Federal fair housing law does not explicitly prohibit criminal background screening. However, the U.S. Department of Housing and Urban Development (HUD) released guidance and a memo about how the Fair Housing Act applies to housing policies with regard to criminal background checks. HUD recognizes the racial and ethnic disparities in the criminal legal system, including disproportionate and unequal rates of arrests and convictions, and harsher sentencing of Black and Latinx individuals in particular. The result of this disparity is disproportionate harm to members of these protected classes.
HUD’s 2022 Memo regarding its 2016 Guidance on this topic recommends private housing providers not use criminal history to screen tenants for housing. Criminal history is not a good predictor of housing success.
Most housing providers are not required by law to exclude persons with criminal histories as tenants and can rely instead on other screening criteria that more closely relate to whether an applicant or resident would be a good tenant, such as: ability to pay rent, prior rental history, and personal references.
If conducting a criminal record screening, HUD has issued guidance on applying Fair Housing Act standards to the use of criminal records screening in housing related transactions.
This guidance prohibits landlords from:
• Denying housing based on arrest records.
• Placing blanket bans on renting to anyone with a criminal history. Blanket bans are bans that apply to or affect all or the majority of a given class of people.
• Conducting background checks inconsistently, performing them on some and not others based on stereotypes or fear.
Further, a landlord must:
• Consider individuals on a case-by-case basis and evaluate the nature and severity of the crime and consider the length of time that has passed since that crime was committed.
• Make a determination based on facts and evidence, and not a perceived threat.
A person can be denied based on their criminal record, legally, if their recent criminal record makes them dangerous and a risk to other tenants or neighbors. The denial must be based on reliable evidence and not be hypothetical or speculative. If challenged as a fair housing violation, a housing provider must be able to:
• Provide evidence proving that the housing provider has substantial, legitimate, nondiscriminatory interest supporting the housing denial.
• Show that the housing policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety/property and criminal conduct that does not.
Under federal regulations, Public Housing Authorities must reject an applicant if the person has a lifetime registration requirement relating to their conviction for a sexually-oriented offense in any state and applicants convicted of manufacturing methamphetamine on federally-assisted property.
What does criminal record discrimination in housing look like?
Examples:
• A housing provider will not rent to a tenant because they served time in prison for drug possession 25 years ago but have not been in trouble with the law since.
• A housing provider automatically denies any applications where the potential renter has checked the box on the rental application inquiring if they have ever been convicted of a felony.
• A housing provider uses the person’s criminal record to deny housing as a means to discriminate on another basis, such as the person’s disability, family status, or sexual orientation.
• An individual has a criminal record due to a past drug or alcohol addiction but has since successfully completed a rehabilitation program.
* Being in recovery from alcohol and/or drug addiction is considered a disability under the Fair Housing Amendments Act of 1988 which prohibits discrimination based on disability and includes additional protections such as the right to reasonable accommodations and reasonable modifications.
 
From FAIR HOUSING FOR PEOPLE WITH A CRIMINAL RECORD: A DIGITAL TOOLKIT | FAIR HOUSING CENTER FOR RIGHTS & RESEARCH

Whenever a party with title to or an interest in property is involved in a divorce or dissolution of marriage proceedings, it is necessary to determine the legal effect of the proceedings on the title to the property.
WHY is that?
Because most real estate (especially a “marital residence”) will be considered a “marital asset” in determining the division of assets in a divorce.
AND ….
One spouse may actually want to keep the home or property. Selling the property and dividing the proceeds will not always be the final decree regarding the property. The actual property may be awarded to one or the other.
Even the spouse who is NOT an owner of record – who is not on title to the property – may well have an equitable interest in the property, based upon the equitable division of assets.
Satisfying that interest and properly conveying title to the property will likely require a signature or other cooperation even from a spouse who is not on the title to the property.
VERY IMPORTANT - Improper handling of a property which is the subject of a divorce proceeding can result in the invalidation of a sale and subject the parties to significant liability; and – in some cases – the Court can order that the title to the property revert back to one or other of the selling spouses. It could be taken from the Buyer.

Agent Pro Tip
Please ask ALL Sellers if they are in a pending divorce or whether a divorce could be filed during your Seller Engagement term. Even two seemingly happy Sellers, who both work well with you (and each other) during the sale process, may be going through a divorce and never tell you about it unless you ASK. Sometimes one side of the divorce proceeding will file a Lis Pendens in the public real estate records indicating that parties’ claim to the property or proceeds of sale. BUT there is not always a Lis Pendens filed – so without knowledge from your Seller that a divorce is proceeding, the Closing Attorney may never receive this important information.

