Last evening, Lieb School came back to Newsday to start out 2013 lineup of courses. The first topic up was Deal Killers, which is my favorite course of all of our 15 licensed courses offered in our Course Catalog.

A large section of Deal Killers is devoted to not letting your deal die through understanding mortgage contingency clauses and how real estate agents should negotiate the shift of risk from the buyer to the seller when such a clause is added.

While discussing the topic last evening, we addressed a mortgage denial and explained the burdens of good faith and diligent efforts on a buyer. Next, we explained that even if  a buyer engages in some breach of the clause in bad faith, they may still prevail in cancelling the contract and having their down-payment returned if their breach is not the basis upon which the denial occurred.

To illustrate, I suggest our readers review the recent Appellate Division case of Ettienne v. Hochman where this precise scenario unfolded just this month. Therein the contract called for the buyer to apply for a "no-income-check mortgage", which the buyers failed to do and it seemed as if they were in breach. However, the Court looked to their basis of denial and found that "it would have been futile for them to additionally apply for a no-income-check mortgage" because they were denied based upon "their credit history" and not the type of mortgage applied for.

The takeaway for our readers is that while it matters that the buyer applies for precisely the mortgage called for in the contract of sale, a breach may not result in the buyer sacrificing his down-payment (assuming it is the liquidated damages for breach), if the buyer's failure to apply for the precise mortgage is unrelated to the basis for denial.

This case illustrates the exception to the rule where one would ordinarily have to follow the terms of the contract to the letter to be in compliance.

On Sunday, Robert J. Shiller wrote a must read article in the Times, Why Home Prices Change (or Dont').

Every type of real estate professional should understand the economics behind residential housing and this article objectively lays out the facts. Plus, if you don't know, Mr. Shiller's credentials include being a Professor of Economics at Yale - so pay attention to what he has to say.

The article looks at the economics of residential housing and compares this investment vehicle to stocks. Most importantly, it looks at last year's gains in housing and explains that its not a predictor for the next 10 years in growth and should only be viewed in terms of just being a growth for last year.

As the article states: "Over the 100 years ending in 1990- before the recent housing boom - real home prices rose only 0.2 percent a year, on average". Mr. Shiller explains that while it may psychologically feel like prices keep going up, one must look at prices after correcting for inflation. In such, there is not much growth in the long term.

So, real estate professionals, houses are a good buy if you want to live there. They may be good if you add money to the house through construction. Yet, if you want to buy, hold and not invest in a product, do not buy a house.

Brookhaven has added a great feature to its website called House Rental Search.

With this tool, the user can "see all of the active accessory apartment and house rental permit on the street you selected in the hamlet chosen". Remember, Villages control their own rental permits, so users in Villages must contact their Village.

This feature is going to make it completely transparent to tenants if the Town has permitted their rental. Remember, without a permit, a landlord cannot enforce a lease and is subject to many fines as well.

Now Brookhaven only needs to make getting a permit as easy as looking up if one exists. This way, safety can be the paramount concern over enforcement, which this tool will greatly increase.

Landlords and real estate agents - MAKE SURE YOU HAVE PERMITS. The Town has enabled tenants to really crackdown on your illegal rentals and be sure that they will.

Today, the Consumer Financial Protection Bureau (CFPB) issued a Small Entity Compliance Guide to the new Ability-to-Repay regulations, which are scheduled to commence effectiveness on January 10, 2014.

To remind our readers, the Ability-to-Repay regulations require loan originators to "make a reasonable, good-faith determination before or when [they] consummate a mortgage loan that the consumer has a reasonable ability to repay the loan, considering such factors as the consumer’s income or assets and employment status (if relied on) against:

• The mortgage loan payment
• Ongoing expenses related to the mortgage loan or the property that secures it, such as property taxes and insurance you require the consumer to buy
• Payments on simultaneous loans that are secured by the same property
• Other debt obligations, alimony, and child-support payments"

As stated within the Guide: "The purpose of this guide is to provide an easy-to-use summary of the ATR/QM rule."

Remember, ATR stands for Ability-to-Repay and QM stands for Qualified Mortgages.

So, real estate professionals, you should know that lenders will have to independently verify a borrower's Ability-to-Repay starting in January of next year and you should start now to become familiar with these new rules to effectively represent your clients. This Guide is a great starting place.