Relating to Real Estate

A version of this article was published in ABA/RPTE eReport (December, 2012).

The Legal Opinions in Real Estate Transactions Committee has a Subcommittee on Opinions to Federal Agencies. Charlie Menges, vice chair of the Legal Opinions in Real Estate Transactions Committee, chairs this Subcommittee.

Governmental agencies (such as HUD) and governmental-sponsored enterprises (GSEs), including Fannie Mae and Freddie Mac, usually have their own forms of opinion letters. These organizations often insist that such forms either may not be changed or they allow only minimal changes to the forms.

The Subcommittee encourages the governmental organizations to change their forms to be more in line with current third-party opinion letter practice and to permit their personnel to have more flexibility in accepting opinion letters that deviate from the governmental organizations’ forms.

Problems with these forms include requests:

• that attorneys render opinions about factual matters;
• that they render opinions based entirely on the opinions of other persons, who may or not be lawyers (conduit opinions);
• that opining attorneys provide the opinion recipients with negative assurances of assumptions that the opinion givers make in their opinions; and
• that attorneys give opinions about areas as to which the attorneys are either not competent or as to which they have not had the opportunity to fully investigate, such as zoning matters.

The Subcommittee has presented the following programs:

• the RPTE Spring Symposia in Philadelphia in May, 2010 – at which Millicent Potts of HUD and Jarrid King of Freddie Mack participated
• the "big" ABA Meeting in San Francisco in August 2012 (together with the Business Law Section’s Legal Opinions Committee) – at which John Daly, Associate General Counsel of HUD participate, and
• the RPTE Spring Symposia in New York in May, 2012.

Another activity of the Subcommittee was in connection with HUD’s recent change of its form documents and its form opinion letter for FHA-insured loans. Members of the Subcommittee met in January 2011 in Washington, D.C. with counsel at HUD to discuss the HUD opinion form (which was then in the process of being revised), and thereafter the Subcommittee submitted written comments. A number of these comments were incorporated into the form of HUD opinion that must be used with FHA-insured loans for which HUD issues a firm commitment for mortgage insurance on or after September 1, 2011.

The Subcommittee’s comments and the form of HUD opinion may be found on the Subcommittee’s webpage. Please note that the form called "HUD Opinion Guide" is actually the HUD-mandated form of opinion letter.

This webpage also contains both governmental and GSE forms. It also contains CLE materials from past presentations.

The current focus of the subcommittee is on Fannie and Freddie opinion forms.