Federal Judge Dismisses Lawsuit Accusing Zillow of Conducting Appraisal Without License

This is a follow up to my post last week about some of the controversies surrounding the real estate website Zillow.  To bring yourself up to speed, click here

Welcome back to the post!  At the time of publication a lawsuit was pending against Zillow accusing the website of violating Illinois law by conducting appraisals without a license.  The Plaintiff in the lawsuit sought an injunction stopping Zillow from publishing its Zestimates in Illinois, as well as unspecified compensatory and punitive damages.

In what could be called a big win for Zillow, Judge Amy St. Eve held today that Zillow is not violating Illinois law, because Zestimates fall into an exception in the Illinois Real Estate Appraiser Licensing Act (the Act).  The exception provides that non-licensees may “procure an automated valuation model” from publicly available data without obtaining an appraisal license.  Judge St. Eve found that development of Zestimates by Zillow are clearly the procurement of an automated valuation model.  As such, Zillow does not need to be licensed.

The Court’s holding is significant, there was a substantive determination that Zillow is not breaking the law.  Had the Court simply based its holding on a technicality, it would leave the door open for further attack.  As such, the ruling provides a significant precedent for Zillow to rely upon should it be sued again, or if the State of Illinois were to bring an action against Zillow to enforce the Act.

So, it looks like Zillow is, in fact, here to stay.  Moreover, Zillow continues to expand its offerings with its “Instant Offers” pilot program.  (Hat tip to Cleo Aquino of Superior Realty for the heads up on this.)  The program launched in May 2017 in the Las Vegas and Orlando markets and allows sellers to make their property available for cash offers from 15 select large private investors with closing in as little as one week.  The program will expand to Phoenix next month.  Whether Zillow will see success with the program is anyone’s guess (it looks a bit predatory to me, to be honest…), but it certainly looks like Zillow is looking to take a more active role in the market.

As always, please do not hesitate to contact me at 773-632-8330 or patrick@loftus-law.com.  And finally, as always, I am honored by your referrals.  To learn more about my practice, please contact me!  And if you are looking to buy or sell property, I would love to set you up with one of my fantastic real estate brokers.

Condo Rental Caps – How The Board Can Prevent You From Renting Your Place

Most condo owners prefer that their neighbors are owner-occupants.  As a result, many condo boards enact rental restrictions or even outright ban rentals.  If validly done, the condo board can levy fines and file lawsuit to stop you from renting your unit.  Here is how to determine whether your board’s restrictions are enforceable.

Most buildings don’t start off with rental restrictions.  Developers want to cast the widest net possible for buyers, which means they want to be able to sell the new units to both owner-occupants and investors.  Rental restrictions tend to scare off investors.  As a result, rental restrictions tend to be enacted only after the condo board has been turned over to the unit owners.

On its face, rental restrictions seem counterintuitive.  Why would anyone voluntarily give up that right?  One reason is that it is a way to maintain unit values.  Most buyers cannot qualify for a purchase loan if a condo is less than 50% owner-occupied, which severely restricts the pool of potential buyers.  Property that is difficult to sell tends not to be particularly valuable.  In addition, renters tend to be less invested in the quality of a building long term and can be rather transient.  This can have the effect of lowering the quality of life for owner-occupants.

Restricting or banning rentals in a building is not a simple matter.  In order to be valid and enforceable, such a restriction requires an amendment to the condominium declaration.  Amending the declaration requires the vote of at least 2/3 of the ownership interests to pass.  Obtaining a super-majority in favor of a rental restriction can be quite a difficult task, and many initiatives to institute rental restrictions fail.  Interestingly, until recently, it was an open question whether a rental restriction could be enacted  by the board as a condominium rule rather than an amendment to the declaration.  About a year ago, the appellate court in Illinois made it clear that a rule without an amendment is not an enforceable rental restriction. Stobe v. 842-848 West Bradley Place Condo. Ass’n, 2016 IL App (1st) 141427.

The consequences of an enforceable rental restriction can be significant.  Renting a unit in violation of a restriction will probably at least get you fined.  Worse, the board will probably also sue you for possession of the unit or an injunction against renting it.  If your tenant is evicted, they will probably sue you for breach of contract.  The whole thing quickly becomes expensive and messy.  Before that happens, it is crucial to understand whether your association has a valid rental restriction, and what your rights are to rent your unit.  Before you buy a condominium that you intend to rent out, make sure you review the board’s rental policies before making a costly mistake.

As always, please do not hesitate to contact me at 773-632-8330 or patrick@loftus-law.com.  And finally, as always, I am honored by your referrals.  To learn more about my practice, please contact me!

