A House By The Park

Today, I decided to submit an official offer on the off-market house I saw yesterday. I am not sure I want the house yet and I definitely need to do some inspections, but my agent’s advice in this case is good: go ahead and lock it up under contract and then spend the next week deciding if you really want it.

Unfortunately, I don’t agree with my agent’s advice on the price I should bid, however. I want to come in $150,000 less than what the seller wants. My agent doesn’t think I should come in more than $50,000 below. This illustrates another reason why I think the value of real estate agents is overrated: their motivation is to get you a house as quickly as possible at any price that is comfortable to you (and thus collect a nice commission). My motivation is to get a house that I want at as low of a price as possible. If I bid $150,000 less than the ask, the seller can always say no and then I can come up quickly to his price, if need be.

So that’s what I just did. We’ll see what happens.

Well what do you know? Bidding $150,000 below the asking price was a good idea! The seller accepted the bid without even countering. Had I listened to my agent’s advice, I’d be on the hook for an extra $100,000.

Lesson: If you feel your real estate agent isn’t correct in their negotiating advice, follow your own intuition.

So now that we’re officially under contract, I have five business days to complete any inspections I’d like to conduct. Since this seller refuses to sign a Seller’s Disclosure Statement, I’m going to be extra careful. If any inspection comes up less than roses, I may back out. I’m planning the following inspections:

• Structural inspection via Criterium-Pioli Engineers
• Sewer inspection via Hydro Physics, Inc.
• Geotech inspection, if it gets that far

In addition, I’ll be calling two groups of architects and builders out to the property to give me their initial thoughts.

Before showing up at the property yesterday, I asked my real estate agent what he thought the seller wanted for the place and he gave me a low price and a high price with about $200,000 of room in between them. When I was at the house, however, I saw some literature a prospective selling agent put together for the seller which suggested a number at the higher end.

My agent thought I should bid close to the middle of the range, but once again, I do not find myself agreeing with this advice. Since the middle of the range is the absolute most I would pay, I think it’s best to start low and move up if necessary. I still haven’t heard an actual price directly from the seller, so for all I know, if I do this deal in cash and waive a bunch of contingencies, I can get it for substantially less than even the seller was thinking. Maybe it will fly and maybe it won’t, but since three out of the four beneficiaries are attorneys, I can’t imagine they wouldn’t be up for some negotiating!

That in mind, I’ve decided to put my first offer in at $100,000 less than the bottom of the range my agent gave me, $300,000 less than the top of the range, and $150,000 less than what I’d feel 100% comfortable with. The offer is easy to justify, especially when using the first prospective house that I didn’t get as a comp. I’m writing in no contingencies (not even financing) except for a quick geotech inspection and hoping that the seller will value a quick close to a solid buyer who really wants to make the place shine again. If I were the seller, I would favor selling to someone who actually wants to live there instead of a developer. Also, it’s well known that end-users like me will generally pay more than developers for properties like this because our time horizons are far longer and we’re not in it for the profit.

I do not expect this first offer to be accepted, but I do expect it to be a starting point.

It’s been about 48 hours since I put my offer in, and I just heard back that the seller said “thanks, but no thanks.”

The problem wasn’t the response, but rather the lack of additional comment or counteroffer. The situation is weird in that the prospective selling agent who was at the house works in the same office as my agent and he wants this deal to go through him even though he is not the agent of record with the seller. I have a problem with this as, for all I know, the seller has no intention of signing on with this guy. To put my fate in the hands of a selling agent who hasn’t even been retained by the seller yet seems crazy and risky.

I asked my agent to get more information from his fellow agent about the reaction to my offer, and something just smelled bad to me. When asked if we should submit another offer, the other agent apparently responded with “Why, so you can re-insult him?”

Hearing that response convinced me that I needed to engage directly with the seller. I’m not going to let this deal get away because someone is trying to get in the middle of it. I enjoyed meeting the seller at the house, and he’s a professional negotiator (attorney), so I don’t see why we can’t negotiate directly. I will be calling him this evening to see what his thoughts are.

