Dirt Lawyers, please take a look at this very cool article from Bloomberg, “Here’s How America Uses Its Land” for a graphic depiction of the various uses for real estate in our country.
Social media has long been involved in real state. Aren’t all your real estate agent contacts your “friends” on Facebook? Aren’t you connected with them on LinkedIn? Don’t you regularly see their listings on all your social media outlets? But the plot thickens!
According to a November 13 story in HousingWire, Facebook announced last week that it is significantly expanding the real estate listings section on its Marketplace, which is Facebook’s attempt to take on Zillow, Trulia, Realtor.com, Redfin, Craigslist, eBay and other e-commerce platforms.
The HousingWire story, which you can read here, reports that Facebook currently allows individual homeowners to list their homes for sale on Marketplace. The new development is that Facebook is significantly expanding the real estate listings section on Marketplace. The new feature is said to be “rolling out gradually” and is currently only available via the mobile app in the United States.
And, according to the same report, Facebook is going full force into rental listings via partnerships with Apartment List and Zumper.
Facebook plans to upgrade its platform to include custom filters for location, price, numbers of bedrooms and bathrooms, rental type, square footage and pet friendly designations. Also included will be the ability to upload 360-degree photos for individual rental listings. When the potential renter selects a property, he or she will complete s contact form on Marketplace, and the property manager or agent will contact him or her directly.
Facebook says it will not participate in any transactions. It will simply connect the parties. Real estate agents are probably safe for now, but it’s a brave new world out there as social media infiltrates all aspects of our professional and personal lives! Dirt lawyers who fail to embrace social media may be left behind sooner rather than later.
Fraudulent mortgage satisfaction schemes are back
We have heard recently that a group is engaging in a scheme to fraudulent satisfy mortgages (or deeds of trust) in California and Florida. We all know that trends in California and Florida eventually make it to South Carolina, so I wanted to make sure South Carolina dirt lawyers are aware of this scheme. This is not a new scheme, but we thought it had died down until we got this news last month.
Here are some good rules of thumb to assist you in avoiding losses and protect clients in this area:
- Have your title examiners provide you with copies of mortgage satisfactions and releases. Two sets of eyes reviewing the documents should help with spotting issues.
- Pay particular attention to satisfactions and releases within a year of your closings. The normal schemes involve satisfying mortgages in order to collect funds at subsequent closings.
- Pay particular attention to satisfactions and releases that are not connected with a sale or refinance. Contact the lender for confirmation that the loan has been paid in full.
- Don’t accept a satisfaction or release directly from a seller, buyer or third party without contacting the lender for confirmation that the loan has been paid in full.
- Many of the fraudulent documents are being executed by an unauthorized party on behalf of MERS. Compare MERS satisfactions with others you have seen in connection with your closings.
- Check spellings and compare signatures against those of genuine instruments.
- Be wary of hand-written documents, unorthodox documents, cross-outs, insertions and multiple fonts.
The perpetrators of this fraud are sophisticated and will change aspects of the scheme as needed, so remain vigilant and discuss any suspected fraudulent documents with your title insurance underwriter.
California case might spell trouble for real estate agents and brokers across the country
The California Supreme Court decided a case in late 2016 that may have wide-ranging effect for real estate companies in that state.* The case involves a Chinese millionaire’s 2007 purchase of a mansion in Malibu for $12.25 million.
The seller, a trust, engaged Chris Cortazzo, a salesman in Coldwell Banker’s Malibu West office to sell the property. As Cortazzo prepared to list the property, he obtained information from the tax assessor’s office that indicated the property’s living area was 9,434 square feet. The building permit described a single-family residence of 9,224 square feet, a guest house of 746 square feet, a garage of 1,080 square feet and a basement of unspecified area. The MLS listing stated that the property “offers approximately 15,000 square feet of living area”. Cortazzo also prepared and distributed a flyer making the same square footage representation.
In 2007, a couple made an offer to purchase the property. By handwritten note, Cortazzo informed them that Coldwell Banker did not “guarantee or warrant” the square footage, and advised them to “hire a qualified specialist to verify the square footage”. When the couple requested documentation of the square footage, Cortazzo gave them a letter from the property’s architect stating the “size of the house, as defined by the current Malibu building department ordinance is approximately 15,000 square feet.” In a cover note, Cortazzo again cautioned them to hire a specialist. This sale fell through.