 

In Defense of Real Estate Broker Commissions

I hear it all the time from home sellers.  “Why do Realtors make so much money?”  I’ve heard a few variants on the sentiment, ranging from the more diplomatic, “Realtors don’t seem to do much work to earn their commission,” to the more direct, “this commission is horse s**t!”   I submit to you, however, that Realtors more than earn every penny of their commissions.

My first point is quite simple — You don’t realize how much work a Realtor actually does.  If your Realtor friend goes for spa treatments every day, they are not closing deals — it’s that simple.  Prospecting and networking for clients takes a lot of time.  Once those clients are found, if they are buyers locating properties and setting up showings takes time and effort.  If they are sellers, preparing presentations to homeowners who may or may not list with you takes time and effort.  They prepare and present offers.  They negotiate.  They work with their clients all the way through to closing, often on a daily basis.  Realtors work weekends and holidays, because the rest of us aren’t available to look at property during normal working hours.  A successful Realtor is someone who works extremely hard.

The next point is also fairly easy to understand — Realtors are sales professionals, which means their compensation is tied to results, rather than the amount of time spent.  Let’s face it, most sales jobs are not salaried positions.  It’s all about value added.

A good agent adds value by using their expertise to help you find good properties in the right neighborhood at the right price.  Or if you are seller, they can pinpoint the right price so that the property will move quickly.  They use their experience in sales and negotiation tactics to the table to cut the best deal possible once you’ve started negotiating.  Once you are under contract, a good agent will make sure the appraiser has the right comps to do an accurate appraisal.   These are just examples of some of the numerous things that Realtors do that add real value to the process.

Not convinced?

My next point is a little more nuanced.  You might ask why we need real estate brokers at all (you might be a amused to know that one of the first Google autofills when you type ‘why do real estate agents’ is ‘exist’).  The answer to the question gets into the reason agents of all sorts exist in the first place.  For example, why do actors and athletes have agents negotiate their contracts?  Most of us have never needed someone else to negotiate the price of goods or our salary for us.  Part of the answer is that the more complicated and nuanced the negotiation, the better you will do having an expert negotiate with you.  And let me assure you, negotiating a 6 or 7 figure real estate transaction is as complicated and nuanced as it gets.

Take the example of NFL player Russell Okung, who defiantly announced in 2015 that he would enter free agency without an agent.  Of course, most of us know that athletes and entertainers regularly use agents to negotiate salaries and endorsements.  Okung proceeded to sign a five-year deal worth approximately $10.6 million per year with the Denver Broncos.  Not too bad, considering that he doesn’t owe a cut to an agent, which can be up to 3% ($318,000 per year in this instance)!  In fact, the amount he saved alone would put him in the top 3% of all earners in the US according to CNN Money.

Sadly, Okung only earned $8 million from that contract.  You see, NFL contracts are voidable by the team at any time.  The only money a player is guaranteed is the up front signing bonus, which is why you so frequently such large bonuses for players.  No agent would have let him jeopardize his future by signing such a risky contract.  Especially given the well know effects that playing in the NFL has on the human body and brain.  Okung essentially gave up millions to save $318K.

It is well accepted that athletes and artists who represent themselves tend to get emotionally involved.  It’s not easy to hear that you are not the best at your craft anymore or that you are not the box office draw you once were.  Likewise, home buyer and sellers tend to have difficulty keeping their emotions out of the mix.  It is not easy to hear that your kitchen is dated or the school district is sub-par.  Suffice to say, you do not want to end up making a Russell Okung-like mistake when selling or buying the most expensive thing you may ever own.  The best way to avoid such a mistake is by hiring a Realtor.

Finally, if you don’t buy some of my more squishy reasoning above, you will be happy to find out that the numbers support the fact that, in most cases Realtors add more value than they take away from a real estate transaction.  For example, according to the National Association of Realtors (NAR) in 2015 the typical for sale by owner (FSBO) home sold for $185,000, while the typical agent assisted transaction had a sale price of $240,000.  Granted, this is a very general statistic, but it is striking, nonetheless.

Setting a listing price for your home is difficult to do objectively.  It is easy to fall into the trap of setting a high price just in case someone falls in love with the home and just has to over pay.  In 2015, 18% of FSBO sellers found setting the sale price to be the most difficult aspect of selling their home.  Overpriced homes sit on the market longer than necessary, which increases carrying costs and stress.  The longer a home is on the market, the less attractive it is to buyers who begin to wonder what must be wrong with it.  These sellers typically end up accepting lower prices in the long run, and a good agent won’t let you fall into that trap.

