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Seller Credits: Playing Footsie Under the Closing Table Or Playing by the Rules?

By
Mortgage and Lending with Platinum Home Mortgage Company NMLS #238304

Recently, a featured post told the story of an agent who decided to "SAVE" a real estate sale because the lender refused to allow a $7000 credit. He believed it was okay to exchange some funds under the table to solve this problem.

Ha! We knew better over here at ActiveRain. Just those words "under the table" sent shivers right up our collective spine.

The real estate business does not allow anyone to play footsie under the table with buyer and seller funds.

Should the agent have been in a position of "money laundering" $7000 that the seller owed the buyer?

No. Any mortgage person has the ability to calculate the allowable seller credit based on published lender guidelines.

In my opinion, all credits to the buyer need to be addressed before an offer is even written for 2 reasons:

  1.  Because they are directly tied to closing costs
  2.  Because they must conform to strict lender guidelines.

Five important points to remember about seller credits before an offer is written:

  1. Credit can ONLY be used for CLOSING COSTS. Not for the down payment. Not for repairs to the house.
  2. Amount of credit has a limit: Maximum allowed in most cases is 6% of the selling price.
  3. Some lenders will only allow credit to be used for non-recurring closing costs. Some will allow for recurring (tax impounds, interest paid in advance, homeowners insurance, etc), as well as non-recurring.
  4. Credit does not need to exactly match the amount of the closing costs, because anything "left over" can (and should be) be used to buy down the rate. There are limits to the amount of interest rate reduction you can buy. 
  5. A buyer cannot get CASH back if the credit exceeds the closing costs.

Five important things a buyer needs to know about seller credits:

  1. By choosing a seller credit instead of a lower price on the house, you will pay higher property taxes(may not be true in all states, is definitely the case in California).
  2. If your seller credit is large enough to allow you to buy down the interest rate, this can definitely be ADD TO YOUR ABILITY to buy a more expensive house. It will lower your payment more than it will raise your taxes in most cases.
  3. THE HOUSE STILL HAS TO APPRAISE! If you raise the price by $20,000 to get your credit, the appraiser may not agree with you. The seller credit cannot be FLUFF added to the value of the house.
  4. If you are only going to make offers on bank owned properties, your ability to get a seller credit is lessened.
  5. Seller credits often become a negotiating tool. For this reason, making an offer requires that you already have a SOLID estimate of your closing costs (good faith estimate). This will dictate the final amount of cash you will need should the seller counter with a lower amount of credit.

 Written by Janet Guilbault, Mortgage Banker/Broker based out of the San Francisco Bay Area

Ask Janet a question: jguilbault@rpm-mtg.com

 

Anonymous
Joan Hathaway

Not a good idea to do ANYTHING under the table.  Transparency is the word.

Jul 17, 2009 01:52 AM
#48
Damon Botticelli
Vegas Real Estate Photography - Las Vegas, NV
Real Estate Photographer

There are still a few companies out there doing cash back after closing.  It says on one of their websites:

You could use your rebate to:

  • Buy down points on your loan.
  • Pay for or lower your closing costs.
  • Buy new furniture with your rebate check!   ---------------------

There are also new home builders occassionally offering deals like "no mortgage payments for 6 months" or "we'll pay a full year of your HOA dues"

These sound like footsie too, but somehow it's not under the table...

Jul 17, 2009 02:04 AM
Anonymous
Dale Falkowski

Closing costs have always been an issue to consumers. Trying to tell buyers the seller is paying something and they, the buyer, are not paying, has always bothered me.

Here is the way I see it. The final consumer of any product including a house pays everything.
If the buyer wasn't making the purchase there would be no exchange of money and nobody would be paid anything.

The buyer has one concern. How much money is coming out of my Account?
The Seller has one concern. How much money is going in my Account?

The Lenders and or the Government allow the Buyer to finance closing costs if they are written as Seller Paid.

