Part One:
General Aspects of Purchase and Sale of Real Property

INTRODUCTION: REAL ESTATE TRANSACTIONS: IS A LAWYER REALLY NEEDED?

Ownership of land and improved property ("real property" or "real estate") within the United States has long been a goal and accomplishment of both citizens and noncitizens who arrive in this country. Both in terms of investment and in terms of acquiring a home, real estate transactions often form the single largest purchase of the average person and can be an excellent method to build up wealth. Recent tax laws have made the ownership of a home even more beneficial, not only allowing full deduction of interest on the home loan, but delaying or avoiding entirely capital gains upon the sale of a residence. When these tax benefits are combined with the steadily appreciating real estate market in California over the past five years, ownership of property has been seen to be the most intelligent major investment of the average American.

In the United States any legal entity (individual, partnership, corporation, or limited liability company, whether citizen of the United States or not) can own any real property and the laws of the state in which the property is located normally control the legalities of how to purchase, lease, sell, and use real property. Most understandings regarding real property are required to be in writing or are unenforceable, thus the written documents concerning property are of the highest import.

Increasingly over the past hundred years, the government has imposed additional obligations and controls over use of property, both in terms of allowed use ("zoning restrictions") and in imposing liabilities for various types of misuse (violations of building codes; violations of environmental laws such as improper disposal of waste materials on the property; etc.) Further, especially in the sale of homes, the government has imposed remarkably complex requirements of disclosure of problems and potential problems that the buyer may encounter, from defects in construction, to disclosure to the buyer of the property's location in flood or earthquake zones. The government has become a not so silent partner to every real estate transaction and the parties that ignore that fact take great risks.

It is an oddity that many people who would seek legal counsel for drafting a small will or suing someone who dents a fender on their car do not seek legal counsel when buying an asset which they may own for decades, which may cost a million dollars and which imposes thirty years of obligations on the buyer. Most people execute purchase documents or leases without bothering to carefully read the tens of pages of detailed legalese and only obtain legal advice when something goes wrong...and by then it is often too late. It is an obvious but often ignored fact that someone, sometime took the time and money to draft the complex form document that the real estate broker asks the buyer or seller to execute; clearly whoever drafted that complex document presented to the buyer or seller was drafting that long form for a reason, not at random. For a party to execute such a form without a full and complete understanding of its terms is equivalent to signing a blank check.

As with much of law, the best time to obtain legal advice is before a dispute or problem arises and it is a simple fact that a major portion of the contractual litigation in the United States involves real estate and alleged breach of leases or purchase agreements.

While real estate brokers and agents usually have form agreements, and while most landlords avail themselves of the preprinted form leases created decades ago by unknown persons, the fact of the matter is that these forms are usually antiquated, often inappropriate, and invariably a shock to the persons bound when they finally read them, usually long after signing them and after a heated argument with the other party. Properly drafted documents involving real estate are a necessity and more than any area of the law, written documents are usually required to form a binding obligation regarding real estate.

Another often ignored fact is that almost all professionals involved in real estate transactions have their own interests which do not necessarily conform to those of the buyer, seller, lessor or lessee. Real estate brokers and agents are usually only paid if a transaction culminates and are paid more if the transaction is higher in price. Clearly, such parties do not have an objective stance to take when examining the benefits and detriments of a particular transaction. Likewise, the lenders, the title companies, the builders, and the mortgage brokers are all interested parties who seek to have a transaction culminate simply because that is how they are paid.

If one seeks truly objective analysis of the cost benefit and detriments of a real estate transaction, and if one wishes an objective review of the contractual documents, one is compelled to seek expert legal advice from an attorney whose task is not to encourage the culmination of the transaction regardless of the consequences. It is the fact that attorneys so often advise of the negative aspects of transactions that have given them the reputation for being "deal killers." However, to consider both the good and the bad of the transaction is precisely why lawyers should be retained in real estate matters. One client put it well: often, the most money that can be made from a transaction is made by walking away from the transaction. Usually, the only professional who will so advise is the lawyer reviewing it.

