Monthly Archives: March 2016

Tips For HOME SELLERS

Liquated Damages Clause Can BE Valuable, But May Be misunderstood

Is a liquidated damages clause a good thing to have in a real estate contract? If so, for whom is it good? The buyer? The seller? Both? Like so many questions in real estate, and life in general, the first answer to such questions is, “It depends.” Before we get into that, though, a word about what a liquidated damages clause is.

A liquidated damages clause sets in advance — at the time of contract formation — what the monetary value of damages shall be in the event of contract breach by one of the parties. Often, a liquidated damages clause (actually, a paragraph or section) will include a recitation that the parties are agreeing ahead of time, because it would likely be difficult to determine the actual damages should a breach occur. But such a statement is not necessary.

A liquidated damages clause could be directed toward both parties. For example, “If either of us fails to perform, he will owe the other $10,000.” But it need not do so. Commonly, a liquidated damages clause will be directed towards only one. E.G., “If the commercial landlord doesn’t deliver the property within fifteen days of the date promised, he will owe the tenant $10,000.”

The standard residential purchase contract produced by the California Association of REALTORS®(CAR) contains a liquidated damages clause. It says this:

“If Buyers fails to complete this purchase because of Buyer’s default, Seller shall retain, as liquidated damages, the deposit actually paid. If the Property is a dwelling with no more than four units, one of which Buyer intends to occupy, then the amount retained shall be no more than 3% of the purchase price. Any excess shall be returned to Buyer. Release of funds will require mutual, Signed release instructions from both Buyer and Seller, judicial decision or arbitration award…”

Three items are worth noting: (i) This provision is asymmetrical. That is, it burdens only one party, the buyer. It does not provide for any preset damages should the seller breach. (Presumably, a seller breach could lead to a suit for performance.) (ii) It is limited. For residential properties of less than five units, one of which will be occupied by the buyer, the amount cannot be more than 3% of the purchase price. This has been set by legislation (Civil Code 1675). (iii) Payment of the damages would still require the agreement (by signatures) of both parties. That is because there has to be agreement that there has been a breach. Otherwise, a judicial or arbitration conclusion will have to be reached.

Signing (or initialing) a liquidated damages clause is optional. Although it is preprinted into the CAR purchase agreement, it will only apply if both parties so indicate. This is where problems, based on misunderstanding, may arise.

Commonly, when encountering a liquidated damages clause, a principal is liable to ask, “What does this mean?” It would not be unusual for an agent to say something like, “This means that if the buyer breaches, the seller gets to keep the deposit.” That, unfortunately, does not go far enough in explanation for many sellers. They need to know that it means that, in the event of breach, they would be entitled to no more than the deposit (or no more than 3% of the purchase price, if the deposit is larger than that). Often, when buyers have breached a contract, the seller feels wounded and entitled to more than the deposit. If a liquidated damages clause is in effect, that will not be an outcome.

Let us consider some possibilities. Say the purchase price of a single family home intended for owner occupancy is $300,000. The liquidated damages limit is 3% of the purchase price — $9,000. Suppose the CAR liquidated damages provision has been signed and that the buyer subsequently breaches.

(a) The deposit is $5,000. The seller has a right to the $5,000; but not to pursue the buyer for the additional $4,000. Liquidated damages is limited to the amount of deposit actually paid.

(b) The deposit is $15,000. The seller is entitled only to $9,000, the statutory limit.

(c) The original deposit is $5,000, but it had subsequently been increased by another $5,000.

     (i) If the increased deposit was accompanied by a separate liquidated damages provision (CAR form R.I.D.,Increased Deposit/Liquidated Damages Addendum), signed by both parties, then the seller would be entitled to $9,000 of the $10,000 actually paid.

     (ii) If the deposit had been increased by $5,000, but no separate liquidated damages provision had been executed, then the seller would only be entitled to the original $5,000.

Is a liquidated damages clause a good thing? For both buyers and sellers the answer may be ‘yes’ and ‘no’. It depends. Suppose the buyer backs out — breaches — very early into the transaction. Typically, that would not cause a lot of damage to the seller. A liquidated damages provision may give too much to the seller. Conversely, a seller who has gone through a long escrow and who has made plans and commitments — sometimes financial — may feel that limiting the damages to the deposit (or 3% of the price) is not sufficient.

For both parties, though, if they have agreed to a liquidated damages provision, they at least know what is at stake.

Tips to Selling Your Home

images (19)Some say winter is the worst time to sell a home. Given the cold and stormy weather we have been experiencing, there are definitely challenges, but don’t be discouraged. First impressions and lasting impressions are key to progress potential buyers into active buyers. Be very wary as the slightest discomfort or issue can sour this experience and turn a buyer away from your home, but by addressing a few key areas, any winter woes can be easily avoided.

Here are five simple tips to maximize the showing potential of your home during the winter months.

