Whether chains are rattling, the floor is shaking or there is simply the knowledge that an evil deed was committed on the premises, you could possibly be dealing with a haunted house, or a "stigmatized property" sale. 

Since liability issues on these types of transactions vary from state to state - what is the guiding principal for selling a haunted house? 

In 1991, a case in New York provided some legal precedent on the matter. 

Stambovsky v. Ackley

The owner of a house, Helen Ackley had reported the existence of numerous poltergeists in her home and had, in fact, publicized these occurrences in Reader's Digest and a local newspaper on three occasions. As a result, the home was placed in a five-home walking tour in the city and received an enormous amount of publicity.  She even referred to the home in a article as a "Riverfront Victorian with ghosts." 

Some of the interactions Ms. Ackley described to reporters included ghosts waking her each morning by shaking her bed.  When spring break arrived she loudly proclaimed to the spirits that she did not have to wake up early anymore.  On this, she insisted that they listened to her requests and the bed immediately ceased all shaking.  

Despite the local notoriety, an unknowing buyer, Jeffrey Stambovsky signed a contract to purchase the home. On an agreed upon price of $650,000 he made a $32,500 down payment.  Since Mr. Stambovsky was not from the area he claimed to have ignorance of the widely known haunting tales. 

When the buyer subsequently learned of the haunting stories, he filed for a request of the rescission of his contract for the sale and also sued for damages citing fraudulent misrepresentation on the part of Ackley as well as the Realtor®. 

In ruling on this case, the court stated that since the existence of ghosts in the home had been widely reported, as a matter of law, the house was haunted. 

However, the court dismissed the fraudulent misrepresentation action and stated that the Realtor® had been under no obligation to disclose the haunting to any potential buyers. The court affirmed that the law of caveat emptor (let the buyer beware) applied in this case so the buyer did not prevail. 

Mr. Stambovsky subsequently appealed the case and won a reversal. 

On appeal, the court stated that a "haunting" was not a condition that a buyer could fairly be able to ascertain  through even the most thorough of home inspections.  In this case, "the most meticulous inspection would not reveal the presence of poltergeists at the premises or unearth the property's ghoulish reputation in the community."

It further stated that the seller had taken unfair advantage of the buyer's ignorance.  Since she had taken it upon herself to inform the community at large of numerous spirits roaming rampantly throughout the home, she owed no less to her perspective buyer. 

The judge then rendered a somewhat entertaining opinion using the following phrases:  

"In his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance," I am moved by the spirit of equity," "In this instance - who you gonna call?" and "The notion that a haunting is a condition which can and should be ascertained upon inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and quietly laid to rest." 

I have no knowledge of whether or not the parties in question had any appreciation of the judge's sense of humor. 

However, Mr. Stambovsky was finally let out of the deal and had his deposit fully refunded. 

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These 10 Commandments home buyers must follow may seem like common sense to many. Buyers, however, can sometimes forget with all the excitement surrounding the buying of their new home. In the past couple of weeks, I have heard of two separate buyers who saw their home loan turned down, and their dream shattered, a few days before closing because they had bought furniture for their new home before it actually became their home. Both of them now have beautiful furniture with no home to put them in.

These two buyers were not my clients but it always hurts when I hear of transactions falling apart for reasons that could have been avoided. These 10 commandments are part of the buyer packet I give all my clients when we first meet and I always stress that once they get pre-approved and the process is started, they can't do anything that might affect their credit.

1. Thou shalt not change jobs, become self-employed or quit your job.

2. Thou shalt not buy a car, truck or van (or you may be living in it)!

3. Thou shalt not use credit cards excessively or let your accounts fall behind.

4. Thou shalt not spend money you have set aside for closing.

5. Thou shalt not omit debts or liabilities from your loan application.

6. Thou shalt not buy furniture.

7. Thou shalt not originate any inquiries into your credit.

8. Thou shalt not make large deposits without first checking with your loan officer.

9. Thou shalt not change bank accounts.

10. Thou shalt not co-sign a loan for anyone.

If you are in the process of buying a home, remember that your credit must not change or be affected in any way until you actually sign the paperwork and get possession of your new home. Lenders will not only look into your credit when you first get pre-approved, they will check it again (and sometimes again and again) before they let you sign the mortgage. If you want to buy new furniture for your home or change jobs, just be patient. There will always be time to do it after the closing.

Property Flipping guidelines extended by FHA , until May 2010!  What does this mean and who does this affect?

