​This is RE/MAX Around Atlanta’s Generative AI use policy. Generative AI is a field that is still extremely new, and it requires thoughtful communication and discussion to determine the most effective approach in this rapidly evolving field. It has massive potential in certain use-cases as well as key limitations we need to understand. While content and advice generated using AI may sound great and save time, there is an inherent risk of bias and inaccuracy. You are encouraged to learn more and experiment, but exercise caution when using it in your business. If you have any thoughts or feedback, please contact a Broker/Owner or In-House Counsel.

​What is Generative AI? For the purposes of this policy document, Generative AI refers to
technology and tools that can create content like a human, and as a consequence, perform tasks that mimic humans. The type of content (text, images, video, etc.) does not matter, nor does the underlying model/technology that enables the functionality.  

Popular Generative AI include, but are not limited to,:
 Chat GPT by OpenAI, and services powered by them
 Bard by Google
 DALLE by OpenAI
 Various AI powered chatbots
​
Best Practices
1. Never upload personal information, customer/client data, or confidential
information to any AI model.
2. Never send or publish AI generated content without thorough human review, regardless of whether the audience is internal or external.
3. Do not use generative AI as the sole source for research purposes. They are famous for“hallucinating” false information. Always verify with a second source.
4. Be sure that any content generated by AI does not violate license law, fair housing law
or copyright law (be especially cautious with images that may resemble or be modeled
using copyrighted images). 
5. Keep a record of when you’re using an AI tool.
6. Be vigilant of legal topics (intellectual property, privacy, etc.) surrounding generative AI,
and exercise caution.

KEY TAKEAWAY: Regardless of whether content originated from Generative AI, YOU
are entirely responsible for it as the author, as if you created it yourself.
May 24, 2023

We are often asked why we ask for contact information in purchase agreements.
It’s all about sending and delivering notices that are legally sufficient.
​
First, it is important to understand the difference between a Client and a
Customer.

Clients vs. Customer
All brokerage relationships fall into one of two broad categories: (1) broker-client
relationships; and (2) broker-customer relationships. In a broker-client
relationship, the real estate broker is representing the client and is acting as his
or her legal agent in buying, selling, or leasing property. In Georgia, a broker-
client relationship can only be formed by the parties entering into a written
agreement.

The other type of brokerage relationship is known as a broker-customer
relationship. With this type of relationship, the broker is not representing the
customer in a legal or agency capacity. However, the broker can still work with
the customers and help them by performing what are known as ministerial acts.
These include, for example, identifying property for sale or lease, providing pre-
printed real estate form contracts, preparing real estate contracts at the direction
of the customer, and locating lenders, inspectors, and closing attorneys on behalf
of the customer. It does not include delivery of notices.

What are Notices?
If a document only requires the signature of the sender, it’s a notice. If it requires
signatures of both parties, it’s an agreement. Notices have to be delivered to an
email or physical address or fax included in the contact. There are many notices
given in the life of a contract and, of course, in the death of a contract. Think
about unilateral 8 day extensions, notice to proceed with financing, counter
offers, unilateral termination of contracts, notices from a landlord to a tenant (and
vice versa) and exercise of options. The list goes on.

Delivery of Notices to Clients
If you have an executed Seller Brokerage Engagement Agreement or a Lease
Listing/Management Agreement, the Seller or Landlord is your client. The same
is true for a Buyer Brokerage Agreement or a Tenant Brokerage Agreement. You
can therefore accept legal notices on behalf of your clients, but you may only
deliver them to clients in person or to any physical address, e-mail address
and/or facsimile number specifically included in the signature block of the
agreement. If a physical address (not a PO Box) is in the Address for Receiving
Notice section of the signature block, you can mail a Notice to a client. If an
email address or a fax number is included, you can email or fax a notice to the
client. A telephone number doesn’t work (but a fax number does). If there is no
appropriate contact information for delivering a notice to your client, you have to
hand deliver. If the client is on the West Coast, you may be on an airplane. And
that is why it is so important to include the right contact information for clients in
signature blocks.

