Wire Fraud. Protect clients – Reduce liability! Hackers are masking as real estate agents fooling buyers and sellers.

Protect your clients – Reduce your liability! Wire fraud is a threat! Hackers are masking as real estate agents fooling buyers and sellers. Find out procedures for reducing wire fraud risk. Must RSVP to FWilcox@GCTA.com or 602.648.1230  There are a few seats left.

 

 

 

Home Prices Keep Going Up in Greater Phoenix!

It has been a long time since the median sale price for a previously owned single family home was this high.

May 2017 Results  

The median sale price for a previously owned single family home in May was $269,000. The last time the sale price was at the $269,000 level was almost ten years ago.  It was August of 2007.

The data in this report was compiled from the Arizona Regional Multiple Listing Services, Inc.  The geographic area is Greater Phoenix (Maricopa County).

The May 2017 median sale price represented a year-over-year increase of 6.5% or $16,500 compared to May 2016 when it was $252,500. This is a healthy increase.  See Table A.

A Brief History of Median Sale Price

The first time in Maricopa County history that the median sale price of a previously owned single family home reached the May 2017 level was in June 2005. Back then the year-over-year increase was not 6.5% or even close.  It was 47.1% or $86,500.  It went from $183,500 in June 2004 to $270,000 in June 2005.  See Table B.

The May median sale price of $269,000 has come a long way since August 2011 when it bottomed at $120,000. But it still has a little way to go to reach the peak month of $287,500 in June 2006.

Sales in May 2017

May 2017 sales were up 9.5% or by 614 compared to May 2016. Additionally, May 2017 sales were up 13.3% or by 834 over April 2017.  Compare this to May 2016 sales which were up 5.4% or by 332 over April 2016.  See Table C.

New Monthly Listings in May 2017

May 2017 new monthly listings had the highest year-over-year increase for a month this year. There were 466 more listings that hit the market this May than last May.  This jump in inventory most likely will help keep up sales momentum in June and July.

Overall, the number of new monthly listings is flat when comparing the number for the first five months of 2017 to 2016. See total in Table D.

Estimated Months of Supply by Price Point

It is a seller’s market for homes priced under $600,000 (as long as they are priced right). For all price points under $600,000 the estimated months of supply is under four months.  The price range with the highest number of sales was $200,000 to $249,999.  The estimated months of supply in this range was one month.  See Table E.

 

Fletcher R. Wilcox is V.P. of Business Development and a Real Estate Analyst at Grand Canyon Title Agency.
He is author of www.TheWilcoxReport.com. His market analysis on residential real estate in Greater Phoenix has been referenced in the Phoenix Business Journal, the Wall Street Journal, Bloomberg News, MarketWatch, HousingWire.com, National Mortgage News, and the Arizona Republic. He has been a guest speaker on local radio and both local and national TV.
He teaches real estate agents marketing strategies and teaches residential contract writing and Arizona title procedures. He served on one of the subcommittees at the Arizona Association of REALTORS subcommittees making recommendations on changes to the February 2017 AAR Residential Resale Real Estate Purchase Contract. Fletcher started snowboarding in 2006. He is not very good.   Fletcher may be reached at FWilcox@GCTA.com  602.648.1230

First Quarter 2017: Residential Sales Volume Highest in Eleven Years!

First Quarter 2017 Results

Previously Owned Single Family Homes

Maricopa County  

Data compiled from the Arizona Regional Multiple Listing Services, Inc.

Sales volume in the first quarter of 2017 was the highest since 2006, which was before the great real estate recession. First quarter 2017 sales volume was 18.1% higher than the first quarter of 2016.

Sales volume for this report is the total of the sale prices for previously owned single family homes.  An example of  sales volume would if a real estate agents sold 20 homes and the sales price for each home was $250,000 their sales volume would be $5,000,000.

Sales volume is a health indicator of a real estate market.  It not only speaks on the number of sales, but also on their sale price.  It may show if prices are decreasing, flat, or increasing.  For example, in the first quarter of 2017 there were 15,622 sales for a sales volume of $5,016,013,713.  The average or mean sale price was $321,086.  Compare this to first quarter of 2012 when there were more sales, 16,405, but sales volume was lower, $3,144,327,127.  The average sale price then was $191,668.

The 2017 first quarter average sale price of $321,086 was $15,471 or 5% higher than the first quarter of 2016 average of $305,615.

