Yes, using “prevailing rate” for the interest rate is generally acceptable. Unlike those contracts that list rates as “TBD”, a contract contingent on the buyer being able to obtain a loan for a certain amount with interest payable “at the current prevailing rate” is generally enforceable.

When interest rates are changing, it's common for contracts to include a term that says the buyer will accept a loan at the “current prevailing rate.” This doesn't make the contract unclear, because that rate is usually easy to figure out. If the buyer gets approved for a loan at that current rate, they must take it—even if the rate is higher than they expected. Buyers should be careful with this kind of agreement, especially if there's a long time between signing the contract and closing, because interest rates could go up during that period.

Another risk of using the “prevailing rate” to set the loan’s interest rate is that buyers and sellers might disagree on what that rate actually is, since mortgage rates can vary a lot. For example, a buyer might say she can’t get a loan at 5.75%, while the seller insists the current rate is 6.25%.
​
The Terms of the Loan Must Be Definite in Finance Contingencies
If a real estate sales contract includes a financing contingency, it must be clear and specific to be legally enforceable. Using “TBD” (to be determined) for an important term—like the interest rate—makes the contract unenforceable in Georgia, because it shows the parties haven’t agreed on all key terms. In that case, it’s just an agreement to agree later. However, using terms like “prevailing rate” or “market rate” is acceptable, since those can be determined and make the contract valid and enforceable.

A Power of Attorney (POA) is a legal document that grants an individual (the agent) the authority to act on behalf of another person (the principal) during their lifetime, often for financial, medical, or legal matters. However, it’s important to understand that a POA ceases to be valid once the principal passes away. In such cases, the responsibility for managing the principal’s affairs falls to a court-appointed executor or administrator, and the agent no longer has any legal authority to act on the principal’s behalf. This article explores the expiration of a POA upon death, its implications, and the different types of POA.
POA's Purpose
A Power of Attorney provides an individual with the legal authority to handle the affairs of another person. This could be for managing financial, medical, or legal matters, depending on the type of POA established. While the POA is active, the agent is authorized to make decisions and take actions in place of the principal. However, the document is always contingent on the principal’s living status. Once the principal passes away, the POA becomes invalid.
Termination at Death
The POA’s authority is strictly limited to the principal’s lifetime. Upon the principal’s death, the POA terminates immediately, and the agent’s legal authority to make decisions on the principal's behalf ends. In the absence of a valid POA, the management of the deceased’s estate falls under the jurisdiction of probate law.
Transfer of Authority
After the principal’s death, the responsibility of managing the deceased’s estate is transferred to the executor or personal representative named in the principal's will. If the principal did not have a will, a court-appointed administrator would be assigned this task. This shift from the POA to the probate system highlights the difference between pre-death authority and post-death estate management.
No Posthumous Authority
It is essential to note that a POA does not grant the agent any authority to manage or distribute the deceased's assets or make any decisions on their behalf after their death. Any financial, healthcare, or legal actions that may need to be taken after the principal’s passing must be handled by the court-appointed executor or administrator.
Probate Process
The probate process governs the distribution of the deceased’s estate. It involves validating the deceased’s will (if one exists), paying off debts, and distributing assets according to the will or state law. This process is separate from any POA and is led by a court-appointed representative, not the agent named in a POA.
Types of Power of Attorney
A POA can take several different forms, each serving specific purposes and conditions. Understanding the types of POA can help clarify the scope of the agent’s authority.
General Power of Attorney
A general POA grants broad authority to the agent, allowing them to manage the principal's financial, business, and legal affairs. However, a general POA is a non-durable POA, meaning it becomes void if the principal becomes incapacitated or dies. Additionally, the principal can revoke the POA at any time.
Durable Power of Attorney
A durable POA allows the agent to manage the principal’s financial, legal, and business matters even if the principal becomes mentally incapacitated. While the authority to act remains in place despite the principal’s incapacity, it still terminates upon the principal’s death.
Non-Durable Power of Attorney
A non-durable POA is typically used for a specific purpose or event. It is valid when the principal is legally competent and can act on their own behalf. The authority granted by a non-durable POA ends if the principal becomes incapacitated, revokes the POA, or passes away.
Medical Power of Attorney
In some states, including Georgia, a Medical Power of Attorney is known as an Advance Directive for Healthcare. This allows the agent to make healthcare decisions on behalf of the principal if they are unable to do so themselves due to incapacitation. Like all POAs, it expires upon the principal's death.
Springing Power of Attorney
A springing POA takes effect at a specified future time or upon a specific event, such as the principal becoming mentally incapacitated or physically unable to act. This type of POA can be either durable or non-durable and can cover various areas of the principal’s life, depending on the terms of the agreement.
Limited Power of Attorney
A limited POA is used to grant an agent authority over a specific matter or for a set period. This type of POA is typically used for a narrow set of tasks, such as managing a particular financial transaction or business decision. Once the specific task is completed or the designated time period expires, the POA terminates.
Conclusion
In summary, a Power of Attorney expires upon the death of the principal. After death, the legal authority to manage the deceased’s estate is transferred to the court-appointed executor or administrator through the probate process. The POA's role in decision-making ends once the principal passes away, and the probate process takes over to handle the estate’s distribution. Understanding the types of POA and their limitations can help ensure that all necessary arrangements are made before death and that the principal’s wishes are followed during their lifetime.