Likewise, it is easy for a buyer to fall into the trap of throwing a lowball offer out there to see if you can get the seller to bite.  A lowball offer is just going to piss off the seller, who will probably not engage in negotiations with someone who does not seem serious.  A good agent will steer you away from this tactical mistake that could cost you the home of your dreams.

This blog post is not long enough to be an exhaustive analysis of the value that Realtors add to real estate transactions or give all the reason they are worth it.  I don’t expect everyone to be moved to change their opinions on the matter.  However, I hope that I have given you some things to consider when thinking about Realtor commissions.  I maintain that real estate brokers earn every penny they make.  To be honest, they may suffer more from bad PR than anything else.  Sometimes they make it look a little too easy.  In this instance, looks are deceiving.  I will leave you with a final musing — if a real estate license is a license to print money, why aren’t you selling real estate?  Wouldn’t you like to have a job where you make too much money?

Closing Costs Part 4 – Miscellaneous Charges

In the first three installments of my series on closing costs, I addressed real estate tax credits, title charges and lender costs.  This fourth, and final, last installment will address the last category of closing costs – everything else.  As you review your closing costs with your attorney at the closing table, it may feel like everyone is taking their pound of flesh from the transaction.  That is because it is essentially true.

Transfer Taxes

Whenever you buy or sell real estate, the government sticks its hand in your pocket.  The amount of the tax depends largely upon the location of the parcel.  The State of Illinois always gets $1 per $1,000 of the purchase price and the county gets half of that.  Municipalities have the authority to set their own individual taxes.  Some have none at all (eg. Palatine), and some are fairly hefty (eg. Chicago – $7.50 per $1,000 of the purchase price for the buyer and $3.00 per $1,000 of the purchase price for the seller!).  Unfortunately, in most instances these taxes are unavoidable.

Real Estate Broker Commissions

The brokers are paid from the Seller proceeds.  The amount they are paid is determined by the terms the listing agreement.  The brokers’ commission is usually 5% or 6% of the purchase price.  Regardless of the total commission, the listing broker gets a broker co-op commission of 2.5% of the purchase price paid by the listing broker from the total commission.

Recording Fees

The title company will record the deed and mortgage at the county recorder’s office to let the whole world know that you now own the property (and a mortgage on said property).  Of course, the buyer is expected to pay the recorder’s for this.  The cost is usually between $120 and $130 total.

Survey

If the property is a single-family, detached residence, the seller is required to provide the buyer and title company with a survey.  The cost of a survey is roughly $450.  If the property is a condominium, no survey is necessary.

Attorney Fee

Obviously, this is the most important cost of all!  It is crucial to have a good attorney (like me) to protect you when hundreds of thousands of dollars are at stake.  Attorneys, such as myself, who handle residential real estate transactions charge a flat fee paid at closing.  At the time of publication, LoftusLaw charges $500.  What a bargain!

Thus concludes my series on closing costs.  Your experience may vary, as each transaction is unique.  If you have questions about closing costs, or any other real estate matter, as always, you can contact me at patrick@loftus-law.com or 773-632-8330.  To see what my clients have to say about me, please visit me at avvo.com or on my Google + page.

New IHDA Program Offers Up To $50,000 In Assistance To Under Water Homeowners

The painful memories of the housing bubble are quickly fading amidst the red-hot real estate market here in the Chicago area.  However, the good news is not universal.  Some homeowners live in sort of a limbo where they can just afford their mortgage payment, but they cannot possibly sell their home due to the fact that they owe more than the property is worth.

There may be hope for some of you.  The Illinois Housing Development Authority (IHDA) has introduced a program for qualifying homeowners to receive up to $50,0o0 toward the balance due on their mortgage and refinance into a more affordable loan based on the market value of their home.  The following eligibility requirements must be met:

  • Current on your mortgage for at least 12 months
  • Live in the home as your primary residence
  • Credit qualify for a new IHDA mortgage through a participating lender
  • Be within IHDA’s income and home price limits 
  • Credit score must be at or above 640
    • 640 for Conventional, VA and USDA
    • 660 for FHA
  • Pre-assistance combined loan-to-value must be greater than 110%
  • Post-assistance loan-to-value will be 90-97%

The income and home price limits for the Chicago area vary depending on the number of people in your household and whether your home is new construction, existing or multi-unit.

If you qualify, I would strongly encourage you to reach out to one of the participating lenders.  Free money, after all!

If you have questions about this program, or any other real estate matter, as always, you can contact me at patrick@loftus-law.com or 773-632-8330.  To see what my clients have to say about me, please visit me at avvo.com or on my Google + page.