A Formula for Price Increases

While sales were up 12.4% in the first quarter of 2017 year-over-year, new inventory was flat.  There were 1,726 more sales and 81 less new listings.

If the trend of more sales and less inventory continues prices will go up in the price ranges with heavy demand.

Coming soon will be the estimated months of supply by price range.

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Open your next escrow with our Scottsdale office located at 8520 E. Shea Blvd., Suite 115, 85260.

Fletcher R. Wilcox is the author of The Wilcox Report and Vice President of Business Development for Grand Canyon Title. His market analysis has been referenced in the Wall Street Journal, Bloomberg News, HousingWire.com and National Mortgage News. He served on one of Arizona Association of Realtor’s 2017 Residential Resale Contract subcommittees. He may be reached at FWilcox@GCTA.com  or by phone at 602-648-1230.

Television interviews

My interview with Gerri Willis on the Fox Business News Network

Interview with Jim Belfiore on Square Off Arizona. Topic: The President and Housing.

Interview on Horizon on housing market.

 

 

Which buyer costs can a seller concession now pay?

Sixty Days Later: The New AAR Purchase Contract

Published May 2, 2017 in the Arizona Journal of Real Estate & Business

http://www.asreb.com/2017/05/sixty-days-later-the-new-aar-purchase-contract/

 By

Fletcher R. Wilcox
The Wilcox Report

Grand Canyon Title Agency

As I write this article, it is sixty days since the introduction of the new AAR Residential Resale Real Estate Purchase Contract on February 1, 2017. I will review the change in seller concessions, which is a hot topic, and touch on something that recently happened when a seller agreed to pay the initial appraisal fee — and it was to be included in the seller concessions.

The Seller Concessions clause in the new AAR Contract reads:

2J. Seller Concessions (if any): In addition to the other costs Seller has agreed to pay herein, Seller agrees to pay up to ____% of the Purchase Price OR up to $____ to be used only for Buyer’s loan costs, impounds, Title/Escrow Company costs, recording fees, and, if applicable, VA loan costs not permitted to be paid by Buyer.

Much of the discussion on seller concessions centers on the word prepaids which was removed and the addition of the language to be used only for.

Why was prepaids removed from the clause?

In the previous contract the word prepaids was loosely applied. Often when not all of the seller concessions were used after paying for loan costs, impounds, and title/escrow costs any remaining concessions would be used to perhaps prepay additional months of HOA, or maybe prepay pool service, etc. I have heard of seller concessions being applied to pay a buyer’s credit cards and buyer broker commission. While not all sellers may object to these applications, some vehemently did.

Most seller challenges as to what their concessions were to pay happen after receipt of the settlement statement, which is usually just days before a transaction is to close. When a seller and buyer cannot agree on the concessions, an addendum is often needed clarifying what may be paid before the transaction can close.

Since the new contract added the words to be used only for, questions that keep arising is if the lender is required one year of homeowner’s insurance and is the mortgage interest from the close of escrow to the first mortgage payment considered a loan cost? On March 28, 2017 AAR stated, “Both interest and the homeowner’s insurance premiums are costs that the lender requires to be paid as a condition to funding a loan. Thus, those items are considered to be loan costs as that term is used in Section 2j. Accordingly, the interest and homeowner’s insurance premiums would be included in the Seller Concessions as agreed by the parties.”

If there are remaining seller concessions may they be used to prepay items such as additional months of HOA or an additional year of home warranty? Probably not, since neither of these items is a loan cost or a condition to fund the loan.

Additional Seller Concessions are Negotiable
Just as all repairs are negotiable since the seller warranties were removed from the new Contract, the buyer may negotiate additional items that seller concessions may pay. A buyer may want to add language in the Additional Terms and Conditions section of the Contract to read something like this, “Seller concessions to be applied to the following items…”

Initial Appraisal Fee and Seller Concessions
Section 2m lines 111-113 read:

Initial appraisal fee shall be paid by __Buyer __Seller __Other  at the time payment is required by lender and is non-refundable. If Seller is paying the initial appraisal fee, the fee __will __will not be applied against Seller’s Concessions at COE, if applicable.

Recently, a seller agreed to pay the initial appraisal fee of $500 to the lender at the beginning of the transaction. The $500 was to be applied against a seller concession of $4,000.

When the Closing Disclosure was sent to the seller it showed the seller’s concession at COE to be $4,000 instead of reducing it to $3,500, since the seller had already paid $500 for the appraisal.

