Even if you said so then, the decision has been made, and it went against you. The decision you have to make now is whether it is more important that the United States and its allies prevail, or that the other side do so. There is no “We didn’t mean it!” in war. The notion of our leaders being out of control warmongers is pure wishful thinking on behalf of their political opponents. Nor will we be able to escape the consequences of losing if we quit. This is realpolitik. There is an idea that the United States has not got the willpower for a sustained war effort, and never will. There is significant evidence that it is true, and every time we quit the battlefield we have won while our opponents have not yet given up, we bolster every future would-be opponent. If you’re playing a baseball team that walks off the field in the fourth – or eighth – inning of every game, you know you’ll win every game by forfeit. The idea carries over into realpolitick. If our opponents know we will quit before the end, they will know that anyone can beat us. Given that knowledge, there is no reason for the dictators of the world, religious or otherwise, not to do so. They don’t care how bad things might get for their people for a while, they don’t care about how many of their people die, they only need to know that they’ll win in the end, and they will fight. Unlike a liberal democracy with all of our rights, they can make their domestic opposition disappear.

The time to discuss whether we will fight has now passed. Like it or not (and I don’t), we are at war, and the options are whether we win or the Islamists do. Nor is this a war of aggression on our part, as so many have attempted to paint it. The Islamists have told us exactly what they intend doing to us, and acted in a manner entirely consistent with their stated intentions. Every so often they or some of their apologists mouth some words to the effect of “nice doggie!” because diplomacy is the art of saying “nice doggie!” until you find a big enough stick and they seem to be fresh out of sticks at the moment. But those words are for the accommodationists and appeasers within our own ranks; among themselves, when they think the West is not listening, they are brutally frank about their intentions and plans, and you can find the reports on the internet pretty easily if you look. And they will find more and bigger sticks if we only let them.

Once you begin a war, you are in it until the end. You can realize this and attempt to make it a happy ending for civilization, or you can look for the nearest exit and face consequences orders of magnitude worse than sticking it through. Korea, although a draw on the battlefield, was a strategic victory in that it taught the communists that they could fight the west with peasant soldiers on a modern battlefield, and planted the first seeds that we were not mentally capable of a long war. Vietnam, where we won on the battlefields but left the job unfinished and our allies unsupported, gave communism a boost where it would otherwise have fallen apart years earlier than it did. Without the morale boost from Vietnam that gave them the successes in Africa, Central America, and elsewhere, communism would have rotted from within significantly earlier.

The Islamists cannot match our troops, our training, our economy that supports those troops. But they have other weapons at their disposal, weapons that we deny ourselves. They are willing to brutally murder non-combatants. They are willing to abuse the civilized covenants of sanctuary for non-combatants. Most importantly, they have learned from the successes of the communists in fighting us. They know there is an element within our society that “refuses under any circumstance to fight for King and Country” (they haven’t changed), and indeed, will do their best to break our will to resist from within. The Islamists are doing their best to encourage this group, by the way, as for instance Saddam Hussein’s cultivation of “Red Ken” Livingstone, among many other activities, illustrates. They know that every time there are casualties, of whatever number or nature, this segment of our society will seize upon it anew as proof that we shouldn’t have gone to war, misinterpreting as evidence of faulty planning.

This claim is nonsense. In fact, it’s not only blind stupidity, it’s suicidal blind stupidity. Yes, people die in war. They get hurt, crippled, maimed for life. I’m trying to keep the language here civil, so I cannot begin to adequately convey how bad this is. The alternative is far worse. If our opponents know we have no stomach for any casualties, they will inflict them upon us at every opportunity to force us to retreat lest we have more casualties. This is simple application of the principle of breaking the will to resist. If any would-be opponent knows how to break our will to resist, we will become a nation that can win no wars. If we can win no wars, potential opponents will make certain we fight, or actually, don’t fight, more and more of them. History has not been kind to nations that could not fight or could not win wars. They don’t last very long.

