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BROKER CORNER

Is A Broker or REALTOR® Required to Present All Offers?

6/26/2024

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The answer is yes unless the client has waived this obligation in writing.
Regardless of whether they are representing sellers, landlords, buyers, or tenants,
brokers must present all offers to their client in a timely fashion. This requirement is
consistent with Georgia real estate license laws, which also require licensees to
“deliver within a reasonable time” all offers to buy or sell, as well as any completed
purchase agreements. Brokers must also present to the other party all offers that their
client desires to submit, even when the broker disagrees with some or all the
provisions in the offer.
A listing broker’s duties to the seller are established in the Seller Brokerage
Engagement Agreement. Among other duties, there is a clearly defined duty to timely
present all offers to and from the Seller, even when Property is subject to a Contract to
Sell. (F101 Seller Brokerage Engagement Agreement Section 7.(a)(2).
Even when a seller’s or landlord’s property is under a contract to sell or lease, the
broker must still submit additional offers to the broker’s client. Likewise, a broker
representing a buyer or tenant must submit to the seller any offers or counteroffers that
the client wishes to make, even if the buyer or tenant is already a party to a sales
contract or to a lease (or letter of intent to lease). Interestingly, the obligation to timely
submit all offers likely extends to oral offers, even though contracts for the purchase or
real estate must generally be in writing to be enforceable.
The obligation to present all offers, even after the property is subject to an offer to sell,
is also included in the Code of Ethics Article 1 Duties to Clients and Customers.
Standard of Practice 1-7. When acting as listing brokers, REALTORS® shall
continue to submit to the seller/landlord all offers and counteroffers until closing
or execution of a lease unless the seller/landlord has waived this obligation in
writing. Upon the written request of a cooperating broker who submits an offer to
the listing broker, the listing broker shall provide, as soon as practical, a written
affirmation to the cooperating broker stating that the offer has been submitted to
the seller/landlord, or a written notification that the seller/landlord has waived the
obligation to have the offer presented.

The only way the listing agent is relieved of this obligation is if the seller has
waived the obligation in writing.
Reference: The Red Book on Real Estate Contracts in Georgia 6 th Edition, Seth Weissman
Code of Ethics Article 1 Duties to Clients and Customers
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Temporary Occupancy Agreement – Things to Be Aware Of!

6/14/2024

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More and more, we are seeing Temporary Occupancy Agreements (GAR F219) so sellers can remain in their properties post-closing. Here are a few tips for navigating the form.
 
The Terms in the Temporary Occupancy Exhibit Control Over the Terms in the Agreement
The temporary occupancy exhibit includes language that states if there is a conflict between the exhibit and the agreement, the terms in the exhibit shall prevail. If you include a special stip in the temporary occupancy exhibit and counter that stip in the counteroffer, best practice is to remove the stip or strike through it.
 
Temporary Occupancy Exhibit (F219), Paragraph 13:  In the event there is a conflict between the terms and conditions of the Agreement and this Exhibit, the terms and conditions contained in this Exhibit shall prevail.
 
Seller is Required to Provide Buyer with One Set of Keys at Closing
Often, sellers do not want to give the buyer keys at closing since they are still occupying the property. Remind the seller at the time of contract that they are legally required to turn over one set of keys at closing. 
 
Temporary Occupancy Exhibit (F219), Paragraph 2:  At the time of closing, Seller shall provide Buyer with one set of keys, door openers, fobs, access cards, codes and other similar equipment needed to access the Property, the community and community amenities. Not later than the time of possession, Seller shall turn over all remaining keys, door openers, fobs, access cards, codes and other similar equipment needed to access the Property in Seller’s possession to Buyer.
 
Maximum Temporary Occupancy is 60 Days
The GAR Temporary Occupancy Agreement is designed to cover the Seller remaining in the property for up to 60 days.  If the Seller needs longer than 60 days, a lease should be used.  The reason is that, if the buyer has purchased as an owner occupant, lenders consider 60 days the cut off for determining whether the owner is an owner occupant or an investor.  If the lender determines that the new owner is actually an investor, the new owner would be in default of the loan.  The interest rate could increase or, worse, the owner could be accused of mortgage fraud.
 
Tip: Don’t allow a post-closing occupancy to be more than 60 days. Use a lease form if the seller requires more than a 60 day occupancy.  More than 60 days may not work if the new owner will be an occupant.
 
Watch Out for Insurance Issues
Once ownership of a property changes, insurance coverage changes too.  The seller’s owner occupant policy no longer covers the seller.  The buyer is now the owner.  If there is a flood or a fire, the new owner’s policy covers the real estate, but not the seller’s personal property.
 