TYPES OF REAL ESTATE TRANSACTIONS:

While the variations on the type of real estate transactions are as broad as the ingenuity of human kind, most transactions involve the purchase, sale, lease, construction, or subdivision of a piece of reality. The topics of commercial leases, rental of residences, construction and of subdivision of real property are each complex enough to justify a lengthy article in themselves and are the topics of other articles on this website. This article will, instead, concentrate on the general topic of purchase and sale of realproperty.

The Basic Purchase/Sale Transaction of Realty in California

The average purchase and sale of realty in California is comprised of the following parties and entities:

1. The Buyer;

2. The Seller,

3. Real estate broker or agent representing either the Buyer or Seller or, at times, both; sometimes two or more brokers are involved in the transaction.

4. A lending institution which finances the transaction;

5. A title company which examines the "chain of title" of the property to ensure that the Seller has title to sell to the Buyer and, in effect, acts as an insurance company insuring the validity of the title to Buyer;

6. The County Recorder who records the title documents showing ownership has vested in the Buyer (usually with a Grant Deed to the Buyer and Deed of Trust or Mortgage in favor of the Lender);

7. Often a mortgage broker who arranges financing between the Lender and Buyer;

8. Various experts who examine the condition of the property and create a report before close of the transactions (such as termite and dry rot inspectors; engineers, soil engineers, architects, etc.);

9. The escrow agent who holds the money and the title documents of all the parties and distributes them pursuant to written instructions;

10. If a condominium or home owners association is involved, that organization must be joined by the buyer.

STEPS IN THE TYPICAL TRANSACTION

While transactions may vary widely, the usual stages are:

1. A real estate broker shows a listed property to a prospective buyer. The buyer decides he/she wishes to make a bid and does so, usually rendering a few thousand dollar deposit along with the bid and signing a form that the broker usually supplies labeled, "Offer."

2. The broker presents the offer to the seller or the seller's broker and they can accept it (signing on the form), reject it, or counter offer with an offer of their own. The counter may involve a different price or different financing or requirements such as requiring buyer to pay for correction of defects discovered by the inspectors, etc. or perhaps accepting the Property "as is."

3. Each offer or counteroffer gives the other party the right to accept. If they accept before one withdraws an offer or counteroffer, both parties are bound. All offers and counteroffers must be in writing to be legally effective.

4. Once there is an acceptance, then within a time period listed in the documents the buyer normally is required to obtain financing, usually from a bank or savings and loan, while various inspectors such as termite and dry rot inspectors, soil engineers, etc, visit the property and render a written report as to its condition. The offer normally requires that the property "pass" all such inspections or the buyer may withdraw the offer and receive the deposit back. Quite often if the property fails to pass a particular inspection, the buyer and seller will negotiate as to who pays for the repairs...often they split them.

5. If financing is not possible, the deal falls through. If financing within the guidelines of the offer is achieved, then the buyer is bound and must proceed with the deal.

6. All deposits, inspection reports, title documents, down payment, bank documents and sums go to an escrow officer who holds the monies and documents pursuant to written instructions and only releases the various documents and sums to the parties when the conditions are met. The parties normally split the costs of the escrow officer. Buyer must also purchase enough insurance on the property to protect the lender if the property is destroyed or damaged and proof of insurance is also deposited into escrow.

7. One of the documents deposited into escrow is title insurance. This is a document prepared by a title insurance company that warrants that the title is in the name of the seller and that seller is empowered to transfer title to the buyer.

8. The brokers are normally paid from the sums deposited into escrow and the typical transaction has the Seller paid in full by a combination of the bank (who takes back a "deed of trust" or "mortgage") and the down payment of the buyer. Down payments are normally between twenty and thirty percent.

Thus, a typical transaction for a three hundred thousand dollar structure will have the following computations:

Down payment will be about sixty thousand dollars. The bank must lend $240,000. Closing costs (costs of escrow, title insurance and the like) will be about six or seven thousand dollars and the broker will be paid by the Seller between $15,000 to $20,000 for their fees. Buyers normally pay for the title insurance, half of escrow costs, and the inspections. Realistically, a buyer in the above scenario should plan on spending cash of close to seventy thousand dollars to close the deal while the Seller will only receive about $280,000 once the broker and the escrow people are paid.