But if a Divorce is Public Record, won’t you find it during a title exam anyway?
NOPE. Not unless the attorney is tipped off or directed to “go look” for the Divorce decree in the Superior Court Civil complaint filings. This is an entirely separate index, database and recording forum from the real estate records. Civil Complaint record searches are not a part of a title exam under the Georgia Title Standards. Also – the divorce could have been filed in any one of Georgia’s 159 counties. We cannot search them all! And finally – the parties may be “in the middle of a divorce” even if there is no formal public record filing yet. They could still be in the pre-filing stages.

To determine whether, and HOW, a decree of divorce or dissolution of marriage will impact title to property and closing, we must ascertain:

1. The validity of the decree: a. The court must have jurisdiction over the subject matter of the action under state law b. Did the court have jurisdiction over the parties to the action? We must be satisfied that the spouses make a personal appearance or waiver or be personally served in the divorce. c. Does the court have jurisdiction over the land? We cannot rely upon a divorce decree divesting and vesting title if the land is not located in the state where the court is located (an out of state divorce where GA property is involved) d. Is the decree final? Is there any possibility of appeal or review? Do not rely upon decrees which are not final unless the parties agree to the substance of the decree.

2. The nature of the interest held in the land: a. Title is held by one spouse only b. Title is held by both spouses as joint tenants c. Title is held by both spouses as tenants in common d. Title is held by both spouses as community property [not in GA].

3. Does the decree itself effectively terminate the interest in the land of one of the parties by adjudicating it to the other? If the decree sufficiently vests title in the other spouse, a certified copy of the order must be filed in the clerk's or recorder's office in each state to constitute constructive notice. NOTE: Most Divorce Decrees do not effectively pass (vest) title (within the Decree) from one spouse to the other.

4. Whether the decree orders one of the parties to convey that party’s interest in the land to the other a. If the decree does not sufficiently vest title in one spouse by other provisions of the decree, we require a deed from the other spouse if the decree orders a conveyance (IE, “wife shall quitclaim her interest in the marital residence to the husband”)

Blog Source: Hartman Law

Notices: The GAR Contract provides that all notices, including but not limited to offers, counteroffers, amendments, demands, terminations, and all other notices must be in writing, legible and signed by the person giving notice (buyer or seller). In the event of a dispute regarding notice, the burden shall be on the party giving notice to prove delivery. The GAR Contracts provide that notice may only be delivered by one of the following methods: 
      (a) In person; (b) by courier, an overnight delivery service, or certified or registered U.S. mail; (c) or by email or facsimile (FAX).                                                      
Although many real estate licensees and brokers text information to the other party, it is important to remember that text messages are not an acceptable form of giving notice under the GAR contracts.
Delivery of Notice: The GAR Contract also provides for when the notice is considered delivered and received. A notice to a party shall be deemed to have been delivered and received upon the earliest of the following to occur:
    (1,) The actual receipt of written notice by a party; (2) in the case of delivery by a delivery service, when the written notice is delivered to an address of the party set forth in the contract provided that a record of the delivery is created (i.e., return receipt requested); or (3) in the case of delivery electronically, on the date and time the written notice is electronically sent to an email address or fax number of a party that is included in the contract.
To be effective, notice must go to the email address, fax or address included in the contract!
Notice via Email: Most real estate contracts, including the GAR Contracts, now permit notices to be sent by email. The GAR Contract goes further and provides that notices sent by email are deemed received when sent, provided they are sent to an email address provided in the contract or subsequently provided via another permissible method of notice.
If an email address is neither provided on the signature page of the GAR Contract (for brokers or agents or unrepresented buyers or sellers) nor subsequently provided following the notice procedures in the agreement, then notice via email will not be deemed a valid form of delivery of notice to that party. 
Notice to an Unrepresented Party: Under the GAR Contract, a real estate licensee working with an unrepresented customer cannot normally receive email notice on behalf of the customer. Notice must be sent directly to the customer to the email or fax number included in the contract.
Notice to the Broker or Agent is Generally Notice to the Client: The GAR Contract provides that notice to the broker or agent shall be deemed notice to the party represented by the broker as a client, provided they are sent to an email address or fax provided in the contract or subsequently provided via another permissible method of notice.

