We have recently posted with respect to new Federal financial reporting requirements to certain real estate transactions.  Given the broadly sweeping requirements of the regulations, it was practically inevitable that a legal challenge would arise.  A few days ago, the U.S. District Court for the Eastern District of Texas in Flowers Title Companies, LLC v. Bessent found that the regulations should be vacated, as the requirements exceeded authorization under the Bank Secrecy Act.  Further, the Court found that the regulations presumed that all transactions of a certain type were suspicious and resulted in too many transactions being subject to onerous reporting requirements.  For the time being, if not indefinitely, compliance with the new regulations will not be required.  Our attorneys will keep readers informed as to any further updates on this matter.

Parties to such transactions should be prepared for a one-sided “pressured process” from contract signing through closing.  The foreclosing lender often treats the buyer as harshly as if the buyer was delinquent on the mortgage that was foreclosed.  Purchasers should expect a contract to be delivered that is not particularly negotiable and that needs to be signed and returned quickly.  An experienced attorney should advise the buyer, his lender and the title company of all applicable deadlines and needs to monitor compliance so that the buyer does not incur financial penalties permitted by the contract or potentially subject their downpayment to being forfeited due to missing a deadline.  Closing dates are usually stated as “time is of the essence” , making for less cooperation with the seller as to scheduling the closing and potential significant financial penalties for not closing in a timely fashion.

In this type of transaction, the contract will typically contain provisions that differ from an ordinary transaction between individual buyers and sellers.  For instance, the property will be sold “as is”, not be subject to a buyer’s repair requests and is not subject to the New York State property disclosure law.  Seller standard costs such as document preparation and transfer taxes are assigned to the buyer in these deals.  Purchasers may not have the opportunity to conduct customary due diligence prior to signing the contract.  Further, a purchaser of post-foreclosure property may not have access to enter and view the premises being purchased to confirm property condition and that there is no tenant or occupant in the premises.  Should a person occupy the property, the purchaser would need a qualified attorney  to start an eviction action after the purchase has closed.

FinCEN has always been intended to quash potential money laundering in real estate transactions.  It is meant to deter those who would funnel potentially illegally obtained funds by buying and selling real estate using an entity (such as a corporation or limited liability company) without identifying the individual parties behind the entity.  All cash transactions involving entities or trusts have been identified as “high risk” for money laundering due to the potential for anonymity of the parties.  All real estate transactions as of this month are subject to evaluation as to whether reporting is required.  Further, an updated New York State transfer tax return is to be used.  The new FinCEN regulations are to be applied to residential real estate transactions with an entity buyer that is purchasing without an institutional lender.  Private lending and hard money transactions are subject to reporting because such lenders typically do not evaluate the individuals behind a purchasing entity as carefully as would an institutional lender.

Exemptions include transfers to trusts where the transferor and transferee are essentially one and the same party.  For instance, a person wishes to transfer his house to a trust in which he is the trustee.  In addition, transfers pursuant to administering an estate  or life events such as divorce are also exempt from reporting.

Our attorneys have observed a higher rate of cancellations by contractor purchasers.  Such entities do not intend to reside in the house and are objective and impersonal about the property.  They look at the property from a mere financial perspective.  Contractors want to purchase the property at a low cost, renovate it and then sell it to a person who will appreciate the improvements and eventually live in the house.  Perhaps these contractor buyers are looking at the numbers more carefully once they have signed a contract.  They visit the property multiple times and price the materials and tradesman costs necessary to complete the renovation.  Tariffs imposed by the current Presidential administration have made some of the building materials substantially more costly and may make a contractor’s renovation plans financially impractical.

In general, purchasers in New York cannot readily cancel a contract in the same fashion as may be possible in other states.  For instance, inspections typically take place before a contract is signed in New York.  In other states, inspections occur after the contract is signed and allow for a buyer to cancel if conditions are unacceptable.  As we have previously indicated, some of the reasons buyers cancel contracts in New York involve title issues that cannot be cleared, declination for a mortgage, or rejection by a cooperative board.  A purchaser’s refusal to waive the mortgage contingency , contrary to a previous trend, may also cause the rate of contract cancellations to elevate should a purchaser be declined for a mortgage.

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