Apparently, the lenders software was not able to show the seller paying the initial appraisal fee outside of escrow. The Closing Disclosure incorrectly showed that the buyer had paid it outside of escrow. Since the problem was found before closing it was resolved.

Conclusion
Most buyers think that when a seller agreed to give them a concession they will be able to use all of it. They do not understand all the nuances of its application. A buyer may consider adding language to the Contract, and they should discuss with their lender any limitations the lender may have with a seller concession.

 

Fletcher R. Wilcox is the author of The Wilcox Report and Vice President of Business Development for Grand Canyon Title. His market analysis has been referenced in the Wall Street Journal, Bloomberg News, HousingWire.com and National Mortgage News. He served on one of Arizona Association of Realtor’s 2017 Residential Resale Contract subcommittees. He may be reached at FWilcox@GCTA.com  or by phone at 602-648-1230.

Who will be the top real agent, broker and more!

Old Town Scottsdale 2017 Friday Night Industry Party

Awards will be for

  • Residential real estate agent of the year
  • Residential real estate broker of the year
  • Residential rookie agent of the year
  • Residential team of the year
  • Commercial managing principal of the year
  • Commercial real estate broker of the year
  • Home inspector of the year
  • Certified appraiser of the year
  • Escrow officer of the year
  • Title sales representative of the year
  • Mortgage loan originator of the year

Arizona jobs projected to increase by 138,553 and Greater Phoenix jobs by 115,258. More jobs will keep the fire going for already hot housing market.

On March 9, the Arizona Office of Economic Opportunity released job projections.  Jobs in Arizona are projected to increase by 138,553 from the Second Quarter of 2016 through the Second Quarter of 2018.  The majority of the increase in jobs is expected to be in Greater Phoenix.  Jobs in Greater Phoenix are projected to increase by 115,258.  Greater Phoenix in this report is defined as Maricopa and Pinal counties.

This increase in jobs, along with a growing population, will continue to fuel the demand for residential housing.    Greater Phoenix is currently in the midst of a very hot demand for previously owned single family properties in many price ranges.

According to the Arizona Regional Multiple Listing Services, Inc., sales of previously owned single family homes in the first two months of 2017 are fourteen percent higher than for the same period last year.  The number of sales in January and February 2017 were 9,999 compared to 8,777 for the same period last year.

While sales are up inventory is down.  The number of previously owned new monthly listings in January and February 2017 were 5% or 860 less than for the same period last year.

When writing a contract, be prepared for your buyers to compete against multiple offers when a property is priced at market.

Expect prices to go up in many prices ranges.

The majority of the increase in jobs will be in Greater Phoenix 

To read the report go to https://laborstats.az.gov/sites/default/files/documents/files/ST_IndProjReport.pdf

2016-2018 Projected Job Growth by Region
Area Name 2016 Estimated Total Employment Level 2018 Projected Total Employment Level Numeric Growth Annualized Percentage Growth
Arizona 2,852,181 2,990,734 138,553 2.4%
Phoenix MSA1 2,051,434 2,166,692 115,258 2.8%
Tucson MSA2 382,515 392,583 10,068 1.3%
Balance Of State3 414,363 427,176 12,813 1.5%
1) Maricopa and Pinal Counties
2) Pima County 
3) All other areas in Arizona less Maricopa, Pinal, and Pima Counties 

Arizona’s industry employment projections are produced in conjunction with the U.S. Department of Labor (U.S. DOL), Employment and Training Administration (ETA).

Fletcher R. Wilcox is V.P. of Business Development and a Real Estate Analyst at Grand Canyon Title Agency.

He is author of www.TheWilcoxReport.com. His market analysis on residential real estate in Greater Phoenix has been mentioned in the Wall Street Journal, Bloomberg News, MarketWatch, HousingWire.com, National Mortgage News, Arizona Republic and the Phoenix Business Journal. He has been a guest speaker on local radio and both local and national TV.

He teaches real estate agents strategies on marketing and instructs real estate classes in residential contract writing and Arizona title procedures.  Fletcher started snowboarding in 2006. He is not very good.

