Oswego Real Estate Lawyer: Tips for Real Estate Sellers in Kendall County

 Posted on March 28, 2023 in Real Estate Transactions

Kendall County Real Estate Lawyer

At Gateville Law Firm, we specialize in residential real estate transactions for sellers and buyers of real estate in Oswego, Plano, Newark, Leland, Boulder Hill, Aurora, and nearby areas of Kendall County. If you are considering selling or purchasing a home, this article will discuss the real estate closing process in Kendall County and the nearby regions. Three significant factors impact the home sale process in Illinois.

A. Attorney Review and Home Inspection Periods

The first factor involves the attorney review and home inspection periods. The attorney review and home inspection periods are significant during a residential closing. The attorney review period is established under the Multi-Board Residential Real Estate Contract 7.0 ("Purchase Agreement") and is the standard real estate contract used in Kendall County and surrounding Chicago suburbs. 

The Purchase Agreement outlines the typical real estate terms and conditions of selling residential property in Illinois. The commercial sales agreement utilizes a separate agreement. The Purchase Agreement includes the following provisions:

• Purchase Price

• Closing Date

• Financing Terms and Agreements (such as whether conventional, FHA, or VA and percentage of mortgage rate)

• Home Inspection

• Attorney Review Periods

The advantage of a standard real estate contract is that it simplifies the real estate contract for buyers and sellers. The terms and conditions are clear and concise for attorneys, real estate agents, buyers, and sellers. Legal representation is strongly advised because there are many grey areas that can impact the buy and sales process. The attorney review period is generally five business days after the date of acceptance.

The date of acceptance is when the sellers signed the Purchase Agreement. The attorney review provision allows the buyers or their attorneys to seek contract modifications to the standard real estate terms in the Purchase Agreement. Generally, the Buyer's real estate attorney will seek revisions of the Purchase Agreement terms, such as the following:

• The Contract shall be contingent on the property appraising at or above the contract purchase price by the Buyer's lender’s appraiser.

• The Seller shall confirm the subject property is not subject to bankruptcy, short sale, foreclosure, or any outstanding contracts for the sale of this property other than this Contract.

• At closing, entirely operable smoke and carbon monoxide detectors will be installed in the home as required by 430 ILCS 135 and 425 ILCS 60.

• Fixtures and Personal Property. Concerning Paragraph 3 (Fixtures and Personal Property at No Added Value), Seller shall leave any available appliance and fixture warranties and instruction manuals in the home at closing.

• If Buyer defaults under this Contract, Buyer shall have three (3) business days to rectify the default. 

• The Seller shall provide written proof at closing that the public utility bills are paid through the closing date. If the bills are unavailable, Seller agrees that they will promptly pay all invoices when due. The duty of payment of utility services shall not merge with the deed and shall survive closing.

• The Seller represents that the property is not in a flood plain or particular flood hazard area. Seller shall further represent that they have never obtained a flood hazard insurance policy regarding any portion of the subject property;

• The Seller represents that there were no claims with homeowners' insurance in the past five years. If there were any homeowner's claims, the Seller would disclose the nature and extent of the homeowners' claims.

• Please advise whether any construction or remodeling work was performed by or on behalf of the Seller during their period of ownership and whether permits were obtained for the same;

• The attorney review period shall remain open until all contract and inspection issues are resolved.

• The Seller represents that the basement is free of water, seepage, leaks, or flooding and that roofs are free from leakage. The Seller further means Seller has yet to become aware of any circumstances which would alter the indications made in the Residential Real Estate Property Disclosure Report, which has been delivered to Buyer, and that the Seller shall notify the Buyer of any such circumstances which occur before closing.

• Any fines and court costs covering the subject premises before the present municipal code violations shall be the sole responsibility to satisfy at the Seller's expense. Even if the violations and fines do not appear on the title commitment for the title insurance, this obligation shall survive the closing and not merge with the passing of the deed.

• The Seller represents that HVAC equipment and any other systems that may not have been tested appropriately operated during their last use. The Seller is unaware of any defects and repairs needed on such systems and equipment.

• The real estate taxes for the subject property are not subject to senior freeze discount, senior freeze, improvement waiver, unimproved or partially unimproved status, Veterans Affairs exemption, or any other type of exemption or discount which this transaction may drop. The property has been assessed as fully improved according to the most recent fully billed tax bill, and no improvement exemptions are currently in effect.

• Seller's default options shall be limited to retaining the Buyer's earnest money.  

• In the event of a conflict between the terms of this letter and the Contract, following approval by the Seller and their attorney, the terms of this letter shall control.