THE ROLE OF THE REAL ESTATE BROKER

In the United States the overwhelming majority of transactions involve real estatebrokers who are licensed professionals who receive, usually, a percentage of the sales price of the property being sold (the "commission.") A broker has a fiduciary duty (duty of loyalty) to the person represented and can only represent both the buyer and seller if they both consent. Usually two brokers are involved and they split the commission which is normally between five and six percent of the selling price of most property. The commission is paid from escrow upon the close of the transaction. The commission is NOT set by law and may be negotiated with the broker.

Brokers take on the bulk of the work of the real estate transaction, seeking property to show to a prospective buyer or showing the listed property of sellers. Brokers often have access to computerized listings of all property for sale thus can quickly ascertain what property may be appropriate for a buyer.

Brokers normally have written contracts with their clients and those contracts, like their commissions, can be negotiated but often are not since most laypersons are intimidated by the lengthy form contracts presented to them by the broker. Most such contracts give the broker an "exclusive" right to list the property for a stated period of time, such as ninety days, during which only the broker can sell the property.

As experts, brokers can often give valuable advice as to the negotiations occurring, the proper price to bid, and the dangers involved in the location of the property, etc. Brokers normally have complex long legal documents which they suggest their clients execute to both bid, accept bids, counteroffer and culminate the sales transaction. These forms, written by the brokers' associations, are quite complete and fully binding on the parties. Just reading such documents can take well over an hour and most buyers or sellers, in a hurry to place or accept a bid or counteroffer, do not bother to carefully read the terms.

Indeed, most brokers simply use the forms without careful analysis of their contents, having received the forms from their associations and usually using them for years without a second thought.

A broker earns nothing if a sale does not occur. This necessarily creates a bias in the minds of most brokers in that they seek to encourage culmination of any sales transaction. Further, the higher the price, the more they earn. While this may seem fine for the seller and bad for the buyer, it actually also distorts their advice even to a seller since they will often recommend costly improvements to the property to help it sell which, of course, increases the sales price thus the commission.

Most brokers are honest and hardworking. It is a competitive and stress filled job requiring long hours on weekends and nights. Nevertheless, while their role is extremely valuable, a wise seller or buyer understands that their economic position within the transaction makes objective advice hard to obtain from a broker.

THE LENDER

Either by use of a mortgage broker who seeks possible loans from banks, or via the broker who usually has connections with various banks, or on their own, the average buyer does not buy real estate for cash but purchases it by borrowing most of the sales price from a bank or savings and loan association. The usual transaction requires a twenty to thirty percent down payment, with fifteen to thirty year financing for the remainder of the purchase price. Thus a three hundred thousand dollar home will normally require a down payment of anywhere from sixty to ninety thousand dollars plus a loan for the remainder, at interest rates that vary but will normally be around seven to ten percent over thirty years. Bank loans come in an enormous variety of terms including variable interest rates, graduated payment schedules, federally insured, etc, etc.

Several thousand dollars are also spent to arrange the loan ("points") and to arrange for title insurance on the title, perform the termite and dry rot inspection to determine the condition of the property, and to obtain the insurance that any lending institution will require before loaning on the property. It is typical to spend perhaps five thousand dollars to "pay" for the loan before the first payment is due.

Most loans in California are secured with a document called a Deed of Trust on the property being financed. Without going into detail, the Deed of Trust allows the lender to foreclose and seize the property by an out of court procedure should payment not be made in a timely manner. Normally, the procedure for foreclosure is to record a Notice ofDefault in the recorder's office which gives the borrower ninety days to cure the default by paying all sums due and the costs of the foreclosure recordation. At the end of ninety days, if no payment has been made, the Notice of Sale is recorded and the right to cure the default in payment expires. The lender can then sell the property to pay down on the loan.

In California, there is no deficiency judgement; that is, assuming the property is a home which the buyer can no longer afford, if the lender forecloses on the property the lender can not also sue the borrower for the difference between the proceeds of the foreclosure sale and the amount due under the loan. Nevertheless, the borrower who suffers such a foreclosure normally has his or her credit history ruined for many years.