​As the seller’s real estate agent in Georgia, you are not specifically required to disclose to buyers that the property is in foreclosure unless it directly impacts the property's condition or value. However, there are important points to consider:

1. Material Facts: In Georgia, real estate agents are required to disclose any material facts that they are aware of regarding the property. A material fact is something that would influence a buyer's decision to purchase the property, such as the property being in foreclosure if it affects the condition or marketability of the home.
2. Duty to Advise Seller: While you're not required to disclose the foreclosure directly, you do have a duty to advise your seller about the importance of accurate disclosures, including issues like foreclosure that could impact the property's status or condition. If the property is in foreclosure, it may be relevant to the transaction, especially if the seller is behind on payments or if the foreclosure process is imminent.
3. Seller’s Disclosure Statement: Ultimately, it's the seller's responsibility to complete the Seller’s Disclosure Statement, which includes any material defects or issues with the property. As the agent, you should encourage the seller to be transparent about any foreclosure proceedings. If the seller omits this information and it later comes to light, it could lead to potential legal issues.
4. Listing Information: If you know that the property is in foreclosure, you should ensure that this information is clear to potential buyers, especially if you're representing the seller in the listing. You can advise your seller to be transparent or ensure that any buyer agents are informed.

In summary, while you don’t have a specific legal obligation to directly disclose that the property is in foreclosure, you must disclose material facts that affect the property and its condition. Being aware of the foreclosure status can be critical, and it’s important to guide your seller to be forthcoming in the transaction. If you're unsure, consulting with a local real estate attorney could help ensure you're following proper procedures.

HOW TO RECOGNIZE AND AVOID VACANT LAND FRAUD!
FRAUDSTERS are impersonating property owners to illegally sell commercial or residential property. Sophisticated fraudsters are using the real property owner’s Social Security and driver’s license numbers in the transaction, as well as legitimate notary credentials, which may be applied without the notary’s knowledge.
Fraudsters prefer to use email and text messages to communicate, allowing them to mask themselves and commit crime from anywhere.
Due to the types of property being targeted, it can take months or years for the actual property owner to discover the fraud. Property monitoring services offered by county recorder’s offices are helpful, especially if the fraud is discovered prior to the transfer of money.
Where approved by state regulators, consumers can purchase the American Land Title Association (ALTA) Homeowner’s Policy of Title Insurance for additional fraud protection.
WATCH FOR RED FLAGS!!
■ Lack of a Physical Structure - Is vacant or non-owner occupied, such as investment property, vacation property, or rental property?
■ Owner Address – Does the property have a different address than the owner’s address or tax mailing address?
■ Properties Without Mortgages – Does the property have an outstanding mortgage or lien?
■ Sold Below Market Value – Is the property selling below market value?
CONSIDER HEIGHTENED SCRUTINY OR HALT A TRANSACTION WHEN A SELLER:
■ Wants a quick sale, generally in less than three weeks, and may not negotiate fees
■ Wants a cash buyer
■ Is refusing to attend the signing and claims to be out of state or country
■ Is difficult to reach via phone and only wants to communicate by text or email, or refuses to meet via video call
■ Demands proceeds be wired
■ Refuses or is unable to complete multifactor authentication or identity verification
■ Wants to use their own notary
CLOSING ATTORNEYS TAKE PRECAUTIONS DUE TO SELLER FRAUD ISSUES INCLUDING SOME OR ALL OF THE FOLLOWING:
 