Fletcher may be reached at mailto:FWilcox@GCTA.com  602.648.1230

Anticipatory Contract Writing

Published in the Arizona REALTOR’s Voice

by Fletcher R. Wilcox on September 9, 2016 

There are 30 blank lines at the beginning of Section 8, Lines 311-340, Additional Terms and Conditions in the AAR Residential Resale Real Estate Purchase Contract (Contract). The purpose of these lines is for the buyer, before presenting an offer to the seller, to put in language that changes, adds to, or subtracts provisions in the body of the Contract.

The key to writing provisions language in the Additional Terms and Conditions section is to do so in clear and understandable terms. Knowledge of the Contract and its timelines is essential in constructing good language.

There are times when a buyer places language into the Additional Terms and Conditions Section in anticipation of situations that may occur in a transaction. The buyer wants the property. Emotions are high. This is when mistakes may be made. In the two scenarios below, a buyer makes the earnest money nonrefundable to present a better offer to the seller. Is the language clear and understandable?

You be the judge.

Scenario One
Language written in the Additional Terms and Conditions section reads, “Earnest money to be nonrefundable after ten day inspection period.”

On day seven after Contract acceptance, the Buyer’s Inspection Notice and Seller’s Response (BINSR) was delivered to the seller giving the seller the opportunity to correct five disapproved items. According to the Contract timeline, the seller then has five days to respond to the buyer. In this situation, the seller responded to the buyer on the fifth day, which was day twelve after contract acceptance. The seller checked the box on the BINSR stating, “Seller is unwilling or unable to correct any of the items disapproved by the Buyer.”

At the beginning of the transaction the buyer was hot for the property. Fifteen days later, upon receiving the seller’s response declining to fix the five requested items, the buyer’s emotions toward the property have cooled. The buyer then canceled the Contract and demanded a return of the earnest money. The seller argued that the buyer can cancel, but the buyer doesn’t get the earnest money, they do. Seller argued the 10 day inspection period ended when the BINSR was delivered and that the buyer canceled after this period. The buyer countered that the 10 day inspection period includes the entire buyer disapproval process in section 6J.

We have an escrow dispute. Is the language written in Section 8 clear and understandable?

Clearer language on behalf of the buyer addressing when the earnest money would be nonrefundable may be, “Buyer’s earnest money shall be nonrefundable unless Buyer elects to cancel pursuant to Section 6J.” Section 6J includes the BINSR timeframes for both buyer and seller responses.

Scenario Two
Language in the Additional Terms and Conditions section reads, “Earnest money to be nonrefundable and released to seller on the twenty first day after contract acceptance.” The buyer wanted 20 days for due diligence and was willing to make the earnest money nonrefundable after this time.

On day 21 after contract acceptance, the seller requested and received the earnest money from the escrow company. Fifteen days later when the close of escrow date came, the transaction did not close and could not close due to an I.R.S. lien attached to the property. For the transaction to close, the seller either had to have the lien paid at close of escrow or obtain a waiver from the I.R.S. The seller was unable to perform either. The buyer delivered a Cure Period Notice to the seller for seller’s failure to close escrow.

On the fourth day after delivery of the Cure Period Notice the seller was in breach, so the buyer canceled the transaction and demanded a return of the earnest money which, according to the language written in Section 8, was now in the seller’s possession.

Will the buyer be able to get the earnest money from the seller? Is the language written in Section 8 clear and understandable?

The buyer and their agent, in making the earnest money nonrefundable and released to the seller, did not anticipate what happens if the seller breaches the Contract. Clearer language on behalf of the buyer may be, “On the twenty first day after contract acceptance, earnest money shall be nonrefundable. However, in the event seller breaches the Contract, buyer is entitled to a return of the earnest money.”

Conclusion
Whether representing a seller or buyer, anticipatory contract writing is first thinking through possible scenarios that might arise based on the market or situation of the buyer, seller or home and addressing those situations with clear and understandable language. This type of writing is enhanced with a strong knowledge of the Contract and its timelines.

This article is not intended as legal advice. Consult your designated broker and legal counsel.


Fletcher WilcoxFletcher R. Wilcox is V.P. of Business Development for Grand Canyon Title Agency. He teaches contract law renewal hours and is author of The Wilcox Report.