1. Don’t Let Winter be an Obstacle

It’s storming or just post-storm, but you have showings booked for your home. (You must have motivated buyers to go out in that weather!) Don’t make it even more of a chore for them, be sure to shovel your drive or walkway so that the first impression is a clean and accessible entry. Buyers have been known to turn away, rather than hike to the doorway in knee deep snow and risk snow in their shoes, wet pants, and wet socks.

2. Consider Your Home’s Temperature

Remember, buyers are usually viewing more than one home at a time, and thus traveling around and running in and out of cars or up and down elevators in condos. Typically they will be dressed for the great outdoors, so although having the heat way up is great for lounging on the couch, it can be oppressive for visiting buyers. Be sure to monitor the temperature of the entire house and set it appropriately.

3. Get Buyers Out of the Dark and Into the Light

The winter months also mean shorter days and less natural light. Be sure to have adequate lighting in every room. Dark rooms are depressing when coming in from the cold. Keep it bright in the winter. Some may object for energy saving reasons, but it is best to leave all the lights on before showings or use timers. This allows you to set the mood lighting, and saves the buyers fumbling for light switches.  Remember first impressions.  Is your home a sanctuary or an oasis from the cold?

4. Preparation is Key

Be sure to prepare for those wet and snowy shoes and boots. No one likes having snow and dirt tracked around there home by shoes or wet socks, just as no one enjoys having wet socks and dodging puddles in the doorway.  Be sure to have a “Shoes Off” sign. Place an absorbent mat protecting your stone or wood flooring. Be sure to have a shoe tray or appropriate storage area for shoes, not only to avoid the puddles but to show off the organization of your home.  Apply this also to winter jackets, hats and scarves. Show functioning and organization by thoughtfully arranged set ups, don’t just have outerwear exploding out of closets or haphazardly hanging on hooks or coat racks.

5. Pet-Friendly—and Groomed!

If you do own pets, be sure to have the appearance of clean pets…especially dogs. We love our furry friends, but it’s best not to leave those dirty slush-soaked towels and doggy outfits laying around. The last thing you want is the smell of wet dog greeting your buyers at the front door.

Tips to make your home more Cooling

When the temperatures spike, most families crank up the air conditioning to keep their homes cool. While blasting the AC is often viewed as the first step in cooling a home, there are a number of other ways to keep your home comfortable in the summer.

#1 Open Windows at Night

If you live in a region of the country where nighttime temperatures tend to dip into the lower 70s and upper 60s, open your windows at night and turn off the AC. Once the sun is down, that cool air can flow into your home overnight and help maintain a cooler starting point for the next day. Turning on any fans you have around the house will help circulate that cool air.

#2 Leave Interior Doors Open

During the winter months, it’s a good idea to close doors to unused rooms to avoid wasting money heating those spaces. But closed-off rooms can become heat blankets in the summer if you don’t open them up and allow for even airflow throughout your home. To help keep the house cooler, open your interior doors.

#3 Close Blinds During the Day

It’s nice to open the shades and let in some sunlight, but up to 30 percent of the unwanted heat in your home comes from windows. Shut your shades to limit the house-warming sunlight allowed into your home. Focus on closing only west- and south-facing windows to still give your home the benefit of natural light. This can help lower the mid-day temperature of your home by almost 20 degrees.

#4 Using Appliances at Night

Your oven, washer and dryer are the primary culprits when it comes to unwanted heat in your home. Using your grill to cook is a simple way of keeping unwanted heat outdoors. As for your chores involving laundry, leave those for the nighttime hours when temperatures are naturally lower.

#5 Keep the Furnace Fan On

The vast majority of thermostats give you the power to manually control the fan that blows hot air through your home in the winter. If you turn this fan on during the summer, it can help to distribute the cool air from your basement to the other levels of your home. This provides better airflow in your home and an overall cooler feeling.

#6 Leave the Bathroom Exhaust Fan On

The steam from your shower will create a pocket of hot air in your home that will exit the bathroom the moment you open the door. It’s already a good idea to run the exhaust fan while you’re in the shower, but consider leaving it on for 20 to 30 minutes after your shower to help blow out the hot air.

#7 Consider Upgrades Outdoors

There are two big things you could do to the outside of your home to help keep it cooler in the summer months. First, you could repaint the siding of your home with a lighter color to deflect more of the sun’s rays. The siding on your home is just like any dark surface or dark clothing. The darker it is, the more heat it attracts and retains. The same can be said for your roof. Slate, concrete, clay and various tiles offer better protection from heat than standard shingles.

#8 Install New Windows

Old, single-pane windows are a significant source of heat gain in your home during the summer months. These old, outdated models make it too easy for hot air to creep in and cold air to leak out. Replace your older windows with newer models if you can. Or, install new weather stripping to reduce the temperatures in your home.