You've decided to buy a new home -- congratulations! This article will help you take this big financial step by describing the home-buying, home-financing, and settlement process.
Lenders and mortgage brokers are required by federal law under the Real Estate Settlement Procedures Act (“RESPA”) to give you this information. You should receive it when applying for a loan, or within three business days afterward. Real estate brokers frequently hand out a booklet, as well. You probably started the home-buying process in one of two ways: you saw a home you were interested in buying, or you consulted a lender to figure out how much money you could borrow before you found a home (sometimes called pre-qualifying).
The next step is to sign an agreement of sale with the seller, followed by applying for a loan to purchase your new home. The final step is called “settlement” or “closing,” where the legal title to the property is transferred to you. At each of these steps, you often have the opportunity to negotiate the terms, conditions and costs to your advantage. You will also need to shop carefully to get the best value for your money. There is no standard home-buying process used in all localities. Your actual experience may vary from those described here.
This article will take you through the general steps to buying a home in order to eliminate, as much as possible, the mysteries of the settlement process.
Buying and Financing a Home
The Role of the Real Estate Broker
Frequently, the first person you consult about buying a home is a real estate agent or broker. Although real estate brokers provide helpful advice on many aspects of home-buying, they may serve the interests of the seller, and not your interests as the buyer. The most common practice is for the seller to hire the broker to find someone who will be willing to buy the home on terms and conditions that are acceptable to the seller. Therefore, the real estate broker you are dealing with may also represent the seller. However, you can hire your own real estate broker, known as a buyer’s broker, to represent your interests.
Also, in some states, agents and brokers are allowed to represent both buyer and seller. Even if the real estate broker represents the seller, state real estate licensing laws usually require that the broker treat you fairly. If you have any questions concerning the behavior of an agent or broker, you should contact your state’s Real Estate Commission or licensing department. Sometimes, the real estate broker will offer to help you obtain a mortgage loan. He or she may also recommend that you deal with a particular lender, title company, attorney or settlement/closing agent.
You are not required to follow the real estate broker’s recommendation. You should compare the costs and services offered by other providers with those recommended by the real estate broker.
Selecting an Attorney
Before you sign an agreement of sale, you might consider asking an attorney to look it over and tell you if it protects your interests. If you have already signed your agreement of sale, you might still consider having an attorney review it. An attorney can also help you prepare for the settlement. In some areas, attorneys act as settlement/closing agents or as escrow agents to handle the settlement. An attorney who does this will not solely represent your interests, since, as the settlement/closing agent, they may also be representing the seller, the lender, and others, as well.
Please note that in many areas of the country, attorneys are not normally involved in the home sale. For example, escrow agents or escrow companies in western states handle the paperwork to transfer title without any attorney involvement.
If choosing an attorney, you should shop around and ask what services will be performed for what fee.
Find out whether the attorney is experienced in representing home buyers. You may wish to ask the attorney questions such as:
- What is the charge for negotiating the agreement of sale, reviewing documents, and giving advice concerning those documents, as well as for being present at the settlement, or for reviewing instructions to the escrow agent or company?
- Will the attorney represent anyone other than you in the transaction?
- Will the attorney be paid by anyone other than you in the transaction?
Terms of the Agreement of Sale
Before you sign an agreement of sale, here are some important points to consider. The real estate broker probably will give you a pre-printed form of agreement of sale. You may make changes or additions to the form agreement, but the seller must agree to every change you make. You should also agree with the seller on when you will move in and what appliances and personal property will be sold with the home.
