New Title Co. Rules on Assignments and Double Closings.

New Title Co. Rules on Assignments and Double Closings.

Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes

I spoke with the owner of one of the few local title companies that do investor deals, and he informed me of new requirements for doing assignments or double closings.

To do an assignment I one must return to the seller and get a Sellers Acknowledgement that the contract will be assigned even though the assignability is already part of contract. The seller will not be advised of the price to be sold at, but just that the contract will be sold to another buyer.

To do a double closing, one must again get a Sellers Acknowledgement, but it must also include the amount the contract will be sold at. In the double closing example, the buyer is not advised of the amount of the original contract and the seller is. One can double close "around" the buyers knowledge at the time of the sale, but not both parties.

The owner of the title company advised me to get a Sellers Acknowledgement and assign the contract. He believed the buyer will not care as long as its a strong deal. However, I've read where Ryan Webber -for one- double closes on nearly all his deals to avoid ticking off his buyers, even on smaller fees. As this deal has room for a strong fee, I don't agree with the title co that the buyer won't care. Once they see the number, the emotions start pumping over what should be "their money" for doing the rehab, and I see nothing but trouble. I would like to be able to close the deal with hard money as was also suggested, but thats not likely for someone starting out.

The owner said that many title companies are using this approach to avoid liability. This is the only title company I know of in the greater Denver, CO area that does investor deals. Another, Axis Title, was sold by its owner to pursue investing herself, fulltime.

Any suggestions on how I can better do this deal? I wanted to mention what may be the "new normal" about assigments and double closings.

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J ScottPro Member
Moderator
Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
13y
Originally posted by Burt L.:
Yes, I would like to use transactional funding and do a "wet" closing. I was surprised that the title company would only offer this as a "dry" closing as I've heard them offer their own transactional funding before in front of REIA groups in the past. Maybe it is part of the liability piece of it they are now concerned with; it seems something else is at work in this now.

In specifically what timeframe does the issue present itself?

In other words, I assume that if you were to buy a house today and resell it in 10 years, the title company wouldn't require you to jump through hoops, do additional disclosures, do a dry closing, etc.

How about if you were going to resell in 5 years? 2 years? 1 year? 6 months? 3 months? 2 weeks? 3 days? 2 hours? 10 minutes?

Where does the title company draw the line where they decide there is extra liability in allowing someone who has purchased a house to resell it?

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  • Real Estate Investor · Dale City, VA · Member since 2008 · 317 posts · 77 votes
    13y

    I would check with other title companies as well as the state on this matter.

  • Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    13y

    Do not talk Hard Money - look for transactional funding!

  • Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes
    13y

    Steve Babiak - If I use transactional funding for a double closing, I still have the same challenges with either the seller or the buyer. But hard money is really out of the question, and has the risk of the buyer not closing and holding a property I couldn't carry, at high rates anyway. Maybe I"m missing something on your reference to transactional funding vs. hard money.

    Investor-friendly title cos are getting hard to locate in the area.

  • Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    13y

    With transactional funding, you are buying with a loan you obtained, not with your buyer's funds. So why would that have any additional disclosures? you are no longer assigning the contract in this case, you are doing two distinct closings, one where you buy and one where you sell. You're just not doing any rehab and holding time.

  • Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes
    13y

    Yes, I would like to use transactional funding and do a "wet" closing. I was surprised that the title company would only offer this as a "dry" closing as I've heard them offer their own transactional funding before in front of REIA groups in the past. Maybe it is part of the liability piece of it they are now concerned with; it seems something else is at work in this now.

    Here is a link to the thread where Ryan writes of the importance of double closing - even in smaller deals. Apparently this isn't an option for me, from this title company anyway. I don't know of another one that presents themselves as investor-friendly locally, though, and I'm a little "stuck" at this point.

    http://www.biggerpockets.com/forums/93/topics/11649-double-closing-vs-assignment

    Opps, didn't do a link-aplogies for the copy and paste required.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    This is a good example of local custom and state by state differences as this is probably a liability issue with the title company. I suggest you not attempt to follow others in their way of doing things so much until you clear it with your local acceptance of doing things. Someone doing something in a an old cow town in Texas may not be the same where you are.

    As to your disclosure, if by law it is acceptable then I suggest you make your assignment more of a notice of disclosure and require the acknowlgment of the receipt of the notice rather than the seller appearing to give permission.

