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.
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.
1 Comment
Georgia law gives landlords and tenants broad freedom to negotiate lease terms — but
that freedom stops where the law or public policy steps in. Certain clauses are unenforceable or illegal under Georgia’s Residential Landlord and Tenant Act (O.C.G.A. Title 44, Chapter 7) and related regulations. Clauses That Cannot Be Included: 1. Waiving the Landlord’s Legal Duties A lease cannot state that the landlord has no obligation to maintain or repair the property, or that the tenant accepts the unit “as is” with no habitability rights. Landlords must comply with state and local housing codes and keep premises safe and livable. 2. Ignoring Security-Deposit Laws Provisions that say the landlord doesn’t have to follow Georgia’s security-deposit requirements — such as holding funds in escrow or providing an itemized list of deductions — are void (O.C.G.A. § 44-7-30 et seq.). The landlord cannot take more than two months rent for security deposit. 3. One-Sided Attorney-Fee or Waiver Clauses A tenant cannot be forced to pay a landlord’s attorney fees “no matter what,” or waive rights to contest habitability or damages. Such terms are unfair and unenforceable. 4. Clauses That Override Georgia or Local Law A lease cannot say that Georgia laws or city ordinances don’t apply. State and local housing codes govern by default and cannot be waived by contract. 5. Discriminatory or Unlawful Terms Language restricting families with children, people with disabilities, or other protected groups violates the Georgia Fair Housing Act and federal Fair Housing Act. 6. Excessive or Unconscionable Fees Georgia allows reasonable late fees and charges, but not punitive or extreme penalties that go beyond actual damages. 7. Indemnifying the Landlord’s Own Negligence A tenant cannot be required to hold the landlord harmless for the landlord’s own failure to maintain the property or for negligence causing injury or damage. For More Information on Georgia Landlord Tenant Laws: Georgia Landlord Tenant Handbook Affiliated Business Arrangement Disclosure (ABAD): Compliance Guidelines for Brokers and Agents
Under the Real Estate Settlement Procedures Act (RESPA), there are specific disclosure requirements when it comes to settlement service providers (such as lenders, title companies, appraisers, real estate brokers, attorneys, home warranty companies, etc.). Here are the key ones: 1. Affiliated Business Arrangement Disclosure (ABAD)
4. Good Faith Estimate (GFE) / Loan Estimate (LE) Disclosures
A Must for Georgia Agents
When representing a seller in Georgia, it’s critical to ensure the Community Association Disclosure is completed fully and accurately. This GAR form gives buyers a clear picture of the financial obligations tied to the property. Errors or omissions can create disputes, delay closings, or expose your client to liability. Key Fees to Verify
Who Pays What? Understanding Transfer, Initiation, and Administrative Fees and who pays them? Buyer Pays: Buyer shall pay any initiation fee, capital contribution, new member fee, transfer fee, new account set-up fee, fees similar to the above but which are referenced by a different name, one-time fees associated with closing of the transaction and fees to transfer keys, gate openers, fobs and other similar equipment (collective, “Transfer, Initiation, and Administrative Fees) to the extent the total amount due is accurately disclosed above. Advance assessments due at Closing for a period of time after Closing, shall not be Transfer, Initiation, and Administrative Fees and shall be paid by Buyer. Seller Pays: Seller shall pay any Transfer, Initiation, and Administrative Fees in excess of the amount disclosed on the community association disclosure. In the event seller fills in the above blank with “N/A”, or anything other than a dollar amount, or is left empty, it shall be the same as Seller filling in the blank with $0.00. The seller will be required to pay any fee in excess of the amount disclosed. Bottom line for agents: Take the lead on verifying HOA fees. Doing so prevents headaches, protects your seller, and ensures smoother closings. Selling an unfinished new construction home can present unique challenges and risks. Here are key things to watch out for to protect yourself and ensure a smooth transaction—whether you're the builder, purchaser, or agent:
Construction & Permit Considerations 1. Permits & Inspections:
2. Zoning & Code Compliance:
Financing & Appraisal Issues 3. Financing Limitations:
4. Appraisal Complications:
Legal & Contractual Protections 5. Unfinished Systems and Finishes
6. Builder Warranty / No Warranty:
7. Liens or Contractor Disputes:
8. Liability
In summary, when representing a seller with an unfinished new construction home, it’s critical to approach the listing with diligence and clarity. Ensure all permits and inspections are accounted for, be upfront about what’s completed versus what remains, and educate your seller on financing limitations that may affect buyer eligibility. Address any potential safety concerns before showings and use proper disclosures to protect all parties involved. By setting realistic expectations and staying proactive, you position yourself as a knowledgeable advisor and help ensure a smooth and professional transaction from listing to close. The Georgia Brokerage Relationships in Real Estate Transactions Act (BRRETA) defines ministerial acts as presented below. It is important to note that the definition uses words such as “providing, identifying, and locating.” These verbs do not involve using expert knowledge or providing counseling or consulting.
A Transaction Broker can only provide ministerial acts and does not have an agency relationship with any party. 10-6A-14. Ministerial acts explained; … (a) A Broker acting as a Transaction Broker may provide assistance to buyers, sellers, tenants, and landlords by performing ministerial acts. Examples of ministerial acts which can be performed by the Transaction Broker on behalf of any of the parties in a real estate transaction include without limitation the following: (1) Identifying property for sale, lease, or exchange; (2) Providing real estate statistics and information on property; (3) Providing preprinted real estate form contracts, leases, and related exhibits and addenda; (4) Acting as a scribe in the preparation of real estate form contracts, leases, and related exhibits and addenda; (5) Locating architects, engineers, surveyors, inspectors, lenders, insurance agents, attorneys, and other professionals; and (6) Identifying schools, shopping facilities, places of worship, and other similar facilities on behalf of any of the parties in a real estate transaction. BRRETA further details the obligations of a Transaction Broker in timely disclosing material facts regarding physical conditions of the property, improvements, and neighborhood. See BRRETA for further details. In addition to Rule 520-1-.07 (6), understanding the definition of ministerial acts can be useful in determining what activities unlicensed support personnel/assistants can provide for Licensees. The key issue is to determine if the activity requires discretion, judgment, or expert knowledge. If it is unclear if an activity is practicing real estate brokerage, then it is best handled by a Licensee. BRRETA lists and defines the duties and obligations of agency relationships in real estate with sellers, buyers, landlords, and tenants. A review of BRRETA could be a training opportunity to meet requirements of the Broker in providing training to Licensees. BRRETA makes a clear distinction by defining “Agency” and Transaction Broker: “Agency” means every relationship in which a real estate Broker acts for or represents another as a client by the latter’s written authority in a real property transaction. “Transaction Broker” means a Broker who has not entered into a client relationship with any of the parties to a particular real estate transaction and who performs only ministerial acts on behalf of one or more of the parties, but who is paid valuable consideration by one or more parties to the transaction pursuant to a verbal or written agreement for performing brokerage services. From: Monthly Newsletter of the Georgia Real Estate Commission April 2025 Volume 21 Issue 4 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:
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?
Info from Cheryl King w/Thomas & Brown For Additional Info: https://www.alta.org/news/news.cfm?20230124-Wire-Fraud-Advisory-Vacant-Property-Fraud |
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