The Risks of Termination
The Agreement between the seller and the buyer is a firm contract with clear terms, duties and performance responsibilities. The seller is obligated to sell, and the buyer is obligated to buy. If there are no remaining contingencies or conditions of either party, should the seller choose to terminate, they would be in default of the performance of the Agreement.
The consequences of a default by a Seller are detailed in the Purchase and Sale Agreement on page 6, Paragraph 2. Default. The remedies listed include Buyer Remedies, Broker Remedies and Attorney’s fees. The relevant language is copied here.
Paragraph 2. Default
b. Remedies of Buyer: In the event this Agreement fails to close due to the default of Seller, Buyer may either (i) seek the specific performance of this Agreement or (ii) terminate this Agreement upon notice to Seller and Holder, in which case all earnest money deposits and other payments Buyer has paid towards the purchase of the Property shall be returned to Buyer following the procedures set forth elsewhere herein, and Buyer may pursue any other remedy available at law.
c. Rights of Broker: In the event this Agreement is terminated or fails to close due to the default of a party hereto, the defaulting party shall pay as liquidated damages to every broker involved in this Agreement the commission the broker would have received had the transaction closed. For purposes of determining the amount of liquidated damages to be paid by the defaulting party, all written agreements establishing the amount of commission to be paid to any broker involved in this transaction are incorporated herein by reference. The liquidated damages referenced above are a reasonable pre-estimate of the Broker(s) actual damages and are not a penalty.
d. Attorney’s Fees: In any litigation or arbitration arising out of this Agreement, including but not limited to breach of contract claims between Buyer and Seller and commission claims brought by a broker, the non-prevailing party shall be liable to the prevailing party for its reasonable attorney’s fees and expenses.
As you can see, the potential costs of a seller default are significant.
1. Specific Performance. In a very strong Seller’s market, the Buyer has multiple reasons to elect to sue for specific performance: the uniqueness of the property, low inventory of similar homes in the market, and rising home prices. Should an action for specific performance be successful, not only would the seller be forced to sell, they would also be required to pay the buyers’ attorney fees and expenses of litigation. Fees for both the seller’s attorneys and the buyers’ attorneys can be extremely high. During the period of the litigation, the seller would not be able to transfer ownership of the property. In most cases, a lis pendens is filed by the buyer's attorney so this would put the world on notice that there is a pending lawsuit regarding the property.
2. Compensation to Brokers. Both brokers could sue the seller for the compensation that would have been earned if the contract closed per the contract terms.
3. "Other remedies at law" can include any consequential costs to the buyer such as living expenses, storage of furniture, transportation costs and other costs. Other costs could also be considered by the court in an action pursued by the buyers.
According to Georgia law, Terminations of a Purchase and Sale Agreement must be made by the Seller and not by the broker. However, the seller’s agent can assist in the preparation of the termination document and can send it to the buyer’s representative.
In most cases, it is unlikely that the buyer will walk away with only the return of earnest money. We encourage agents to advise the seller to seek their own legal advice in this matter before moving forward with the termination of a contract without a legal reason to do so.

What is Radon?
Radon is an odorless, tasteless, naturally occurring radioactive gas that comes from the soil. It is produced when uranium decays and works its way up through the soil into the atmosphere. This gas is especially high among areas where granite is present which is very common in Georgia. As radon is released into the soil, it can enter buildings through the foundation and well water, eventually building to dangerous levels.  Radon can be found in homes of any size, age, or location.
Why should your buyer be concerned about radon?
Radon causes more deaths each year in the U.S. than drunk drivers. It is the second leading cause of lung cancer and the leading cause of lung cancer in nonsmokers. Radon kills 22,000 people every year in the U.S.; 800 of those will be in Georgia.  The Surgeon General has issued a health advisory concerning radon exposure, stating that all U.S. homes should be tested for radon and fixed if the level is high. There is no acceptable, safe level of radon. As you breathe, radon and radon decay products enter your lungs. These substances release small bursts of energy that can permanently damage lung tissue DNA, and lead to lung cancer. People all over Georgia should be concerned about radon and test their homes. Outdoors, radon is quickly diluted by the atmosphere and poses no problem. But if radon seeps into your home from soil beneath your home, it could build to hazardous levels in the relatively stagnant air in your home’s living space.
How do I know if I am at risk of radon exposure?
The only way to know is to test your home, since you can’t see, smell or taste it – and it doesn’t cause any immediate symptoms. You can have radon in your home no matter how old it is, how it is built, or how it is heated. Even if your neighbor next door has tested and found no problem, you may have high radon in your home because geology changes rapidly.
Can new homes be built to be radon resistant?
Yes. If you are planning to build a new home, ask your contractor to install a radon mitigation system during construction. Building the system in up-front costs much less than adding it after the home is built.
What if I get a high reading (4 pCi/L or higher) from my radon test?
Don’t panic. You’ll need to confirm the first high reading with a second test. If the second test has similar results, it is best to contact a trained, certified radon mitigation contractor for help.
The contractor will probably use a combination of sealing techniques and a system that pulls air from beneath your home by using a vent stack and exhaust fan and vents it above the eave line.
How often should radon testing be done?
The EPA recommends performing a radon test every 2 years. Every type of building should be regularly inspected for radon, including homes, offices, and schools. The greatest exposure to you and your family is most likely at home where you spend a significant amount of your time.

