DEAR BOB: Our home has been listed for sale several months. We have received two offers during that time. But both were loaded with contingencies, such as the buyer getting a mortgage, professional inspection and one even wanted to make the sale contingent on the sale of the buyer's current home.
Needless to say we rejected both offers. But our agent was mad at us. She said offers usually contain contingencies. However, I would call these offers meaningless since they had such big loopholes. Don't you agree? -- Laurie P.
DEAR LAURIE: No. Most home purchase offers contain one or more contingency clauses. The most common contingency is for financing, so the buyer won't have to complete the purchase if the desired mortgage cannot be obtained. Other contingency clauses include inspections and sale of the buyer's current residence.
If you are going to reject offers with contingency clauses, you probably will never obtain an acceptable purchase offer. I suggest you become more flexible if you want to get your home sold.
DEAR BOB: We are preparing to list our home for sale. One realty agent suggests we pay about $300 for a warranty policy to protect our buyer in case something goes wrong with the house after the sale. But our home is only about three years old and has no serious defects. Do you think we should buy a warranty policy? -- Jerome H.
DEAR JEROME: One-year home warranty policies pay for repairs to the home plumbing, wiring, furnace, water heater and built-in appliances. However, there are many exclusions, such as for roof, foundation, plumbing outside the home's perimeter, air conditioning and swimming pool unless an extra premium is paid.
Home warranty policies are considered sales inducements. They also help protect home sellers and real estate agents against claims from buyers for problems that develop after the sale from covered losses. However, please don't think these one-year home warranty policies protect buyers from every possible loss.
DEAR BOB: Several months ago we listed our home for sale with broker A. The listing expired with the home unsold. Then we listed our home with broker B who found us a buyer within a few weeks. We accepted the offer.
Then broker A somehow found out who the buyer was. She claims she showed our home to the buyer and is entitled to half of the sales commission. But broker B says broker A is not entitled to any part of the commission, since the first listing expired. Do you think we owe half the sales commission to broker A? -- Jane C.
DEAR JANE: Without reading the first listing and studying its "savings clause," I can't tell if broker A is entitled to any part of the sales commission. A typical "savings clause" in most listings says the listing broker is entitled to a sales commission if during the listing term the broker registered with the seller a prospective buyer who was shown the home during the listing term, unless the home is subsequently listed with another real estate agent.
But smart home sellers stay out of sales commission disputes among real estate agents. This is the nasty side of the realty sales business. Most agents can settle their commission disputes through the arbitration procedure of the local Board of Realtors.
DEAR BOB: We have about $70,000 equity in our home and are considering taking out a home equity loan to pay for our son's college education. Some banks offer home equity credit lines whereas others offer home equity loans. Since we won't need all the money at once, which type of loan would be best? -- Tyrone L.
DEAR TYRONE: The home equity credit line is much more flexible and less expensive because you aren't paying interest on money you don't need.
Another advantage is you can pay down the loan whenever you wish, thus saving interest, and then borrow more money when you need it. Most banks either give you a home equity credit line checkbook or let you just phone the bank when you need to borrow on your credit line. Of course, shop among several banks, S&Ls and credit unions to find the best terms available.
DEAR BOB: I am a partner in a group that owns an apartment building in Texas. It is now worth less than the mortgage balance. Some of the partners think we should stop making mortgage payments and let the lender foreclose, since we have virtually no chance of selling it for what we owe.
It is losing money and we can't afford the property taxes. Do you think we should abandon the building? -- Charlotte P.
DEAR CHARLOTTE: Before you decide, consult your tax adviser. In the situation you describe where you will be receiving mortgage relief, if your depreciated book value for the property is below the mortgage balance, the IRS says you will owe profit tax on the difference.
DEAR BOB: Last year we bought our first home. No agent was involved. The seller's attorney handled the closing. Since the sale seemed simple, and it was our first real estate purchase, we didn't have an attorney to represent us.
Neither my wife nor I thought about the property taxes. But when our property tax bill arrived several months later we realized a big portion of it was for the period when the sellers owned the house.
We contacted the attorney, who said it is our responsibility to collect the seller's portion. However, several local real estate agents tell us it is customary to pro-rate the property tax bill at the closing settlement between the buyer and seller according to the number of days each owned the property.
The sellers have moved out of state and refuse to pay their estimated $850 share of the property tax bill that we had to pay. One realty agent friend advises us to sue the attorney for the $850. What should we do? -- Sean P.
DEAR SEAN: Although the seller's attorney handled the closing settlement, he had a duty to you to be fair and honest. Failure to pro-rate the real estate taxes between buyer and seller was a serious mistake.
Since you can't collect from the out-of-state seller, it appears you have everything to gain and nothing to lose by suing the attorney in small claims court for his negligence in failing to pro-rate the property taxes. The attorney should be so embarrassed by such a simple mistake he should pay the $850 to avoid unfavorable publicity.
DEAR BOB: I am acquiring an apartment building on a 30-year lease with option to purchase. The reason for not acquiring the title is to avoid having the mortgage lender enforce the due on sale clause on the 7.5 percent interest rate mortgage. I will make my payment to the seller, who then will pay the mortgage lender.
However, the seller says he is entitled to keep the depreciation deduction, since he still will hold the legal title. But my accountant says I should get the depreciation write-off, since I am the "equitable owner" even though I am not yet the "legal owner." Who is right? -- Marc McN.
DEAR MARC: Your accountant is correct. For income tax purposes, the IRS recognizes a lease of 30 years or longer, coupled with an option to purchase, as the equivalent of a sale. Since the IRS recognizes this as a sale, you are entitled to the depreciation tax deduction. This is much like a land contract or contract for deed where the seller retains the title, but the buyer is the equitable owner entitled to all the income tax ownership benefits.
The way lenders learn about a title transfer is from the new fire insurance policy. You may wish to keep the old fire insurance policy in the seller's name, but with you added as an additional loss payee.
DEAR BOB: I believe real estate offers the best long-term investment opportunities, especially in growing cities. But I am receiving conflicting advice as to whether to invest in older property, such as a rental house, or a brand-new building that probably won't need much repairs. What do you advise? -- Mike W.
DEAR MIKE: Although you usually will have fewer headaches with new buildings, there often isn't much profit potential in such property. I recommend older structures that can be profitably upgraded to increase their market value by more than the cost of the improvements.
DEAR BOB: Several weeks ago you told another reader she could make a tax-deferred exchange of her rental house for an apartment building. I have about $100,000 equity in my home, and I would like to make a similar exchange without having to pay tax on my profit.
However, you said a personal residence is not eligible for tax-deferred exchanges. If I move out of my house and rent it to tenants, would it then be eligible for a tax-deferred exchange? -- Jim H.
DEAR JIM: Yes. You've got the right idea. However, nobody knows for sure how long your house must be rented to a tenant before it is eligible for a tax-deferred exchange. Most tax advisers suggest at least six to 12 months before trading your rental house for other "like kind" investment or business property. Consult your tax adviser for more information.
DEAR BOB: I used to invest in apartment buildings, but I sold them. Now I am thinking of buying investment property again. I recall something about Congress changing the rules on depreciation. Please clarify the choices as to how many years I can use for depreciation. -- Victor J.
DEAR VICTOR: You don't have any choice. The law says you must depreciate residential rental property over at least 27.5 years and commercial property over at least 31.5 years. Only straight-line depreciation is available. No more accelerated depreciation. Consult your tax adviser for more details.
Readers with questions should write Bruss directly at P.O. Box 280038, San Francisco, Calif. 94101.