It is not unusual for a buyer and seller want to include personal property in their real estate contract. Personal property being included is far more complicated than the average buyer, seller and in a lot cases agents understand. Most especially when the buyer is getting a loan to buy the real estate.
First, what is personal property? Loosely described it is something that is moveable, and not attached to real property. Such as; tractors, pool tables, livestock, refrigerators, washer/dryers, pictures, household goods, mobile homes, etc... Sometimes a buyer wants it included as a part of the contract or the seller has no further use for it and wants to leave it for the buyer. Thus, buyers and sellers want it written on the contract to keep everyone honest and ensure everyone is legally bound to the personal property agreement. What happens next is where it all gets complicated.
The buyer gives the contract to the lender (required), the lender sees the personal property included in the contract and says, 'remove it.' The lender wants it removed because the lender doesn't want the appraiser assigning value to the personal property and thereby affecting the real property value. Remember, the lender isn't issuing a mortgage for the pool table. If the buyer defaults on the loan then odds are the buyer will take all moveable property (personal property) with them. Bottom line, personal property is not considered 'collateral' on a mortgage and a lender doesn't want it there when determining value.
What typically occurs at this point is the buyer and seller remove the personal property from the contract and create a bill of sale or addendum. Fixed right? Nope. Now the buyer, seller, agents, title company, lender and any and all real estate service providers are in violation of the federal Real Estate Settlement and Procedures Act- RESPA. Which essentially says 'Nothing under the table' or 'inducements to buy.'
You might hear someone involved in the transaction say, 'We've always done it this way." This might be said out of ignorance due to lack of education about the law and/or flat out fraud. Regardless of reasoning for the violation it's still prosecutable under the law. In the past HUD enforced RESPA and it was loosely enforced. Not any more. The newly created Consumer Financial Protection Bureau-CFPB, by the Obama Administration, will be enforcing RESPA. Please see respective sites for penalties under this law if found guilty and how it will apply to you.
Depending on the lender (banker) and how they interpret Fannie Mae or Freddie Mac underwriting guidelines will depend on what the lender considers standard personal property, such as refrigerators, washer/dryers, that will not affect the appraised (collateral) value of the property. If personal property is included in the contract be prepared for the lender/appraiser to assign fair market value to the personal property and reduce the loan by that amount. If the buyer has the cash to cover the difference, ok. If not and the buyer doesn't want to pay offer price without those items, then reduce the purchase price without the personal property included. If you run into a seller, buyer, agent, lender and/or any real estate service provider that directs you to ignore RESPA please seek legal advice immediately. RESPA is a non-negotiable for all real estate service providers and by law cannot be ignored.
Lastly, please ensure you consult your local tax authority in regards to whether or not a personal property tax is applicable to your transaction. A lot of County Assessors have jurisdiction over personal property tax inside and outside of a real estate transaction. Typically, at closing, title companies (or real estate closing service providers) must collect local tax assessors information to include any personal property conveyed during a real estate transaction.
I know what you are thinking at this point and my response is, contact your Representative.
The buyer gives the contract to the lender (required), the lender sees the personal property included in the contract and says, 'remove it.' The lender wants it removed because the lender doesn't want the appraiser assigning value to the personal property and thereby affecting the real property value. Remember, the lender isn't issuing a mortgage for the pool table. If the buyer defaults on the loan then odds are the buyer will take all moveable property (personal property) with them. Bottom line, personal property is not considered 'collateral' on a mortgage and a lender doesn't want it there when determining value.
What typically occurs at this point is the buyer and seller remove the personal property from the contract and create a bill of sale or addendum. Fixed right? Nope. Now the buyer, seller, agents, title company, lender and any and all real estate service providers are in violation of the federal Real Estate Settlement and Procedures Act- RESPA. Which essentially says 'Nothing under the table' or 'inducements to buy.'
You might hear someone involved in the transaction say, 'We've always done it this way." This might be said out of ignorance due to lack of education about the law and/or flat out fraud. Regardless of reasoning for the violation it's still prosecutable under the law. In the past HUD enforced RESPA and it was loosely enforced. Not any more. The newly created Consumer Financial Protection Bureau-CFPB, by the Obama Administration, will be enforcing RESPA. Please see respective sites for penalties under this law if found guilty and how it will apply to you.
Depending on the lender (banker) and how they interpret Fannie Mae or Freddie Mac underwriting guidelines will depend on what the lender considers standard personal property, such as refrigerators, washer/dryers, that will not affect the appraised (collateral) value of the property. If personal property is included in the contract be prepared for the lender/appraiser to assign fair market value to the personal property and reduce the loan by that amount. If the buyer has the cash to cover the difference, ok. If not and the buyer doesn't want to pay offer price without those items, then reduce the purchase price without the personal property included. If you run into a seller, buyer, agent, lender and/or any real estate service provider that directs you to ignore RESPA please seek legal advice immediately. RESPA is a non-negotiable for all real estate service providers and by law cannot be ignored.
Lastly, please ensure you consult your local tax authority in regards to whether or not a personal property tax is applicable to your transaction. A lot of County Assessors have jurisdiction over personal property tax inside and outside of a real estate transaction. Typically, at closing, title companies (or real estate closing service providers) must collect local tax assessors information to include any personal property conveyed during a real estate transaction.
I know what you are thinking at this point and my response is, contact your Representative.
