Thursday, April 2, 2009
Addendum for Short Sales
Just a reminder, as of March 1st, there is now an addendum required for all short sales.
Buyer's bypassing buyers agents to get a piece of the commission
Please keep in mind, in our industry there are at least two methods by which an agent may claim the buyers side of a commission being offered. In our listing agreements, the sellers agrees to pay us a commission and we agree to pay a cooperating broker a commission. The agreement is presented in the MLS where we state we will pay a buyer’s agent (not a seller’s sub-agent) a percentage of the sales price. If an agent has a buyer’s representation agreement, they have a strong position to claim a cooperating brokers commission. Additionally, even without a buyer’s representation agreement, an agent may make a claim to be a procuring cause. Essentially, they were an integral part of the buyer finding and choosing the property they eventually purchased.
Under the code of ethics, we have an affirmative obligation to determine if the buyer is subject to a representation agreement.
What is procuring cause and how is it collected?
If a buyer approaches the listing agent directly, have they likely been in contact with other real estate agents?
If you close on a deal and another agent successfully makes a claim to 3% of the commission and you took 3% to handle the whole deal, what happens?
Scenario One: A buyer has been searching online for homes and has worked on his own. He identifies a property on his own and contacts the listing agent directly. Lets discuss how this can play out.
Scenario Two: This buyer has been using agents to help him find properties. Agent X (either inside our office or elsewhere) has set up a search for our prospective buyer (AT IS OR HER REQUEST) and is sending weekly reports. The buyer takes the information provided by the agent and approaches the listing agent directly. Let’s discuss this scenario.
Scenario Three: The buyer calls the listing agent and represents he found the property on his own and is not, nor has ever been , subject to a buyers representation agreement. He is not being truthful. Let’s discuss this scenario.
Scenario Four: The buyer calls and speaks to a duty agent and talks about one of our listings. He tells the agent he is currently represented by another agent and just wants to see the property. He says his agent is out of town. The duty agent provides him with the listing agents phone. After calling the listing agent, the buyer want to negotiate receiving a portion of the commission. He retracts his statement regarding being represented, but says he can get a friend to handle the buy side for free or at a big discount. Discuss this scenario.
Under the code of ethics, we have an affirmative obligation to determine if the buyer is subject to a representation agreement.
What is procuring cause and how is it collected?
If a buyer approaches the listing agent directly, have they likely been in contact with other real estate agents?
If you close on a deal and another agent successfully makes a claim to 3% of the commission and you took 3% to handle the whole deal, what happens?
Scenario One: A buyer has been searching online for homes and has worked on his own. He identifies a property on his own and contacts the listing agent directly. Lets discuss how this can play out.
Scenario Two: This buyer has been using agents to help him find properties. Agent X (either inside our office or elsewhere) has set up a search for our prospective buyer (AT IS OR HER REQUEST) and is sending weekly reports. The buyer takes the information provided by the agent and approaches the listing agent directly. Let’s discuss this scenario.
Scenario Three: The buyer calls the listing agent and represents he found the property on his own and is not, nor has ever been , subject to a buyers representation agreement. He is not being truthful. Let’s discuss this scenario.
Scenario Four: The buyer calls and speaks to a duty agent and talks about one of our listings. He tells the agent he is currently represented by another agent and just wants to see the property. He says his agent is out of town. The duty agent provides him with the listing agents phone. After calling the listing agent, the buyer want to negotiate receiving a portion of the commission. He retracts his statement regarding being represented, but says he can get a friend to handle the buy side for free or at a big discount. Discuss this scenario.
Who has to use a sellers disclosure?
Is the seller required to give the purchaser a seller’s disclosure notice
if the seller has never even seen the property? Do the mandatory
seller-disclosure requirements apply to a relocation company? Do the
disclosure requirements apply to a property for sale by owner?
Section 5.008(e) of the Texas Property Code states that the
requirements to provide a seller’s disclosure notice do not apply to a
transfer:
1. pursuant to court order or foreclosure sale
2. by a trustee in bankruptcy
3. to a mortgage by a mortgagor or successor in interest, or to a
beneficiary of a deed of trust by a trustor or successor in interest
4. by a mortgagee or a beneficiary under a deed of trust who has
acquired the real property at a sale conducted pursuant to a
power of sale under a deed of trust or a sale pursuant to a courtordered
foreclosure or has acquired the real property by a deed
in lieu of foreclosure
5. by a fiduciary in the course of the administration of a decedent’s
estate, guardianship, conservatorship, or trust
6. from one co-owner to one or more other co-owners
7. made to a spouse or to a person or people in the lineal line of
consanguinity of one or more of the transferors
8. between spouses resulting from a divorce or a decree of legal
separation or from a property settlement agreement incidental to
such a decree
9. to or from any governmental entity
10. of new residences of not more than one dwelling unit which have
not previously been occupied for residential purposes
11. of real property where the value of any dwelling does not exceed
5% of the value of the property.
if the seller has never even seen the property? Do the mandatory
seller-disclosure requirements apply to a relocation company? Do the
disclosure requirements apply to a property for sale by owner?
Section 5.008(e) of the Texas Property Code states that the
requirements to provide a seller’s disclosure notice do not apply to a
transfer:
1. pursuant to court order or foreclosure sale
2. by a trustee in bankruptcy
3. to a mortgage by a mortgagor or successor in interest, or to a
beneficiary of a deed of trust by a trustor or successor in interest
4. by a mortgagee or a beneficiary under a deed of trust who has
acquired the real property at a sale conducted pursuant to a
power of sale under a deed of trust or a sale pursuant to a courtordered
foreclosure or has acquired the real property by a deed
in lieu of foreclosure
5. by a fiduciary in the course of the administration of a decedent’s
estate, guardianship, conservatorship, or trust
6. from one co-owner to one or more other co-owners
7. made to a spouse or to a person or people in the lineal line of
consanguinity of one or more of the transferors
8. between spouses resulting from a divorce or a decree of legal
separation or from a property settlement agreement incidental to
such a decree
9. to or from any governmental entity
10. of new residences of not more than one dwelling unit which have
not previously been occupied for residential purposes
11. of real property where the value of any dwelling does not exceed
5% of the value of the property.
New 6 Page ERC Market Analysis and Strategy Report
The ERC report has doubled in size to six pages. Here is a link to the new forms.
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