• Buyer shall be entitled to a walkthrough within twenty-four (24) hours of closing; after all, Seller's personal property not being transferred is removed. In addition, utilities will not be disconnected before the closing to avoid reconnection fees. So the Buyer can confirm at the walkthrough that all appliances, gas, and electrical systems are fully functional.

• The Seller represents and warrants that they are not a foreign citizen and that Section 1445 of the Internal Revenue Code does not apply to this transaction. The Seller will present a signed FIRPTA document to Purchaser at closing. 

The above term is expected in the Buyer's real estate terms, which they seek to modify the terms of the Purchase Agreement. Not all  of these additional terms will be included in the Buyer's attorney's attorney review letter, but these are other standard terms seen in the attorney review process. The Buyer's real estate attorney's goal is to seek information critical to their client. The attorney review period is often successfully negotiated, but each real estate attorneys handle these issues separately.

We will now discuss only the key terms in most real estate attorneys' modification letters. We will discuss the following:

• Appraisal Contingency

• Attorney Review will Remain Open

• Homeowner’s Insurance Claims

Appraisal Contingency

The appraisal contingency enables the Buyer to cancel the Contract if the property does not appraise for the contract price. The appraisal contingency protects the Buyer from overpaying for a property. An appraisal contingency clause in the Contract states that the sale is contingent upon the property appraising for at least the agreed-upon purchase price. If the property does not appraise for the purchase price, the Buyer can renegotiate the price or walk away from the deal without penalty.

In other words, the appraisal contingency gives the Buyer a way out of the Contract if the property is not worth what they have agreed to pay for it. The mortgage company or lender will only base their financing contingencies on the appraised value. The lender will not lend greater than the appraisal price. The appraisal contingency is a method to protect the Buyer if they cannot get sufficient financing to overcome the appraisal price being below the contract price. The Buyer and the Seller may agree to a contract price above the appraised value, but the Seller must bring their cash for the difference between the contract price (new) and the appraised value.

In 2008, the recession was brought on by buyers and lenders needing a better appraisal process. Changes have been made since 2008 to change the function, and better protect buyers, lenders, and the country from the control of the real estate market. The appraisal contingency protects the Buyer from taking on a mortgage higher than the property's actual value, which could lead to financial hardship down the road. It also protects the Seller from a buyer willing to pay an inflated price for a property that is not worth it. Overall, the appraisal contingency helps ensure a fair and equitable real estate transaction for both the Buyer and the Seller.

Attorney Review will Remain Open

In Illinois, when a real estate transaction involves a purchase agreement between the Buyer and the Seller, the Contract typically includes an "Attorney Review" provision. This provision allows the Buyer and the Seller to have their respective attorneys review the Contract and propose changes or amendments before it is binding on the parties.

When the Contract includes language stating that "Attorney Review Will Remain Open," it means that the attorneys for both parties have the right to continue to review the Contract and propose changes even after both parties have signed it. The Attorney Review Will Remain Open means that the attorney review period will not automatically terminate the Contract after ten business days. The Purchase Agreement states that either party may terminate the Contract if they do not successfully satisfy the attorney review period by ten business days. 

The attorney review period is generally limited to 10 business days. During this time, either party may terminate the agreement without penalty if unsatisfied with the terms. Once the attorney review period has ended without any objections or changes, the Contract becomes binding, and the transaction can proceed.

Home Owners Insurance Claims

The homeowner's insurance claim question seeks to discover any hidden defects that the Seller may not want the Buyer to know. Generally, the Seller is under a duty to disclose information. However, the Seller has no obligation to inform if the Buyer does not ask the question. In many cases, sellers will reveal the date, the nature of their claim, and the basic details of the home insurance claim(s). In most cases, the homeowner's insurance claims are no big deal, and often, the nature of an insurance claim benefits the Buyer. For example, the insurance claim may be that a roof was repaired or a new roof was received due to rain or hail damage. The purpose of this provision is to discover critical information that the Buyer wants to know that could impact the Purchase Agreement. The Buyer's attorney will typically ask about any homeowner's claims within the last three to five years.

B. Home Inspection Provision

The home inspection period is the period that addresses home repairs. This provision is the most critical provision of the Purchase Agreement. The purpose of the home inspection provision in a residential real estate transaction in Illinois is to grant the Buyer an option to have the property inspected by a professional home inspection before the sale is finalized. The provision typically requires that the inspection be completed within a specific timeframe after the Contract is signed. Furthermore, the Buyer can request repairs or credits for any defects or issues found during the inspection.

