Kap Real Estate Chapter 21: Closing The Real Estate Transaction Flashcards

1
Q

What is Closing in real estate?

A

is the consummation of the real estate transaction.

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2
Q

What does settlement involve for buyers and sellers?

A

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.

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3
Q

closing involves a number of events (3):

A

(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.

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4
Q

Due Diligence Period (DDP) (in closing)

A

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.

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5
Q

Buyer’s loan (in closing)

A

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.

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6
Q

Property investigation (in closing)

A

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.

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7
Q

Insurance (in closing)

A

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.

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8
Q

Appraisal (in closing)

A

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.

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9
Q

Survey (in closing)

A

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.

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10
Q

Septic system, if applicable (in closing)

A

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.)

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11
Q

Wood-destroying insect report (in closing)

A

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

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12
Q

Repair/improvements negotiations (in closing)

A

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

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13
Q

Right to terminate (in closing)

A

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.

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14
Q

Physical inspection (in clsoing)

A

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.

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15
Q

Both parties will want to inspect the ______________

A

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.

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16
Q

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.

A

10 days prior to settlement

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17
Q

The settlement agent

A

has the responsibility for ensuring that all legal documents are properly prepared and delivered.

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18
Q

Sellers may be responsible for providing the following documents (either directly or through their attorney):

A
  • 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)
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19
Q

Buyers may be responsible for providing the following documents (either directly or through the settlement agent):

A
  • 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)
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20
Q

Title Procedures

A

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

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21
Q

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.

A

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.

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22
Q

Affidavit of lien waiver (affidavit of title)

A

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.

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23
Q

Preclosing procedure would involve the buyer’s completion of due diligence. (T/F)

A

True

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24
Q

A broker should encourage buyers to determine the availability of casualty insurance on the day of closing. (T/F)

A

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.

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25
Q

Settlement meeting

A

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.

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26
Q

A closing involves the resolution of two issues:

A

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.

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27
Q

Those persons attending a typical residential settlement may include:

A
  • 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).

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28
Q

Escrow Type Settlement

A
  1. Impartial third party, the escrow agent, conducts the closing without parties in attendance; seldom used in North Carolina
  2. Once deed is delivered to escrow agent, it is considered delivered to the buyer per the relation back doctrine
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29
Q

North Carolina Settlement Agent

A
  1. In North Carolina, it has historically been the buyer’s attorney that conducts the settlement meeting
  2. Since 2003, non-lawyer assistant can conduct closing if does not practice law
30
Q

Finalizing the Closing (4)

A
  1. Recordation of instruments in the correct order is imperative
  2. Buyer’s new loan is recorded after the seller’s satisfaction of mortgage is recorded
  3. When all documents are recorded, closing has occurred
  4. Funds are disbursed after the deed is recorded
31
Q

IRS Reporting Requirements

A

Every real estate transaction must be reported to the IRS by the settlement agent on Form 1099-S. Information includes the sales price, the amount of property tax reimbursement credited to the seller, and the seller’s Social Security number.

If the closing agent does not notify the IRS, the responsibility for filing the form falls on the mortgage lender; although the brokers or the parties to the transaction ultimately could be held liable.

The IRS requires Form 1099-S so that it may determine if capital gains taxes or other taxes are owed due to the sale of the property.

32
Q

Lender’s Interest in Closing

A

—to protect security in collateral property

  1. May require proof of title and hazard insurance
  2. May require a survey, appraisal, certificate of occupancy and other information
  3. May require escrow account be maintained
33
Q

Settlement agents can disburse funds to the appropriate party before recordation of the deed and the deed of trust. (t/f)

A

False

Settlement agents can disburse funds to the appropriate party only after recordation of the deed and the deed of trust.

34
Q

An attorney must be present at all North Carolina settlements. (t/f)

A

False

An attorney does not have to be present at a settlement meeting. A non-lawyer assisting under the supervision of an active member of the Bar may conduct the settlement meeting.

35
Q

The GFE and the early TIL have been replaced by the

A

Loan Estimate (LE) form

36
Q

The HUD-1 and final TIL have been replaced by the

A

Closing Disclosure (CD)

37
Q

The federal Real Estate Settlement Procedures Act (RESPA)

A

was enacted in 1974 to protect consumers from abusive lending practices. RESPA also aids consumers during the residential mortgage loan settlement process. It ensures that consumers are provided with important, accurate, and timely information about the actual costs of settling or closing the transaction.