Most Misunderstood Parts of the AAR Residential Resale Real Estate Purchase Contract

 

What You Should Know About Loan Contingency & Cure Period Notice

by Fletcher R. Wilcox on July 1, 2016

VP Business Development, Grand Canyon Title Agency

(This article first appeared in Arizona REALTOR® Voice) 

http://blog.aaronline.com/2016/07/what-you-should-know-about-loan-contingency-cure-period-notice/

Since January 2004, more than 1,000,000 transactions listed in ARMLS have closed. Almost every one of them closed using the AAR Residential Resale Real Estate Purchase Contract (the “Contract”). To many agents, the Loan Contingency and Cure Period Notice are some of the most misunderstood parts of the Contract. I often see this when a Contract has cancelled and there is an earnest money dispute.

Loan Contingency
A contingency clause defines a specific event or action that must take place for a contract to become binding. The Loan Contingency in the Contract says that if a buyer is not able to get a loan without Prior to Document (“PTD”) conditions the buyer is not obligated to complete the transaction. PTD conditions mean that loan documents will not be sent out because a lender requirement(s) has not been met by the buyer. Let’s read what the Contract says about the loan contingency.

Loan Contingency
2b. Lines 55-60. Buyer’s obligation to complete this sale is contingent upon Buyer obtaining loan approval for the loan described in the AAR Loan Status Update (“LSU”) form without Prior to Document (“PTD”) conditions no later than three (3) days prior to the COE date…No later than three (3) days prior to the COE Date, Buyer shall…deliver to Seller or Escrow Company notice of inability to obtain loan approval without PTD conditions.

According to the loan contingency language, while the buyer is not obligated to complete the transaction if they cannot get a loan, the buyer did promise to deliver notice that they could not get a loan three days before the close of escrow.

What happens if the buyer cannot get a loan, but breaks their promise and doesn’t deliver notice of inability to get a loan?

The Cure Period Notice
When a party to the Contract breaks a promise and, if there is not language in the Contract specifying what happens next, the remedy then is to deliver a cure period notice to the non-complying party.

“[while] the buyer did promise …the seller also made a promise. They made a promise to deliver a Cure Period Notice to the buyer if the buyer did not deliver notice of their inability to get a loan.

Both parties in the Contract agreed, in Section 7a Lines 278-281 Cure Period, to deliver a Cure Period Notice to the non-complying party. In our example above, not only did the buyer make a promise according to the Contract, but the seller also made a promise. They made a promise to deliver a Cure Period Notice to the buyer if the buyer did not deliver notice of their inability to get a loan.

Once the Cure Period Notice is delivered, the non-complying party has three days to remedy their potential breach. In this case, it means that the buyer shall be entitled to a return of the earnest money if, prior to expiration of the cure period, the buyer delivers notice of inability to obtain loan approval.

Conclusion
Most of the time when you read the word “shall” in the Contract, a promise was made. As a rule, I recommend use of a Cure Period Notice when a promise is broken and the Contract does not have a specific timeline as to what happens next.

While the Loan Contingency in the Contract may result in the buyer getting the earnest money, there are other things to consider in this type of earnest money dispute. Was the buyer unable to get a loan described in the PQF or LSU? What did the loan denial from the lender state as the reason for the denial? Did the buyer have the down payment or other funds necessary to obtain loan approval? Was there a diligent and good faith effort?


Fletcher Wilcox

       Fletcher R. Wilcox is V.P. of Business Development and a Real Estate Analyst

       Grand Canyon Title Agency.

He is author of www.TheWilcoxReport.com. His market analysis on residential real estate in Greater Phoenix has been mentioned in the Wall Street Journal, Bloomberg News, MarketWatch, HousingWire.com, National Mortgage News, Arizona Republic and the Phoenix Business Journal. He has been a guest speaker on local radio and both local and national TV.

He teaches real estate agents strategies on marketing.  He instructs real estate classes in residential contract writing and Arizona title procedures.  Fletcher started snowboarding in 2006. He is not very good.

Fletcher may be reached at FWilcox@GCTA.com  602.648.1230

What time of the year are there the most new listings and the most real estate sales? A review of the numbers in Greater Phoenix.

 When are Real Estate Agents the Busiest?

By

Fletcher R. Wilcox

Grand Canyon Title Agency

Real estate agents make their commissions as listing agents and as selling agents. So at what times of the year are agents the busiest listing seller’s homes and closing on sales with buyers? What times of the year are listings and sales the slowest? Does real estate activity really slow down in the hot summer months?

So, what I did was research the number of new listings and sales for existing single family homes in Maricopa County, Arizona.  I broke down the years 2014, 2015 and the first half of 2016 into quarters. The data is from the Arizona Multiple Listing Services, Inc. (ARMLS).