CONTACT SELLER USING INDEPENDENT SOURCES
■ Contact the seller directly at an independently discovered and validated phone number
■ Mail the seller at the address on tax records, property address, and grantee address (if different)
■ Ask the real estate agent if they have personal or verified knowledge of the seller’s identity
MANAGE THE NOTARIZATION
■ Require the notarization be performed by a vetted and approved remote online notary, if authorized in your state
■ If remote online notarization is not available, the title company should select the notary. Examples include arranging for the seller to go to an attorney’s office, title agency, or bank that utilizes a credential scanner or multifactor authentication to execute documents
VERIFY THE SELLER’S IDENTITY
■ Send the seller a link to go through identity verification using a third-party service provider (credential analysis, KBA, etc.)
■ Run the seller’s email and phone number through a verification program
■ Ask conversational questions to ascertain seller’s knowledge of property information not readily available in public records
■ Conduct additional due diligence as needed
USE THE PUBLIC RECORD
■ Compare the seller’s signature to previously recorded documents
■ Compare the sales price to the appraisal, historical sales price, or tax appraisal value
CONTROL THE DISBURSEMENT
■ Use a wire verification service or confirm wire instructions match account details on seller’s disbursement authorization form
■ Require a copy of a voided check with a disbursement authorization form
■ Require that a check be sent for seller proceeds rather than a wire
Info from www.alta.org
Now more than ever, consumers need to be aware of potential scams and how to best protect themselves. Real estate agents and attorneys must also play a key role in educating both homebuyers and homeowners about the need to remain vigilant. If the closing attorney is asking for extra precautions to verify a home seller, it is the duty of the agents involved to educate their clients about why this is necessary.
Attorneys are agents of the title insurance company, so they are required to act within their underwriting requirements. For sellers, if they are given any indication that a seller might not be the actual owner of the property, or if their identity cannot be verified, they are not permitted to do a mail-away closing until the legitimacy is verified. That could require an in-person closing.
Since attorneys are agents of the title insurance company, they are required to act within their underwriting requirements and if they stray from those, they are liable for the fallout.
For sellers, if they are given any indication that the seller might not be the actual owner of the property then they are not permitted to do a mail-away closing until they verify the legitimacy of their identification.
How can Real Estate Agents Identify and Prevent Vacant Land Fraud?

1. Look the owner up online and include obituary searches. Almost everyone has some online presence, particularly if they have passed away. The fraudster may not know the record title holder is deceased since title rarely changes until there is a refinance or sale of the property.
2. Ask the “seller” to meet you at the property to get a lay of the land and ask for photo ID pursuant to your company policies but do NOT go to the property alone.
3. Be alert to the warning signs above. Ask why the seller is looking to close so quickly. Agents must remain calm and encourage their clients to undertake proper due diligence before committing to any purchase. Any discrepancies or red flags should be investigated further.
4. Use a closing attorney that you know and trust. Share any concerns you have with the closing attorney.

Vacant land real estate fraud poses significant risks to both agents and potential buyers. It’s crucial for agents to stay vigilant and be aware of the warning signs associated with such fraudulent activities. By conducting thorough research, verifying property details, and involving legal professionals, when necessary, agents can protect themselves and their clients from falling victim to vacant land real estate fraud. Ultimately, the key lies in being diligent, knowledgeable, and relying on trustworthy sources throughout the entire real estate transaction process.
Info from Cheryl King w/Thomas & Brown
For Additional Info:
https://www.alta.org/news/news.cfm?20230124-Wire-Fraud-Advisory-Vacant-Property-Fraud
​

10 Questions AND Answers TO HELP you Navigate THIS Tricky Territory

​{1} When the broker is holding the earnest money, what are the broker’s remedies when there is a dispute over earnest money?
The broker holding earnest money basically has three options when there is an earnest money dispute. First, the broker can encourage the parties to resolve the dispute and give them a reasonable amount of time to do so. This is generally in the range of one to two months. If both parties agree in writing on some compromise within that time frame that resolves the dispute, the broker can disburse based on that written agreement. Usually, a termination and release agreement is signed to memorialize the agreement regarding earnest money. Second, the broker can disburse earnest money after making a reasonable interpretation of the contract. In this instance, the broker has to first send out what is referred to as a “10-day letter,” stating the proposed disbursement and giving the parties 10 days from the date of the letter to object. Third, the broker can interplead the funds into the Superior Court. Technically, this means the broker files a lawsuit against both parties and as part of this, the broker deposits the earnest money into the registry of the applicable Superior Court and asks the court to decide who should get it.