Educating Buyers to the fact they are indeed paying everything no matter how the contract is written is hard and very unpopular, but if you do it, you will never have a problem with the Buyer or the Seller.
You can do a Buyer Net just like a Seller Net and it really help clear things up.

Jul 17, 2009 02:35 AM
#50
Chris Butterfield
Salt City Real Estate - West Jordan, UT

According to the rules in our state, post-closing commission rebates, by a real estate broker, to buyer/seller/lessor/lessee are perfectly legal.

The catch is that it must be done AFTER closing.  So in other words, you can share your commission with anyone after you get it.  You cannot offer it at the closing table DURING the transaction.

Also note that it must be done by the broker, not the agent.

Why you would give away your hard earned cash is another question.

Chris

Jul 17, 2009 02:39 AM
Janet Guilbault
Platinum Home Mortgage Company - Walnut Creek, CA
San Francisco Bay Area Direct Mortgage Lender

Chris: I once had a loan screwed up by an agent who decided to give a $15000 rebate of his commission right before closing. This exceeded the allowable credits when it was combined with the seller credit.

I was VERY LUCKY to talk the lender (ING) into allowing this.

I am wondering why you would earn a commission, pay tax on it, then give it back to the client. And that it is allowed! Weird.

Jul 17, 2009 02:56 AM
Janet Guilbault
Platinum Home Mortgage Company - Walnut Creek, CA
San Francisco Bay Area Direct Mortgage Lender

Dale, I do agree with what you are saying. However having enough cash to close a transaction is a different issue from understanding that a credit is not "free" money.

A seller credit is very useful because no matter what you pay for the property, a certain amount of cash needs to be coughed up one way or another.

Jul 17, 2009 02:58 AM
Janet Guilbault
Platinum Home Mortgage Company - Walnut Creek, CA
San Francisco Bay Area Direct Mortgage Lender

Damon...buy down points is ok, it is a closing cost.

Pay for closing costs....okay as well.

Get a rebate for new furniture???? I can't think of any lender that would allow a rebate for new furniture.

 

Jul 17, 2009 03:00 AM
Janet Guilbault
Platinum Home Mortgage Company - Walnut Creek, CA
San Francisco Bay Area Direct Mortgage Lender

Steve: Thank you for your input. I agree with what you said, and believe you bring up some excellent additions to this discussion.

Jul 17, 2009 03:02 AM
Chris Butterfield
Salt City Real Estate - West Jordan, UT

I dont think you fully understood my post.  I said that it is ALLOWED AFTER closing.  And I agree, as I said before, why would you give up your hard earned cabbage.  I just want to set the record as to what is ALLOWABLE.  There is no RESPA violation for POST-CLOSING gifts.

In you 15k example, how is it a commission rebate BEFORE closing?  Sounds like a loan, and a RESPA violation to me.  Talking your banker into it could put YOU at risk.

Chris

Jul 17, 2009 03:20 AM
Michelle Gibson
Hansen Real Estate Group Inc. - Wellington, FL
REALTOR

Janet - This is great information and why it is so important for a buyer to get a GFE before making an offer.

Jul 17, 2009 03:21 AM
Janet Guilbault
Platinum Home Mortgage Company - Walnut Creek, CA
San Francisco Bay Area Direct Mortgage Lender

Chris: It was a commission rebate pure and simple. He decided to give up that money to the buyers. I don't know why. He would not do it after the closing because he didn't want to be taxed on it, and then pay it. He insisted it be disclosed on the paperwork.

I am always above board with my lenders. I told them exactly what the Realtor intended to do and asked them how they would like me to handle it....even if it meant they would not complete the transaction.

I had already bought the rate down as far as I could, and used the seller credit which was the full 6 %.

Lender delayed the deal while they mulled it over, finally agreed to proceed (was a 1.4 million dollar transaction) and told me how to word it on the closing statement.

Natually I encouraged them to find a way to salvage the loan....if that counts as "talking them into it".

The funny thing was, the Realtor was mad at me for this delay. He couldn't understand why throwing more money into the mix should be a problem. Even at the last minute.