The Findings

image001

New Listings: Which Quarter Had the Most and the Least?

In both 2014, 2015 and in the first half of 2016 we saw the same pattern for new listings. The first quarter, the winter quarter, had the most new listings. Then like a stair step, the number of new listings declines in each of the following quarters with the fourth quarter having considerable less new listings than the first quarter. Then as the chart below shows, listings shoot up again in the first quarter of the New Year.

More New Listings and Sales in First-Half of 2016 Than in Either 2014 or 2015

When comparing the number of new listings in the first two quarters of 2016 there were 2,792 more new listings than 2015 and 1,280 than 2014. This increase in inventory along with job growth and population growth and boomerang buyers has fueled home ownership. There were 1,268 more sales in the first two quarters of 2016 than 2015 and a whopping 4,243 more sales than 2014.

image001

 

Sales

Sales: Which Quarter Had the Most and Least?

While the first quarter has the most new listings, the second quarter has the most sales. The chart below shows single family sales. In 2014, the quarter with the least number of sales was the first quarter. In 2015, it was a toss-up for the least number of sales between the first quarter and the fourth quarter. There were only thirty-six more closings in the fourth quarter over the first quarter. The second best quarter for sales has been the third quarter.

There are More Sales in the Hot Summer Months Than You Might Think

If we compare sales in the third quarter, the hot weather months of July, August and September, to the best quarter, the second quarter, we saw a decline in sales of 12% in both 2015 and 2014.

However, the third quarter has been the second best quarter for sales. In 2015, third quarter sales were 18% higher than in both the first and fourth quarters.

image002

Conclusions

In recent history, the first and second quarters of the year had the most new listings followed by the second and third quarters as the most sales. While real estate sales slow-down in the hot weather third quarter compared to the spring second quarter, the third quarter has been the number two quarter for most sales. While sales in the first and fourth quarters are the slowest, there is still lots of sales activity. Data shows sales in the first and fourth quarters range between 12,000 and 14,000. Look for sales in the fourth quarter of  2016 to be over 14,000 sales.

Fletcher Wilcox 2016 picture

Fletcher R. Wilcox is V.P. of Business Development and a Real Estate Analyst at Grand Canyon Title Agency.

He is author of www.TheWilcoxReport.com. His market analysis on residential real estate in Greater Phoenix has been mentioned in the Wall Street Journal, Bloomberg News, MarketWatch, HousingWire.com, National Mortgage News, Arizona Republic and the Phoenix Business Journal. He has been a guest speaker on local radio and both local and national TV.

He teaches real estate agents strategies in marketing and instructs real estate renewal classes in residential contract writing and Arizona title procedures.  Fletcher started snowboarding in 2006. He is not very good.

Fletcher may be reached at FWilcox@GCTA.com  602.648.1230

 

Arizona Real Estate: Why more Canadians may sell their U.S. Properties in 2016

This article was first published in the Arizona REALTOR® Voice on March 8, 2016.

by Fletcher R. Wilcox on March 9, 2016

Many Canadians own residential real estate in Arizona. They are especially attracted to the desert areas of Arizona during the winter when they can soak in the sun rather than shake off the snow.

Many got spectacular deals purchasing residential properties when prices were low and the Canadian dollar was close to being on par with the U.S. dollar.

Changes in the Canadian economy and dollar make it likely that there are now fewer Canadian buyers, but more sellers of their U.S. properties.  According to the Wall Street Journal on February 25, Canada’s economy is under pressure because of a drop in oil prices. In 2015, the Canadian-to-U.S. dollar average was at .75 cents compared to .97 cents in 2011.

Let’s look at a scenario as to why more Canadians may sell their U.S. properties this year than in recent years.

If a Canadian bought a house in the U.S. in 2011 and paid $150,000 USD, they would have paid close to $155,000 CAD.  In 2015, if that same property, because of appreciation, sold for $225,000 USD, a Canadian seller would receive $300,000 CAD, almost double what they paid in Canadian dollars in 2011. Quite a gain. So far in 2016, the Canadian dollar is even weaker against the U.S. dollar than last year.

USD v CAD exchange rate 2010-15

If a Canadian or if any foreigner, decides to sell their U.S. residential property, they should be aware of the Foreign Investment in Real Property Tax Act known as FIRPTA.