Those members of our military who have volunteered to stand in the front lines of our defense know that a certain number of them are not going to come back. They are willing to undertake those risks in order to guard us all. But that it does guard us all is necessary to the equation. If the equation becomes “As soon as a few of you get knocked off, we’ll quit!” they won’t volunteer in the first place. It defeats the entire purpose of their volunteering. Instead, those so inclined will go find some other civilization to guard, as ours will be doomed.

FSBO Horror and Failure to Disclose Property Defects

I keep getting search result hits for the string “fsbo horror.” It’s an amalgamation because I haven’t done any postings on this specific subject.

Both buyers and sellers have problems relating to For Sale By Owner issues.

For sellers, the largest issue seems to be properly disclosing all relevant items to satisfy the liability issue. There are resources available, but the question is whether the you took proper advantage of them and made all the legally required disclosures on any issue with the property there may be. If you have an agent that fails to do this, you can sue them. If you are doing it yourself, the only one responsible is you. You are claiming to be capable of doing just as good a job as the professional, and if you didn’t do it right, the buyer is going to come after you.

Now I’m going to leave the marketing and pricing questions out of the equation, because with a For Sale By Owner most folks should understand that in return for not paying a professional to help you, you’ve got to do it yourself. What many For Sale By Owner folks seem to fail to understand, however, is that if you haven’t met legal requirements, the real nightmare may be just beginning when the property sells.

Let’s say it was something fairly innocuous, like seeping water from a slow leak you didn’t know about. A couple years pass, and now there’s mold or settling. Perhaps the foundation cracks as a result of settling. Bills are thousands to hundreds of thousands of dollars. Your buyer goes back and finds that your water usage went up by fifteen percent in the six months before the sale. He sues, saying that even though you didn’t know, you should have known based upon this evidence. Court cases are decided based upon evidence like this every day. A good lawyer paints you as maliciously selling the property as a result of this. Liability: Steep, to say the least.

Now, let’s look at it from a buyer’s prospective. You have a choice of two identical properties. In one, a seller is acting for themselves, in the other, they have an agent. The price may be a little cheaper on the for sale by owner one, or it may not. One of the reasons people do for sale by owner is they are greedy. But when I’m looking at a for sale by owner, the question that crosses my mind is “Are they rationally greedy, or are they just greedy?” Are they going to disclose everything wrong or that may be an issue with the property? At least here in California, the agent has pretty strong motivation to disclose if something is wrong that they know about. If they don’t, they can lose their license, and even if they don’t, they have potentially unlimited personal liability. If they did disclose, they’re probably off the hook, and even if they aren’t, their insurance will pay for the lawyers, the courts, and any liability. If there’s one thing all long term agents get religion about, no matter their denomination, it’s asking all of the disclosure questions.

This is not the case for many owners selling their own property. Some are every bit as good and conscientious as any agent. A good proportion, however, are intentionally concealing something about the property. What’s going to happen when it comes to light? If there’s an agent, there’s a license number, a brokerage who was responsible for them, and insurance. The latter two are deep pockets targets for your suit, and you can find them. Once that owner gets the check, you can find them unless they’re dead, but they may not have any money. Even if they do have money, it may be locked up and inaccessible via Homestead or any number of other potential reasons.

One of the reasons that I, as a buyer’s agent, am always leery of a for sale by owner property is that I have to figure that first off, there’s a larger than normal chance that this property has something wrong that’s not properly disclosed. When that happens, my client is going to be unhappy. When my client is unhappy, they are going to sue. The first target is the seller, but if they’re gone or broke, who does my erstwhile client come after? Me. So I have to figure that not only is there a larger chance of there being something wrong, I have to figure there is a larger chance of me being held responsible for something I took every step I legally could to avoid. For Sale By Owner properties usually have to be priced significantly under the market in order to persuade me that not only am I doing the right thing by my clients in trying to sell them this property, where my clients have to pay my buyer’s agent fee out of their pockets rather than out of the selling agent’s commission, but also that the heightened risk of future problems is worth more than the price differential to my clients. Unless the answer is a strong solid “yes” that I can document in court if I have to, I’m going to pass it by in favor of the agent-listed property next door or down the street.

Caveat Emptor (and Vendor)