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HUD nixes dual agency on FHA short sales

FHA short sales are slow going and sometimes complex, with HUD making a substantial change to the process recently.

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FHA short sales are slow. Very slow.

The thing about short sales is that they are slow going. For most people, when you want something, you want it now. And when you write an offer on a home and have to wait four, six, twelve, or even eighteen months to close, your interest begins to wane.

FHA (Federal Housing Administration) short sales have long been exceedingly slow going and frustrating for homebuyers and sellers alike. You may recall that the Department of Housing and Urban Development (HUD) sets the guidelines for processing short sales for sellers with FHA loans. In my experience, the main reason that these short sales have been slower than others is because HUD requires sellers, buyers, and agents to jump through more hoops (complete more milestones) before receiving short sale approval. For some sellers, this may mean applying for and getting declined for a loan modification prior to beginning the short sale process.

Benefits of the FHA Short Sale

On July 9, 2013, HUD released Mortgagee Letter 2013-23, a letter that appeared to contain good news for short sale sellers and their agents. Effective on October 1, 2013, the FHA short sale will be “streamlined” for many distressed borrowers.

The highlights of the Mortgagee Letter include the following positive changes to the FHA short sale process:

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  1. Imminent Default – Certain borrowers do not need to be 30 days behind on mortgage payments to begin the FHA short sale process, just as long as they can demonstrate hardship.
  2. Reduced Documentation – There is now something called streamlined PFS (pre-foreclosure sale) for borrowers that meet certain guidelines.
  3. Up to $3,000 Financial Incentive – Owner-occupant borrowers who successfully sell their properties are entitled to a consideration of up to $3,000 (terms and conditions apply).

Read Between the Lines

Mortgagee Letter 2013-23 is 8 pages long. While the above three positive changes appeared to be the highlights, there is one big lowlight (if there is such a thing).  Buried at the top of page 8 is the following sentence:

“No party that is a signatory on the sales contract, including addenda, can serve in more than one capacity. To meet PFS Addendum requirements, brokers and their agents may only represent the buyer or the seller, but not both parties”

This particular phrase has agents in an uproar. Everyone knows that sometimes a single agent representing both sides of a real estate transaction may not be a good thing. But, what about two agents in the same brokerage? HUD is now going to prohibit that form of dual agency.

In addition to agent dissatisfaction, this sentence also dissatisfied the National Association of Realtors® President Gary Thomas.  In a letter to the Assistant Secretary for Housing, Thomas writes that this policy may minimize the opportunity for sale of many homes in certain parts of the United States. That’s because single brokerages with hundreds of agents under one license dominate in certain areas. And, if none of those agents (all under the same broker) are permitted to bring a ready, willing, and able buyer to the property, how will the property get sold?

Thomas also states that he understands that this HUD policy may have been enacted in order to avoid fraud, particularly problems where pocket listings may net HUD a little bit less money. He points out that Fannie Mae has enacted a more reasonable policy that requires that all Fannie Mae short sales be placed on the MLS for a minimum of five days, thus assuring that all properties are on an open market. Thomas urged HUD to reconsider their policy and adopt the Fannie Mae policy instead.

Depending upon where you live and where you sell real estate, the new HUD short sale policy and all of its associated drama may not impact you at all. But, if you are an agent listing and selling short sales, you’ll want to know what your in for—the improvements to the FHA short sale policy on October 1, and the bad news associated with it.

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Written By

Melissa Zavala is the Broker/Owner of Broadpoint Properties and Head Honcho of Short Sale Expeditor®, and Chief Executive Officer of Transaction 911. Before landing in real estate, she had careers in education and publishing. Most recently, she has been able to use her teaching and organizational skills while traveling the world over—dispelling myths about the distressed property market, engaging and motivating real estate agents, and sharing her passion for real estate. When she isn’t speaking or writing, Melissa enjoys practicing yoga, walking the dog, and vacationing at beach resorts.

2 Comments

2 Comments

  1. CJ Johhnson

    September 25, 2013 at 11:38 am

    Designated agent would be a better solution whereby the listing agent could not represent the buyer but other agents in the agency could. Many firms practice this even where it is not mandated as a risk management tool. If a firm has multiple agents and offices this rule could also violate our code of ethics which states we are to cooperate with other REALTORS unless it harms our clients. I know we can not violate law but FHA is making a rule not passing a law so we are stuck in the middle of an ethical dilemma once again.

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