By Karen J. Radakovich

We get many calls from buyers, sellers, and real estate brokers, asking us to prepare either an installment land contract, called an "ILC" or a "contract for deed," or a lease with an option to purchase. Most of these inquiries stem from the inability of the buyer to obtain financing for the purchase, whether due to a poor credit rating, a recent bankruptcy, or an insufficient down payment.

Either of these methods is risky for a buyer, for a number of reasons. One risk is that during the pendency of an unrecorded ILC or lease, the seller's title could become compromised by a lien (either consensual, like a new deed of trust, or non-consensual, like a tax, judgment or mechanics lien), making it difficult or impossible for the seller to eventually perform. Another risk is that the seller could stop paying his own mortgage which still attaches to the property, with little or no leverage to require him to do so.

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By Jonathan A. Goodman & David A. Farus

I own a real estate brokerage firm. Mortgage companies and others profit from the business I refer to them. Does RESPA prohibit me from receiving referral fees from mortgage companies?

Yes, but there are at least two business models that allow you to capture some of the benefit from your referrals.

General RESPA Prohibitions

RESPA regulatory requirements apply to transactions that may involve a loan on residential real estate. RESPA generally prohibits payment of referral fees, unearned fees or kickbacks, as well as the splitting or sharing of fees or charges made or received for providing "real estate settlement services."

The terms "federally related mortgage loan" and "settlement services" are both broadly defined. Virtually any institutional residential loan will be a federally related loan. "Settlement services" include:

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By David A. Farus

How does the mediation process work?

Section 21 of the Real Estate Commission-approved Contract to Buy and Sell Real Estate (Residential) (CBS 2-7-04) provides, in part, as follows: "If a dispute arises relating to this contract, prior to or after Closing, and is not resolved, the parties shall first proceed in good faith to submit the matter to mediation.... The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not resolved within 30 calendar days of the date written notice requesting mediation is sent by one party to the other at the party’s last known address."

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This publication is intended to provide accurate and authoritative information on the subject matter covered. It is distributed with the understanding that the publisher and distributor are not rendering legal, accounting or other professional service, and assume no liability in connection with its use. Copyright © 2005.

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• Installment Land Contracts and Lease/Option Agreements - DON'T DO THESE! Use an All-Inclusive or "Wrap" Deed of Trust Instead
• RESPA Exception: Payment for Services Actually Rendered
• Mediation
• Hiring Private Decision Makers & Coordinators in Parenting Matters
• Meet The Attorneys

By Gregg A. Greenstein

Recent changes in Colorado law have created new opportunities for parents in divorce, post-divorce, and custody (allocation of parental responsibility) cases to resolve disputes and implement parenting plans, without Court intervention. The parties may use the services of a parenting coordinator, parenting decision-maker, or arbitrator.

Parenting Coordinator

A parenting coordinator may be appointed by the Court or by agreement of the parties, after an order concerning parental responsibilities has been made. The parenting coordinator is a neutral third party whose job it is to assist in the resolution of disputes between the parties concerning parental responsibilities. The parenting coordinator must be an individual with appropriate training and qualifications who has a perspective acceptable to the court.

If the court appoints a parenting coordinator without agreement of the parties, the court must also make the following findings:

1. That the parties have failed to adequately implement the parenting plan;
2. That mediation has been determined by the court to be inappropriate, or, if not inappropriate, that mediation has been attempted and was unsuccessful; and
3. That the appointment of a parenting coordinator is in the best interests of the child or children involved in the parenting plan.

In addition to making the findings noted above, prior to appointing a parenting coordinator, the court shall consider the effect of any documented evidence of domestic violence on the parties' ability to engage in parent coordination.

A parenting coordinator shall assist the parties in implementing the terms of the parenting plan. Duties of a parenting coordinator include, but are not limited to, the following:

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Kevin A. Cain

Mr. Cain received his Juris Doctor from the University of Colorado in 1999. His practice emphasizes Commercial Litigation, Real Estate, and Construction Law.

Matthew B. Osofsky

Mr. Osofsky received his Juris Doctor from the University of Denver College of Law in 2002. His practice emphasizes Commercial Litigation, Real Estate, and Construction Law.

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