Originally published: October 6, 2021 -- Updated: June 25, 2022

Last fall, we shared some of our thoughts about digital closings for residential real estate transactions and how they started to become popular during the Coronavirus pandemic. As concern about the virus slowly decreases—although it will probably never go back to pre-crisis levels—it appears that electronic real estate closings are here to stay.

The Benefits of eClosings

In most cases, originating a traditional mortgage takes roughly 30 days from the initiation of the application to closing. As more and more digital lending platforms emerge, the use of artificial intelligence and data processing allows lenders and borrowers to remove a number of manual steps from the process of fulfillment.

Investments in real estate can be very lucrative. However, there are a variety of concerns that will need to be addressed when purchasing real property. If a buyer will be assuming ownership of property that tenants currently occupy, they will need to be prepared to assume existing leases and understand any other contracts that are in place. Those who are planning to embark on a real estate development project will need to ensure that they have the proper construction permits and are in compliance with all applicable laws and regulations. To ensure that all of these issues will be addressed correctly, it is crucial to work with an attorney who can help perform due diligence during a transaction.

Issues to Address When Performing Due Diligence

An investor can protect their financial interests by gathering all information needed to ensure that they fully understand the risks and benefits of a commercial real estate transaction. In many cases, a person will have 30 days or less to perform due diligence, so it is essential to act quickly to uncover any issues that may affect a transaction or impact an owner’s ability to receive the proper return on their investment.

While the forms of due diligence that may be performed will vary depending on the type of property and transaction, an investor will likely need to address issues such as:

Since the onset of the COVID-19 pandemic in 2020, businesses in Illinois and throughout the United States have encountered financial difficulties. As the country is beginning to return to normalcy, some businesses have been able to resume their regular activities and continue operating successfully. However, many businesses are still struggling as they determine how to respond to the loss of revenue that occurred due to the pandemic. These issues have affected many commercial leases, and both landlords and tenants may need to determine how to address situations where a business has been unable to pay rent on a short-term or long-term basis.

Negotiating Lease Modifications for Commercial Landlords and Tenants

As commercial tenants have encountered financial struggles, this has put many landlords in a difficult position. While some landlords have pursued lease enforcement actions, others may have been hesitant to do so due to the difficulty of finding new tenants in the current marketplace. Rather than pursue evictions or take steps to terminate a lease, it may be beneficial for both parties to negotiate lease modifications that will allow a tenant to continue occupying a space as they attempt to address their ongoing financial issues.

Some lease modifications that landlords and tenants may consider during negotiations include:

If you are struggling to make your mortgage payments, the threat of losing your home can be a terrifying thought. Once a mortgage is in default, the lender can sue to have the right to sell the property in what is known as a foreclosure sale. In 2021, lenders initiated more than 92,000 foreclosures—the lowest number in many years. In fact, 2009 saw more than 2 million foreclosures initiated by lenders looking to resolve defaulted mortgages. If you are facing the potential foreclosure of your home, you should be sure to understand the procedures that will be followed and the legal options available to you.

The Foreclosure Process

When a mortgage has not been paid for several months and has fallen into default, a lawyer from the lending institution may begin a lawsuit by filing a complaint in court. After that, a summons and complaint are delivered by a process server or a sheriff. The summons is a notification of a court hearing, and it will specify when and where the hearing will be held. Within 30 days of receiving the summons, you must either file an answer and court appearance or a motion of your own.

During the hearing, the bank’s lawyer will update the assigned judge regarding the status of the property. At this time, you may be able to request mediation, during which you and a representative of the lender will meet with a mutual third party to discuss loss mitigation. This means that options other than foreclosure can be discussed, and you may be able to work out an arrangement that will allow you to stay in the home through solutions such as a repayment plan or loan modification. There are also options in which you may be able to sell the home without going into foreclosure.

Consider the following scenario: “About nine months ago, my wife and I sold our house in Aurora and moved to Mesa, Arizona. We were just beginning to settle in when we were blindsided by a letter from a lawyer. She wants us to pay the new owners $20,000 to compensate them for some foundation work they had done. What are our options?”

In this situation, the lawyer appears to be threatening to take action under the Illinois Residential Real Property Disclosure Act (RRPDA). When real property is sold or transferred, the current owners must disclose any structural problems or related issues, like water leaks, menacing tree roots, and other defects. Legally speaking, a seller has a duty to disclose when “equity and good conscience” requires such a disclosure. The theory is that the current owners of the property are in a position to not only know about latent defects in a house that can cost the new owners thousands of dollars in repairs, but they are also in a position to conceal these defects.

One of the forms buried deep within the mound of paperwork at closing was probably a “Residential Real Property Disclosure Report” form. Essentially, the seller must declare that the house is in good condition or that the buyer is aware of any existing defects. If the seller does not disclose a known patent or latent defect, the buyer could potentially sue.