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Home Sale Contingencies in Real Estate Contracts

Web Admin - Thursday, April 10, 2014

illinois real estate contingencies lawyerBuying a new home is a complicated task that requires a lot of pieces to fall into place in just the right way. For many people, one of these pieces is the ability to sell their current home. Often, people need to sell their old home first to make sure they have enough cash on hand to afford the new one. Of course, sometimes that is not feasible, and people will want to put an offer down on a new house before they have managed to sell their old one. When this happens, people can use a “home sale contingency” clause in their contract to purchase the new home. In short, a home sale contingency clause voids the contract for the sale of the new house in the event that the buyer is unable to sell their old one.

Types of Home Sale Contingencies

There are two broad types of home sale contingencies that lawyers can build into a contract: a “sale and closing contingency” and a “closing contingency.” The sale and closing contingency is used in the event that the buyer has yet to find a prospective buyer for their own home. Conversely, buyers use closing contingencies when they have a prospective buyer who has made an offer for their home, but the sale has not yet closed. In this instance, the contingency acts as an insurance policy against the sale of the buyer’s home falling through at the last minute. While these two types of clauses function in largely the same way, both of them voiding the sale of the new house if the old one does not sell, the sale and closing contingencies are more likely to include a “kick out” clause.

Kick out clauses are a right of first refusal. They allow the seller to keep searching for other buyers for the house. In the event that one of these other buyers makes an offer, then the seller must notify the first buyer. The first buyer then has some period of time to sell their house or else the seller is allowed to make the sale to the new buyer instead.

Factors to Consider When Using a Home Sale Contingency

Buyers should consider two things when deciding whether to ask for a home sale contingency: the effect it will have on the new home’s price and the other costs of purchasing a house. For the first point, home sale contingency clauses will likely drive the price of the new home up. The buyer is asking the seller to take the risk that the buyer’s old home will not sell, and the seller will likely want compensation for bearing that risk.

For the second point, buyers can still end up sinking other costs into the attempted purchase of the new home. They can end up paying for things like home inspections, appraisal fees, and the like, even before they have sold their old house. In the event that the buyer fails to sell their home, then they have wasted any money spent on such things.

If you are in the market for a new house, find an Illinois real estate attorney to help ensure that you receive strong, fair contracts. We serve towns all across northwest Chicago including Palatine, South Barrington, and Mount Prospect.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

A Beginner’s Guide to Applying for a Mortgage Loan

Web Admin - Thursday, February 20, 2014

illinois mortgage loan lawyerFor many first-time home buyers, the process of applying for a mortgage can seem complex. This guide will explain the basics of the process, such as the timeline for applying for a mortgage, the documents that applicants should procure and bring, and the credit score and down payment that applicants should expect.

The Mortgage Timeline

The mortgage process begins with a pre-approval application. The purpose of the preapproval process is to let the bank or lender look into the applicant’s finances, in order to make sure that they can afford a loan. This is when banks ask for most of the documentation. Often they want things such as:

- a list of addresses and landlords;
- a list of previous employers;
- pay-stubs from the previous one or two months, with a person’s year-to-date earnings included as well;
- the last two year’s W-2 forms;
- two months of bank statements for all accounts;
- a list of all debts not on the applicant’s credit report; and
- a list of all other real estate that the applicant already owns.

If the applicant has already found a house that they like, and their offer has been accepted, then the bank will also want the seller’s contact information and a copy of the contract. Being ready to provide these documents can help speed up the mortgage process.

Once a person goes through the pre-approval process and has made an offer on a house, the bank will order an appraisal on it. The appraiser will go through the house and determine the value, and then the bank will take their assessment into account when calculating how large a loan they can offer. Generally speaking, the bank will base their offer on either the appraisal value or the purchase price, depending on which is lower.

After the appraisal, the loan underwriter will look at all the documentation to make sure the loan is a good investment for the bank. From start to finish, the whole process usually takes about four to six weeks on the bank’s end, but timelines may vary, and asking the lender in the beginning may be a good idea.

Credit Scores and Down Payments

In addition to the array of documentation, lenders will also expect borrowers to have good credit scores and money available to make a down payment on the house. The rule of thumb for a conventional loan, according to U.S. News, is that a borrower would need a credit score of at least 650. Conventional loans also require, on average, a down payment of around 20 percent. Borrowers may have an alternative in the Fair Housing Act loan, which is a loan insured by the federal government. These loans offer a 3.5 percent down payment with a 580 credit score, and a 10 percent down payment with a 500 credit score.

If you are going through the process of buying a home, contact an Illinois real estate attorney today. Our team serves people in many northwest suburban areas including Inverness, Barrington and Long Grove.

About the Author: Attorney Jay Andrew is founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


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