Notices to Customers
If you do not have a written agreement with a party or if you have a written
agreement that makes the party your customer, you cannot accept notices for
them. Examples are the Authorization to Show Unlisted Property and the
Agreement to Work with the Buyer as a Customer. Both are customer
relationships, even though they are written. If you are representing the opposite
party, you have to rely on the information in the signature block. You will be
thankful if you remember to have the customer include their contact information
in the signature block.

Notice to a Represented Party
Of course, notice to a represented party can be sent to that party’s agent. That
agent is responsible for delivery to their client.


References:
The ABCs of Agency. GAR CB01
Purchase and Sale Agreement. GAR F201

RE/MAX Around Atlanta encourages all sellers to complete the GAR Seller’s Property Disclosure Statement Exhibit (SPD) to avoid any disclosure issues. If the seller has not occupied the property, the Seller should complete the Seller’s Disclosure of Latent Defect(s) Exhibit. To avoid broker liability, t is imperative that the sellers themselves complete the exhibit. The broker or agent should never complete the exhibit for the seller. In Georgia, a buyer cannot make a claim against the seller’s broker for false statements that were made by the seller in the seller’s disclosure statement - unless the seller’s broker knows the representations to be false. Neither can the buyer sue the seller’s agent for fraud when the seller fails to disclose concealed defects in the property.

Seller’s Agreement in the SPD
The SPD includes directions on how sellers should fill out the statement and how buyers should use the exhibit. In completing the disclosure statement, the seller agrees to do the following:
(1) answer all questions in reference to the property (which, unless noted, shall include any improvements);
(2) leave no questions unanswered; (if the sellers cannot answer, they should use the additional explanations section to explain)
(3) answer all questions fully and accurately based upon the best knowledge and belief of all sellers in the purchase and sale agreement. (All sellers must sign the SPD)
(4) fully explain in the “additional explanations” paragraph any questions to which the answer is “yes,” referencing the number of the question for which the additional explanation is being given; and
(5) promptly revise the statement and provide a copy of the same to the buyer and any broker involved in the transaction if, before closing, there are any material changes in the answers to any of the questions.

How Buyers Should Use the SPD
Buyers are advised that the disclosure statements should be the starting point for a buyer’s investigation rather than the entire investigation. Caveat emptor or buyer beware is still the law in Georgia. Therefore, if an inspection reveals an issue or concern that would cause a reasonable buyer to investigate further, the buyer will likely be out of luck if the buyer chooses not to do so.

The disclosure statement language to buyers is as follows:
The answers of Seller below should not be a substitute for Buyer conducting a careful, independent evaluation of the Property. Caveat emptor or buyer beware is the law in Georgia. Buyers are expected to use reasonable care to identify defects in the Property and satisfy themselves that the Property is suitable for Buyer’s needs and purposes. If an independent evaluation of the Property reveals potential problems or areas of concern that would cause a reasonable buyer to investigate further, Buyer may not have legal recourse if Buyer fails to investigate further.

GAR has created substantially similar property disclosures for Condominiums (GAR Form F304), for New Construction (GAR Form F310), for Lots and Land (GAR Form F307) that are tailored to those situations.

The Seller Property Disclosures Must Be Attached to the Purchase and Sale Agreement. The “Entire Agreement” Clause

The Seller Property Disclosure must be attached to the Purchase and Sale Agreement for a buyer to be able to bring successful claims against sellers for breach of contract if sellers make material misrepresentations in the property disclosure statements. This is based upon the “entire agreement clause” (also known as a “merger clause”). The entire agreement clause establishes that the final written agreement between the parties represents the entire agreement of the parties and that the parties are only relying on what is written in the contract. Consequently, an entire agreement clause bars a buyer from relying on alleged misrepresentations not contained in the written agreement.

