The Challenges of Luxury Short Sales

So all of us have had a story or 2 to tell when working in the Real Estate business.  I have had a few myself.  But there is one recent story that I MUST tell for if nothing else to warn and educate both the consumer and my colleagues so it doesn't happen to you. Keep in mind as you read this whopper of a story that we here at Palm Beach Premier Real Estate was on the Buyer side of this transaction.

As we all know, on any transaction where the seller is a foreign national, it is required that 10% of the profits realized in the transaction be withheld until such time that all taxes are paid.  Otherwise, those dollars can be taxed to the buyer.  Remember the buyer must report that the seller is a foreign national.  But what happens when the transaction is a short sale?  I have previously discussed how to be an effective Boca Raton Short Sale expert and the following story demonstrates the importance of having the right team of experts in the transaction (like title companies and attorneys). 

Well, so here is my story...I wrote a contract for a property that was a luxury short sale here in Boca Raton and the Seller was a foreign national.  The seller hired a negotiation company that was associated with a larger Real Estate and Title firm here in Boca Raton.  The negotiator and title company (not attorney run) communicated with the seller who lives and works overseas for 4 MONTHS as it took that long to negotiate the short sale on this particular property. 

Okay, so we all get to the closing table at 2:30 pm and everyone was all excited.  My Buyers begin to sign all their loan documents and there is a document in there that references that the seller is a "non non-foreign national" - no I did not make that up! This is when the closing came to a LONGGGG pause.

The seller had attended University in the United States many years ago and because he had a student visa at the time, had a social security number for banking purposes.  The title company ASSUMED that because the seller had a social security number, that the 10% withholding did not apply in this case.  Turns out, it did.  But, because the transaction was a short sale, there were no proceeds to withhold as there was over a $100,000 loss  (mind you, he never refinanced and made the mortgage payments the entire time through the short sale process). 

So what do you do in this case?  The Title company called the seller's lender and requested that 10% be withheld due to the circumstances.  The lender declined and said that there was no room for the 10% to be withheld.  What was learned was that the title company was required to have applied for a tax waiver certificate which take approximately 60-90 days to obtain.  The title agent was a nervous wreck because they realized that they messed up.

In the meantime, the buyers had received financing for the purchase of this property and they had a closing date scheduled for the sale of their current home in a few weeks time as well.  This became a convoluted mess! 

After many phone calls to accountants and attorneys (both for the Buyer and Seller), in the end, the buyer and seller came together, signed agreements regarding the withholding tax and were able to close the transaction successfully.