The home inspection provision is vital for buyers and sellers because it uncovers potential problems with the property that may not be visible during a typical walkthrough. This can include issues with the roof, foundation, plumbing, electrical systems, and other structural components. By identifying these issues before the sale is finalized, the Buyer can either request repairs or credits from the Seller. The point of repairs or credits will also determine the type of loan that the buyers have. FHA and VA loans will require safety issues to be fixed before the sale of the home. Therefore, credits are more complicated with these types of loans.

In contrast, conventional loans have more flexibility concerning credits. Credits give the buyers money, and the Buyer can fix the problems if desired (after closing). The home inspection period is when real estate deals cancel or move forward. If the buyers find the home inspection issues too severe, they will generally cancel. On the other hand, sellers may want to avoid fixing the repairs or giving the credits that the buyers are looking for.

For sellers, the home inspection provision reduces the risk of a legal dispute after the sale since the Buyer and Seller have a binding legal contract. It can also help sellers identify the property's potential problems before listing it, allowing them to make repairs or address any concerns before potential buyers become involved in the transaction.

C. Title Insurance and Title Commitment

Title Insurance

Title insurance is essential in a residential real estate transaction in Illinois. It is designed to protect the Buyer and the lender from any defects or issues with the property title. 

When the property is purchased, the Buyer wants to be sure that they are obtaining clear ownership of the property and that there are no existing liens or judgments against it. Title insurance provides the Buyer and seller protection by thoroughly searching public records. The search of public records will show existing liens, claims, taxes, and judgments. The title insurance search will also review the names of the buyers and sellers (and nearby characters) to see whether there are any tax liens, judgments, or other items, which may affect the real estate contract.

If any issues are discovered during the title search, the title insurance company will work to resolve them before the closing of the transaction. The Seller's attorney generally will act as the title insurance representative and will be responsible for clearing the title. Clearing title means resolving any existing liens or judgments before the sale of the house. In addition, the title insurance company will provide an owner's insurance policy, which protects the buyers against any existing liens, claims, and unpaid taxes that may arise that the title insurance company failed to discover. The Seller generally pays the costs of the owner's insurance policy.

On the other hand, the Buyer will be responsible for paying for a lender's policy. The Buyer generally pays the lender's policy. Most lenders will only move forward with a real estate transaction with the buyers paying for a policy that protects the lender in case any liens or judgments are discovered after the fact. The title insurance policy will provide coverage and pay for any legal fees or damages associated with a title insurance claim.

Title Commitment

A title commitment is a document produced by a title insurance company that shows the current state of title for a particular property. The title commitment aims to provide thorough information about the property's ownership history and any other issues that may affect the title. 

The title commitment will typically include a list of all parties with interest in the property, such as the current owner, any lenders with liens on the property, and any other parties with a claim to the property. The title commitment will also show the property tax history, the amount of real estate taxes, and whether the real estate taxes are paid or unpaid. Moreover, the title commitment will show any restrictions on the use of the property, such as easements or covenants.

The title commitment may include information about any problems that must be resolved before the title can be transferred, such as a specific municipality with real estate transfer tax issues. For example, it may show outstanding liens or judgments against the property or reveal a previous owner failed to pay property taxes. These issues must be resolved before the transfer of title can take place.

The title commitment is essential in a residential real estate closing. It provides the Buyer with a clear understanding of the property's ownership history and any potential issues that need to be addressed before the conclusion of the sale. It also gives the Seller, and their attorney information about what must be resolved before the transfer of title takes place.

The role of the Seller's attorney is critical because the Seller's attorney's office is responsible for resolving title-related issues before the real estate closing. Here at Gateville Law Firm, we have support staff with over 33 years of title insurance experience. The title insurance experience is critical because most real estate deals do not go through on the Seller's side due to title insurance issues. Unfortunately, many Seller's real estate lawyers and their staffs need to be adequately trained on these issues, and title insurance issues often will negate a sale or purchase.

Oswego Real Estate Closing Attorneys for Kendall County & Nearby Areas

Gateville Law Firm is a legal practice in Yorkville specializing in residential real estate transactions for sellers and buyers in Kendall County and nearby areas of Illinois. Our real estate attorneys accept closings throughout the Chicagoland area, including Cook County, DuPage County, Kendall County, Kane County, Will County, Grundy County, DeKalb County, McHenry County, Lake County, LaSalle County, Kankakee County, and Winnebago County.

We are happy to assist you if you will sell your property or purchase a property. Our real estate team is well-qualified, and we provide highly responsive legal services for buyers and sellers, including investors. We are also happy to assist real estate agents and brokers as well. We can be reached at 630-780-1034 or via the online contact form.