Federal Law Unfairly Burdens Buyers When Buying From a ‘Foreign Person’

Real_Estate_Today_bylineThis week’s column is about a federal law that makes home buyers responsible for paying withholding tax owed when buying a home from a “foreign person.”  If you’re not careful about this law, you could, for example, buy a home for $500,000 only later to receive a bill from the US government for $50,000 withholding owed by the seller. Pretty scary for a buyer, isn’t it?

This law is 38 years old, but it only came to my attention this year because it is featured in the 2018 Real Estate Commission update class that all licensees must take.  Most agents like to wait until year-end to take this 4-hour class, but it is our policy at Golden Real Estate to have all agents take it in January — a private class in our own office. Most of us were a bit shocked to learn about this law and its implications.

Researching it further, I discovered that most title companies have the seller sign an affidavit at closing attesting to their legal status at closing.  It’s my understanding, however, that not every title company takes this step, hence the need for buyers and their agents to perform their own due diligence

Because of this provision of the Foreign Investment in Real Property Tax Act of 1980, buyer agents would be wise to insert in all contracts to buy and sell real estate a paragraph such as the following one inserted in a contract for one of my listings:

Seller shall inform Buyer in writing whether Seller is a “foreign person” as defined by the Foreign Investment in Real Property Tax Act (“FIRPTA”) no later than 10 days after Seller signs this Contract. If Seller is not a “foreign person” pursuant to FIRPTA, Seller shall provide to Buyer and Closing Agent, no later than 20 days after signing this Contract, a written certification of non-foreign status under FIRPTA, under penalties of perjury, certifying to Buyer and Closing Agent that no withholding is required by Buyer pursuant to FIRPTA. If Seller does not provide such certification of non-foreign status to Buyer and Closing Agent on or before twenty (20) days after signing this Contract, then Buyer, at buyer’s sole option, may 1) withhold, pursuant to the provisions of FIRPTA, a portion of the Purchase Price as required by FIRPTA or, 2) terminate this Contract pursuant to Section 25 hereof. Buyer and Seller are advised to seek legal counsel and tax advice regarding their respective rights, obligations, reporting and withholding requirements pursuant to FIRPTA. 

I surveyed the owners of three title companies and the broker/owners of the three largest real estate brokerages in the Denver metro area and none of them have heard of a buyer being stung by this issue… yet.   The unfortunate fact is, as long as FIRPTA exists then so does the possibility that someone will be.  One broker/owner, who is on the Forms Committee for the Colorado Real Estate Commission, says that the 2019 version of the Contract to Buy & Sell will contain language regarding FIRPTA. Copies of new forms are typically made available in September but can’t be used until January 1st.

Land Title has an excellent web page — www.ltgc.com/articles/firpta-increase — where it explains, among other things, how FIRPTA exempts from withholding homes sold for less than $300,000 that will be used by the buyer as a residence.  The withholding rate is 10% on homes between $300,000 and $1 million if it is to be used as the buyer’s residence, but is 15% otherwise.  The withholding rate is 15% for homes above $1 million, whether or not used as a residence.

To qualify as a “residence” the buyer or a member of his/her family must occupy the property at least 50% of the days that the property is occupied. Thus, if you buy a vacation home and you don’t let others occupy it for more than the number of days your own family occupies it, the home is considered a “residence” no matter how few days that might be.

One tricky item is that if the buyer does not take title in his own name but in the name of an entity — for example, a family trust — then the rate would be 15%, irrespective of the sale price.

Sometimes a buyer will change plans and arrange at the last minute to take title in the name of an entity.  That requires last-minute work by the title company and might delay closing briefly, so the appropriate forms can be prepared and signed.  Don’t forget that this withholding tax applies only in a situation which no one I know has yet experienced — that they unknowingly purchased a home from a “foreign person” and the withholding tax was not paid from seller’s proceeds at the closing. Nevertheless, it’s important to be aware of that possibility.

Land Title reports that they collect FIRPTA withholding 6 to 10 times a year, primarily on resort properties. Still, with foreigners purchasing more and more American real estate each year, this could become more of an issue in the future.

Buyers’ agents need to keep in mind that if that worse case situation arises and they didn’t alert their buyer to the possibility, they could be at risk of having an errors & omissions claim filed against them.


This Lakewood Home Backs to the Bear Creek Greenbelt

Picture from AnnIf there’s any house for which the mantra “location, location, location” applies, it would be this one at 2976 S. Garrison Way in Lakewood.  It has one of the best lots you’ll find backing to the Bear Creek greenbelt, with a gate connecting its amazing backyard to a walking path into the open space.  And because of its elevated location above that greenbelt, it also offers great views of the mountains to the west. The home has 3 bedrooms, 3 baths, and 3,132 square feet. You’ll love the hardwood floors and granite counters. It faces southwest, providing excellent shading for its flagstone patio during summer afternoons.  That flagstone patio is truly a work of art — so much so that I plan to hire the same Vietnamese contractor to landscape my own backyard! In addition to backing to that greenbelt, the home’s cul-de-sac is across the street from Rampart Park, one of Lakewood’s nicer neighborhood parks.  See more pictures and take a narrated video tour at www.BearCreekHome.info, the come to my open house Sat., July 21, 1-3 p.m.  Listed at $595,000.