Horishi Horiike had been working for several years with Chizuko Namba, a sales person in Coldwell Banker’s Beverly Hills office, to find a residential property to buy. Namba showed Horiike the residence in question. Cortazzo gave Horiike the marketing flyer advertising approximately 15,000 square feet and an MLS printout that did not specify the square footage and contained note in small print that “Broker/Agent does not guarantee the accuracy of the square footage.” Horiike and the selling trust entered into a contract.
Before the closing, Horiike signed three disclosure forms confirming that Coldwell Banker represented both the buyer and the seller in the transaction. Under California law, a real estate broker may act as a dual agent for both parties, provided both parties consent to the arrangement after full disclosure. The broker may act through one or more “associate licensees”, typically the salespeople who operate under the broker’s license and supervision. The governing statute provides that when an associate licensee owes a duty to any party in a real estate transaction, that duty is equivalent to the duty owed to that party by the broker.
Cortazzo did not state in writing to Horiike that there may be a discrepancy in the square footage, as he had done with the previous potential buyer. He also did not advise Horiike to retain an expert to verify the square footage. After the closing, Horiike learned that the property had less than 12,000 square feet of living area (although Coldwell Banker experts testified at trial that the living area was 14,186 square feet.)
In 2010, Horiike filed suit against Cortazzo and Coldwell Banker for intentional and negligent misrepresentation, breach of fiduciary duty, unfair business practices and false advertising. He did not sue the selling agent, Namba.
In a unanimous decision, California’s Supreme Court stated that the case presented a single, narrow question: whether the associate licensee who represented the seller owed a duty to learn and disclose all information materially affecting the property, including the discrepancy in the square footage. The Court held that Coldwell Banker, as broker, owed a fiduciary duty to both parties and that Cortazzo, as associate licensee, had the responsibility to properly investigate and disclose all important information related to the transaction. The Court concluded Cortazzo owed a duty to Horiike equivalent to the duty owed to him by Coldwell Banker.
Several trade associations filed amicus briefs in the case. One concern is that an agent working with a buyer has no idea what property that buyer will ultimately purchase. Whether the same broker will represent the seller can’t be predicted. Another concern is that this decision may also reach commercial transactions. It is also possible that this case may open selling agents open to lawsuits from their clients for over-disclosure.
Could this happen in South Carolina? A provision in our statutory scheme may save brokers from the fate set out in this case, at least where different branch offices of a real estate firm are involved. Here, each branch office must be managed by a broker-in-charge. South Carolina Code §40-57-350 (I)(2) states that a broker-in-charge and associated licensees in one office of a real estate brokerage firm may conduct business with a client of another office of the real estate brokerage firm without creating a dual agency relationship, so long as the branch offices each have separate brokers-in-charge and do not share the same associated licensees.
I can’t find similar protection for listing and selling agents who work in the same branch office, nor for companies with listing and selling agents in the same location. And, as we all know, there is no predicting what our court might say in connection with real estate matters. We will have to pay attention to see whether other courts, and particularly South Carolina courts, follow the lead of the California Supreme Court.
*Horiike v. Coldwell Banker Residential Brokerage Co., 1 C5th 1024 (2016)
Conveyance to an LLC is set aside
A recent South Carolina Court of Appeals case* affirmed a Circuit Court order that set aside a conveyance under the Statute of Elizabeth. This is yet another tale of woe from the economic downturn.
Kenneth Clifton was a successful real estate developer who commonly purchased investment property in his own name. When he developed property, he transferred his interest to a limited liability company (LLC). He organized more than forty LLCs during his career.
In 1993, Clifton and Linda Whiteman purchased approximately 370 acres in Laurens County in their individual names as tenants in common.
Clifton routinely borrowed money from lenders to finance his developments. At issue in this case were three loans from First Citizens Bank totaling around $4 million. These loans were renewed over the years as Clifton made progress payments.
When the real estate market slowed in 2008, Clifton sought additional extensions for two of the loans. First Citizens asked for a personal financial statement. Clifton’s financial statement claimed a net worth of $50 million with real estate comprising over $48 million. The subject 370 acres in Laurens was included. The statement stated Clifton owned a 50% unencumbered interest valued at approximately $1.5 million. Relying on this financial statement, First Citizens renewed the loans to mature in 2009.
