Telephone Solicitations and DO NOT CALL Compliance
It is the policy of RMAA to comply fully and completely with all federal and Georgia state laws and regulations regarding telephone solicitations.  Federal and Georgia law and regulations prohibit the making of unsolicited telephone sales calls to homeowners who have entered themselves on the National Do Not Call (“DNC”) list.  The Company also maintains an in-house DNC list. It is the responsibility of every employee or licensee to check both lists and to be certain not to make an unsolicited sales call to a person on either list.  If the Company is fined due to a violation of the DNC laws and regulations, the Associate is responsible for the fine and will be billed accordingly.
 
The FTC has a fully automated and secure website — telemarketing.donotcall.gov — to provide access to the National Registry’s database of telephone numbers, sorted by area code. 
The National Do Not Call registry requires a fee, which must be paid by the Associate. For fiscal year 2020, the annual fee is $66 for each area code of data accessed or $18,044 for access to every area code in the registry, whichever is less. The first 5 area codes of data may be accessed at no charge. 
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The rules can be confusing.  Disclosure is the key.
 
Georgia Law and Federal Law. You can’t share commission with an unlicensed party.
According to both Georgia law and federal statute, a licensed real estate agent cannot share a commission with an unlicensed person.
 
RESPA (Real Estate Settlement and Procedures Act), the federal law, governs the majority of residential real estate transactions (those that close with an institutional loan). Under RESPA, both the licensed agent and the unlicensed recipient would be guilty of a violation of federal law if a licensed person shares a commission with an unlicensed person.
 
Georgia License Law is consistent with the federal law.  It is a violation of the Unfair Trade Practices and the GAR Rules to pay a commission or compensation to any person for performing the services of a real estate licensee who has not first secured the appropriate license under this chapter or is not cooperating as a nonresident who is licensed in such nonresident's state or foreign country of residence. O.C.G.A. Section 43-40-25(b)(17), GAR Rule 520-1-.06.
 
Disclosure is required to your principal when you are paying a referring agent.
GAR Rule 520-1-.10 (6)(e) operates when an agent receives a referral and then pays a fee to the referring broker.  Disclosure is required no later than a closing for a purchase or a lease, but it can also be disclosed on a brokerage agreement, purchase or lease agreement. This would apply to Broker to Broker referrals and companies like Opcity, 55+ and others.
Consequences for violations can be severe, ranging from a reprimand to a fine to revocation of a license.
 
Exceptions to the “No Rebate” Rule
For state and federal policy reasons, there are exceptions to the “no rebate” to an unlicensed person rule. Both Georgia and the Justice Department see value in allowing certain rebates. GAR allows rebates under the theory that the rebate is effectively being paid by both parties, the broker is giving back to the principal and is just “netting out.”  The Justice Department allows a rebate under the theory that it is important to competition and lower prices for consumers.
 
To avoid a violation of the laws, the rebate must be clearly shown on the Settlement Statement.  It must be totally transparent to all parties and to the lender.
 
Most often, we see rebates as a trade-off for a service. (Agent pays for a tree to be removed, carpet to be cleaned, etc.)  A rebate can also be a straight discount, without any trade-off of service, so long as it is disclosed. As a marketing strategy, some brokerages offer a rebate with all normal services or lesser services included. There are those who criticize this business model, but as long as it is fully disclosed on the Settlement Statement, it is legal.   It is up to agents and their broker to decide whether a rebate is appropriate.
 
Instructions to Closing Attorney
 
GAR F255, Instructions to Closing Attorney, is the appropriate vehicle for disclosure rebates at Section 4. “The Seller’s Broker, the Buyer’s Broker and their respective affiliated licensees hereby direct the closing attorney to disclose on the settlement statement for the above-referenced transaction the following referral fees and rebates they have or will be paid or have received or will receive in said transaction.”
 
When Disclosure of a gift, product, service or a thing of value to an unlicensed party is NOT required.
GAR Rule 520-1-.10 (6), Disclosure of Commissions, Fees, Rebates, or Other Valuable Consideration, clarifies when disclosure is not required.  “No disclosure is required for gifts, products, services, or other things of value given to a principal by a licensee provided that they are not contingent upon the purchase, sale, lease or exchange of real estate for that transaction.  That is, there is no quid pro quo.  (You can use my condo anytime, whether we do a deal or not.)
 
Note:  The Selling and the Listing Agents can rebate only to their own principal.  That is, a Buyer’s agent can rebate only to the Buyer and a Seller’s agent can rebate only to the Seller.  So, if 2 agents decide to each contribute to a cost, the division of costs must follow this rule.  

