Kap Real Estate Chapter 21: Closing The Real Estate Transaction Flashcards
What is Closing in real estate?
is the consummation of the real estate transaction.
What does settlement involve for buyers and sellers?
the time when the buyers and sellers review and sign the necessary closing paperwork, but the transfer of the title does not take place until later—sometimes just hours later, but it could be days later since closing involves recordation in North Carolina.
closing involves a number of events (3):
(1) the promises made in the sales contract are fulfilled
(2) the mortgage loan funds (if any) are distributed to the buyer for use
(3) other settlement costs or funds are disbursed. It is the time when the title to the real estate is transferred via the deed in exchange for payment of the purchase price.
Due Diligence Period (DDP) (in closing)
the Buyer’s opportunity to investigate the Property and the transaction contemplated by this Contract to decide whether Buyer, in Buyer’s sole discretion, will proceed with or terminate the transaction.
There are no restrictions on what or how the buyer investigates the property under contract. The buyer is urged to hire appropriate experts to examine the property’s condition and whether it will serve the buyer’s need.
Buyer’s loan (in closing)
In other words, once the buyers have committed to purchasing the property by not terminating during the Due Diligence Period (DDP), they cannot legally terminate the contract for failure to obtain a loan commitment.
Buyers are strongly advised to structure their DDP to allow time to assure that their lender will approve the requested financing. If the buyers are not comfortable that the loan will be approved, they should exercise the right to terminate the contract before the expiration of the due diligence period.
If the financing request is denied after the DDP has expired, the buyer will be in breach of the contract if the buyer cannot close. This is an excellent reason why buyers should begin the loan process before or at the beginning of the property search.
Property investigation (in closing)
The buyer is given encouragement to conduct any desired inspection including some very standard items. A thorough inspection of all improvements on the property, ideally by experts, is a practice that should not be waived. Home inspectors can identify needed repairs and items of concern that might require more specialized scrutiny.
If the property is subject to subdivision protective covenants, a thorough review of what can and cannot be done on or to the property is critical to determine if the buyer is willing to proceed with the purchase.
A title search should also be conducted by the closing attorney to assure that the seller’s title is marketable and insurable as promised. Current or proposed zoning regulations could affect the intended use of the property by the buyer.
Insurance (in closing)
The availability and affordability of homeowners insurance on the property needs to be verified during the due diligence period.
Sellers should be informed that they should not cancel their coverage until closing, and buyers should be similarly informed to contact their insurer about the start of coverage.
Appraisal (in closing)
If the buyer is applying for a mortgage loan to purchase the property, the lender will order an appraisal to help evaluate the market value of the collateral property.
Due to intensive audits caused by extensive mortgage fraud in recent years, appraisers tend to be very conservative in their appraisal values that can prompt an appraisal value below contract price. Consequently, a buyer is strongly advised to obtain the appraisal prior to the end of the DDP.
Survey (in closing)
Any title defects discovered by a survey would survive the DDP because the seller is tasked with providing clear marketable title free of encumbrances. The survey is known for verifying property lines and possible encroachments, but it also identifies easements and setbacks that might impact the buyer’s intended use for the property.
Septic system, if applicable (in closing)
If property is unimproved and does not have access to a central sewage disposal system, the buyer should order a soil suitability test, sometimes called a percolation test (or perc test).
This test measures the soil’s ability to absorb and drain water. Soil must percolate properly before approval will be given to install a septic system for on-site sewage disposal. (See Unit 6 for more information.)
Wood-destroying insect report (in closing)
The official North Carolina Wood-Destroying Insect Information Report (Form No. WDIR 100), is used for reporting the presence or absence of wood-destroying insects in structures for sale. A person must be licensed by the NCDA&CS’ Structural Pest Control Division to issue this report. It is the only form which is legal for this purpose.
**North Carolina Department of Agriculture and Consumer Services
Repair/improvements negotiations (in closing)
Although there are no mandatory repairs required by the NCBA/NCAR 2-T OPC, the buyer and seller can negotiate anything during the DDP. The actual repairs/improvements do not need to be completed prior to the expiration of the DDP, but the negotiations need to be ratified during the DDP or the buyer may purchase the property in its current condition. Mandated building permits should be obtained for any addition or major repair.
It is also advisable that buyers determine that no requested repairs or improvements are in violation of zoning regulations or restrictive covenants. The same applies to recent property renovations by the sellers to make the property more marketable
Right to terminate (in closing)
If the buyer is not satisfied with the property condition, terms of the contract, the loan application, repair negotiations, or anything else, the buyer may terminate the contract in writing to the seller or seller’s agent by 5:00 pm on the date stated in the DDP clause. The deadline is characterized as time is of the essence, and thus, the buyer must act by this time or risk the loss of any earnest monies.
Physical inspection (in clsoing)
After contract formation, the buyers and/or their representatives will need access to the property for initial and subsequent inspection of the property. The buyers are strongly advised to conduct a final walk-through inspection to verify completion of all negotiated repairs plus ascertain that no fixtures were removed prior to settlement and all debris and seller personal property were removed.
