Contract Interpretation is important to construction disputes. There are rules of legal rules of interpretation that allow evidence outside the four corners of the contract and others that ­that don’t allow extrinsic evidence.  It can be a bit confusing.
 
GAR has, however, has supplied us with a basic set of guidelines that are embedded into the GAR Purchase and Sale Agreement itself.  These give us a clear path to interpretation that settle issues in most cases. 
 
On page 7 of the Purchase Agreement, at Exhibits and Addenda, you see the following language:
 
Exhibits and Addenda. All exhibits and/or addenda attached hereto, listed below, or referenced herein are made a part of this Agreement. If any such exhibit or addendum conflicts with any preceding paragraph (including any changes thereto made by the parties), said exhibit or addendum shall control:
 
So, if there is a conflict between the between the exhibit and the body of the contract, the exhibit controls

​Hi, everyone! Welcome to 2021!  
One big change that was just announced that you need to be aware of is regarding
obtaining Power of Attorney (POA) for your buyers. 
Beginning on January 4 th , Freddie Mac no longer allows buyers to get a POA except in
the event of a medical emergency.   Fannie Mae has not updated their policy, so for the
moment they still allow POA’s with all the previous stipulations, but they could follow
suit.  
POA’s have been progressively more difficult since the great recession.  The agencies
(Fannie and Freddie) don’t like them.  So if you have buyers who are talking about “not
coming to closing,” you need to let your lenders know immediately.  A POA may not be
an option, so the buyers may have to attend, or arrange a mail away.  
This change does not affect POA’s for sellers, so for your listings you are in good
shape.    Remember, a “conventional loan” just means the loan is either going through
Fannie Mae or Freddie Mac.   Some lenders use one or the other, and some use both
(our company Fairway sells directly to both).  However, if you happen to have a buyer
who is dealing with a lender that only runs loans through Freddie Mac, then that lender
will no longer be able to allow POA’s at all for conventional loans.   
If you have any questions on this or want to discuss the topic further, please give us a
call
at 404-373-3411 or email us at [email protected].   
As a reminder, the new conventional loan limit for Georgia is now $548,250! 
Happy New Year!

​The Agreement to Reinstate Contract is a new GAR form.  It can be used if there is a situation in which the original contract was terminated, but the parties wish to continue the relationship.  A common situation involves the Amendment to Address Concerns (ATAC).  Agents often add language to the ATAC that is intended to protect their buyers, but can result in an unintended termination: If the ATAC is not accepted, then the Seller is served Notice of Buyer’s decision to terminate the contract.  If the Seller does not accept the ATAC as written, the contract is thereby terminated. But hold on! The Buyer didn’t really want to Terminate, just to protect its earnest money.
 
So long as both parties agree, this is a perfect situation for the new form.  The Buyer and Seller can resurrect the contract using Form 290.  Note that there is space on the form to include any changes to the contract to which both parties agree.
 
For those of you that are thinking that this breaks the rule that you cannot resurrect a dead contract, yes, you are right. This is a change, blessed by the GAR.
 

​We have had several questions lately regarding the “Coming Soon” listing status.  There are several sources of information for Guidance.
 
First, the FMLS Administrative Rules defines “Coming Soon”: The property is currently “off market,” and will be Active within the next 21 days. Only FMLS members will be able to view Coming Soon listings.  The Coming Soon status is only available at the beginning of the listing period, and once a listing is taken out of the Coming Soon status, it cannot go back into Coming Soon.
 
Coming Soon status does not appear on public websites, such as ggeorgiamls.com. 
 
Georgia MLS has issued a “Coming Soon Frequently Asked Questions.”  In it, it is clear that while in Coming Soon status a listing cannot be shown or made available for offers before the On Market Date.  The Coming Soon status can be changed to Active, but once it is Active, it cannot be changed back to Coming Soon.
 
Listings in the Coming Soon status have the same functionality as other listing statuses.  They can be searched, printed, emailed and exported and included in CMAs.

​The 2021 GAR contract changes are now active.  In past weeks we covered 2021 changes to the Listing Agreement (Engagement) Agreement, the Buyer Brokerage (Engagement) Agreement and the Purchase and Sale Agreement.  This week we summarize important changes to Disclosures, Exhibits and Authorization. 
 

1. F301 Seller’s Property Disclosure

1. C(5) and C(6) added 2 additional Systems and Component HVAC questions and the age of the water heater.
2. C(10) modified P.(a) added “hazardous condition” from animal intrusion, insects, fungi or dry rot.

 

1. F302:  NEW FORM for Seller’s Disclosure of Latent Defects and Fixtures.  This form is to be used when the Seller has never occupied the property (investors, beneficiaries) or has not occupied the property long enough to know the information to complete F301.  THE SELLER MUST DISCLOSE KNOWN LATENT DEFECTS.

 

1. F316 The Lead Based Paint Exhibit continues to get tighter. Language has been added to mirror the EPA regulation. New language emphasizes that the Lead Based Paint Brochure must be provided to the Buyer prior to a binding agreement.  Further, the Seller must initial it’s disclosure and the Buyer must initial its Acknowledgement at (c) AND (d) and initial (e)(i) or (ii).  If the Buyer accepts a 10 day opportunity to inspect, the inspection must be completed BEFORE the offer is accepted by the Seller.  Please review the form to be certain the form is understood. EPA fines for omissions are up to $16,000 per omission.

 

1. F322 Community Association Disclosure. 

 

1. The Seller must pay for the Closing Letter within 2 days of receiving notice from the closing attorney of how to pay.  The Seller is responsible to pay for any amount over the Seller disclosure. If there is an N/A or a blank link, it is interpreted as $0.00.
2. Pre-paid annual dues or buyer move in fees are buyer costs.
3. New paragraph: The Buyer authorizes the Closing Attorney to reveal the Buyer’s identity and contact information.

 

1. F601 Sale or lease of Buyer’s Property Contingency
   1. New paragraph wherein the Buyer warrants the property is listed, under contract or other.
   2. P.3 updated to include the specifics of the Buyer’s Sale or Lease Terms.

 

1. F843 Referral Authorization. Updated Language to include referral to builders and real estate related services in addition to brokers and relocation companies.
2. SS 627. New Special Stipulation.  Expiration of Time Deadlines.  To be used if you don’t want time deadlines to end at 11:59 pm.  “All time deadlines set forth herein shall expire at ____am or pm on the day of the deadline.”

 
For additional detail, please see the RMAA Hub Resources Library for a Power Point of Missy Robinson’s class on the changes, as well as the Campbell and Brannon class presented by Christian Ross and Peter Babcock.  The new forms can also be found in the RMAA Hub in the Resources Library.  There will be additional classes on the changes to the forms.  We highly recommend that you register for one and attend!