Active Concealment of Defects
The Georgia Court of Appeals recently held that buyers could successfully sue the sellers for facts falsely stated in the property disclosure statement, even if the statement was not made part of the contract, if the sellers actively concealed the damage.

References:
Weissman, Seth. The Red Book on Real Estate Contracts in Georgia (pp. 755-763). BookBaby. Kindle Edition.
Seller’s Property Disclosure Statement Exhibit GAR F301

Broker Corner
May 10, 2023

 You’ve worked hard and written 6 offers to purchase your listing. The seller has rejected them all. Now the seller has decided to terminate the listing. What are your rights?
​
First, look to the listing to see your options. In Georgia, if there is not an express early termination provision or a material breach of the terms of the listing, clients cannot unilaterally terminate listing agreements or brokerage engagement agreements. That is, sellers do not have a contractual right to terminate and are in breach of the listing contract if they do terminate. If you’ve used the GAR Exclusive Seller Brokerage Engagement Agreement (F101), you won’t find an early termination provision (unless you added it yourself). That is, the GAR listing agreement does not give the seller the right to terminate.
​
Bad stuff happens. The Seller sends you something in writing that says “You’re fired!” or “I am terminating this agreement.” However, you do not have to agree or consent. Your rights are far different with a unilateral termination versus a mutual termination to which you agree.

Your Protected Period
Section 5 in the GAR listing agreement lays it out. The Protected Period is the period of time commencing upon the unilateral termination of this Agreement by Seller in writing during which Broker shall be protected for its Commission.

•  If this Agreement is unilaterally terminated by Seller without the consent of the Broker, you retain your protected period. The Protected Period is the number of days remaining on what would have been the original listing as of the date the Seller terminates the Agreement plus the number of days set forth as the Protected Period in Section A.5 of the listing agreement.
•  If the termination is mutual (you agree to a termination), you have forfeited your entire protection period.

Scenario
You have an exclusive listing on a property, but the Seller sends you an email firing you. The seller does not have the right to terminate you in the listing agreement and is in default. You do not agree to the termination. The Seller then lists the property with another agent and enters into a Contract to Sell* the Property during your protection period.

What are your rights:
The Seller owes you a commission per the original listing agreement for a sale to ANY buyer that was shown the property, either in person or virtually, or was provided specific information about or inquired about the Property either directly or through a broker working with the buyer during your protection period.

What are the Rights of the 2nd Listing Agent?
The Seller may also owe a commission to the 2nd listing agent. Though that is not your concern, it is likely that a closing would take place without your commission paid. You can send an invoice to the seller for your commission, but if the seller declines to pay you, you may have to resort to litigation for your commission.

The threat of litigation often results in either a negotiated commission or a full commission. Commission rights and obligations in the GAR listing agreement survive termination.
​
Do You Have to Provide Termination Paperwork to The Seller?
You are not required to provide termination paperwork to the seller. However, the GAR Unilateral Termination of Brokerage Engagement Agreement (F155) clearly notes that the termination in unilateral, is not mutual and that the broker’s commission rights are not limited, waived or terminated. It also includes that the client must pay the cost to remove the listing from FMLS. Your rights are still retained even if you do not have this signed, but seeing this in writing (not just verbally) may cause the client to think twice before
proceeding.

This is the language in the Unilateral Termination
In terminating the Agreement, Broker is directed by Client not to perform real estate brokerage services on behalf of the Client after the Termination Date of this notice to terminate. Nothing herein shall be construed as an agreement between the Client and Broker to mutually terminate the Agreement or to limit, waive or terminate Broker’s rights to a commission or the reimbursement of fees and costs resulting from the unilateral
termination of the Agreement by Client. Unilateral Termination of this Agreement by Client does not eliminate the Client’s legal obligation to Broker for commission and/or fees due to Broker as specified in the Brokerage Engagement Agreement.
If the Brokerage Engagement Agreement is a listing agreement, the cost to remove early the listing from any multiple listing service in which the property is listed shall be paid by the Client.