In this very hot, multiple offer Seller’s market, Buyers are looking for ways to distinguish their offer from the rest.  One of the tactics is to eliminate the Due Diligence period, and instead include a Property Sold with Right to Request Repairs Exhibit.  Even if the Seller has listed the property “as is,” the Right to Request Repairs Exhibit can be included in the Buyer’s Offer.
Sellers often like the idea because the Buyer’s right to terminate is limited to the repair or replacement of defects. The theory is that there’s a lot less chance of a buyer termination for defects than the due diligence open right to terminate for any reason.
 
The Process
Exhibit GAR F273 lays out the process. It is not dissimilar to the process for an Amendment to Address Concerns (F704).

1. The Property Sold with Right to Request Repairs  for defects is included as an Exhibit to the Purchase and Sale Agreement.
2. Buyer and seller agree on an offer price & terms.
3. Buyer performs inspections and reviews disclosures.
4. Buyer provides Seller with: (a) a signed written amendment to this Agreement requesting Defects to be repaired and/or replaced; and (b) a copy of all reports of Inspectors describing those Defects.
5. If Buyer does not timely present the written amendment and inspection report(s), Buyer shall be deemed to have accepted Property “as is.”
6. Buyer and Seller shall have an agreed upon number of days from the Binding Agreement Date, the “Defect Resolution Period,” to attempt to negotiate the defects to be repaired and/or replaced and sign an amendment to the Agreement.
7. The seller can agree to the fix-it list, can counter or can reject it. Or the Buyer can elect to buy the property “as is.”
8. If neither party timely accepts the other party’s last offer or counteroffer or Buyer does not elect to buy Property “as-is,” the Agreement terminates and the Buyer receives an earnest money refund.

Multiple Offers are a big thing in Atlanta.  Our very low inventory has created highly competitive situations for getting onto contract for houses in just about every price point.
We often see buyers’ escalation clauses that allow an increase in purchase price should another, competitive offer with comparable terms and conditions be presented to the seller.  These escalation clauses, however, can push the purchase price way above the appraised value.  The lender will lend only on the appraised value, so the gap has to be closed.
Several things can happen. 
1) The Purchase Price can be negotiated down to the appraised value.
2) The Buyer or Lender can request a rebuttal to the appraisal and supply evidence of an increased appraisal amount.
3) The Buyer can pay the difference between the appraised amount and the purchase price in cash.
Paying the difference in cash, in this highly competitive market, is often the solution for the Buyer that is willing and has the cash.  Remember, the Buyer still has to make a down payment for the appraised price.  Cash amounts over the appraised price are added to the required funds to close.
Campbell and Brannon has offered the following 2 clauses to include as Special Stipulations to protect the Seller if the appraisal is less than the purchase price:

​Often, when a potential buyer chooses to lease instead, it is because they are not yet qualified to purchase.  There may have been a downturn in finances or credit.  There is a willingness to buy, just not quite yet.
 
There are 2 ways that the tenant can proceed.  The preferred path may depend on who you represent.
 
If the choice is to do a Lease Purchase, the Tenant is obligated to purchase at the end of the lease term.  The Tenant has probably given an earnest money deposit.  However, if, at the end of the lease term, the Tenant is still not able to purchase, then the tenant forfeits the deposited funds.  Good for the Landlord.  Not so good for the Tenant.
 
On the other hand, consider a lease with an option to purchase.  With an option to purchase, the tenant and landlord execute a lease as usual.  They would also execute an Option Agreement to Purchase Leased Property as an Exhibit to the Lease. (GAR F243). The Option Agreement to Purchase Leased Property looks a lot like a standard Purchase and Sale Agreement, but is modified to suit its purpose.  It includes the majority of the terms of a standard Purchase and Sale Agreement, including contingencies, but it does not lock the Tenant into a purchase.  If the Tenant chooses not to exercise the option to purchase, they just walk away.  Earnest Money is not delivered until the exercise of the Option Agreement.  If you are a tenant and are willing to set a price today, but need flexibility just in case, an Option to Purchase a Leased Property may be the way to go. Relevant GAR documents are 1) F243 Option Agreement to Purchase Leased Property Exhibit and 2) GAR F 282 Notice of the Exercise of Tenant/Buyer’s Option to Purchase Property. 

Contract Interpretation is important to construction disputes. There are rules of legal rules of interpretation that allow evidence outside the four corners of the contract and others that ­that don’t allow extrinsic evidence.  It can be a bit confusing.
 
GAR has, however, has supplied us with a basic set of guidelines that are embedded into the GAR Purchase and Sale Agreement itself.  These give us a clear path to interpretation that settle issues in most cases. 
 