In a transaction in which the buyer is getting a mortgage, the closing attorney is representing the lender. If there is a dispute between the parties, the closing attorney, acting as Holder, has the same rights and duties of any other holder and holder may disburse the earnest money after 10-day letters and upon a reasonable interpretation of the Agreement.
 
It gets a bit more complicated when the transaction is all cash.  In that event, there is no lender to represent, so the lender is representing either the buyer or the seller.  If the transaction is written on GAR forms, the Purchase and Sale Agreement states that the closing attorney in an all-cash transaction represents the buyer. 
 
Fiduciary Duty.
Unlike Realtors®, who do not own fiduciary duties to clients, attorneys in Georgia do owe fiduciary duties to their clients.  Therefore, attorneys must protect the best interest of their client and cannot act against their best interests. If there is a dispute, the closing attorney therefore has a potential conflict of interest. Per the GAR F510, Closing Attorney Acting as Holder of Earnest Money, the closing attorney’s only remedy is to interplead the funds into a court of competent jurisdiction. (GAR F510 p.8). 
 
Things happen. 
The cash buyer could default, and the parties can’t come to an agreement regarding the earnest money. The closing attorney is blocked from disbursing funds to the seller because of fiduciary duty.  So, the attorney must interplead the funds. Then the parties wait, pay the costs of filing and litigation, possibly lose the interpleader and then pay the other parties costs of litigation.  A waste of both client funds and everybody’s time.
 
 
Here’s the takeaway.
If you want to avoid an interpleader in an all-cash transaction, consider NOT naming the closing attorney as the holder of earnest money. Your clients will thank you.

Proper Notice is an important part of the real estate transaction. Improper notice can leave the party giving notice at risk, especially if the party giving notice intends to terminate a contract. 
The GAR Contract requires all notices to be in writing, legible and signed by the party giving the notice. An email or text message is not an acceptable form of notice. In the event of a dispute regarding notice, the burden shall be on the party giving notice to prove delivery.
Notices can be in person, by courier, overnight delivery service, certified mail; or by email or facsimile. To determine if property notice was sent, ask these five questions.

1. Was notice sent using a permissible means of notice set forth in the contract?
2. Was notice timely delivered and received?
3. Was the notice given by the right party?
4. Was the notice received by the right party?
5. Was the notice sent to the correct address of the party receiving the notice that was included in the purchase contract?

Who is allowed to receive notice? Except where the Broker is acting in a dual agency capacity, the Broker and any affiliated license of the Broker representing a party in a client relationship is authorized agents of the party for the limited purpose of receiving notice. Notice to an authorized agent must be sent to an address, facsimile number or email address listed in the purchase contract. Notice to an unrepresented party must go to the party directly to the address listed in the purchase contract.
GAR has a form F816 that can be used for the purpose of giving notice. It is important that the party giving notice sign the notice before sending to the other party.
Notice section from the GAR Purchase & Sale Agreement:                                                                                     
C.1 Notices.
a. Generally: All notices given hereunder shall be in writing, legible and signed by the party giving the notice. In the event of a dispute regarding notice, the burden shall be on the party giving notice to prove delivery. The requirements of this notice paragraph shall apply even prior to this Agreement becoming binding. Notices shall only be delivered: (1) in person; (2) by courier, overnight delivery service or by certified or registered U.S. mail (hereinafter collectively “Delivery Service”); or (3) by e-mail or facsimile. The person delivering or sending the written notice signed by a party may be someone other than that party.
b. Delivery of Notice: A notice to a party shall be deemed to have been delivered and received upon the earliest of the following to occur: (1) the actual receipt of the written notice by a party; (2) in the case of delivery by a Delivery Service, when the written notice is delivered to an address of a party set forth herein (or subsequently provided by the party following the notice provisions herein), provided that a record of the delivery is created; (3) in the case of delivery electronically, on the date and time the written notice is electronically sent to an e-mail address or facsimile number of a party herein (or subsequently provided by the party following the notice provisions herein) even if it is not opened by the recipient. Notice to a party shall not be effective unless the written notice is sent to an address, facsimile number or e-mail address of the party set forth herein (or subsequently provided by the party following the notice provisions herein).
c. When Broker Is Authorized to Accept Notice for Client: Except where the Broker is acting in a dual agency capacity, the Broker and any affiliated licensee of the Broker representing a party in a client relationship shall be authorized agents of the party for the limited purpose of receiving notice and such notice to any of them shall for all purposes herein be deemed to be notice to the party. Notice to an authorized agent shall only be effective if the written notice is sent to an address, facsimile number or e-mail address of the authorized agent set forth herein (or subsequently provided by the authorized agent following the notice provisions herein) whether or not it is not opened by the recipient. Except as provided for herein, the Broker’s staff at a physical address set forth herein of the Broker or the Broker’s affiliated licensees are authorized to receive notices delivered by a Delivery Service. The Broker, the Broker’s staff and the affiliated licensees of the Broker shall not be authorized to receive notice on behalf of a party in any transaction in which a brokerage engagement has not been entered into with the party or in which the Broker is acting in a dual agency capacity. In the event the Broker is practicing designated agency, only the designated agent of a client shall be an authorized agent of the client for the purposes of receiving notice.