CONCLUSION:

The tax benefits of ownership of realty and the usual appreciation of property in California are added incentives for the ownership of property but it must be recalled that real property in California, over the past hundred years, has averaged perhaps 8% appreciation a year and if appreciation for a period exceeds that, it must be expected that there will be years of depreciation to counterbalance the previous rise. In the last twenty years real property has decreased in price for periods of three to five years three or four times and it is critical for the buyer to recall that a vibrant and expanding economy must ultimately end, at least for a period. One must not automatically purchase property relying on future appreciation to justify the debt incurred since location, the surrounding economy, and just plain luck can often have drastic effects on value of property.

Nevertheless, careful and planned purchase of real property has been the typical method of appreciation of wealth for new citizens and Americans alike and an expanding population seems to assure that while cycles may cause temporary downturns in the market, that overall the demand for realty will continue to expand.

(Quelle:https://www.stimmel-law.com/)

In the United States, higher education is an optional stage of formal learning following secondary education. It is also referred as post-secondary education, third-stage, third-level, or tertiary education. It covers stages 5 to 8 on the International ISCED 2011 scale. It is delivered at 4,360 Title IV degree-granting institutions, known as colleges or universities. These may be public or private universities, research universities, liberal arts colleges, community colleges, or for-profit colleges. US higher education is loosely regulated by the government and by several third-party organizations.

There is a clear hierarchy of colleges and universities in the US, with the most selective institutions (e.g., Ivy League schools) at the top and the least selective institutions (e.g., community colleges) at the bottom. White supremacy and academic profit-seeking have played major roles in this stratification.

Attending college has been thought of as "a rite of passage" to which the American Dream is deeply embedded. However, there is a growing skepticism of higher education in the US and its value to consumers.

In 2022, about 16 million students—9.6 million women and 6.6 million men—enrolled in degree-granting colleges and universities in the US. Of the enrolled students, 45.8% enrolled in a four-year public institution, 27.8% in a four-year private institution, and 26.4% in a two-year public institution. College enrollment has declined every year since a peak in 2010–2011 and is projected to continue declining or be stagnant for the next two decades.

Strong research funding helped elite American universities dominate global rankings in the early 21st century, making them attractive to international students, professors and researchers. The US higher education system is also unique in its investment in highly competitive NCAA sports, particularly in American football and basketball, with large sports stadiums and arenas adorning its campuses and bringing in billions in revenue.

21st century

Changing technology, mergers and closings, and politics have resulted in dramatic changes in US higher education during the 21st century.

In 2020, when the COVID-19 pandemic upended regular campus life forcing students to take online classes at home, more than 100 colleges, both public and private have been sued for tuition refunds, making many of them to reopen their campuses.

Online education: MOOCs and OPMs

Online education has grown in the early 21st century. More than 6.3 million students in the US took at least one online course in fall 2016. While online attendance has increased, confidence among chief academic officers has decreased from 70.8 percent in 2015 to 63.3 percent in 2016. In 2017, about 15% of all students attended exclusively online, and competition for online students has been increasing

By 2018, more than one hundred short-term coding bootcamps existed in the US. Programs were available at Harvard University's extension school and the extension schools at Georgia Tech, University of Pennsylvania, Cal Berkeley, Northwestern, UCLA, University of North Carolina, University of Texas, George Washington, Vanderbilt University, and Rutgers through Trilogy Education Services.

In 2019, researchers employed by George Mason University claimed that online education had "contributed to increasing gaps in educational success across socioeconomic groups while failing to improve affordability".

A MOOC is a massive open online course aimed at unlimited participation and open access via the web. It became popular in 2010–14. In addition to traditional course materials such as filmed lectures, readings, and problem sets, many MOOCs provide interactive user forums to support community interactions between students, professors, and teaching assistants.[56] Robert Zemsky (2014), of the University of Pennsylvania Graduate School of Education notes that they at first seemed to be an extremely inexpensive method of bringing top teachers at low cost directly to students. However, very few students—usually under 5%—were able to finish a MOOC course. He argues that they have passed their peak: "They came; they conquered very little; and now they face substantially diminished prospects." In 2019, researchers at MIT found that MOOCs had completion rates of 3 percent and that the number of people taking these courses has been declining since 2012–13.[58]

Online programs for many universities are often managed by privately owned companies called online program managers or OPMs. The OPMs include 2U, Academic Partnerships, Noodle, and iDesign. Trace Urdan, managing director at Tyton Partners, "estimates that the market for OPMs and related services will be worth nearly $8 billion by 2020."