Some important terms you should become familiar with include:
sale price: For most home purchasers, the sales price is the most important term. Recognize that other non-monetary terms of the agreement are also important.
title: The "title” refers to the legal ownership of your new home. The seller should provide the title, free and clear of all claims by others against your new home. Claims by others against your new home are sometimes known as “liens” or “encumbrances.” You may negotiate who will pay for the title search, which will tell you whether the title is "clear."
mortgage clause: The agreement of sale should provide that your deposit will be refunded if the sale has to be canceled because you are unable to get a mortgage loan. For example, your agreement of sale could allow the purchase to be canceled if you cannot obtain mortgage financing at an interest rate at or below a rate you specify in the agreement.
pests: Your lender will require a certificate from a qualified inspector stating that the home is free from termites and other pests and pest damage. You may want to reserve the right to cancel the agreement or seek immediate treatment and repairs by the seller if pest damage is found.
home inspection: It is a good idea to have the home inspected. Never hire an inspector who is not a member of InterNACHI. Unqualified inspectors charge less but they will cost you in the long run. An inspection should determine the condition of the plumbing, heating, cooling and electrical systems. The structure should also be examined to assure it is sound, and to determine the condition of the roof, siding, windows and doors. The lot should be graded away from the house so that water does not drain toward the house and into the basement.
Most buyers prefer to pay for these inspections so that the inspector is working for them, not the seller. You may wish to include in your agreement of sale the right to cancel, if you are not satisfied with the inspection results. In that case, you may want to re-negotiate for a lower sale price or require the seller to make repairs.
lead-based paint hazards in housing built before 1978: If you buy a home built before 1978, you have certain rights concerning lead-based paint and lead-poisoning hazards. The seller or sales agent must give you the EPA pamphlet titled “Protect Your Family From Lead in Your Home,” or other EPA-approved lead-hazard information. The seller or sales agent must tell you what the seller actually knows about the home’s lead-based paint or lead-based paint hazards, and give you any relevant records or reports.
You have at least 10 days to do an inspection or risk-assessment for lead-based paint or lead-based paint hazards. However, to have the right to cancel the sale based on the results of an inspection or risk-assessment, you will need to negotiate this condition with the seller.
Finally, the seller must attach a disclosure form to the agreement of sale which will include a Lead Warning Statement. You, the seller, and the sales agent will sign an acknowledgment that these notification requirements have been satisfied.
other environmental concerns: Your city or state may have laws requiring buyers or sellers to test for environmental hazards, such as leaking underground oil tanks, the presence of radon or asbestos, lead water pipes, and other such hazards, and to take the steps to clean up any such hazards. You may negotiate who will pay for the costs of any required testing and/or clean up.
sharing of expenses: You need to agree with the seller about how expenses related to the property, such as taxes, water and sewer charges, condominium fees, and utility bills, are to be divided on the date of settlement. Unless you agree otherwise, you should only be responsible for the portion of these expenses owed after the date of sale.
settlement agent/escrow agent or company: Depending on local practices, you may have an option to select the settlement agent or escrow agent or company. For states where an escrow agent or company will handle the settlement, the buyer, seller and lender will provide instructions.
Types of Loans
Loans can have a fixed interest rate or a variable interest rate. Fixed-rate loans have the same principal and interest payments during the loan term. Variable rate loans can have any one of a number of “indexes” and “margins” which determine how and when the rate and payment amount change. If you apply for a variable-rate loan, also known as an adjustable-rate mortgage (ARM), a disclosure and booklet required by the Truth in Lending Act will further describe the ARM. Most loans can be repaid over a term of 30 years or less. Most loans have equal monthly payments.
The amounts can change from time to time on an ARM, depending on changes in the interest rate. Some loans have short terms and a large final payment called a “balloon” payment. You should shop for the type of home mortgage loan terms that best suit your needs.
Lender-Required Settlement Costs
Your lender may require you to obtain certain settlement services, such as a new survey, mortgage insurance, or title insurance. It may also order and charge you for other settlement-related services, such as the appraisal or a credit report. A lender may also charge other fees, such as fees for loan processing, document preparation, underwriting, flood certification, or an application fee. You may wish to ask for an estimate of fees and settlement costs before choosing a lender. Some lenders offer “no-cost” or “no-point” loans, but normally cover these fees or costs by charging a higher interest rate.