{2} If the seller objects to the broker disbursing the earnest money to the buyer, but the objection is not valid, is the broker allowed to interplead the funds into court?
The answer to this question is no. The dispute has to be a bona fide dispute where the broker is genuinely uncertain as to who should get the earnest money. So, for example, let’s say that the buyer terminates the contract during the due diligence period. The seller gets mad and will not sign a termination and release agreement. The seller even demands the earnest money to compensate them for the house being off the market. In this situation, there may be a dispute, but it is not a legitimate dispute that would prohibit the broker from disbursing the earnest money to the buyer. It is clear that the buyer is entitled to get back their earnest money because the contract was properly terminated during the due diligence period. Even though the seller is upset, the broker should still go ahead and make a reasonable interpretation of the contract to disburse to the buyer, send out a 10-day letter and then disburse accordingly. Judges expect holders of earnest money to make reasonable interpretations of the contract and not to simply pass the buck to the nearest Superior Court judge.

{3} When there is a dispute, can the broker just hold onto the money and not disburse until the parties resolve the dispute?
The answer to this question is no. The broker can hold onto the funds for a reasonable period of time. In truth, the passage of time often helps resolve earnest money disputes. A seller who was angry with a buyer for terminating the contract, or not closing, often sells the property in the meantime to someone else and their anger dissipates. When the parties also face the prospect of going to court to defend themselves in an interpleader lawsuit, it tends to make all parties think twice. If the holder holds onto earnest money for months on end, the holder risks a lawsuit against itself in which it is alleged that the holder has effectively converted the funds to the holder’s own use. While there is not an appellate court decision on the validity of such a claim, it can be a hassle for the holder to defend.

{4} Can the broker simply give the funds to their own client?
The answer to this question is also a big no. In holding earnest money, the holder agrees to disburse the funds only upon a reasonable interpretation of the contract. It is fundamentally unreasonable and an act of bad faith to simply give the money back to the holder’s client. While the holder is indemnified against claims from all parties in a real estate transaction, it is unclear whether such an indemnity would apply to a bad faith, unreasonable disbursement.

{5} Does an attorney holding earnest money owe the same duties as a broker holding earnest money?
The answer to this question is yes. GAR Form F510, Closing Attorney Acting as Holder of Earnest Money Exhibit, provides as follows on this point: “Notwithstanding any provision to the contrary contained in the Agreement, Closing Attorney acting as Holder shall have all of the pre-printed rights and duties of Holder set forth in the GAR Purchase and Sale Agreement …”.

{6} Does the holder have any legal liability if the buyer does not pay the earnest money and the holder does not timely notify the parties?
The answer to this question is maybe. Holders sometimes do not realize that they have not received the earnest money and, therefore, forget to notify the parties that it has not been received. Can a claim for the earnest money be asserted against the holder for this error? The answer is clearly yes. However, in defending against such a claim, the holder can argue that while he or she failed to timely notify all parties that the earnest money was not received, had such a notification been given, there is still no assurance that the earnest money would ever have been paid. About the only thing that can be clearly proven is that had the holder notified the seller when the earnest money was not timely received, the seller would have had more time to demand the earnest money be paid and terminate the contract if this did not occur. As result, most sellers in this situation choose to sue the buyer who failed to deposit the earnest money, as per the contract.

{7} Can the holder of the earnest money decide to give each party half?
The answer to this question is no. There is nothing in the earnest money section of the GAR Purchase and Sale Agreement that gives the holder the right or the ability to divide the earnest money between the parties. Instead, the earnest money section simply gives the holder the right to decide who is entitled to the earnest money. In other words, it either all goes to the buyer, or all goes to the seller. Dividing up the earnest money would likely be something a Superior Court judge might be able to do in exercising its equitable powers. But no such authority is vested with the holder.

{8} Why does the threat of filing an interpleader action cause so many buyers and sellers to settle?
When buyers and sellers truly understand what an interpleader is, they tend to settle whatever dispute they may be having with each other. Normally, I recommend that the holder send a 10-day letter (as discussed in question #1) to both parties stating that since the dispute cannot be resolved, the holder will move forward to file an interpleader lawsuit within a week or two thereafter. When most buyers and sellers consider the costs and risks involved with an interpleader lawsuit, they often agree to simply split the earnest money. The 10-day letter that is sent to the parties advising them that the earnest money will be interpleaded should encourage the parties to try to come to some compromise of the dispute while the holder’s attorney begins work drafting the lawsuit.

