February 22, 2016
DID YOU KNOW?
The #1 claim filed against real estate licensees in Florida is for misrepresentation. Under Florida law, real estate licensees must disclose “all known facts that materially affect the value of residential real property and are not readily observable to the buyer”.
The AS-IS contract is the #1 contract downloaded from Forms Simplicity through Florida Realtors®. Owners and licensees often incorrectly assume the “As-Is” contract provides them immunity for any property defects or conditions. The “objective” of the As-Is contract really is to limit a seller’s duty to pay to fix any defect or problem a buyer may discover as a result of inspections done. The obligation to disclose what you know remains regardless of the contract you use!
REMEMBER: Real estate licensees and the Owners they serve are ALWAYS required to divulge any known fact that significantly affects the property’s value. If you are in doubt – disclose it. If an Owner refuses to do so or prohibits you from doing so, then save yourself from the headaches and costs which will result from a lawsuit, DBPR claim or Ethics complaint filing, and decline the listing.
January 13, 2016
Team work can be very rewarding both in terms of maximizing individual skills and financially. Remember Brokers and Agents: if a real estate licensee is performing licensed activity for the team (taking listings, writing or negotiating contracts, or doing those tasks which require a license), then make sure that you understand and comply with Chapter 475, Fla. Stats.
Any team member performing licensed activity can ONLY be paid by directly by the broker. No commission, salary, or payment can be paid from the Team (even if you have a written agreement saying you will be paid as an independent contractor or even if the Team is a P.A.)
December 4, 2015
It is always an honor to be recognized in the industry as an experienced real estate licensee defense attorney, and it is an added bonus to work with the professionals at Pearl Insurance/ XL Catlin.
Thank you Pearl!
November 18, 2015
NAR®’s San Diego Conference did not disappoint. While we all have been inundated with the new TRID disclosures and process, here are a few helpful hints and cautionary tips worth repeating for those representing Buyers:
1. Set the stage in the beginning with REALISTIC expectations –Explain deadlines, the anticipated timeline, and each participant’s obligations.
2. As a Cooperating or Selling Agent or Buyer’s Broker –Encourage your Buyers to be ready – Before an offer is made, the Buyer should have their financial paperwork in order.
3. Be diligent for your customers and clients – Ask your Buyers if they have received the LE (loan estimate) document.
4. Educate your Buyer as to the timeline for the Notice of Intent to Proceed.
5. Conduct walk-throughs much earlier than the day before or on closing. Some recommend Buyers should conduct the walk-through 1 week before the closing.
6. Be careful – Know that if you have a back-to-back, stacked or contingent closings there may be issues and aggravation.
October 28, 2015
The ethical principles set forth in the NAR® Code of Ethics are MANDATORY. Surprisingly, members of the public and even Realtors® mistakenly believe that the 17 Articles that comprise the Code are simply business manners and are thus, optional.
A failure to abide by them can result in a violation and discipline as determined by a Professional Standards Panel after a hearing. Discipline may include a Letter of Warning, Letter of Reprimand, mandatory seminar or course attendance, fines not to exceed $15,000.00 and even membership suspension and revocation.
So remember: while the Code of Ethics is 102 years old this year, and it has certainly evolved over the many decades from its initial adoption in 1913, the purpose of the Code remains true to its original intent. The Code serves as a written Declaration of Duties Realtor® members owe to their customers & clients, members of the public and each other and they are compulsory once you become a member of the National Association of Realtors®.
September 29, 2015
Nationwide 72% of claims against REALTORs® are based on a “failure to disclose.” When you take a listing, protect your sellers and yourself: provide Sellers with a Sellers Disclosure Form. SELLERS are the only persons who should ever fill out this form. (REALTORS® should never fill out the form or place any mark on the Disclosure other than the Sellers’ names and the property address.) Remember too that blanks are subject to interpretation. So, tell the Seller to answer truthfully and to provide an answer (yes, no or I don’t know) for every question or subject. If a question does not apply, then the Seller’s response should be “N/A” or “not applicable”.
July 22, 2015
Did you know if you do not have a written independent contractor’s agreement with your broker, you are allowing others to decide the condition of your employment? While each employment agreement is tailored to the particular parties and circumstances, you will want to cover the very basics. At a minimum your agreement should include how you will be paid, (flat fee per transaction or a percentage), when you will be paid, what amounts can the broker debit from the commissions earned, and what happens if the relationship is terminated, especially whether you get to keep your listings if you transfer to another broker.
BE SMART: If you do not have an attorney draft this contract for you, consider using the independent contractor’s agreement Form ICA-6.xdp offered by the Florida Realtors®. 7/22/15
July 7, 2015
Did you know that offering your client or customer just one recommendation for a vendor service may expose you to liability for that vendor’s work?
While we typically have preferred vendors we all like working with, and think they do a good job, be smart and provide your customer or client with the names of at least three (3) vendors for any given service (home or termite inspections, electrical work, pool repairs, etc.)
Another good business practice is to create a list of vendor names with their contact information. This handout or list should also contain a disclosure similar to the following: “these vendors names have been provided to you as courtesy only for your consideration. Neither the Realtor® nor the Broker are affiliated with the vendors on this list, nor can we guarantee their work. There may be other vendors who you may wish to consider and this list is not intended to be exclusive or limit your options. Buyer or Seller should confirm to their own satisfaction the cost, the work, any permits and generally the services to be provided as well as any warranties which may be included.”
June 23, 2015
Did you know… as the Listing Agent when you provide a written listing agreement to an owner you must include a definite expiration date, description of the property, price and terms, fee or commission, and a proper signature of the principal(s). Take a moment to make sure your listing agreement does not have an automatic renewal provision. If it does, delete it because it violates Chapter 475.
June 9, 2015
PROOF OF OWNERSHIP AND AUTHORITY TO EXECUTE LEGAL DOCUMENTS
Under Chapter 475, F.S., you have a duty of due diligence. This duty requires you to take affirmative action to confirm who is authorized to sign a listing or sales contract, and this duty exists whether you represent the buyer or the seller. For an individual, search the tax collector’s and property appraiser’s records in the county where the property is located. Make sure the person(s) signing is the same person noted in the public records. For an LLC or corporation, simply do a search using the following Divisions of Corporations’ website: www.sunbiz.org. (NOTE: for an LLC, only a manager of a manager-managed LLC is legally permitted to sign contracts, unless the operating agreement appoints another person.) For a property that is owned by a trust, you should request a copy of the Certificate of Trust if they do not wish to provide you will the entire trust agreement itself. If the property is owned by an estate, you should request a copy of the Letters of Administration or an Order from the probate judge which appoints this person as the authorized party to sign legal documents related to the sale of the property.
May 26, 2015
Did you know…Errors and Omissions Coverage often DOES NOT have a deductible for an administrative (DBPR) complaint or an ethics complaint filed at your local Board. Go check your policy and make sure you understand the basics of your coverage.
May 20, 2015
Did you know that Chapter 475 REQUIRES all real estate licensees to provide a legible, signed, true and correct copy of the executed listing agreement to the owners within 24 hours of obtaining the listing agreement?
What an opportunity to demonstrate to your Sellers that you know the law and you are a professional, who values their confidence in your ability to list and sell their property!