It also eliminates kickbacks and other referral fees that tend to inflate the costs of settlement unnecessarily. RESPA prohibits lenders from requiring excessive escrow account deposits.

38
Q

The federal Truth-in-Lending Act (TILA)

A

TILA laws and regulations apply to anyone who advertises or makes loans for a personal, family, or household purpose that involve either a finance charge or are payable in more than four installments. TILA applies not only to banks, savings, and loans but also to finance companies, mortgage companies, and anyone who extends consumer credit more than five times a year.

Whether the loan is for a primary or secondary residence, vacation home or vacant land, regardless of the loan amount, if the loan proceeds are for a personal, family, or house purpose, the lender must comply with TILA.

39
Q

Lenders who provide loans not covered by TRID rules may

A

continue to use the existing Good Faith Estimate form and the HUD-1 and other TILA disclosures.

40
Q

According to TRID, loan application is defined as the time by which the lender receives the following information from the borrower:

A
  • Legal name
  • Statement of gross income
  • Social Security Number (to obtain a credit report)
  • Property address
  • Estimate of property value
  • Amount of mortgage loan required
41
Q

The LE indicates which settlement costs may or may not change prior to settlement and if they do, by how much. Lenders are bound by tolerance limits on fee estimates that were imposed in 2009/2010; although these limits are now called permissible variations. The fees are divided into three categories:

A

No tolerance: fees that may not increase before closing; lender charges for taking, underwriting, and processing the loan application, including points, origination fees, and yield spread premiums

10% tolerance: fees that cannot increase by more than 10% in any given category; settlement services for which the lender selects the provider or for which the borrower selects the provider from the lender’s list, title services and title insurance if the lender selects the provider, and recording fees

Unlimited tolerance: fees for services that are out of the lender’s control; services for which the borrower chooses the provider (such as escrow and title insurance), escrows for taxes, mortgage interest, and the cost of homeowners insurance

42
Q

Controlled Business Arrangements

A

A real estate firm, title insurance company, mortgage broker, home inspection company, and even a moving company may agree to offer a package of services to consumers. RESPA permits such a controlled business arrangement (CBA) as long as the consumer is clearly informed of the relationship among the service providers and that other providers are available.

43
Q

Required use of a particular service provider is

A

prohibitied by RESPA.

Fees may not be exchanged among the affiliated companies simply for referring business to one another. This may be a particularly important issue for brokers who offer computerized loan origination services to their clients and customers.

While a borrower’s ability to comparison shop for a loan may be enhanced by a CLO system, the range of choices must not be limited. Consumers must be informed of the availability of other lenders.

44
Q

Yield Spread Premiums

A

A substantial fee that was paid to the mortgage brokers for making loans to subprime borrowers at above-market interest rates. Due to abuses of the yield spread premiums in the lending industry, RESPA now requires that the loan originator give the borrower a credit against the loan origination fees for the full amount of any yield spread premium. This credit must appear in the loan origination section of the LE.

45
Q

Escrow Account Restrictions

A
  • lender can only require 1/12 of total disbursements for the year
  • no more than 1/6 held as cushion
  • any excess over $50 to be returned to borrower
  • right to review HUD 24 hours prior to close
  • lender retains records for 2 years
46
Q

Loan Servicing Disclosure Requirements

A

at loan application, lender must disclose if the loan will be serviced by someone other than the lender

47
Q

Kickbacks and Referral Fees

A

the payment or receipt of any fee or thing of value where no service is actually rendered (unearned referral fees) is prohibited

48
Q

Penalties for Violating RESPA

A
  1. Criminal fines up to $10,000 per violation
  2. Imprisonment for up to one year
  3. injunctions against illegal activity and orders to compensate victims for illegal profits; and
  4. Civil lawsuits that are subject to treble damages
49
Q

If a settlement agent discovers typographical errors on closing documents, the settlement must be delayed by three days. (T/F)

A

False

If errors are typographical, then TRID does not require that the settlement be delayed. However, if the errors involve substantive errors regarding the buyer’s loan, the settlement may have to be delayed in order for the corrections to be made and for the buyer to receive a three-day review period.