{9} Why is it that more closing attorneys are being asked to hold earnest money?
There is a trend toward having more closing attorneys hold the earnest money. This is probably for two reasons. First, it avoids the uncomfortable situation of the broker having to sue its own client if the broker needs to interplead the funds into court. Second, it saves the broker from having to use staff time to track earnest money deposits and decide who gets the earnest money in the event of a dispute. This can result in a significant savings to the broker. Most closing attorneys are willing to hold the earnest money as an accommodation to their clients.

{10} Are there any downsides to the closing attorney holding earnest money?
The one major downside to the closing attorney holding earnest money is if the transaction is for all cash. In such situations, the closing attorney represents the buyer. In the event of a dispute over the earnest money in that situation, “the Closing Attorney shall not disburse based upon a reasonable interpretation of the Agreement”. Instead, the closing attorney “is required to interplead the funds into a court of competent jurisdiction”. This provision was included to avoid the situation in which the closing attorney might have to take a position that is adverse to their client’s wishes since this would violate the lawyer’s ethical duties. Therefore, this might be a situation in which it is better to have a broker hold the earnest money rather than the closing attorney. As long as buyers put up earnest money, there will be earnest money disputes. Hopefully, this article provides guidance for REALTORS® on the most commonly asked questions regarding the resolution of such disputes.
​
Article written by Seth Weissman GAR Legal Counsel
Link to article Resolving Earnest Money Disputes

If a Real Estate Firm or Licensee hires someone to conduct real estate brokerage activities, then he/she must be Licensed by the Georgia Real Estate Commission.
 Whether it is marketing residential properties, managing rental properties, selling land, or procuring prospective tenants for an office building, if a person performs real estate activities for a Licensee in anticipation of getting paid for that work, he/she must have an active real estate license. Calling the real estate activities “consulting” work does not change the fact that it is real estate brokerage activities and requires a License.
Review the following summary of the 43-40-1 Definition of Broker in the Real Estate License Law.
"Broker" means any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another:

• Negotiates or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or its improvements;
• Acts as a referral agent to secure prospects for any real estate;
• Collects rent or other trust funds;
• Is employed by or on behalf of the owner(s) of lots, timeshares, or other parcels of real estate at a salary, fee, commission, or other valuable consideration to sell such real estate or part thereof;
• Charges a fee, other than an advertising fee, to promote the sale of real estate either through its listing in a publication or for referral to Brokers, or both;
• Auctions real estate;
• Deals in options to buy/sell real estate;
• Performs property management or community association management services;
• Provides consulting services to any party to a real estate transaction to negotiate or procure prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or the improvements thereon.
• Advertises him/herself as engaged or providing any such services.

Thus, by definition, an individual is not permitted to receive consulting fees as a source of income for doing any of the above activities unless he/she has a real estate License.
Article from GREC RENews November 2024 Edition
Full article here GREC November 2024 Newsletter
​

Georgia's property management laws equip landlords and property managers with the necessary knowledge to provide safe housing. However, these laws can be complex, especially when dealing with properties in multiple states. This information is essential for anyone managing property in Georgia to understand their obligations. It references the Official Code of Georgia's statutes as of the 2019 Regular Session.

• Landlords can charge non-refundable application fees and request information about potential tenants' employment, credit, and criminal records (44-7-1).
• It is unlawful to reject a tenant based on race, religion, color, sex, disability, family status, or national origin (8-3-203).
• Security deposits have no state-level limit and must be held in an escrow account (if the property is professionally managed) or a surety bond posted in the same county (44-7-30).
• Landlords have 30 days to return the security deposit after a tenant's departure and must provide a list of damages within three business days (44-7-30).
• Lease termination provisions must be agreed upon by both tenant and landlord. Service members and victims of domestic violence can terminate leases with 30 days’ written notice under specific conditions (44-7-22, 44-7-23).
• Landlords can increase rent per a valid lease agreement or with a 60-day notice for tenants-at-will. Late fees should be clarified in the lease agreement (44-7-19).
• Landlords must provide written notice of the names and addresses of the property owner, authorized agent and property manager upon commencement of occupancy (44-7-3).
• Landlords are required to maintain a safe, habitable property, provide utilities, and are liable for damages due to neglect (44-7-14).
• Landlords and property managers are obligated to keep rental properties in good condition, respond to maintenance requests in a reasonable time frame, and cannot suspend utilities while the property is occupied (44-7-13, 44-7-14.1).

 
For more information on Georgia laws for Tenants, Landlords & Property Managers:
Georgia Landlord Tenant Handbook