FIRPTA is the mandatory withholding of income tax on the disposition of U.S. real property interests by a foreign person(s) defined as a nonresident alien individual, a foreign corporation, a foreign partnership, trust or estate. According to the IRS, not only are sales under FIRPTA, but so are exchanges, gifts and transfers.

On February 17, the FIRPTA withholding tax rate increased up to 15% as demonstrated in the chart below:
FIRPTA demo chart

According to FIRPTA, what is the buyer’s responsibility? A buyer is solely responsible for the FIRPTA withholding tax from a seller.

When the seller is a foreign person? The IRS states:

“In most cases, the transferee/buyer is the withholding agent.  If you are the transferee/buyer you must find out if the transferor is a foreign person.  If the transferor is a foreign person and you fail to withhold, you may be held liable for the tax.”

To help make buyers and sellers aware of FIRPTA, Arizona REALTORS® has addressed it in the Seller’s Property Disclosure Statement (SPDS) and Residential Resale Real Estate Purchase Contract (Resale Contract).

Lines 13 and 14 in the SPDS read:
Is the legal owner(s) of the Property a foreign person or a non-resident alien pursuant to the Foreign Investment in Real Property Tax Act (FIRPTA)? Yes No. If yes, consult a tax advisor; mandatory withholding may apply.

Lines 135-138 in the Resale Contract read:
IRS and FIRPTA reporting: Seller agrees to comply with IRS reporting requirements. If applicable, Seller agrees to complete, sign, and deliver to Escrow Company a certificate indicating whether Seller is a foreign person or non-resident alien pursuant to the Foreign Investment in Real Property Tax Act (“FIRPTA”). Buyer and Seller acknowledge that if the Seller is a foreign person, the Buyer must withhold a tax of up to 15% of the purchase price, unless an exemption applies.

The seller in the Resale Contract agrees to comply with FIRPTA if they are a foreign person; if applicable, the buyer must withhold the tax. In the SPDS, the seller must indicate if they are a foreign person or non-resident alien; if they are, they should consult a tax advisor.

While different settlement agents may have different procedures, escrow officers are not equipped to give tax or legal advice concerning FIRPTA.

The IRS does not require the settlement agent to:

  • Determine a seller’s status as a foreign person
  • Decide how much FIRPTA tax should be withheld
  • Decide if the seller qualifies for an exemption, or
  • Complete FIRPTA forms

What then may a settlement agent do?

IF a buyer has determined that a seller owes FIRPTA tax, the escrow officer may assist them in collecting completed forms and withholding tax from the seller and buyer, and send the forms and taxes to the IRS on behalf of the seller and buyer.  (Remember, there is no duty by the escrow officer to complete FIRPTA documents.)

IF a seller applies for an IRS certificate exempting or reducing FIRPTA withholding tax prior to the transaction closing, it is likely that the certificate from the IRS will not be received until post-closing.  A settlement agent may agree to hold FIRPTA funds post-closing and send the funds to the IRS if certain conditions are met prior to the closing.  If the required conditions are met, then both the buyer and seller will have to sign post-closing holdback instructions.

IF the requirements of a post-closing holdback are not met, the seller and buyer will have one of two options.  The settlement agent may collect the proper forms and send in the withholding tax at the time of the closing.  Or the seller and buyer mutually agree in writing that the FIRPTA funds may be transferred to an attorney or CPA’s trust account.  The attorney or CPA will be responsible for the FIRPTA withholding amount.

Tips
If there is a FIRPTA withholding, both the seller and buyer will need either a social security number or a valid U.S. Individual Taxpayer Identification Number (ITIN) in order to process FIRPTA documents. If someone is not eligible for a social security number, they must apply for an ITIN.

Because of the length of time it may take to receive either a social security number or ITIN, it is a good idea to obtain one before a property is put on the market.

Also, talk with the escrow officer where the escrow will be processed prior to contract acceptance to find out what the officer will do on a FIRPTA transaction and what requirements must be met for a post-closing holdback.

A seller and buyer should always consult with a qualified CPA or tax attorney regarding FIRPTA.

Conclusion
In 2016, the Arizona real estate market will likely see more FIRPTA transactions with foreigners, specifically Canadians, selling their U.S. properties.  A knowledge of FIRPTA by both the foreign seller and buyer will help ensure a smother closing.      

Fletcher R. Wilcox is vice president of business development at Grand Canyon Title Agency

FWilcox@GCTA.com

602.648.1230