Tip:  Make sure the seller contacts his insurance carrier for advice regarding personal property coverage during the temporary occupancy.
 
The New Owner is Responsible for Maintenance and Repairs
Once the closing takes place, the new owner is responsible for the maintenance and repair of the property.  The previous owner is not.  The old owner is just a tenant.  Unless the old owner has damaged the property beyond normal wear and tear, they are only responsible for their own personal property.
 
Tip: Advise your buyers, before they agree to a seller remaining in the property post-closing, that they are responsible for the maintenance and repair of the property post-closing.
 
The New Owner has the Right to Enter the Property at Reasonable Times with Notice
Buyers and/or buyer’s representatives have the right to enter the property to inspect, examine, survey, meet contractors and prepare for the buyer’s occupancy.
 
Temporary Occupancy Exhibit (F219), Paragraph 10: Upon prior notice to Seller, Buyer and/or Buyer’s representatives shall have the right to enter the Property at Buyer’s expense and at reasonable times to inspect, examine, survey, meet contractors and prepare for Buyer occupancy of Property. Seller shall cause all utilities, systems and equipment to be on so that Buyer may complete all inspections. Buyer agrees to hold Seller and all Brokers harmless from all claims, injuries and damages relating to the exercise of these rights and shall promptly restore any portion of the Property damaged or disturbed from testing or other evaluations to a condition equal to or better than the condition it was in prior to such testing or evaluation.
 
Make a Hold Over Period Hurt
Once the agreed upon temporary occupancy has terminated, a seller that remains in the property is holding over.  If the seller doesn’t leave voluntarily, the new owner may have to evict.  Evictions cost time and lots of money. Therefore, make the daily cost of holding over a significant one.  If the daily cost is minimal, the seller has no incentive to leave. 
 
Tip: Include a large per day hold-over fee.  Make it hurt.  $500 or $1000/day would incentivize a seller to leave on time a lot more than a small fee.
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Cameras are Everywhere! Know How to Protect Your Clients.

6/5/2024

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Is it legal for a seller to have a recording device during open houses and showings? The answer is “Yes”
The general rule in Georgia is that a property owner has the right to “record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy,” and to conduct surveillance “within the curtilage of (their) residence”. Ga. Code Ann. 16-11-62(2)(B), (C). Therefore, a seller is perfectly within his or her legal rights to install and use camera and audio recording devices throughout his or her property as he or she sees fit, including watching potential buyers as they tour the property. (The Red Book, Ch 1)
The two categories of surveillance are audio and video, and the rules about them are very different.
Audio Surveillance.  Did one of the parties consent?
In Georgia, as long as one of the parties to a conversation knows that they are recording, then an audio recording is ok. What is not allowed is for a third party to record a conversation between two people who are unaware they are being recorded. So, an audio recording would be legal if the home seller is recording and is accompanying the buyer. But that’s not the way it usually happens.  In the more common scenario, the only ones monitored are the house hunter and his or her broker, both unsuspecting.  In most cases, an audio recording of a broker and buyer without the seller present would be illegal.
Video Surveillance.  Is there an expectation of privacy?
Video is different. A video recording is legal if the party being recorded did not have a reasonable expectation of privacy. So, unless consented to, a video in one’s own home would likely be illegal, because there is an expectation of privacy.  However, a video recording in a private residence in a listed house may be legal, since an individual may not claim an expectation of privacy. (Except in a bathroom.)
Listing Brokers Good Practice – Disclose the presence of cameras
NAR recommends that listing brokers should know whether surveillance devices are present on the property, so, first, ask your Seller.   Second, to avoid any later claims that illegal recordings were made, listing brokers should share this knowledge. Either post a notice on the property alerting all visitors to the property that they may be recorded or include the information in the MLS comment fields – or do both.  Some regional Realtors' groups now require home sellers to inform their brokers of any surveillance equipment as part of standard broker contracts.
Buyer Brokers – Curb Your Enthusiasm!
An audio recording of a buyer or broker comments – even an illegal recording – can affect negotiations.  Assume a recording device is there or pretend the Owner is right there with you and don’t make any comments that you wouldn’t want the Owner to hear.  Comments like “This is my first choice” or “Love, love, love this house” are not for the Owner’s ears!
Make sure your clients are aware of recording devices, if you know they exist.  Consider making this disclosure in writing, such as in an email.  While such a disclosure is not legally required since the buyer’s representative is not the one making the recording, it would help protect them from any later allegations if a client later claimed to be unaware of a disclosed recording device.
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