    You can arrange the requirement for the seller to acknowledge the reciept of any notice required for you to perform in the contemplated sale in your initial offer, then the seller will have to provide you with your needed documents, like it or not. :)

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    13y
    Originally posted by Burt L.:
    Yes, I would like to use transactional funding and do a "wet" closing. I was surprised that the title company would only offer this as a "dry" closing as I've heard them offer their own transactional funding before in front of REIA groups in the past. Maybe it is part of the liability piece of it they are now concerned with; it seems something else is at work in this now.

    In specifically what timeframe does the issue present itself?

    In other words, I assume that if you were to buy a house today and resell it in 10 years, the title company wouldn't require you to jump through hoops, do additional disclosures, do a dry closing, etc.

    How about if you were going to resell in 5 years? 2 years? 1 year? 6 months? 3 months? 2 weeks? 3 days? 2 hours? 10 minutes?

    Where does the title company draw the line where they decide there is extra liability in allowing someone who has purchased a house to resell it?

  • Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    13y

    J Scott brings up a good question. How and when can you re-sell without this issue? It's the "simultaneous" contracts and closes that are the problem. IMO, the title and escrow companies have every right to protect themselves from liability on this issue.

    I don't double close anymore because of the same type of disclosures required by the title/escrow companies in my area. My farm has only the major title/escrow companies (Fidelity, Chicago, etc) so I couldn't find an escrow agent that wasn't restricted by all the disclosures. For the last few years I close on everything. I don't submit my sell contract to escrow until my buy contract is closed.

    On this particular deal, what's preventing you from closing on the deal with hard money or bridge funds and then re-selling? In my
    experience, it's totally worth the cost of borrowed funds to close and then control the re-sell. All of the pressures are off. No disclosures, no end buyer lender problems. Two escrows cost the same whether they are at the same time or days or weeks apart. Not only that, that breathing room can open up time and space for a better re-sale price. Just some things to think about.

  • Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    13y
    Originally posted by Burt L.:
    Steve Babiak - If I use transactional funding for a double closing, I still have the same challenges with either the seller or the buyer. But hard money is really out of the question, and has the risk of the buyer not closing and holding a property I couldn't carry, at high rates anyway. Maybe I"m missing something on your reference to transactional funding vs. hard money.

    Investor-friendly title cos are getting hard to locate in the area.

    What kinds of spreads are you talking about? Obviously a $5K mark up on a $50K property can't accommodate too many points to an HML. But a good deal with a good spread should have more than one buyer that can close asap.

  • Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes
    13y

    The replies are much appreciated. I spoke with another title company and the rules seem to be pretty consistent - Assignments aren't a problem, but the seller has to receive notice of the assignment, but not the amount of the resell fee. But if they ask during the closing, the title company has to inform them of the fee.

    If the closing involves a traditional loan, the fee will be on the HUD-1 for both parties to see, but if a cash buyer then it is shown only on the buyers Settlement Statement. The same rule applies here if the seller asks about the fee at the closing. In this case, the seller has asked about a remote closing to avoid the trip to the title company, but I don't know what order the closings are done in, and if a remote closing affects anything.

    The Notice of Disclosure Bill Gulley mentions seems like an excellent idea. The title company also said I could put in future contracts that a seller is required to sign the necessary documents to complete the transaction.

    Both J Scott and K. Marie Poe inquire about the required timeframe to remove the need for the disclosures, and what prevents me from closing with transactional funding to protect the Buy Side of the deal. I don't know what time frame is required as its somewhat hypothetical, but know that the same-day closing isn't long enough. I wish I could help more on this.

    I would be thrilled to use transactional funding and avoid the issue, and I've been told I can do that, but still have to disclose the re-sell fee to the seller, not just that the contract is being assigned. I'm probably better off taking my chances with the buyer being unhappy about the price to them. Its still alot of work to get to a conclusion that is much more uncertain than using tranactional funding and keeping it two entirely separate transactons as apparently used to be the case.

    The property has an ARV of 300-310k, purchased at 150K, needing a rehab of 60K. I would like to believe there is room for a fee of 25K. What a learning curve this all is.

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    13y
    Originally posted by Burt L.:

    I would be thrilled to use transactional funding and avoid the issue, and I've been told I can do that, but still have to disclose the re-sell fee to the seller, not just that the contract is being assigned.

    I'm confused...you use "re-sell fee" and "contract being assigned" in the same sentence...

    If you use transactional funding, you are buying the property outright and then reselling it. You're not assigning it. It's no different than if you bought it, lived in it for a year and then resold it (though clearly the closing attorney believes it's different).

    It's not a hypothetical how long you'd need to hold the property before the closing attorney required the disclosures. Perhaps they won't tell you, but I can't imagine they don't have some guidelines.

    I would press them harder to fully understand their rationale and their timelines.

  • Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes
    13y

    J Scott - What I"m stumbling through saying is that even if I use transactional funding and they are two different transactions, I still have to disclose the price I am reselling at to the seller. The title co has said they have too much liability with the seller, otherwise. This sounds confusing to me also, but that is what I am being told by two title companies.

    Its up to me to find the "work around" in a new title company environment.

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    13y
    Originally posted by Burt L.:
    J Scott - What I"m stumbling through saying is that even if I use transactional funding and they are two different transactions, I still have to disclose the price I am reselling at to the seller. The title co has said they have too much liability with the seller, otherwise. This sounds confusing to me also, but that is what I am being told by two title companies.

    What about purchasing with one title company and selling with another?

    Just make sure you walk out of the first closing with the deed as opposed to having it filed by the attorney (that would hold things up)...

    Might take an extra day or two, but should work.

  • Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    13y
    Originally posted by J Scott:
    Originally posted by Burt L.:
    J Scott - What I"m stumbling through saying is that even if I use transactional funding and they are two different transactions, I still have to disclose the price I am reselling at to the seller. The title co has said they have too much liability with the seller, otherwise. This sounds confusing to me also, but that is what I am being told by two title companies.

    What about purchasing with one title company and selling with another?

    Just make sure you walk out of the first closing with the deed as opposed to having it filed by the attorney (that would hold things up)...

    Might take an extra day or two, but should work.

    I don't know any transactional lender that would go for this. They require that both escrows be at the same place and are scheduled to close at the same time. Otherwise they don't release funds.

    There are no time frame restrictions on re-sales by title companies. This is a disclosure issue. The OP can do either an assignment or a double close, and his title companies have told him there is no problem with either. But they are also telling him that they require all parties to the transactions be given certain information. The concern the OP has about the disclosures is exactly the same concern the title companies have: If all parties have all the info, including re-sale price or assignment fee, will any one balk? The answer is often yes.

    The OP has choices. He can make sure the seller is ok with his profit. Or, close on the deal and re-sell. I prefer the latter as it not always possible to work with a seller that is clear about their selling price. They sign a contract for a price they think they are happy with. If you put a disclosure in front of them a few weeks later that states there is an immediate re-sale for an additional $25K, they might just change their mind.

  • Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes
    13y

    I spoke with another title company and another real estate attorney on the double closings and required disclosures. The second title company said that in some situations separate Settlement Statements of the respective buyer and seller items are used instead of a HUD-1. I'm not sure when the separate statements can be used.

    The attorney thought that RESPA would apply to any residential property transaction, requiring a HUD-1 instead of separate settlement statements. A realtor who wholesales said to list the fee as a Construction Fee on the sellers side of the HUD. Apparently alot of it has to do with how the fee is classified on the closing documents.

    Yet another attorney said that if the wholesale fee is paid in full before closing, that it doesn't appear on any statement and he encouraged me to get the entire fee up front. That is hard to do on a larger fee, and seemed easy for him to say though. He also owns the other title company I've spoken with.

    I appreciate what K. Marie Poe also added - that if the buyers don't learn of the fee until closing, and they are still struggling with what the final ARV will be, there could be large problems, just as my contract is expiring.

    I'm still trying to fill in the blanks on what isn't taught about closings - it would be nice to just pay for transactional funding as Steve Babiak mentioned some time ago, but thats not an option in my local market. I think I'm still "knocking at the right doors" to get to a solution though.

  • Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    13y
    Originally posted by Burt L.:

    I appreciate what K. Marie Poe also added - that if the buyers don't learn of the fee until closing, and they are still struggling with what the final ARV will be, there could be large problems, just as my contract is expiring.

    Actually what I wrote was about the SELLERS' concerns when they find out the property is being sold for more than their contract price. I could care less about the buyer's concerns as they are supposed be buying for a price and with a plan that works for them and their lender. The mark up on the property does not affect their price or plan.

  • Real Estate Investor · Steamboat, CO · Member since 2010 · 295 posts · 34 votes
    13y

    Yes, I misread the statement from K. Marie Poe. I was thinking of the eventual seller/rehabber and how their final selling price is moving around in their thoughts throughout the rehab and before closing as well.

    I need to find out what the rationale is with the local title companies - I'm not the only one with a wholesale property to move around here and its not a situation unique to me.

  • Arvada, CO · Member since 2012 · 3 posts · 0 votes
    13y

    Any update on this? I'm putting everything in place to get my first house under contract. I want to make sure i have my ducks in a row and all the correct clauses on my contract. I would really like to do an assignment of contract rather than a double close, just because it seems easier. Please let me know of any hoops I'll need to jump through to do that. thanks!

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