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Last Update: 02/24/16

In Florida, short sales are growing in popularity now that lenders realize the expense and difficulty of dealing with a foreclosed home, and because so many other homes are at risk for foreclosure their is a likelihood that the inventory will continue to grow.  Also, banks rather have a home sold by short sale than implementing the formal foreclosure process because of the expense of litigation and the amount of time it takes prosecute a foreclosure in Florida. For details on how 2012 may become known as the year of the Short Sale, check out our earlier post, “Should You Short Sale Your Home in 2012.”

As a South Florida real estate lawyer with a history of dealing with distressed property, as well as representing sellers and buyers in ordinary real estate closings, here are a few tips and bits of information that may be helpful to anyone pondering a short sale:

1.  Does the bank have a right of first refusal on any short sale?

No.  The lender must approve the transaction to the extent that it is releasing its rights for an amount that is less than what is due.  However, that okay from the bank is a precondition to the sale going through, it is not a contractual right like a “right of first refusal.”  In most real estate transactions, a right like that is usually held by other potential buyers who have the right to come in and buy the property if he or she can meet the terms offered by a third party.  For example, a family homestead may have the children holding rights of first refusal before the home can be sold to a stranger.

2.  Are listing agreements with a real estate broker different in a short sale?

They can and should be.  Real estate brokers do not have blanket contracts; each realtor will have its own paperwork, and within it, they may have different terms depending upon the situation.  Since everyone is making less money on a short sale, some Florida realtors may choose to have a contract term in their deal:  for example, the listing agreement may state that once a purchase contract has been signed by a seller and a buyer the realtor’s job is done and they have earned their commission.  They have no duty to bring any additional offers to the buyer.  No waiting to make sure the lender okays the deal.  A term like that isn’t friendly to a seller who is trying to negotiate a deficiency waiver with their bank.

3.  Can you present an unsigned offer to the lender for approval of the short sale before you sign onto the deal as the seller?

Maybe.  Some, very few, banks will let sellers know if they will agree to the short sale’s terms (i.e., PRICE) without a formal purchase contract but most lenders will require a contract before they get involved.  Your Florida short sale attorney will know the reputation of the lender as well as their quirks, and be able to let you know what your bank will tend to do.

4.  Can you short sale your Florida home even though you are current on your mortgage payments?

Yes.  It’s possible to short sale a Florida home with an underwater mortgage even though you haven’t missed a single mortgage payment.  The key is whether or not the lender is going to be amenable to it.  Why should the bank go for a short sale on a mortgage that is paid every month?  If your Florida attorney can negotiate with the lender, getting them to understand that they will be facing the expense of foreclosure in the future if they don’t go with the short sale option, then a short sale may be possible even though you are current on your mortgage.

5.  What are the tax implications of a short sale?

Right now, a successful Florida short sale includes getting the bank to forego the deficiency and release its right to sue the home owner for the amount left on the note after the house is sold (the “deficiency lawsuit”).  That amount is not taxed as income by the federal government if certain requirements are met.

However, as of December 31, 2012, that ends.  Starting in 2013, any amount forgiven by the bank will be considered as taxable income under the federal tax laws. Something to consider especially if you are on the fence and are thinking about a short sale.

A good piece of advice when you and your family are purchasing or selling your family home in one of the biggest transactions of your life is to at least talk with a Florida real estate lawyer. Getting someone to review all of the paperwork including the all important promissory note, isn’t as costly as most of us think it is. And it’s always a lot cheaper than paying to fix a problem after a closing occurs.  Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.


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