Everyone Knows the Value of Video, So Why Aren’t More Listing Agents Using It?

Real_Estate_Today_bylineI started creating narrated video tours of my listings over a decade ago. To provide a sense of how long ago that was, the first iPhone had not yet been introduced. I remember demonstrating how to create and edit video tours using a handheld video camera at a marketing session of the Jefferson County Association of Realtors (now part of the Denver Metro Association of Realtors).  None of the Realtors in that meeting seized on the idea and even today I know of only two Realtors outside my brokerage who make a practice of shooting video tours of their listings.  Why?

Video tours are an effective way of providing a “virtual” tour of a listing, allowing people anywhere in the world to join the listing agent on a narrated walk-through of his listing. Many buyers have “toured” my listings on the internet and submitted offers sight-unseen, which they probably would not have considered had they viewed still photos alone.

A key component in a video tour is the narration. It’s what allows the listing agent to note that a fireplace is wood-burning or that a countertop is Corian. Without narration, a video loses much of its value.   With zooming and panning, video allows for a better depiction of views than still shots can provide.  It  allows you to pan upward to point out a skylight or Solatube or maybe a vaulted ceiling. Video, unlike still photos, can provide a sense of the flow of a floor plan, which is why it’s important to shoot each level in a single clip.

It’s unfortunate that the term “virtual tour” was introduced in reference to a slideshow of still photos, often accompanied by music instead of narration. Sometimes that slideshow is converted to an mp4 file, uploaded to YouTube and touted as a “video” tour.  Not!!

The only “virtual tour,” in my mind, is a virtual video tour of the home — a tour in live action, not a collection of still photos, with or without captions.

It’s common for listing agents to receive calls from appraisers asking about the condition of their sold listing, which they want to use as a comp. I simply tell them to have a look at the virtual tour, where they can see entire house and hear a description of each room. They never need to call back with questions, because the video did, in fact, fully describe the home’s condition.

Click here to visit my YouTube channel.

‘Love Letters’ Pose a Fair Housing Risk for Sellers

In a highly competitive real estate market, it’s not uncommon for buyers to submit letters to sellers saying how much they love the seller’s home and hope the seller will select their offer. However, this carries a big risk for sellers when it’s clear that a rejected buyer is a member of a protected class which, it might surprise you to learn, is most of us. Buyers bear little risk, but it’s something sellers and their agents need to be aware of.


Candelas Ranch Home Near National Wildlife Refuge Just Listed by David Dlugasch

Front pictureThis beautifully finished ranch home at 20062 W. 95th Place has 3 bedrooms and 2 full baths. The master suite has a spacious 5-piece bath with a very large walk-in closet. It has a 3-car garage pro-viding added storage space. The house is loaded with upgraded features. The kitchen has an oversized granite island, double ovens, stainless appliances, and full cut-glass backsplash. The large foyer, great room and kitchen area have hardwood flooring. The home comes with a solar plan which keeps the costs of maintaining this home very low. The back yard has a covered deck and a large paver stone patio. Candelas features miles of trails, nearby lakes and ponds, two fitness centers with outdoor swimming pools and a newly opened King Soopers. See video tour at www.CandelasRanch.infoOpen Sunday, July 15, 11 a.m. to 3 p.m.  Or call David Dlugasch at 303-908-4835 for a showing.  Listed at $553,900. 


Denver Condo Across From I-25 Light Rail Station Just Listed by Kristi Brunel

Another front main view.JPGWelcome to Centre Pointe Station, 4600 E. Asbury Circle, and this updated 2-bedroom, 1-bath condominium (Unit 301), which is centrally located just across the pedestrian bridge from the light rail station just east of Colorado Blvd. Hardwood floors greet you as you enter this bright unit with large covered balconies and mountain views!  This condo features granite countertops, stainless steel appliances, newer sliding glass doors, room air conditioning, included washer/dryer unit, updated lighting, fans and fixtures. The building features reserved parking, a secured entry, fitness room, and owner’s storage. See more exterior and interior pictures at www.DenverCondo.info, then contact your agent or Kristi Brunel at 303-525-2520 for a private showing.   Sorry, there will be no open houses.  Listed at $210,000.


Golden Pines Condo Just Listed by Jim Swanson

DSC_0467Golden Pines is a complex of 3-story condo buildings, with six units in each of 28 entries. It is located in the Pleasant View community about 3 miles east of downtown Golden. The address is 16529 W. 10th Ave. #E-6. Enjoy the warmth and light of this south facing top floor unit. The private balcony looks over a grassy courtyard which is adjacent to an assigned parking space. It has 2 bedrooms and 1 bath and measures 773 sq. ft.  This property needs work. It was a long-term rental with smokers but is now vacant. Great potential and priced accordingly. Needs carpet and paint. Kitchen and bathroom cabinets are original and in poor shape. Flooring, furnace and fixtures all could use some improvement. Has newer appliances and the windows and sliding door were replaced several years ago. More info at www.GoldenPinesCondo.info, then call Jim Swanson at 303-929-2727 to arrange a showing.  Sorry, no open houses. Listed at $151,000.