Fixing and flipping (Fix n Flips) real property is a bustling part of the real estate market! Investors, buyers, and many real estate licensees, regularly engage in these opportunities. The key to a successful flip is speed and economic prudence. Savvy investors identify projects, make cost-efficient improvements, and resell quickly. Yet, it can often be a race to the finish and a recipe for problems with inherent risk for those involved. Consider the following:

Lack of Knowledge About a Property. An investor most likely will not have lived in the property and thus, have little historical data. In turn, the invistor often refuses to provide a Seller's Property Disclosure Statement ("SPDS"). This is not a wise position, or in the best interest of the investor and others involved. To explain:

• If the investor received a SPDS from the prior owner, the investor can provide it in the flip transaction. The investor should do so with a caveat that the SPDS was completed by the prior owner. Regardless, there is likely helpful information in the SPDS for the new buyer and an added layer of protection for all.
• Whether or not the investor lived in the property, they do have knowledge about it. For instance, the investor knows what work was performed as part of the fix process. The investor also knows what might have been discovered during that process and should be disclosed. Additionally, the investor is aware of basic information such as the address of the property, if it is in an HOA, if it is on septic or sewer and/or the like. These are disclosures that any investor can and should make.
• The investor is required under Arizona law to disclose the names and license numbers of all contractors performing services at the property. A.R.S. 32-1121(A)(6). This is to be disclosed in the Purchase Contract. Further, all work performed for the purposes of selling a property must be performed by licensed contractors if the cost of material and labor, in the aggregate, is $1,000 or more.

Practice Pointer. Licensees on both sides of the transaction should request copies of all contractor invoices. Further, licensees for the buyer should advise the buyer to review the licensing history of the contractors through the Arizona Registrar of Contractors ("ROC"). This advice should be given in writing and it should only be the buyer that conducts any research and due diligence with the ROC, not the licensee. This exercise allows the buyer to confirm that only licensed contractors performed work and said contractors are still in business and/or do not have a disciplinary history.

Licensee as a Principal. It has become common for some licensees to utilize their market expertise and participate in Fix n Flips as a principal. If choosing to do so, the following is important:

• The licensee should engage in the same disclosure practices noted above. Additionally, the licensee must be diligent regarding the separate duty imposed through the Arizona Administrative Code, R4-28-1101(B). That Code provision requires a licensee in a transaction (principal or not) to disclose anything that materially or adversely affects the consideration to be paid for a property. That disclosure must be in writing and is above and beyond the requirements of utlitzing the SPDS.
• A licensee must disclose in writing that they are principal in the transaction to a prospective buyer before entering into a contract.
• A licensee cannot act as a principal and as a dual agent. This is because the licensee will not be able to treat and represent all parties fairly.
• Finally, the sale of an Agent-Owned Property, if it is the individual's residence, is typically covered by their brokerage's Errors and Omissions Insurance Policy. Those policies don't extend to Agent-Owned investment properties, which is standard in the industry. In the event of a lawsuit, the licensee will be responsible for attorneys' fees incurred, for any settlement monies paid out and/or any judgment. 

Ultimately, with Fix n Flips it is always best practice to be well versed in the heightened level of risk that a licensee and their respective clients encounter with fix transactions.

A Quick 401k Breakdown:

Your 401k is a retirement plan where your money can grow tax-free. However, to avoid any monetary penalties, you can’t withdraw your money until you’re 59 1/2. You get to choose what percentage of each paycheck you want to invest in your retirement. The money is withdrawn from your paycheck pre-tax. Therefore, you won’t owe any tax money until you start to withdraw at retirement age. Withdrawing before then can lead to an early withdrawal penalty plus additional income taxes. However, there are some exceptions.

Borrowing from Your 401K

When borrowing from your 401K you don’t have an early withdrawal fee and you don’t have to pay income taxes on the money you withdrew. Think of this strategy as a loan from yourself, to yourself. Just like a regular loan, you will need to pay yourself back, plus interest. Usually, you will need to pay back your account within about five years, but this time frame can vary.

