Pat Kapowich Market Wise Q & A

Excerpted from the San Jose Mercury News, SJMN

Market Wise Column

Saturday, November 1, 2008

Pat Kapowich for SJMN’s Market Wise Column

Q: We are canceling a sale with a “For Sale By Owner” seller who refuses to return our fairly large deposit. The adult children of the convalescent parent are claiming the contingency period has elapsed and therefore they are entitled to the deposit. We used a regular real estate contract and the sellers had a real estate attorney draft a counter-offer, which we all signed. We recently consulted a real estate attorney about canceling the sale and he agreed with the sellers. However, since then, our daughter s real estate agent informed us that we should have received certain disclosures which we don t think we did. Today, we received a form from the seller s escrow company that releases the deposit to the sellers. Now what?

A: Don t sign anything until you have consulted a good residential real estate attorney. It sounds like both attorneys you mentioned are geared toward commercial real estate, where legitimately keeping a buyer s deposit can be the norm, not the exception. It sounds like you did not put pen to paper and remove contingencies based on the seller s mandated and contractual disclosures. These For-Sale-By- Owners and their commercially slanted attorney most likely not only missed how to properly address contingencies but also did not follow the contract s time frames and/or disclosure requirements.

It s also safe to say your contract is an outdated copywritten trade association form, which you received from an inactive agent. For-Sale-By-Owners often leave loopholes large enough to drive a buyer s moving truck through. In all fairness, many sellers agents leave loopholes that are big enough for buyers to successfully retrieve their deposit while the seller s moving van is idling outside.

Call your local residential association of Realtors for their preferred list of real estate attorneys. One well-crafted letter citing the mistakes of the sale so far will more than likely result in the prompt return of your deposit. There is only one exception to this common scenario; these sellers won t get to turn around and demand the lost deposit from their listing agency.

Pat Kapowich, SiliconValleyBroker.com, owns Kapowich Real Estate in Sunnyvale. Send questions to pat@siliconvalleybroker.com.

by Pat Kapowich

Excerpted from the San Jose Mercury News, SJMN

Market Wise Column
Saturday, March 1, 2008

Q: We are thinking about making an offer on a property, The seller’s agent is
insisting we make the offer through him because we attended his open
house. Can he do that? We are not comfortable with using the same agent.
Will we lose out on the home if we hire our own broker?

A: Don’t worry, I’m sure the agent would be glad to see an offer presented to
his sellers, no matter who is handling the buyer. You are wise to seek
your own professional. Dual-agency exists anytime the same real estate
brokerage firm is representing both the buyer and the seller. Unfortunately,
while the licensee is acting in such a transaction might be striving for twice
the compensation, done correctly, dual-agency is three times the work, four
time the responsibility, and five times the liability.

These transactions can easily produce a regretful seller, or, more likely, a
remorseful buyer. There is nothing more foolhardy than a seller promoting a
dual-agency situation, hoping to save commission dollars. Most brokers
don’t know the ins and outs of properly operating as a dual-agent. Keep in
mind, too that unhappy buyers are apt to file claims, which usually include
naming their agent. It’s problematic (expensive) when it’s the seller’s agent who
purportedly failed the buyer.

by Pat Kapowich

Excerpted from the San Jose Mercury News, SJMN

Market Wise Column
Saturday, March 1, 2008

Do you have any questions for the new real estate Q&A Market Wise column in the SJMN? If so, please email them to: Pat@SiliconValleyBroker.com

Q ~ We are in the middle of purchasing a home and out agent is of
little or no help. Can we fire him at this point? If so, will it
jeopardize the sale?

A ~ Complain to the managing broker, who will intervene or appoint
another licensee to complete the transaction. Other wise, you might
muddle through only to later discover expensive ramifications due to
consistently spot issues, investigate, discuss and advise.

by Pat Kapowich, Broker/Owner
Excerpted from the San Jose Mercury News, SJMN

Market Wise Column
Saturday, February 9, 2008

Do you have any questions for the new real estate Q&A Market Wise column in the SJMN? If so, please email them to: info@SiliconValleyBroker.com

Q ~ When the real estate market was hot, properties had disclosure
packages and pictures online. Now that the market has cooled,
many listings have few or no pictures and inspections.
What happened??

A ~ Counter-intuitive, isn’t it? One would think that if sellers and/or
their licensee engaged in the process of selling a home, they
would bring everything to bear in order to make that sale happen.
Not so in this cooler market. Many sellers and their reps seem to
start with the attitude that the home might not sell at all.
Unfortunately, the sellers who could “save” hundreds of dollars in
inspections often wind up repeatedly reducing their list price
by the thousands. These sellers actually help the competing
fully-inspected homes sell first, for top dollar.

Seller inspections promote a sale, limit surprises and expensive
renegotiations, thus keeping the transaction together while avoiding
the likelihood of subsequent litigation.

Also, such short-sighted sellers usually hire licensees who won’t
be posting pictures, virtual tours or disclosure packages on the
internet. It’s not unusual for these licensees to then “work” open
houses repeatedly until their listing agreement period expires,
only to claim later, “I knew that property wouldn’t sell.”

by Pat Kapowich, Broker/Owner
Excerpted from the San Jose Mercury News, SJMN

Market Wise Column
Saturday, February 9, 2008

Do you have a question for the new real estate Q&A Market Wise column in the SJMN? If so, please email them to: info@SiliconValleyBroker.com

Q ~ We sold our house in August 1998. Before the sale, an inspection
of the bathroom floor revealed some water damage. The inspector
did not find structural damage. We replace the vinyl and wood under
the floor. Later the inspector cleared the bathroom and the buyer
signed off on it. In June this year, the buyer returned and said the
work was unsatisfactory. He wants us to pay for additional work.
Should we?

A ~ If you completed the work, the termite company only states the
home is free of infestation and will not warranty any of the workmanship
or materials. Your contract should hold your answer. Did the contract
have a repair clause? If so, did it say all the work must be completed by
a licensed contractor, using good materials, workmanship, building codes
and permits? Did the buyer have a right to inspect the work and approve
the completed results? Home sellers often try to save money on repairs
that often come back to haunt them. More than 90 percent of real estate
disputes involve buyers going after sellers in a case similiar to your own.
Let your contract be your guide.

by Pat Kapowich</span>, Broker/Owner
Excerpted from the San Jose Mercury News, SJMN

Real Estate Virtual Forum
Saturday, September 18, 1999

Do you have a question for the new real estate Q&A Market Wise column in the SJMN? If so, please email them to: info@SiliconValleyBroker.com

Q: We have many friends and relatives who are licensed real estate agents. However, I feel if we go with one agent the others will feel hurt. My father-in-law always says, “It’s not a good idea to do business with friends and family.” The agent who originally sold us our home is retired. What’s the best protocol in our situation?

A: Good for you to think through this common issue. Most don’t. Big mistake. Clients need to make good decisions in a timely fashion. That’s only accomplished by speaking freely, handling unforeseen issues as they arise (classic real estate), all the while negotiating with others of opposing goals. Consumers shouldn’t hire friends to be their agents, or hire agents to be their friends.

Tough conversations can take place on a moment’s notice - you need to be able to engage in unencumbered talks for your sale to move forward successfully. Conversely, if you and your bowling buddy/rep tiptoe and hint around issues, it will turn out to be an expensive comedy.

by Pat Kapowich SiliconValleyBroker.com, owns Kapowich
Real Estate in Sunnyvale. E-mail questions to him at
pat@siliconvalleybroker.com

Excerpted from the San Jose Mercury News, SJMN

Market Wise Column
Saturday, October 4th