50
Q

The Real Estate Settlement Procedures Act is implemented by rules referred to as Regulation Z. (t/f)

A

False

The Real Estate Settlement Procedures Act is implemented by rules referred to as Regulation X.

51
Q

Preparation of Settlement Statements

A

The financial responsibility for these items must be prorated, or divided equitably, between the buyers and the sellers. All expense items and prorated items are accounted for on settlement statements. This is how the exact amount of cash required from the buyer and the net proceeds to the seller are determined.

52
Q

What is a debit?

A

is a charge—an amount that a party owes and must pay at settlement.

53
Q

What is a Credit?

A

is an amount entered in a person’s favor—an amount that has already been paid, an amount being reimbursed, or an amount the buyer promises to pay in the form of a loan.

54
Q

(1) How do you determine the amount of funds the buyer needs to bring to settlement?
(2) Why might cash be rejected by a settlement broker?

A

To determine the amount of funds the buyer needs to bring to settlement, the buyer’s debits are totaled. Any expenses and prorated amounts for items prepaid by the seller are added to the purchase price. Then the buyer’s credits are totaled. These include the earnest money (already paid), the balance of the loan the buyer is obtaining or assuming, and the seller’s share of any prorated items that the buyer will pay in the future. Finally, the total of the buyer’s credits is subtracted from the total debits to arrive at the actual amount of certified funds the buyer must bring to settlement.

Usually the buyer brings a certified or official bank check or has the funds wired to the settlement attorney’s escrow account. Although cash is definitely certified funds, the buyer who brings a bag of money to pay the bills at settlement may encounter resistance from the settlement agent because large amounts of cash (typically over $10,000) will trigger paperwork requirements by either banking regulations and/or the USA PATRIOT Act.

55
Q

Broker’s compensation (who pays?)

A

The responsibility for paying the broker’s compensation is determined by signed agency agreement. If the broker is the agent for the seller, the seller is usually responsible for paying the compensation. If the listing firm entered the property into a multiple listing service (MLS), the compensation of the selling agent (whether a buyer’s agent or a seller’s subagent) is generally disclosed in the MLS entry. Most of the time, the listing firm will split the compensation earned from the seller with a cooperating firm that brings the buyer to the transaction.

If the listing firm or seller refuses to pay the buyer’s agent, most buyer agency agreements state that the buyer is then responsible for the agent’s compensation at a preset rate or figure.

56
Q

Attorney’s fees (who pays?)

A

If either of the parties’ attorneys is to be paid from the closing proceeds, that party is charged with the expenses on the settlement statement. The attorney’s fee may include preparation or review of documents, title search and opinion, or representation of the parties at settlement.

57
Q

Recording Expenses (who pays?)

A

The seller usually pays for recording charges (filing fees) necessary to clear all defects and furnish the purchaser with a marketable title. Items customarily charged to the seller include the recording of release deeds or satisfaction of mortgages, quitclaim deeds, affidavits, and satisfaction of mechanics’ liens. The buyer pays for recording charges that arise from the actual transfer of title. Such items usually include recording the deed that conveys title to the purchaser and a mortgage or deed of trust executed by the buyer.

58
Q

Excise tax (who pays?)

A

North Carolina requires an excise tax (formerly known as revenue stamps) on the gross revenue generated by the sale of real estate. This tax, sometimes called a deed transfer tax, is levied at a rate of $1 per $500 of value, or portion thereof. The excise tax will always round up to the next whole dollar amount if the calculation includes cents. This expense is borne by the seller.

59
Q

Title Expenses (who pays?)

A

Custom usually requires that the buyer obtain and pay the title examination. Most of the time, this charge will be included in the attorney’s fee.

Custom usually requires that the buyer obtain and pay the title examination. Most of the time, this charge will be included in the attorney’s fee.

Some lenders request an ALTA policy that insures the mortgagee for the amount of the mortgage loan, called a lender’s policy. A buyer may also purchase an owner’s policy to protect the entire purchase price; this higher level of coverage is always a good investment.

60
Q

Loan Fees (who pays?)

A

When the buyer secures a new loan to finance the purchase, the lender ordinarily charges an administrative fee called a loan origination fee of about 1% of the loan value. The borrower usually pays the fee at the time the transaction closes. The lender also may charge discount points to permanently buydown the interest rate. In order to prove creditworthiness, the buyer will pay for a credit report at the time of loan application that will show up as paid outside of closing (POC) on the settlement statement.