If tenants reside on the property, they should have been informed of a change in ownership and how that change may affect their rights to remain.
Both parties will want to inspect the ______________
to ensure that all monies involved in the transaction have been accounted for properly. Both parties may be accompanied to settlement by their attorneys; although it is uncommon in North Carolina for the seller to have an attorney present at settlement.
Real estate practitioners should also remember that their brokerage firm may be holding funds in anticipation of the settlement. Brokers holding such funds can transfer money to the closing agent no more than __________________________. Another possibility is that the brokerage firm notifies the closing agent that the monies will be retained by the firm as credit toward any earned brokerage fees.
10 days prior to settlement
The settlement agent
has the responsibility for ensuring that all legal documents are properly prepared and delivered.
Sellers may be responsible for providing the following documents (either directly or through their attorney):
- The deed (usually prepared by the settlement agent)
- Bill of sale of personal property (If any of the seller’s personal property is being transferred to the buyer, ownership can be shown by a bill of sale.)
- Leases and related documents (if the property being transferred is currently leased)
- Statement from the seller’s lender regarding loan balance payoff figures
- An affidavit(s) and indemnification agreement(s) executed by seller and any person or entity who has performed or furnished labor, services, materials or rental equipment to the property within 120 days prior to the date of settlement and who may be entitled to claim a lien against the Property as described (see the following discussion)
Buyers may be responsible for providing the following documents (either directly or through the settlement agent):
- Financing documents (The settlement agent receives a closing package from the lender with instructions on how to prepare the financing documents, including the deed of trust and the promissory note.)
- Title insurance policy (issued after the attorney’s opinion of good title)
- Property insurance policy (The buyer is required to bring a current policy to settlement.)
- Wood-destroying insect inspection report (The buyer normally pays for this unless the transaction is financed with a VA loan, in which case the seller normally pays.)
- Property survey (often not required by lenders but may be required by title insurers)
Title Procedures
After a thorough title search, the closing attorney usually submits a preliminary opinion on title to the title insurance company. Based on this opinion, the title insurance company will issue a title commitment. This is a commitment to issue a title insurance policy if the final title search confirms that the seller’s title is marketable.
On the date of the settlement meeting (the date of delivery of the deed), the buyer has a title commitment that was probably issued several days or weeks before the closing. For this reason, the final opinion on title and the title insurance policy are issued after closing
Unless the buyer is assuming the seller’s mortgage loan, the seller’s existing loan is paid in full and a mortgage release should be recorded. The exact amount required to pay off the existing loan is provided in a current __________________ from the seller’s lender, effective on the date of closing. This payoff statement states the unpaid amount of principal, interest due through the date of payment, the fee for issuing the certificate of satisfaction or release, credits (if any) for tax and insurance reserves, and the amount of any prepayment penalties.
Payoff Statement
This payoff statement states the unpaid amount of principal, interest due through the date of payment, the fee for issuing the certificate of satisfaction or release, credits (if any) for tax and insurance reserves, and the amount of any prepayment penalties.
Affidavit of lien waiver (affidavit of title)
This is a sworn statement in which the seller assures the title insurance company and the buyer that there have been no judgments, bankruptcies, or divorces involving the seller since the date of the title examination. The affidavit promises that no unrecorded deeds or contracts were made, no repairs or improvements were made that have not been paid for, and the seller knows of no defects in the title.
Preclosing procedure would involve the buyer’s completion of due diligence. (T/F)
True
A broker should encourage buyers to determine the availability of casualty insurance on the day of closing. (T/F)
False
Brokers should encourage buyers to determine the availability of insurance during due diligence. Consumers need to be aware of the challenges of obtaining affordable insurance well before closing.
Settlement meeting
In North Carolina, closings are conducted by gathering the parties and exchanging copies of the documents. This kind of closing is called the settlement meeting. Current practice in North Carolina is that a lawyer frequently represents the buyer.
A closing involves the resolution of two issues:
First, the promises made in the sales contract are fulfilled.
Second, the buyer’s loan is finalized, and the mortgage lender or settlement attorney/agent disburses the loan funds.
Additionally, the settlement/closing documents are reviewed and signed, and any funds due from the purchaser are collected.
Those persons attending a typical residential settlement may include:
- the buyer
- the seller
- the real estate brokers (both the buyer’s and the seller’s agents)
- the seller’s and the buyer’s attorneys
representatives of the lending institutions involved with the buyer’s new mortgage loan, the buyer’s assumption of the seller’s existing loan, or the seller’s payoff of an existing loan; and
-the representative of the title insurance company (although this seldom happens in North Carolina).
Escrow Type Settlement
- Impartial third party, the escrow agent, conducts the closing without parties in attendance; seldom used in North Carolina
- Once deed is delivered to escrow agent, it is considered delivered to the buyer per the relation back doctrine