In 2023, the US Department of Education announced that OPMs would be subject to greater oversight, to include audits. Higher education institutions would be required to report details about their agreements with OPMs by May 1, 2023.

Edtech expert Phil Hill recently said that the OPM model is now "on life support."

Financial difficulties, mergers and downsizing

Hundreds of colleges are expected to close or merge, according to research from Ernst & Young.[62] The US Department of Education publishes a monthly list of campus and learning site closings. Typically there are 300 to 1000 closings per year. Notable college closings include for-profit Corinthian Colleges (2015), ITT Technical Institute (2016), Brightwood College and Virginia College (2018). Private college closings include Wheelock College (2018) and Green Mountain College (2019).

In December 2017, Moody's credit rating agency downgraded the US higher education outlook from stable to negative, "citing financial strains at both public and private four-year institutions." In June 2018, Moody's released data on declining college enrollments and constraints, noting that tuition pricing would suppress tuition revenue growth.

Other businesses related to higher education have also had financial difficulties. In May 2019, two academic publishers, Cengage and McGraw Hill, merged.

In 2020, higher education lost 650,000 jobs or about 13 percent of the workforce amid the COVID-19 pandemic, despite an infusion of federal funds. The number of US postsecondary institutions receiving Title IV funding has dropped from 7,253 in 2012–2013 to 5,916 in 2020–2021.

Class privilege and the growth of the educated underclass

Social class has a profound influence on higher education. Undergraduates at elite universities have a substantial advantage if their parents also went to a particular college.[73] Educator Gary Roth, a left-wing writer, has argued that with fewer good jobs for graduates, the US has been producing an "educated underclass." While upward social mobility continues to be available for immigrants and first generation people, the route to upward social mobility is more complicated for people from families that have been in the US longer.

Protests, political clashes, and the growth of right-wing politics

The growth of power among right wing groups has been apparent since the mid-2010s. Turning Point USA (TPUS), now the most dominant conservative presence on US campuses, has clubs at more than 2500 college campuses. Charlie Kirk, its founder, also took over Students for Trump in 2019.

The Chronicle of Higher Education has documented groups such as the Groypers who have infiltrated conservative organizations on campus.

Student protests and clashes between left and right appeared on several US campuses in 2017. On August 11, 2017, white nationalists and members of the alt-right rallied at the University of Virginia, protesting the removal of a statue of Robert E. Lee. The following day, one person died during protests in Charlottesville. Following this event, speaking engagements by Richard Spencer were canceled at Texas A&M University and the University of Florida.

来到美国之后，生活中最常做的是就是和各种税打交道，由于美国的特殊历史背景，每个州有很大的自治权，这也就造成了不同的州有各自的税收系统，有些州的税高得吓人，有些州却可能是免税州，虽然很少有人来美国伊始就选择一个税收上占有的州去生根发芽，但是在生活的过程中了解一些各个州的税收政策，对于我们规划之后的职业发展，退休计划，还有开公司做生意可是有大大的帮助的！尤其对于做跨境电商的朋友，选对了州注册公司或许能省下今后的一大笔支出。这篇文章我们就着重从公司的角度，来聊一下所谓的免税州有哪些，又免了哪些税。

美国税务分为联邦税和州税，联邦税是公司必须要缴纳的，联邦税是公司必须要缴纳的，21%，有营业就必须报税，但如果无利润则不需要缴纳。州税要看每个州的法律政策，再说到免税州时很多朋友会把公司和个人层面的免税州搞混，对于公司而言，我们要免得是公司所得税，对于打工者而言，我们希望越少缴纳个人所得税越好，而从消费者的角度而言，没有消费税才是天堂，了解了这其中的区别，我们就能更清楚的取区分不同种类的免税州了。