Would a seller be permitted to remove items from landscaping such as stones, decorative pots, or statues? Would these items be considered permanent fixtures or part of the general landscaping?
The answers to these questions are not always clear-cut.
Paragraph A (1) of the purchase and sale agreement that states “Seller agrees to sell the real property described below including all fixtures, improvements and landscaping therein.”
The definition of fixtures is guided by the GA Code. https://law.justia.com/codes/georgia/2021/title-44/chapter-1/section-44-1-6/
       a. Anything which is intended to remain permanently in its place even if it is not actually
attached to the land is a fixture which constitutes a part of the realty and passes with it.
The buyer and seller may not agree as to whether an item “was intended to remain
permanently”. If an item isn’t listed in the fixtures section of the seller’s disclosure, it’s crucial for the seller to specify any items they plan to remove, either in the special stipulations of the contract or noted on the seller’s disclosure.
Georgia dedicates an entire page of the seller's disclosure to fixtures and what transfers with a home. This fixtures checklist includes an extensive list of fixtures but does not include everything. The items on the checklist that are checked or marked should remain with the property.
If the seller intends to remove any items that “could” be considered fixtures, they need to
disclose this prior to going under contract.

There is a requirement in the Conventional, FHA and VA Loan Contingencies that a buyer is required to notify the seller of any mortgage lender to whom Buyer has sent a notice of intent to proceed with loan application, along with the name and contact information for the loan originator. 
 
Further, in another section of all 3 loan contingencies, there is a qualification that in order for a buyer to terminate without penalty based upon an inability to obtain the Loan(s), the buyer must have fulfilled all of the applicable requirements in the exhibit.
 
Therefore, buyers can get their earnest money back with a denial letter ONLY if they have sent the Notice of Intent to Proceed with Loan Application to the seller!
 
Put another way, if the Notice of Intent to Proceed with Loan Application was not sent to the seller, the seller can legally keep the buyer’s earnest money even when the buyer was denied a loan within the allowed time period.
 
This requirement is not new. It has been in the loan contingencies for at least the last 2 years.  What’s new is that we are now seeing that sellers are using an omission of the notice as a reason to keep earnest money, even when there has been a loan denial within the relevant time period and a good denial letter.
 
Add The “Notice of Intent to Proceed” to Your Process
Protect your buyer clients. You should add “Send Notice of Intent to Proceed with Loan Application” once they commit to their lender to your process.  This is another step in the process, it is also another way to demonstrate your value to your client by managing the time limits and requirements to make sure clients are protected.
 
It works both ways. On the other side, if you are representing a seller as a client and you did not receive a Notice of Intent to Proceed with Loan Application from a buyer that did not qualify for a loan and is terminating for that reason, you are obligated to inform the seller of the option to retain the earnest money. Once again, this is another way to demonstrate your value to your client.
 
Relevant Language
You can find the relevant language in the Conventional Loan Contingency at numbers 6 and 8 and in the FHA and VA Contingencies at numbers 5 and 7. This is what to look for:
Buyer to Notify Seller of Intent to Proceed.
When it is known, Buyer shall promptly notify seller of any mortgage lender to whom Buyer has sent a notice of intent to proceed with loan application and the name and contact information for the loan originator.
 
Use of Approved Mortgage Lender and Loan Denial Letter.
Buyer may terminate this Agreement without penalty based upon an inability to obtain the Loan(s) only if Buyer fulfills all of the applicable requirements set forth in this Exhibit.  (at the bottom of the section)

In the compensation section of the Buyer Brokerage Engagement
Agreement, make sure to complete section 4.c or you will not be paid by
the seller or seller’s broker!! If this section is not completed, you can ONLY
be paid by your buyer.