What is property flipping?  

No .......it's not flipping your home with another couple as seen in trading spaces on  TLC!

                                                        

FHA GUIDELINES STATE THE FOLLOWING:  

Property flipping is a practice whereby a recently acquired property is resold, often for a considerable profit.

Most property flipping occurs within days or a few weeks of acquisition and usually with only minor cosmetic improvements, if any.

While there is nothing illegal with selling properties within days of acquisition, some of these transactions are fraudulent because the condition of the property is misrepresented and/or the value of it is artificially inflated.

Effective June 9, 2008, FHA temporarily waived the property flipping rule 90-day waiting period, for homes that were foreclosed on and being sold by lenders or by property disposition firms on the behalf of lenders.  

So if you have a property that was purchased by an individual investor,  or investment group, you must must wait 90 days to DO ANYTHING!  We can not order an appraisal or case #, we can't open escrow, order title or apply for the mortgage. You can't even draw up the contract, or do inspections or the buyer will be in jeopardy of losing their deposit. There basically can be no record of any sale during that 90 day timeframe.  

This has become an issue in recent months because of the lack of knowledge of the guidelines along with the anxiousness of all parties involved.   Day 91 is when it can all begin unless the exceptions apply.

We CAN however, apply for the mortgage with a property  "to be determined "and get the buyer PRE-APPROVED. 

 

So keep this in mind when you are putting your deal together and expecting your lender to jump through hoops on day 91 and close in two weeks!

                                          

 

  

The waiver applies to owner occupants only and does not apply to people/entities that purchase foreclosures either singly or in bulk for resale. Subsequent sales of such properties will continue to be subject to the standard regulatory requirements.

 

The temporary property flipping waiver has been extended and FHA will recognize sales agreements on foreclosed properties signed by the seller and buyer on or before May 10, 2010.

 

             Do you want more BORING                      but pertinent facts you MUST know if you encounter a flip     ????

 

The only exceptions to the FHA property flipping rule are:

1. Properties acquired by an employer or relocation agency in connection with the relocation of an employee.
2. Re-sales by HUD under its Real Estate Owned (REO) program.  There are LOTS out there! And most homes can benefit from an FHA 203k streamline loan!

3. Sales by other United States Government agencies of single family properties pursuant to programs operated by these agencies.

4. HUD REO properties that were purchased by nonprofits at a discount with resale restrictions.

5. Sales of properties that are acquired by the seller through inheritance.

6. Sales of properties by state and federally-chartered financial institutions and government sponsored enterprises.

7. Sales of properties by local and state government agencies.

8. Sales of properties within Presidentially Declared Disaster Areas.

9. The restrictions do not apply to a builder selling a newly built home or building a home for a borrower.

10. The sale must be by the owner of record.

11. Appraisers are required to analyze any prior sales of a subject property in the previous three years for one to four family residential properties.

12. A lender must obtain a second appraisal by another appraiser if:
the re-sale date of a property is between 91 and 180 days following the acquisition of the property by the seller, and
the resale price is 100 percent or more over the price paid by the seller when the property was acquired
FHA reserves the right to require additional documentation from a lender to support the resale value of a property if:
the resale date is more than 90 days after the date of acquisition by the seller, but before the end of the twelfth month following the date of acquisition, and the resale price is 5 percent or greater than the lowest sale price of the property during the preceding 12 months.

Any subsequent re-sales of the properties must meet the 90 day threshold in order for the mortgage to be eligible as security for FHA insurance.

 

So remember to do your research!  We are the professionals and it is our job to know this information for our consumers.  We will save time, money and problems if we know this up front.

Happy Selling, buying and financing peeps!

 

                                    

 

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Originally posted on the Massachusetts Real Estate Law Blog

Breaking News: 10/1/09–The FHA Has Delayed Implementation Of New Rules Until November 2, 2009 To Coincide With Expiration of First Time Home Buyer $8,000 Tax Credit

Under revised guidelines which were to be effective October 1, 2009 but now delayed until November 2, 2009, the Federal Housing Administration (FHA) is implementing a new stricter approval process for condominiums to be eligible for FHA financing. Like the Fannie Mae regulations issued earlier in the year, the new FHA guidelines will surely slow down condominium mortgage financing, and negatively impact first time home buyers for condominium units.

For those who don’t know, FHA is a government program designed to help more people buy homes, and more borrowers will qualify with FHA financing than with conventional. It is a low down payment (3.5% down) program and the credit standards are much looser. The mortgage rates are typically better, as well.