Exception to Protected Period Commission Obligation Does Not Apply
If a seller hires another exclusive listing agent following a normal expiration of a listing agreement, but during a protected period, the first listing agent’s commission rights during the protected period are ended. However, this exception does not apply in the case of a seller’s unilateral termination of a listing.

*Contract to sell includes a lease, lease purchase or lease with an option to purchase.

References:
GAR Exclusive Seller Brokerage Engagement Agreement (F101)
Weissman, Seth. The Red Book on Real Estate Contracts in Georgia (p. 1435). BookBaby. Kindle Edition.

Broker Corner 5/4/23

 April is Fair Housing Month. RE/MAX Around Atlanta is committed to promoting and
supporting fair housing practices and equal access to housing for all individuals,
regardless of their race, color, national origin, religion, sex, familial status, or disability.
Fair housing is a fundamental human right, and we are dedicated to providing accurate
and unbiased information that promotes fair housing practices. We are committed to
providing access to resources and information that can help individuals understand
their rights under fair housing laws and regulations.
​
We support efforts to eliminate discrimination in housing and to promote fair housing
opportunities for all individuals and will work to foster a communities where diversity
and inclusion are celebrated and where everyone has an equal opportunity to access
safe, decent, and affordable housing.

The National Association of Realtors has produced an extremely informative,
interactive simulation to train REALTORS® to deliver their services without
discrimination. The following “Fairhaven” simulation is one of the best ways to learn to
provide our services in a fair and non-discriminatory way. Please visit the town of
Fairhaven and increase your knowledge and sensitivity to fair housing concerns. It
takes about 1 hour to sell 4 homes and complete the simulation.

Fairhaven is a town every REALTOR® should visit.

NAR launched Fairhaven, https://fairhaven.realtor/home , in 2020, a new fair housing
simulation training for REALTORS® that uses the power of storytelling to help
members identify, prevent, and address discriminatory practices in real estate. Inspired
by real stories, this innovative online experience has agents work against the clock to
sell homes in the fictional town of Fairhaven, while confronting discrimination in the
homebuying process. Learners will also walk in the shoes of a homebuyer facing
discrimination. The training provides customized feedback that learners can apply to
daily business interactions.

Get started by visiting https://fairhaven.realtor/home to explore the fictional town of
Fairhaven and assess how well you are adhering to fair housing principles.
Please let us know how you liked the simulation by emailing us at
brokerteam@aroundatlanta.com.

​What is Home Title Fraud?
Home title fraud is where a fraudster steals your home through identity theft and
forging of documents. Then the fraudster either sells it or takes out a loan,
especially HELOCs, against it without you even knowing about it. When the
mortgage or HELOC is not paid, the property enters foreclosure. It doesn’t happen
often, but it does happen. The loans are fraudulent, so the homeowner can
eventually get the title back and the loans cancelled, but the hassle is real.

​Georgia’s Response
Homeowners in Georgia have 2 alert systems to protect titles. They are not
guaranteed, but they are good. If a homeowner doesn't have this alert tool, and
something is filed in the county clerk's office against a homeowner’s property, the
homeowner would not have the ability to react, often before it is too late.
It works like alerts for suspicious spending on credit cards. Once the property is
registered online with the county, the homeowner would get an alert any time someone
tries to file something tied to that home.

Whenever a property filing is recorded in a clerk’s office, registered users will receive
an alert via email and/or text message. If the filing isn’t recognizable by the
homeowner, they can contact the Clerk’s Office and local authorities.

Opportunity to Connect with Your Database
Most homeowners don’t know about this system. This is a great opportunity to send
information about a strong tool of protection for homeowners. You can even go a step
further by sending the parcel ID number to make the process even easier. Remember,
the homeowner has to opt-in. Your clients will certainly appreciate it – and appreciate
you.

Here are the links.