Later in 2008, Clifton requested an extension on the third loan. Just prior to receiving the extension, Clifton and Whiteman transferred their interests in the property to Park at Durbin Creek, LLC (PDC). Clifton testified that he and Whiteman chose to transfer this property to PDC over Whiteman’s concern about personal liability because the property was being leased to third parties for recreational hunting purposes. All three loans were extended to mature in 2009.
Clifton failed to make payments, to provide a business plan or to secure additional collateral. First Citizens initiated foreclosure proceedings in February of 2009 and eventually secured a deficiency judgment of $745,000 against him.
During the foreclosure proceedings, Clifton and his daughters entered into an assignment agreement resulting in a transfer by Clifton in PDC to Streamline, an LLC that was nonexistent on the date of the transfer but whose members, upon creation, were Clifton’s daughters and ex-wife.
In 2010, First Citizens initiated supplemental proceedings, but by this time, Clifton had no remaining assets. First Citizens began this case under the Statute of Elizabeth (S.C. Code §27-23-10), alleging causes of action for fraudulent conveyance, civil conspiracy and partition.
The Circuit Court found sufficient “badges of fraud” to infer Clifton possessed fraudulent intent when he transferred his 50% interest in the property to PDC.
This is the first valuable reminder from this case: The conveyance to Streamline was held void ab initio because Streamline did not exist at the time of the conveyance. (Dirt lawyers, make sure your entities are properly created before you assist your clients in making conveyances to them!)
A second valuable reminder involves requirements concerning transfers of interests in member-managed LLCs like PDC. When Clifton attempted to transfer his interest in PDC to a separate LLC, he failed to obtain Whiteman’s consent. Section 33-44-404 (c)(7) of the South Carolina code states that, in a member-managed LLC, the admission of a new member requires the consent of all members. The lack of consent in this case would have invalided the transfer to streamline even if the transfer to PDC had been held valid. (Dirt lawyers, make sure you follow statutory procedures when dealing with transfers of interests in entities.)
The case then sets out a simple South Carolina primer on the Statute of Elizabeth. The statute provides:
Every gift, grant, alienation, bargain, transfer and conveyance of lands…for any intent or purpose to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, and forfeitures must be deemed and taken…to be clearly and utterly void.
Citing earlier cases, the Court of Appeals stated that this statute can be used to set aside conveyances whether or not consideration is paid.
Where there is valuable consideration, the following element must be established:
- The transfer was made with the actual intent to defraud creditors;
- The grantor was indebted at the time of the transfer;
- The grantor’s intent is imputable to the grantee.
Where there is no valuable consideration, no actual intent to hinder or delay creditors is required. Instead, the transfer will be set aside if:
- The grantor was indebted to the plaintiff at the time of the transfer;
- The conveyance was voluntary; and
- The grantor failed to retain sufficient property to pay the indebtedness to the plaintiff at the time when the plaintiff seeks to collect the debt.
In this case, the Circuit Court found and both parties agreed that valuable consideration was paid. For that reason, First Citizens was required to prove that Clifton transferred the property with the intent to delay, hinder or defraud First Citizens.
Citing earlier cases again, the Court of Appeals stated that when a party denies fraudulent intent, as Clifton did, the creditor must prove “badges of fraud”. One badge of fraud may not create a presumption of fraud, but several badges of fraud does create the presumption.
Nine badges of fraud have been identified by our courts:
- The insolvency or indebtedness of the transferor;
- Lack of consideration for the conveyance;
- Relationship between the transferor and the transferee;
- The pendency or threat of litigation;
- Secrecy or concealment;
- Departure from the usual method of business;
- The transfer of the debtor’s entire estate;
- The reservation of benefit to the transferor; and
- The retention by the debtor of possession of the property.
The Court held that six of the nine badges of fraud were present in this case, resulting in a presumption of fraud. The Court next considered whether Clifton successfully rebutted the presumption. The Court concluded that Clifton wanted to protect the property from creditors, despite offering the legitimate reason for the transfer, that Whiteman was concerned about personal liability on hunting property.
Finally, the Court held that the invalidity of the conveyance of Clifton’s undivided 50% interest in the property does not invalidate Whiteman’s conveyance despite the fact that only one deed was used.