The consequence though, is that your repayment deposits don’t count as contributions – so you don’t get a tax break. When borrowing you can usually take out half of your vested account balance or $50,000. It depends on which has less money.

Pro Tip: Just because you’re borrowing from yourself doesn’t mean you’re not taking on debt. In the eyes of a lender, you may no longer qualify for certain mortgages or rates.

Withdrawing from Your 401K

If your 401k provider doesn’t allow borrowing from your 401K or you need more than $50,000, you will have to withdraw from your account. You will incur the 10% withdrawal fee and have to pay income taxes on top of that. Unlike borrowing, you don’t have to pay this money back.

If you are under the age of 59 1/2, you are allowed one “hardship” withdrawal in certain circumstances such as buying your first home. With a hardship withdrawal, you are allowed to take out $10,000 and avoid the 10% penalty fee, but you still have to pay income taxes.

If you survey 100 agents in Arizona asking them to rate on a scale of 1 to 5, how much they enjoy representing homes with solar, it would probably show almost all 1’s. For that reason, many agents avoid solar altogether while others may have had only occasional transactions. Why does there seem to be such a low opinion among agents for this renewable energy source for homeowners?

It boils down to the fact that many have had negative experiences and lost money, clients, and buyers due to not understanding solar and its complexities.

The truth however, is that solar panels are an amazing technology that has the capability of producing electricity for at least 50 years. With a little bit of understanding of the basics of solar, homes with solar don’t have to be such daunting transactions.  

The 3 Methods of Solar Ownership

There are three methods a homeowner can choose with their solar: it can be owned outright, owned with a loan, or leased. For a real estate agent, each one of these presents its own unique challenges. Some of those challenges unfortunately, due to misrepresentation on the part of the agent, have ended up in court.

Ownership Method #1 – Owned Solar 

Challenge #1:

            Listing the home openly and properly as a solar home so you don’t lose your client.

Solution #1:

Market the home as a solar home and showcase the solar as an added value feature in order to help sellers recoup at least some of their investment into solar.

• According to Fannie May, Freddie Mac and FHA, owned solar adds value and should be incorporated into the valuation of a solar home. Appraisers require the correct documentation to establish a quantifiable value.

Ownership Method #2 – Solar With a Loan 

Challenge #2:

Solar loans require a negotiation in escrow to determine if the loan will be paid off or assumed by the buyer.

Solution #2:

When marketing a home, demonstrate the value with the proper solar value documentation. A solar loan is always part of the negotiation of the purchase price. A fundamental understanding of the value of the solar system empowers a better negotiation so that both the buyer and seller walk away happy. The two outcomes are to either pay off the solar loan or transfer it to the buyer.

• Understanding the solar loan products and how to navigate them helps the savvy agent represent their client without exposing them to the liability of lending contract ignorance.

Ownership Method #3 – Leased Solar 

Challenge #3:

Getting a buyer on board with assuming a 20-year contract. There is typically an increase built into it each year.

Solution #3:

This challenge has two solutions. The first option is to help the home buyer understand how much the solar is going to save them each month on electricity and get the lease contract transferred into their name. The second, and better option is to help the buyer buy out the solar system from the lease company, as part of the home purchase. This will add value later whenever they decide to sell.

To understand those three challenges and create buyer confidence in the solar on a home, it’s important to know that any given system will have between 1 and 6 contracts connecting the solar system to the home and its owner. These also need to be navigated in the real estate transaction.

Solar contracts that agents need to navigate:  

1. Utility Net Metering Contract
2. Solar Loan or Solar Lease Contract
3. Solar Warranty Agreement
4. Solar Inverter Agreement
5. Solar/Battery Installation Contract
6. Battery Warranty Agreement.

You can both minimize your liability and help the buyer of a solar home feel confident by learning about and understanding these contracts. To better serve your clients with solar homes, be sure to explore these contracts and the best practices associated with them.