Fulton County
In Fulton County, the Superior and Magistrate Court website has an online property
fraud notification tool that is different from other counties, but performs the same
function. The acronym R.E.A.A.C.T stands for Real Estate Activity Alert and Contact
Tool. R.E.A.A.C.T. allows Fulton County property owners to register their properties
with the court via parcel ID number. Anytime a document is filed against said property,
the property owner will receive an alert giving them the opportunity to proceed as
normal if they recognize it or to "react". This service is provided at NO COST to Fulton County Homeowners.

Other Georgia Counties
Other counties in Georgia use the FANS system, an acronym for Filing Activity
Notification System. It has the same features as REACCT. It is a free, voluntary, opt-in
program that can be used to send electronic notifications of filing activity to individuals
who create notifications in the system.

To access the system for all counties in Georgia, go to https://fans.gsccca.org and
follow the prompts. Direct links to Atlanta core counties are below.
DeKalb County
https://registry.myfivepoint.com/dekalb/fraudreg/
Cobb County
https://www.cobbsuperiorcourtclerk.com/real-estate-information/filing-activity-
notification-system-fans/
Gwinnett County
https://www.gwinnettcourts.com/deeds-and-land-records/filing-activity-notification-
systems
Forsyth County
https://www.forsyth.cc/rod/property_fraud.aspx
Fulton County
https://apps.fultonclerk.org/reaact/MyAlerts

The Sale or Lease of Property Contingency is quite flexible and can be used to either
the buyer’s or the seller’s advantage, depending on the market and the situation. Part
1 of the discussion of the Sale or Lease of Property Contingency included various
options or advantages available to the buyer and seller in the contingency as well as
the process required to exercise the kick out clause.

Drilling a bit deeper, the GAR form contemplates termination of a contingency contract
in 2 ways: 1) Exercise of the Kick Out Clause and 2) Expiration of the Contingency
Period.

The Kick Out Clause
Section 7 of the sale or lease contingency presents alternatives as to whether some or
none of the contingencies in the contract remain in place. This can be confusing, so
here’s the simple explanation by way of different scenarios.

Scenario 1
Contract 1, fully executed, includes a sale or lease contingency with a 24 hour kick out
clause.
Contract 2, a bona fide offer, comes along and Seller wants to accept it, so Seller
sends a 24-hour Notice to Buyer 1 to remove the Kick Out by amendment or Seller can
terminate. Buyer 1 thinks the deal is great and that his current house will sell quickly,
so, wanting to hold on to the house, Buyer 1 delivers an amendment to the Seller,
agreeing to remove the contingencies and due diligence period that Buyer 1 agreed to
in the original contract. In this case, the Buyer had agreed to section (A) in the
purchase agreement, so the amendment says that all contingencies and the Due
Diligence Period are removed from the contract. The sale becomes an all-cash
transaction with the Buyer’s earnest money at risk.
Scenario 2
In this scenario, the buyer chose alternative (B), but marked that only the Sale or
Lease Contingency would be removed from the contract. The Due Diligence Period,
the Right to Request Repairs, the Financing Contingency and the Appraisal
Contingency are still in the contract. If timing is appropriate and the financing fails, the
appraisal is low or there is still time to terminate in the Due Diligence Period, the buyer
can still exercise his rights under those provisions.
Had the seller marked additional provision in (B), that the Sale or Lease Contingency,
the Due Diligence Period, the Right to Request Repairs and identified special
stipulations would no longer be a part of the agreement, then only the finance and
appraisal contingencies would remain a part of the agreement.

Scenario 3
The Buyer cannot take the risk that the Existing Pending Contract will close n the
Contingency Period. The Buyer does not respond with an amendment removing
agreed contingencies. The Seller can terminate and accept Contract 2.

Expiration of the Contingency Period
Either with or without a Kick-Out included in the Sale or Lease Contingency, expiration
of the Contingency Period automatically terminates the contract.