If the buyer assumes the seller’s existing financing, there will usually be an assumption fee. Also, under the terms of some mortgage loans, the seller may be required to pay a prepayment charge or penalty for paying off the mortgage loan in advance of its due date. Overnight mailing expenses to the lenders of both parties is very common because it saves additional days of interest for both parties.

61
Q

Tax reserves and insurance reserves (escrow or impound accounts) (who pays?)

A

Most mortgage lenders require that borrowers provide a reserve fund or escrow account to pay future real estate taxes and insurance premiums, especially when the loan-to-value ratio exceeds specified percentages. These payments are often referred to as prepaids. The borrower usually starts the account at settlement by depositing funds to cover at least two months of taxes and hazard insurance. The borrower’s monthly loan payment includes the loan principal and interest plus one-twelfth of the estimated taxes and insurance (PITI) for the escrow account.

The taxes and insurance are held by the lender in the escrow or impound account until the bills are due. Some lenders also use the escrow account for collecting private mortgage insurance premium and maintenance fees that are payable on a recurring basis to an owner’s association. Although sellers occasionally agree to pay all or some of the buyer’s settlement expenses, the lender will almost always require the borrower to pay for prepaids.

62
Q

Appraisal fees (who pays?)

A

Generally, the purchaser pays the appraisal fees because it is customary for the lender to require an appraisal as a condition of the loan. If the fee is paid at the time of the loan application, it is reflected on the settlement statement as having been POC.

63
Q

Survey fees (who pays?)

A

The purchaser who benefits from the information shown on a survey will customarily pay the survey fees. Clearing up any title defects that arise from the survey, such as eliminating an encroachment, would be the seller’s responsibility. As discussed previously, some lenders will require a new survey as a condition of financing.

64
Q

Due diligence fee (who pays?)

A

If the parties to the NCBA/NCAR 2-T Offer to Purchase and Contract agree to any due diligence fee, the buyer will pay the fee directly to the seller for the right to terminate the contract for any or no reason.

Per the contract, the due diligence fee will be credited to the buyer at settlement and will be debited from the seller’s side because the seller already received it outside of settlement. This fee is not to be confused with earnest money that serves as liquidated damages.

65
Q

Additional fees (who pays?)

A

Because each real estate transaction is unique, it is not uncommon to have additional fees or expenses charged to either party dependent on the sales contract. An FHA borrower owes a lump sum for payment of the mortgage insurance premium (MIP) if it is not being financed as part of the loan. A VA borrower pays a funding fee directly to the VA at closing. If a conventional loan carries private mortgage insurance, the buyer prepays one year’s insurance premium at settlement.

Charges for specialized inspections such as home inspections, radon tests, structural inspections, or environmental evaluations are becoming more commonplace. Because some service providers require payment at the time of service, those charges often appear on the settlement statement as POC. Any charge that seems unusual should be questioned by the broker or principal to verify its purpose.

66
Q

Accounting for Expenses

A

Expenses paid out of the settlement proceeds are debited, or charged, only to the party making the payment. Occasionally the buyer and the seller may share an unpaid expense item such as current real estate taxes. In that case, the parties are debited for their share of the expense.

67
Q

Offer to purchase agreements typically dictate which party pays for what expenses. Consider, for example, this passage in the NCBA/NCAR 2-T Offer to Purchase and Contract:

Deed, taxes and fees

Seller shall pay for preparation of a deed and all other documents necessary to perform Seller’s obligations under this Contract, and for state and county excise taxes, and any deferred, discounted or rollback taxes, and local conveyance fees required by law.

(Who is paying for the fees?)

A

The seller in this situation but anybody can depending on the contract

68
Q

The commission due to brokerage firms typically will show up on the closing disclosure statement as a buyer debit. (T/F)

A

False

The brokerage commission is typically a seller debit.

69
Q

The earnest money deposit shows up on the closing disclosure statement as a debit to the buyer. (T/F)

A

False

The earnest money deposit shows up on the closing disclosure statement as a debit to the buyer.

70
Q

For purposes of the licensing exam, students should use 30 days per month and 360 days per year to calculate prorations. (t/f)

A

true

71
Q

An interim interest calculation is based on the number of days from the day of closing to the end of the month and includes the day of closing. The expense is charged to the buyer. (t/f)

A

True