Another effective shopping technique is to compare identical loans with different up-front points and other fees. For example, if you are offered two 30-year fixed-rate loans for $100,000 at 8%, the monthly payments are the same, but the up-front costs are different:
- Loan A: 2 points ($2,000) and lender-required costs of $1,800 = $3,800 in costs
- Loan B: 2-1/4 points ($2,250) and lender-required costs of $1,200 = $3,450 in costs
Transfer of Your Loan
While you may start the loan process with a lender or mortgage broker, you could find that, after settlement, another company may be collecting the payments on your loan. Collecting loan payments is often known as “servicing” the loan. Your lender or broker will disclose whether it expects to service your loan or to transfer the servicing to someone else.
Settlement practices vary from locality to locality, and even within the same county or city. Settlements may be conducted by lenders, title insurance companies, escrow companies, real estate brokers or attorneys for the buyer or seller. You may save money by shopping for the settlement agent .
Owner’s Policy
A lender’s title insurance policy does not protect you. Similarly, the prior owner’s policy does not protect you. If you want to protect yourself from claims by others against your new home, you will need an owner's policy. When a claim does occur, it can be financially devastating to an owner who is uninsured. If you buy an owner's policy, it is usually much less expensive if you buy it at the same time and with the same insurer as the lender's policy .
Review Initial Title Report
In many areas, a few days or weeks before the settlement or closing of the escrow, the title insurance company will issue a “Commitment to Insure,” or preliminary report or “binder” containing a summary of any defects in title which have been identified by the title search, as well as any exceptions from the title insurance policy’s coverage. The commitment is usually sent to the lender for use until the title insurance policy is issued at or after the settlement. You can arrange to have a copy sent to you (or to your attorney) so that you can object if there are matters affecting the title which you did not agree to accept when you signed the agreement of sale.
Survey
Lenders or title insurance companies often require a survey to mark the boundaries of the property. A survey is a drawing of the property showing the perimeter boundaries and marking the location of the house and other improvements. You may be able to avoid the cost of a complete survey if you can locate the person who previously surveyed the property, and simply request an update. Check with your lender or title insurance company on whether an updated survey is acceptable.
Good-Faith Estimate of Settlement Costs
When you apply for a loan, RESPA requires that the lender or mortgage broker give you a "good-faith estimate" of settlement service charges you will likely have to pay. If you do not get this good-faith estimate when you apply, the lender or mortgage broker must mail or deliver it to you within the next three business days.
Servicing Disclosure Statement
RESPA requires the lender or mortgage broker to tell you, in writing, when you apply for a loan or within the next three business days, whether it expects that someone else will be servicing your loan (collecting your payments) .
No Discrimination
The ECOA prohibits lenders from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age, the fact that all or part of the applicant's income comes from any public assistance program, or the fact that the applicant has exercised any right under any federal consumer credit protection law. To help government agencies monitor ECOA compliance, your lender or mortgage broker must request certain information regarding your race, sex, marital status and age when taking your loan application.
Prompt Action/Notification of Action Taken
Your lender or mortgage broker must act on your application and inform you of the action taken no later than 30 days after it receives your completed application. Your application will not be considered complete, and the 30-day period will not begin, until you provide to your lender or mortgage broker all of the material and information requested .
Obtaining Your Credit Report
The Fair Credit Reporting Act (FCRA) requires a lender or mortgage broker that denies your loan application to tell you whether it based its decision on information contained in your credit report. If that information was a reason for the denial, the notice will tell you where you can get a free copy of the credit report. You have the right to dispute the accuracy or completeness of any information in your credit report. If you dispute any information, the credit reporting agency that prepared the report must investigate, free of charge, and notify you of the results of the investigation .
Penalties
It is a crime for someone to pay or receive an illegal referral fee. The penalty can be a fine, imprisonment, or both. You may be entitled to recover three times the amount of the charge for any settlement service by bringing a private lawsuit. If you are successful, the court may also award you court costs and your attorney’s fees.
Private Lawsuits
If you have a problem, the best place to have it fixed is at its source (the lender, settlement agent, broker, etc.). If that approach fails and you think you have suffered because of a violation of RESPA, ECOA, or any other law, you may be entitled to sue in a federal or state court. This is a matter you should discuss with your attorney.