· 无公司所得税：怀俄明（Wyoming），内华达（Nevada）和南达科他（South Dakota）

· 无个人所得税：怀俄明（Wyoming），内华达（Nevada），南达科他（South Dakota），阿拉斯加（Alaska），佛罗里达（Florida），德克萨斯（Texas）和华盛顿州（Washington）

· 无消费税：阿拉斯加（Alaska），特拉华（Delaware），蒙大拿（Montana），新罕布什尔（New Hampshire），俄勒冈（Oregon）—我们平常口中的五大免税州。

对于提高收入少扣税而言，怀俄明，内华达和南达科他州无疑是最好的选择，企业和个人都可以最大化自己的税后收入，而从节省开支少交钱而言，不用缴纳消费税的五大免税州是最后的购物天堂，不过值得一提的是，阿拉斯加虽然在州的层面上没有消费税，但是有些城市会收取一定的消费税。

内华达州、南达科他州和怀俄明州是美国对公司来说纳税政策最为友好的三个州。这三个州在公司设立方面典型的几个优惠包括：1. 州内不对公司和个人收取所得税；2. 对公司的股份不收取费用；3. 不对公司征收特许经营税（虽然设立时和每年的报表和营业执照的存续会产生费用）；4. 公司的股东、董事会成员、管理层不需要是州内居民。

但是，在关注这三个州的优惠政策的同时，也应注意这些优惠政策的局限。这些税收、费用上的优惠建立在公司的实际运营地在州内这一前提之上。如果公司的营业地不在州内，或是除了该州以外还有其他营业地，则很有可能会以“境外公司”的身份触发其他州的缴税义务。例如，如果一家在内华达州注册的公司，如果在纽约州有商业活动、办公地点，并产生了营业收入，则该公司很有可能需要缴纳纽约州的公司、个人所得税。

对于创业公司来说，在事业初期，可以选择在公司的实际运营地进行注册，这样的方式更为方便，也省去了州外的注册代理的维护费用。当公司发展到一定阶段，根据公司融资、上市等战略方面的要求，注册地在特定州更加有利时，可以再去该特定州注册一个公司，然后通过控股关系解决这一问题。

除了上面三个免税州，特拉华不能不提，特拉华是美国上市公司设立的首选地。在美国的证券交易所上市的公司中，超过一半的公司（包括64%的财富500强公司）选择在特拉华设立。特拉华还是外州公司（即总部和设立地位于不同州的公司）设立数量最多的州。特拉华在立法，税务和服务上对于公司有着极大的优惠和保护，为了吸引投资，还采取了许多优惠政策，虽然它不是公开的免税州，但是如果不在当地经营业务，也无需缴纳公司所得税，就是说你可以在特拉华州注册公司，而在别州甚至别国经营业务，从而达到合理合法避税的效果。

目前来说，非美国人在美国注册公司最多的三个州分别是特拉华州、怀俄明州、内华达州。这三个州由于相对较低的运营费用以及低税免税政策被视为“公司友好型”州。（南达科他州除了免公司税以外，在其他配套法律和政策上并没有特别大的优势，所以并不是注册公司的首先）。其中，以亚马逊开店的非美国电商卖家更多的会注册在特拉华州、怀俄明州。

由于面向商业方面的法律制度，通常大公司都会选择在特拉华州进行注册，也就C-Corporation类型的公司倾向于特拉华州，这也是财富500强公司的聚集地。而对于小企业，比如一人公司，在怀俄明州注册则更有优势。怀俄明州申请费较低，并且大多数情况下年报只有50美元，不必支付特许经营税，也没有州所得税。

对于跨境电商卖家来说，特拉华更适合已经有一定规模的大公司，特拉华州没有销售税，并且如果公司不在特拉华开展业务的话，也没有州所得税。这些对于从事电商业务来说非常重要。也就是说，每年只需支付175-300美元（取决于公司类型），加上年度报告费50美元，完成年报即可。而怀俄明州的费用则更低，50美元年报费用，没有特许经营税，也没有州所得税，怀俄明州是小企业的首选。

希望这篇文章能给希望在美国成立公司的朋友一些帮助，关于具体注册公司的事宜，还是要咨询专业的注册会计师或者商业律师。 (Quelle:https://www.nystartax.com/)