Calling the seller directly last week turned out to be a great idea. Our rapport is excellent and we’ve already traded several phone calls and a number of long, well-reasoned e-mails backing up our positions and compromises. To try and describe the emotional rollercoaster of this back-and-forth in a blog entry would not do it justice. It’s very trying, but it’s also been very educational. Negotiating the sale of your company is both very different and very similar to negotiating the purchase of your home.

So anyway, very long story short, I eventually came up $150,000 from my initial bid (which is still $150,000 less than the asking price), offered to put down $100,000 in earnest money and waive all contingencies except geotech, and the seller has tentatively accepted! I’m happy with where we ended up, because it was the exact dollar amount that I decided from the outset I would be 100% comfortable with. I won’t exhale until we have a signed contract, but it appears we’re within eyesight of the finish line!

Will try to get a good night’s sleep tonight after a week of tossing, turning, and overanalyzing.

Bad news.

Upon presenting the seller with our proposed Purchase and Sale Agreement, the seller called me and told me his accepting of our price was with the understanding that there would be no real estate commission paid out of the proceeds. It is customary for the seller to pay all real estate commissions so my agent and I just assumed that while he would be paying no sell-side commission, he would still be picking up my agent’s commission. In a deal of this size, that’s kind of a lot of money.

The seller is an honest guy and I’m sure this was just an honest misunderstanding, but if I were to pick up my agent’s commission, it would put me above my “100% comfortable” price.

After a long jog to think about it, I called the seller up and essentially told him we could argue for hours about it, or we could walk away, or we could just split the difference. I offered to split the difference and he said he was probably ok with that but he needed to run it by his siblings first.

Hopefully splitting the difference gets us across the finish line. Yet another sleepless night coming up…

Well, apparently my offer to split the difference was not good enough to get us over the line and unless I pick up my agent’s commission, this property is going to go on the market in three days — for $200,000 more than my offer. When driving by the house today, my agent spotted a van taking professional real estate photography so it’s not a bluff. Additionally, the seller has officially retained another agent, but he has smartly carved me out of his contract with her; meaning, if I end up buying the place, it’s still considered a direct deal.

I have a charity golf tournament that I organized which I have to play in tomorrow, so I imagine it’s going to be a stressful day of negotiating between holes and trying to get something done by the end of the day, should I decide to proceed.

After a marathon day of golfing for charity, negotiating, driving, and executing documents, we finally have a deal!!!. In the end, I agreed to pick up my agent’s commission and also indemnify the seller against any claims or lawsuits coming from the real estate agent he didn’t sign on with, and he agreed to put a clause in the contract which allowed for reasonable extension of our closing date if circumstances beyond my control prevented closing by the official closing date of July 31st. This clause was very important to me as I waived my financing contingency and put $100,000 down in earnest money. If some shmoe at a bank fat-fingers a few keys and causes this thing to close on August 1st instead, I don’t want my earnest money to be at risk.

The indemnification thing is a bit of a calculated risk for me. Essentially, this other agent feels he should be compensated as the selling agent even though he was never retained by the seller. I have worked out a deal with my agent to pay this agent a .5%-of-selling-price referral fee out of his commission so everything should be good, but I understand why the seller would ask me to indemnify him. I don’t like having to do it and I don’t think any lawyer would advise anyone to ever do it, but I figure the chances are tiny that it becomes an issue, and even if it does, the amount we’re talking about is just 3% of the sales price. It’s not a trivial amount, but it’s not millions of dollars either. I will just have this other agent sign a release form before releasing his referral fee from escrow. Since both my agent and the real estate office that they both work for have confirmed to me that he has no claims to any commission, I’m not worried about it.

As for the deal itself, it was signed about an hour ago, at around 11pm and I’m still in shock that it came together. The seller and I both drove out to the real estate office, and as I was waiting for him to show up, I honestly thought that there was a chance he was going to take our signed offer and just sit on it over the weekend as the property went on the market. To his credit however, he read over the deal, faxed it immediately to his sibling that was the executor of the family trust, got it signed and faxed back, and congratulated me on being the new owner of their beloved home.