And I was thinking this "A lousy salesperson gives up their commission...what the heck?????"

Jul 17, 2009 03:55 AM
Janet Guilbault
Platinum Home Mortgage Company - Walnut Creek, CA
San Francisco Bay Area Direct Mortgage Lender

Chris: It was definately not a loan. Borrowers had plenty of cash to close. I think however it could have been some sort of concession for something that might have occured during the transaction.

Just a hunch.

Jul 17, 2009 03:58 AM
Dee Neal
Palmer House Properties - Alpharetta, GA
Atlanta Area Real Estate

great post! it is ALWAYS wise to know the bank's handle on seller assist. it is important to not just get a preapproval BUT a gfe working in any seller credits expected BEFORE you start looking. i do this with my buyers and it works like a charm. i love my loan officer.

Jul 17, 2009 04:37 AM
Anonymous
Anonymous

I have used the Seller concession to Buyer extensively, and I find that typically, closing costs run about 2% to 3% and the difference is often the cost of PMI premiums upfront, for example.

I've gone back over old transactions and every time, I've been able to verify that we could use every penny of three percent, if the Seller was willing to conceed to that amount.  These days, however, banks are getting firmer on that, I notice, as the market has tipped back to a more favorable position for them (and I recgnize that other Sellers besides banks are agreeing to this, but banks are the largest contributor).

As a complete departure from this, and more to the Realtors than the lenders reading this, how are you all handling the banks (Sellers) who attempt to reduce your commission on the concessions to Buyers?  I am currently preparing to file a formal complaint and request for disciplinary action against a brokerage who refused to follow the MLS rules against this, after two or more years of having commission reductions made unilaterally by banks. More on this later, perhaps?

Jul 17, 2009 06:13 AM
#61
Todd & Devona Garrigus
Garrigus Real Estate - Beaumont, CA
Broker / REALTORS®

Janet,

Thank you for this informative post. I especially enjoyed the "Five important things a buyer needs to know about seller credits" portion.

Jul 17, 2009 07:22 AM
Ginger Moore
Wilkinson & Associates Realty - Gastonia, NC

Janet, thanks again for the great post!  I read this one, and the one previous to this one, that you were referring to. both were great and very informative.  Thanks for sharing!

Jul 17, 2009 02:38 PM
Lane Bailey
Century 21 Results Realty - Suwanee, GA
Realtor & Car Guy

Of course I re-blogged it... and promoted it on FaceBook and Twitter... 

Jul 17, 2009 04:39 PM
Anonymous
Anonymous

Ha...love the picture.  

Yes, every penny spent and to whom is on the HUD statement . We can't hide what we got and where we got it.

Thanks for the post today.

Patricia AUlson/Portsmouth nh real estate

Jul 19, 2009 05:18 AM
#65
Anonymous
VMG

Thank you SO SO much for writing this article!!!!  My partner and I are first-time homebuyers, and just today decided to make an offer on a bank-owned property in Oakland.  Long story short is that as we were meeting with our realtor to sign disclosures, write EM check, and make offer letter, we stumbled over some very confusing issues about seller credits--confusing enough for us to stop the proceedings until we can get a handle on it all.  I found your article by googling "seller credit to buyer california," and it has been the clearest, most straightforward, most useful item I've read on the subject (and I've already plowed throught the mountain of books I've checked out about the process).  Really, your post has been a great service to us laypeople out there just trying to claim a little piece of home in the craziness that is Bay Area real estate!  Thank you again!

Jan 15, 2010 04:16 PM
#66
Anonymous
Gabriela

Great article. We're in escrow and are trying to figure out how to use a $12k credit from the seller for a new roof. Initially our bank (Wells) said it wouldn't be a problem. Now they say we can only use it toward non-recurring closing cost which will only be about half the amount of the credit. Thanks for explaining the details. I wish lenders could be held responsible for their bait and switch tactics.

Mar 10, 2011 04:46 AM
#67