Checking Your Significant Other’s Email For Evidence of Cheating May Violate Federal Law

As if divorce cases weren’t bizarre and petty enough, an “innovative” divorce litigant has figured out yet another way to torture his soon-to-be former spouse.  According to an article in the ABA Journal:

“Paula Epstein, the defendant in the case, was sued by her husband, Barry Jay Epstein, the Chicago Daily Law Bulletin reports. The couple are in the process of divorcing, according to the opinion (PDF), and Paula accused Barry of “serial infidelity.” His attorney asked for proof, and her attorney produced email correspondence between Barry and several other women. According to the opinion, Barry did not know that Paula had access to his emails until they showed up in discovery. He alleges that she must have arranged for his emails to be automatically forwarded to her.”

Although the federal district court dismissed Barry’s complaint, the Seventh Circuit reversed the district court’s decision in part and reinstated the claim against Paula.  To its credit, the Seventh Circuit seems a bit disgusted with itself for essentially choosing form over function as it pertains to enforcing the Wiretap Act, with Judge Posner stating in his concuring opinion:

“Her husband’s suit under the Federal Wiretap Act is more than a pure waste of judicial resources: It is a suit seeking a reward for concealing criminal activity.  Had the issue been raised in the litigation, I would vote to interpret the Act as being inapplicable to—and therefore failing to create a remedy for—wiretaps intended, and reasonably likely, to obtain evidence of crime, as in this case, in which the plaintiff invoked the Act in an effort to hide evidence of his adultery from his wife.”

However, the fact stands that the case will move forward against Paula back in  district court.  Regardless of the outcome, the tactic seems to have worked in terms of creating leverage for Barry in the divorce case, as Paula will have to consider potential liability in the federal case as it pertains to the remaining issues in the underling divorce.  I’m sure that is what Congress intended when it enacted the Wiretap Act.

As it stands now, if you are going to snoop on your no good cheating husband, you’d better bone up on your knowledge of the Wiretap Act.  Otherwise, you might find yourself being sued in federal court in addition to being embroiled in a messy divorce.

Credit to today’s ISBA E-Clips for pointing this story out to me.  Further credit to ABA Journal and Stephanie Francis Ward for authoring the article.

New Illinois Law Brings Common Sense Approach To DUI And Pot

This is not about real estate.  However, some of you (wink, wink, no judgment here) should be aware of an important change in the DUI laws, which provides a more common sense approach to the issue of pot use and driving.

Until Governor Rauner signed SB 2228 into law last week, pot smokers were at risk of a DUI conviction unless all traces of THC (the intoxicating compound in pot) had left the system.  Although the intoxicating effects of pot last a few hours at most, it can take weeks for all of the THC to flush from the system.  This unreasonable standard resulted in many unneccasary arrests and convictions, often putting otherwise good people in jail and unnecessarily ruining lives.

The case of Alia Bernard is a prime example of the absurd results produced by the old law. People v. Bernard, 2014 IL App (2d) 130924.  In 2009, Bernard was involved in a fatal car accident, which occured when she rear ended a vehicle while fishing around the car for her sunglasses.  Two days prior to the accident, she had used marijuana.  Although the proscutors freely admitted that Bernard’s use of pot played absolutely no role in the accident, they charged Bernard with reckless homicide and aggravated DUI, based solely on the trace amount of THC detected in her blood after the accident.  Facing an unwinable case under the old law, Bernard entered a guilty plea to the aggravated DUI charge.  The judge threw the book at Bernard, sentencing her to seven years in jail.  But for the trace amounts of THC in her blood, the worst she could have received was a traffic ticket.  The old law made so little sense that had the driver of the car that Bernard rear ended been found with any THC in his/her blood, they would also have been charged with DUI!

The new law provides a new standard whereby a person can have up to five nanograms of THC in their blood, or ten nanograms in their saliva, before they can be charged with DUI.  As unpopular as it is, and should be, to relax DUI laws, the new law provides a more common sense approach.  Let me be clear, no one shoud be driving around whilst stoned.  However, once the concentration of THC in your blood is less than five nanograms, there is no longer any intoxication present.  No one should be convicted of DUI when they are not driving impaired.

So, for those of you who like to occassionally puff, please, for the love of God, do not drive stoned.  However, once you come down, feel free to go pick up the kids without the fear of going to prison for seven years after someone t-bones you after they run a red light.

For more, please take a look at the article from the Chicago Reader linked below.

The state’s new marijuana law sets a benchmark for driving under the influence of weed, but attorneys say it’ll be hard to enforce.

Source: New Illinois law defines ‘stoned driving’