It’s such a great feeling to have made it through this process. By taking matters into my own hands and not allowing myself to be governed by the customs of the real estate industry, I have a once-in-a-lifetime house at a great price from a great family.

The stress isn’t over quite yet though. I have five business days to do the geotech inspection to make sure this house isn’t about to fall off the cliff and only a few weeks to close financing.

So we’re all set to close tomorrow and the real estate agent who was not retained by the seller apparently thinks he is still owed a commission.

Unbelievable.

I presented this agent with a release form to sign (just to be safe) in order to get the 0.5% referral fee that my agent was willing to give him and he won’t sign the release form!

Do I really need him to sign a release form? No, since he has no contract and therefore no claim to any commission, but since I indemnified the seller in order to get the deal done, I want to make 100% sure this is all settled before this agent sees any money at all. If he still has thoughts of raising a stink, he can do so without my money.

What I ended up deciding to do is to close this deal tomorrow, as planned, and have escrow hold this other agent’s 0.5% in escrow until he signs the release. If he doesn’t sign within a couple of weeks, I will just have escrow pay my agent the full commission instead.

I’m not too worried about this situation at this point, but it’s annoying to even have to deal with it. I do like having the power to keep this money in escrow, but honestly, I wish I had the power to withhold all commission related to this deal if I needed to.

This is important: most people don’t realize that the buyer’s agent contract they sign usually specifies that the buyer will be responsible for paying a 3% commission to the buyer’s agent if the seller doesn’t pay it (which they usually do). I do not like this arrangement at all and I will be writing it out of my next contract. I was still going to pay my agent 3%, but I don’t like giving up the right not to under circumstances like an intra-office commission dispute. Another thing people should change about their contracts is the termination clause. My stock contract didn’t allow me to sign on with another agent until three months after I terminated my existing contract. I ended up changing this to 14 days, but I would go even further in retrospect. Probably one week.

Almost 5 months after applying for building and demolition permits, the City of Seattle finally granted me my documents last week. With barely any permit applications going through the City these days, one would think things would have gone quicker, but in reality, I feel like the lack of permit flow caused more city scrutiny in the end. The main issue that dragged things out was something I wrote about a little while ago: indemnification.

In short, since part of my property is in an “environmentally sensitive area” (i.e. near a cliff) the City insisted that I sign a covenant running with the land that did many things I felt were overreaching and unnecessary. I understand why the City’s standard procedure is to ask for this (and most people accept it as is) but it contained two particular things that my attorney, Patrick Moran, was thankfully able to negotiate out:

• A clause stating that if anyone sued the City for anything relating to the issuance of my permits, I had to indemnify them and pay for all legal fees, judgements, etc.
• A clause stating that this covenant ran with the land and if I ever sold the property, the new owners would also be burdened by it.

The first clause was reduced such that the indemnification only covers actual damages caused by construction. This means that if a neighbor decides to sue the City because they don’t like the look of my house, I’m not on the hook to defend anybody or pay anything. The second clause was modified such that the indemnification ends if and when the property is sold. This is key in preserving value, as I would flinch if I was buying a property which transferred such indemnification to me.

A lot more language was clarified as well, and I feel like the $1049.50 I owe my attorney in fees has been well worth it.

During these final stages of preparing for construction, I’ve also completed a few more tasks and spent a little more money:

• We had the asbestos abated for $2,335.64 by Partners Construction, Inc.
• Some additional structural engineering work from Swenson Say Faget was completed for $2,192.29.
• Some additional geotech work was required by the City and performed by Icicle Creek Engineers for $600.
• The additional City of Seattle fee to complete the permitting process was $3,450.75 (bringing the total permit fee to $8,911.50).
• Printing fees of $172.91 for some additional drawing sets.

So with that, we’re almost all set to build. I’m still waiting for my refinance to close, but after that it’s all systems go. Unfortunately, the place that is going to deconstruct and recycle most of the existing house is a little booked up right now so we may be looking at July.

It’s also interesting to note that the official amount of investment it took to get to the point of breaking ground has been exactly $78,543.85.