To obtain a FHA mortgage on a condominium, the project must be FHA approved. Prior to these changes, there were two ways a condominium could be FHA approved: (1) full project approval, and (2) “spot” approval. Full project approval means that FHA has already done the approval on the entire condominium. Spot approvals were performed on non-FHA approved projects on a loan by loan basis, and were a way to make FHA loans available to home buyers in well run condo projects even if they haven’t gone through the full approval process.

No More Spot Approvals

Under the new guidelines, the popular spot approval process will no longer be available and will be replaced with something called a Direct Endorsement Lender Review and Approval Process (DELRA). FHA claims the DELRA process is more uniform and streamlined that the former spot loan approval process. Also, full project approvals expire every two years, so condominiums will have to re-certify every 2 years.

New Project Eligibility Guidelines

Under the new project eligibility requirements, all condominiums (consisting of 2 or more units) must meet the following requirements:

• At least 50% of the units of a project must be owner-occupied or sold to owners who intend to occupy the units. For proposed, under construction or projects still in their initial marketing phase, FHA will allow a minimum owner occupancy amount equal to 50 % of the number of presold units (the minimum presale requirement of 50 percent still applies).
• Projects must be covered by hazard and liability insurance and, when applicable, flood insurance.
• At least 50% of the total units must be sold prior to endorsement of any mortgage on a unit. Valid presales include an executed sales agreement and evidence that a lender is willing to make the loan.
• No more than 15% of the total units can be in arrears (more than 30 days past due) of their condominium association fee payment.
• No more than 25% of the property’s total floor area in a project can be used for commercial purposes.  The commercial portion of the project must be of a nature that is homogeneous with residential use, which is free of adverse conditions to the occupants of the individual condominium units.
• Reserve Study - a current reserve study must be performed to assure that adequate funds are available for the funding of capital expenditures and maintenance. A current reserve study must be no more than 12 months old – if recent events or market conditions have affected the finished condition of the property that information must be included. When reviewing the reserve study, consideration must be given to items that have been replaced after the time that the reserve study was completed. The regulations don't definition of what is "adequate," however. Guidance may be found in the new Fannie Mae guidelines which mandate at least 10% of annual operating budget in reserves.
• No more than 10% of the units may be owned by one investor.  This will apply to developers/builders that subsequently rent vacant and unsold units.  For two and three unit condominium projects, no single entity may own more than one unit within the project; all units, common elements, and facilities within the project must be 100% complete; and only one unit can be conveyed to non-owner occupants.
• Rights of first refusal are permitted unless they violate discriminatory conduct under the Fair Housing Act.

Buried in the fine print is a requirement for an affirmative action-type housing plan. For both new construction and conversions, if the developer intends to market 5 or more units within the next 12 months with FHA mortgage insurance (that would be most), an Affirmative Fair Housing Marketing Plan (AFHMP) or a Voluntary Affirmative Marketing Agreement (VAMA) must be in place. An affirmative fair housing marketing plan requires that the racial, socioeconomic, and ethnic composition of the condominium residents closely mirror that of the neighboring area, to the greatest extent possible. Most new condominiums don’t have these in place.

Click here for the new FHA condominium guidelines. You can look to see whether a condominium is approved on the HUD Homes & Communities website located here. Here is the FHA Condominium Mortgage webpage.

The Impact: More Work For Lenders, Condominium Associations/Managers And Attorneys

I expect FHA lenders will approach condominium association boards and managers, asking for certain information, certifications, and even legal opinions regarding compliance with FHA (and Fannie Mae) legal requirements. If a condominium is not on the FHA-approved list, or has lost its approval, condominium associations should consider applying for approval (or re-approval). Reportedly, FHA/HUD is backlogged a month or more in reviewing submitted applications. Thus, should your condominium need to be submitted for approval, keep in mind the process may take some time. Also keep in mind that the work to compile and complete the application package itself can take weeks, and require the board, its manager, and legal counsel to gather data, documents, and expert opinions required for FHA approval. The package of materials that must be submitted can vary from condominium to condominium, and often requires an updated reserve study and certain legal opinions.

Having issued numerous opinion letters and certifications under the similar Fannie Mae condominium regulations, our office is well equipped to assist lenders and buyers with FHA loan compliance issues. Contact rvetstein@vetsteinlawgroup.com for more information.