Closing Protocal...

buyer's attorney.

What's the situation?

In my limited experience the seller's attorney provides the amendments. I would think the seller is primarily responsible, but also the seller's lawyer or broker if either of them were supposed to act as agent for the seller in that regard. Just my guess though, not based on actual knowledge. This is all assuming the offering plan and amendments were not provided to an agent of yours (i.e. your attorney).

At our closing, our lawyer saw something in the offering plan that seemed too vague and troublesome for her to sign off on. We went ahead and signed the contract with an * saying that there was no contractual agreement until these vague points were clarified. When the contract was sent to the seller's attorney, all of a sudden there was an "OH..." and an amendment was produced that somewhat more explained the situation, but not completely. However, the seller at that point, told us what her and everyone else in the building's understanding of the situation was. It involved a HUGE financial burden in the form of a %50 flip tax for all subsequent buyers that was not disclosed during the initial price negotiations. We were able to get out of the contract when the seller refused to renegotiate after this new information "popped up". I'm pretty sure her agent had another buyer lined up for the sale who would not be affected by the flip tax because he was sure he would stay in the apartment longer than the lifespan of the tax, which is 11 years or until the underlying mortgage is payed off. It just seemed SLEAZY and I'm trying to determine exactly who the sleazy party was/ is.

It sounds like you are talking about contract negotiations, which come before closing, not the closing itself. Generally, the buyer's attorney requests the offering plan and ALL amendments, and then reviews them, before contract signing.

ali r.
[downtown broker}

Yes...our attorney requested and was given the offering plan but not the amendment before contract negotiations..... and at the contract signing informed us of her concerns....sorry...I wrote closing instead of contract signing...stupid mistake.

We did not have an agent on this...we saw the apt. at an open house.

Susan--I hope you haven't signed anything. Don't put pen to paper until ALL concerns are addressed to your satisfaction. Sounds like your attorney is on the ball.

yes..our attorney caught it...and we have been "let out" of our contract.... but now am doing a post mortem and trying to affix blame..... I know I should just move on, but I see this as an opportunity to learn a little something... maybe.

I can't tell you anything authoritative, but it seems to be that the whole point to a contract is to have every little detail hammered out before signing. Asterisks are worrisome, because your asterisk-resolution might not be their asterisk-resolution.

So while it's probably the seller's attorney's fault for not presenting the fully amended offering plan, it's your attorney's fault for not calling full stop until details are understood, negotiated, and worked out. So blame your attorney.

If there is sleaze involved, as you suspect, it was likely the seller's fault, not his attorney, and definitely not the broker.

A prospective owner (let's call him Bob) has the right to receive an offering plan for free from the seller during the contract review process (protocol dictates that Bob return it if he decide not to go forward on the transaction.) If, in fact, Bob goes from being a prospective owner becomes an actual owner, Bob will receive copies of amendments as they are filed. The attorney who conducted the closing for Bob is removed from the picture once the transaction is complete.

When Bob is ready to sell his apartment, he may use the same broker and attorney he used to buy the unit, or completely new people. Irrespective of his choice, Bob is the only one who one can be certain of having received copies of amendments throughout the duration of his ownership. The broker and lawyer, even if they've done a hundred transactions in the building, will not necessarily have, nor are they expected to have, copies of offering plans and all amendments.

When Jim makes an offer on Bob's unit and the offer is accepted, Bob's lawyer will send a contract to Jim and Jim's lawyer (if he has half a brain) will insist on a copy of the offering plan with all amendments. Bob's lawyer will then turn to Bob and ask him to cede the offering plan and all ancillary documents (including amendments and financials) to Jim and his attorney. But Bob's lawyer will NOT (at least in my experience) review all of said documents himself to ensure that the package is complete, nor would he have any foreknowledge of how many amendments have been filed. Only Bob knows, and if information is withheld, the fault is his own.

All of that said, your lawyer, SusanB, made a fatal - and quite stupid, frankly - mistake that killed the deal. If he suspected that something was amiss or lacking in the offering plan - hell, even if he didn't have any reason to suspect anything - he should have written a letter to the managing agent of the building asking them to confirm that the offering plan has only X amendments, and financials have only been culled up to Y year. If he was not satisfied with the answer, he could have very well insisted (and would have been entirely within his right) on purchasing a brand new offering plan with all amendments directly from the managing agent. The cost is generally $150 - $300, and always eaten by the seller. And if he was REALLY paranoid, he could have simply checked in with the Attorney General, with whom all amendments are filed.

In sum: the seller screwed you by not providing all documentation, but that could have either been a deliberate attempt to mislead or a genuine mistake (there's a LOT of paperwork one gets, and might lose, when one is a co-op or condo owner.) But your lawyer was lazy and/or inexperienced. Being shrewd enough to catch a potential deficiency is one (laudable) thing; not having the common sense to pick up the phone, write a letter, or insist on the purchase of another one is foolish. The juxtaposition of both actions in one person on one transaction is curious.