Buying a House in Utah

Buying a house is one of the most important legal transactions you'll ever undertake. It's important to know your legal rights and understand the process.

Working With a Real Estate Agent

In Utah, real estate agents may act as a buyer's agent, a seller's agent or as a dual agent, representing both parties in a real estate sales transaction. A real estate agent must disclose to you the options for agency relationships and the agency relationships he has with the parties to your real estate transaction.

Real estate agents have what's called a "fiduciary duty" to the party who they are representing, in this case, the buyer. This means that the agents are held by law to owe specific duties to the buyer. In addition to duties or obligations that are stated in a listing agreement, an agency agreement or other contract, a fiduciary's duties include:

• Loyalty
• Obedience
• Disclosure
• Confidentiality
• Reasonable care and diligence
• Accounting in dealings with the buyer

When selling a house, disclosure of all important facts actually known to the seller is critical, even though it may impact on the ability to complete the sales transaction or on the ultimate sales price of the house. A seller should disclose to you material defects with the property, or those defects that affect the property's value or could affect your decision to buy the property.

A seller should disclose the following potential house defects:

• Plumbing and sewage problems
• Water leakage of any type, including in basements
• Termites or other infestations
• Roof defects
• Heating or air conditioning system problems
• Property drainage problems
• Foundation instabilities or cracks
• Problems with title to the property
• Substantial additions or alterations made without a building permit
• Hazardous materials
• Any other problems

Purchase Agreements

When you find a house you'd like to buy, you'll put together and sign a purchase and sale agreement, or "purchase agreement," which contains all of the terms of the sale, including the following:

• The names and addresses of the sellers and purchasers
• The purchase price and how it is to be paid, including any down payment or earnest money deposit
• Arrangements for financing
• The legal description of the property
• A provision that title to the property shall be good and marketable of record, subject to reasonable easements
• The condition of the property at the time of closing
• Whether a survey and appraisal are to be made and, if so, at whose expense
• All expenses to be divided between the seller and purchaser
• The method of handling any escrow account containing reserves for payment of taxes and insurance held by the seller's mortgage company
• Seller's statement of the condition of the property
• Closing date and possession
• Statement of the closing costs
• That all closing documents must be acceptable to purchaser's attorney
• Provision as to who bears the risk of loss if the property should be damaged prior to the closing date
• Name of sales agent and any commission due
• Signatures of parties

An important thing to remember is that you should consult your Utah real estate attorney before you sign the contract. The real estate transactions involved in purchasing a home give rise to a number of legal questions that a lawyer with a real estate background and experience is best equipped to answer.

Inspection

It's always a good idea to hire an independent professional home inspection service before you buy a house. A home inspection is a visual examination of some combination of the structural, mechanical, electrical and plumbing systems that is designed to identify material defects in those systems and components. You can make your offer contingent on inspection.

Every inspection should include an evaluation of at least the following:

• Foundation
• Plumbing and electrical systems
• Doors
• Ceilings, walls and floors
• Roof
• Hazardous materials concerns
• Heating and air conditioning systems
• Common areas (in condominiums)
• Insulation
• Ventilation

Most inspectors will charge extra for services such as radon testing, termite inspections and well or septic inspections.

Legal Title Issues

When a home is purchased, title insurance is also purchased. Based upon a search of public records, a title search brings attention to any known property title problems before the closing takes place. It also insures against loss due to certain title defects that didn't turn up during the title search. Your real estate lawyer or title company will investigate the legal title of the property you want to buy, and may find issues you'll need to understand.

In Utah, for example, an implied easement exists where a person grants lands to which there is no accessible right-of-way except over her or his land or retains land that is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of accessing the property, and it is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

The property you're interested in may also be subject to a "lien," which is a charge on the property to satisfy a debt or other obligation owed by the current owner of the property. A lien encumbers property for as long as it exists and has been recorded in the public records.

In Utah, liens on a piece of property may include:

• Mortgages
• Land sale contracts
• Deeds of trust
• Involuntary liens (includes workmen's liens, liens for unpaid taxes and liens filed by creditors holding judgments against the owner)

Closing Costs

In Utah, you can expect the following charges - called "closing costs" -at the time you purchase your home:

• Down payment
• Private mortgage insurance
• Loan discount points
• Loan origination fee
• Underwriting fee
• Processing fee
• Administration fee
• Appraisal fee
• Credit report fee
• Tax service fee
• Flood certification fee
• Document preparation fee
• Settlement or closing fee
• Transfer taxes
• Title search
• Title insurance
• Recording fee
• Inspection fees
• Survey of property
• Hazard insurance reserve
• Prepaid interest
• Tax impounds
• Escrow fee
• Lender attorney fees

Many times buyers and sellers may negotiate who pays which costs as part of the final terms of the purchase and sale agreement.

RESPA

The US Department of Housing and Urban Development's (HUD) Federal Housing Administration (FHA) administers several regulatory programs to ensure equity and efficiency in the sale of housing. One of these programs, under the Real Estate Settlement Procedures Act (RESPA), applies to almost all mortgage loans and mortgage companies, not just FHA-insured mortgages.

RESPA protects consumers by requiring a series of disclosures that prevent unethical practices by mortgage companies and that provide consumers with the information to choose the real estate settlement services most suited to their needs. RESPA helps consumers avoid surprises, like an unexpected fee that appears in your closing documents. The disclosures take place at various times throughout the settlement process. Certain disclosures are required at the time of loan application, before closing occurs, at closing, and after closing. To learn more about RESPA visit the Real Estate Settlement Procedures Act Web site.

Mortgages and Deeds of Trust

At the time of purchase, you'll sign a promissory note that legally obligates you to pay back the money you borrowed to buy your house. A promissory note is, in effect, an "IOU." You promise to pay your lender the full amount, payable in equal monthly installments, at the interest rate previously agreed upon. Your lender will keep the original until you completely pay off the loan.

In Utah, the document you sign as a security interest in your house is called either a mortgage or deed of trust. Both deeds of trust with private power of sale and mortgages are used as security instruments, which are contracts naming your house as the collateral for your loan. Mortgages generally require judicial foreclosure, which means that the lender will have to file a lawsuit to obtain a foreclosure judgment to sell your house if you fail to make your loan payments, while deeds of trust do not. Under a deed of trust with a private power of sale, if you fail to make your loan payments, the lender can sell your house without going to court for a foreclosure judgment. Because mortgage terms and rates may vary, it's a good idea to shop around and get the best possible deal on your loan.

Private Mortgage Insurance

If you put down less than 20% on a home mortgage, lenders often require you to have "private mortgage insurance" (PMI). PMI is a type of insurance that protects the lender in the event the borrower defaults on the loan, which is a concern if you don't have much equity in your home. PMI covers the gap if a foreclosure sale of your home does not bring enough money to pay off your mortgage plus the cost of the foreclosure proceedings. PMI is a cost added to the monthly payment of many conventional loans. The loan servicer collects these monthly premiums and pays them to a private mortgage insurance company.

The Homeowners Protection Act of 1998 (HPA) establishes rules for automatic termination and borrower cancellation of PMI on home mortgages. Under HPA, you have the right to request cancellation of PMI when you pay down your mortgage to the point that it equals 80% of the original purchase price or appraised value.