* First Citizens Bank and Trust Company, Inc. v. Park at Durbin Creek, LLC, South Carolina Court of Appeals Case 5469 (February 15, 2017)
Maybe not! A recent South Carolina arrest brings this terrifying issue to light. Consumers visit houses accompanied only by real estate agents in South Carolina every day. Is this practice safe?
In November, Todd Kohlhepp was arrested in connection with the deaths of three individuals whose bodies were found on his property in Woodruff. Investigators were on his property near Wofford Road when they heard banging. They found a kidnap victim alive inside a large metal container “chained like a dog”. The victim had been missing for two months.
Kohlhepp was charged with three counts of murder, three counts of possession of a weapon during the commission of a violent crime, and one count of kidnapping. Kohlhepp is also alleged to be connected with four slayings in 2003 at Superbike Motorsports in Spartanburg.
Kohlhepp was a South Carolina licensed real estate agent. Real estate agents in South Carolina are licensed by the Department of Labor, Licensing and Regulation (LLR). A November 7 “Housing Wire” article asks how Kohlhepp got his license. The article quotes a prior article in “FOX Carolina” to the effect that LLR had stated Kohlhepp applied for a real estate license in 2006.
A background check was not required for the application. LLR’s website indicates an applicant who has been convicted or a crime must reveal that fact on the application and that the Real Estate Commission may review the application and conduct an investigation which may result in a delay in processing.
Kohlhepp had, in fact, been convicted of a 1986 kidnapping and rape in Arizona and had served 15 years in prison. But on his LLR application, according to FOX Carolina, he explained:
“I entered into a verbal agreement with my girlfriend who was also 15 at the time. I was charged with felony kidnapping due to the fact that I did have a firearm on me.”
He obtained the license and eventually established a firm of twelve agents and a reputation for being successful, professional, out-going and hard working. He was called a great salesman. He looked the part! He dressed well. He drove expensive cars.
What’s the lesson here? Consumers should understand that a real estate agent’s license is no indication that the person who shows a home is honest and trustworthy. Paying proper respect to the many, many wonderful real estate agents I know, however, it should be noted that we have seen cases in other parts of the country where real estate agents were harmed by their clients.
Unfortunately, for both sides of this equation, caution should be exercised in these situations of one-on-one contact with strangers in confined locations. Ask your friends for referrals. Do some on-line digging about the person you are about to meet. Take a business associate. Take a friend. Take your scary-looking cousin. Shoot, take your whole family. Schedule meetings during daylight hours. Let your business associates, friends and family know where you are, who you are with and how long you should be there. Keep your cell phone in your hand.
The good news is that this particular former real estate agent, who has confessed to the crimes, is likely to be off the streets permanently.
The Federal Housing Administration (FHA) announced on January 9 that it planned to reduce mortgage insurance premiums effective January 27. Mortgage insurance protects lenders from borrower defaults and is common where the down payment is less than 20%.
The Democratic view of this issue is that sufficient reserves and four years of economic growth allowed the FHA to pass along some modest savings to consumers. Additionally, the move was viewed as an attempt to help first-time and lower income home buyers to access the market at a time when mortgage rates were rising.
The Republican view is that such reductions put taxpayers at risk by decreasing the funds the FHA has to deal with mortgage defaults. In other words, taxpayers might be at a greater risk for footing the bill for another bailout if FHA’s reserves were reduced.
President Trump’s advisors criticized the Obama administration for adopting new policies as it prepared to leave office. During Dr. Ben Carson’s confirmation hearing for Secretary of the Department of Housing and Urban Development (HUD), FHA’s parent agency, he expressed disappointment that the cut was announced so late in President Obama’s term.
On January 20, shortly after he was sworn in, as one of his first substantive actions, President Trump undid this new policy before it took effect by signing an executive order.
HUD then issued a letter stating that more analysis is needed before changes are made, and the rates will remain the same for the time being.
It appears industry groups may have differing opinions on whether President Trump’s executive order will affect home buying. Will this action reduce opportunities for first-time buyers? Or will it eventually allow FHA’s reserves to be increased to a point where it can offer more services to borrowers? Industry groups will continue to weigh in, and this blog will continue to keep South Carolina dirt lawyers posted on developments.