Situation:
Broker A has a valid Buyer Brokerage Agreement with an individual Buyer.
Broker A and the Buyer view a property together with Broker B,
representing the Seller. The Buyer submits an offer on the property, but
withdraws it before the offer is accepted.
Later, while the Buyer Brokerage Agreement is still in effect, Buyer crates
an LLC with a partner and submits a 2nd offer to purchase the same
property. The Buyer’s Broker is not included in the new transaction. The
transaction closes with the new LLC, of which the Buyer is a Member. The
Buyer is at the closing and signs the security deed.
​
Questions:

•  Can a Buyer avoid an obligation to pay the Buyer’s Broker by changing their legal entity?
•  Is the Buyer’s Broker due a commission from the buyer?
•  Is the Seller’s Broker in violation of either License Law or the REALTORS® Code of Ethics?

Buyer as a Legal Entity and Commission Owed to Buyer’s Broker
The Buyer Brokerage Agreement at paragraph 7(f) includes the Buyer as
follows:
"Any legal entity in which buyer or any member of Buyer's immediate family
owns or controls, directly or indirectly, more than ten percent (10%) of the
shares or interest."   Where the buyer changes its legal entity to another
either to avoid its obligation or innocently, the Buyer is still obligated on a
Buyer Brokerage Agreement that is still in effect.
No, the Buyer cannot avoid its obligation to the Buyer’s Broker by changing
its legal entity so long as the Buyer owns more than 10%. And yes, the
Buyer continues to owe a commission to the Buyer’s Agent. It may take
legal action to recover the commission, but it is owed.

The Listing Agent’s Obligations
REALTORS® have an affirmative obligation to ask prospects whether they
are a party to any exclusive representation agreement and may not
knowingly provide substantive services concerning a prospective
transaction to prospects who are parties to exclusive representation
agreements. In this case, the Seller’s agent was fully aware of the original
buyer, having shown the property to the buyer previously, along with the
Buyer’s agent. Even if the Seller’s agent thought the Buyer Brokerage has
expired or was terminated, the listing agent should have investigated. Had
he called the Buyer’s agent he would have learned that the Buyer
Brokerage was still in effect. He violated both Georgia License Law and
the REALTORS® Code of Ethics.
(GA Code § 43-40-25 (14) and § 43-40-25 (26), REALTORS® Code of
Ethics Standard of Practice 16-9)

The recent bank failures of Silicon Valley Bank in California and Signature Bank in New
York have raised questions regarding the safety of funds in trust accounts.

Trust Account Funds Are Insured
The Federal Deposit Insurance Corporation (FDIC) is an independent agency of the
US federal government that provides deposit insurance to protect depositors in case a
bank fails.

Attorneys and realtors hold funds for others in trust accounts or fiduciary accounts,
insured by the FDIC. As of March 2023, the standard insurance amount is $250,000
per depositor, per insured bank, for each account ownership category. Even though
trust accounts often hold far more than the $250,000, the funds in trust accounts are
treated as an individual’s funds, not the attorney’s or the realtor’s funds. That means
that each person’s funds are insured up to $250,000. Although land or commercial
transactions may have earnest money deposits into trust accounts as high as
$250,000, most residential transactions do not. In the case of very high earnest
money deposits going into an RMAA trust account, consult with a member of the
Broker Team.

Exception
If a depositor of trust funds also has a personal account at the same bank as the bank
holding funds in trust, then the two (or more) amounts are aggregated for insurance
purposes. FDIC insurance coverage is per depositor, per insured bank, and not per
account. So, if a depositor with a personal account holding $225,000 also has $50,000
at the same bank held in trust for a real estate transaction, (total of $275,000) then the
$250,000 limit is exceeded by $25,000 and $25,000 would not be insured.

The Good News
Right now, the US government is backstopping all deposits, even those over the
$250,000 limit. The likelihood of loss at this time is a small risk. However, the
government may stop covering amounts over $250,000 at any time.
​
Many thanks to Seth Weissman of Weissman Law for the idea for this Broker Corner.
See his video “Safe Real Estate” in today’s MAX MAIL.