On page 7 of the Purchase Agreement, at Exhibits and Addenda, you see the following language:
 
Exhibits and Addenda. All exhibits and/or addenda attached hereto, listed below, or referenced herein are made a part of this Agreement. If any such exhibit or addendum conflicts with any preceding paragraph (including any changes thereto made by the parties), said exhibit or addendum shall control:
 
So, if there is a conflict between the between the exhibit and the body of the contract, the exhibit controls

​The Agreement to Reinstate Contract is a new GAR form.  It can be used if there is a situation in which the original contract was terminated, but the parties wish to continue the relationship.  A common situation involves the Amendment to Address Concerns (ATAC).  Agents often add language to the ATAC that is intended to protect their buyers, but can result in an unintended termination: If the ATAC is not accepted, then the Seller is served Notice of Buyer’s decision to terminate the contract.  If the Seller does not accept the ATAC as written, the contract is thereby terminated. But hold on! The Buyer didn’t really want to Terminate, just to protect its earnest money.
 
So long as both parties agree, this is a perfect situation for the new form.  The Buyer and Seller can resurrect the contract using Form 290.  Note that there is space on the form to include any changes to the contract to which both parties agree.
 
For those of you that are thinking that this breaks the rule that you cannot resurrect a dead contract, yes, you are right. This is a change, blessed by the GAR.
 

​We have had several questions lately regarding the “Coming Soon” listing status.  There are several sources of information for Guidance.
 
First, the FMLS Administrative Rules defines “Coming Soon”: The property is currently “off market,” and will be Active within the next 21 days. Only FMLS members will be able to view Coming Soon listings.  The Coming Soon status is only available at the beginning of the listing period, and once a listing is taken out of the Coming Soon status, it cannot go back into Coming Soon.
 
Coming Soon status does not appear on public websites, such as ggeorgiamls.com. 
 
Georgia MLS has issued a “Coming Soon Frequently Asked Questions.”  In it, it is clear that while in Coming Soon status a listing cannot be shown or made available for offers before the On Market Date.  The Coming Soon status can be changed to Active, but once it is Active, it cannot be changed back to Coming Soon.
 
Listings in the Coming Soon status have the same functionality as other listing statuses.  They can be searched, printed, emailed and exported and included in CMAs.

​The 2021 GAR contract changes are now active.  In past weeks we covered 2021 changes to the Listing Agreement (Engagement) Agreement, the Buyer Brokerage (Engagement) Agreement and the Purchase and Sale Agreement.  This week we summarize important changes to Disclosures, Exhibits and Authorization. 
 

1. F301 Seller’s Property Disclosure

1. C(5) and C(6) added 2 additional Systems and Component HVAC questions and the age of the water heater.
2. C(10) modified P.(a) added “hazardous condition” from animal intrusion, insects, fungi or dry rot.

 

1. F302:  NEW FORM for Seller’s Disclosure of Latent Defects and Fixtures.  This form is to be used when the Seller has never occupied the property (investors, beneficiaries) or has not occupied the property long enough to know the information to complete F301.  THE SELLER MUST DISCLOSE KNOWN LATENT DEFECTS.

 

1. F316 The Lead Based Paint Exhibit continues to get tighter. Language has been added to mirror the EPA regulation. New language emphasizes that the Lead Based Paint Brochure must be provided to the Buyer prior to a binding agreement.  Further, the Seller must initial it’s disclosure and the Buyer must initial its Acknowledgement at (c) AND (d) and initial (e)(i) or (ii).  If the Buyer accepts a 10 day opportunity to inspect, the inspection must be completed BEFORE the offer is accepted by the Seller.  Please review the form to be certain the form is understood. EPA fines for omissions are up to $16,000 per omission.

 

1. F322 Community Association Disclosure. 

 

1. The Seller must pay for the Closing Letter within 2 days of receiving notice from the closing attorney of how to pay.  The Seller is responsible to pay for any amount over the Seller disclosure. If there is an N/A or a blank link, it is interpreted as $0.00.
2. Pre-paid annual dues or buyer move in fees are buyer costs.
3. New paragraph: The Buyer authorizes the Closing Attorney to reveal the Buyer’s identity and contact information.

 

1. F601 Sale or lease of Buyer’s Property Contingency
   1. New paragraph wherein the Buyer warrants the property is listed, under contract or other.
   2. P.3 updated to include the specifics of the Buyer’s Sale or Lease Terms.

 

1. F843 Referral Authorization. Updated Language to include referral to builders and real estate related services in addition to brokers and relocation companies.
2. SS 627. New Special Stipulation.  Expiration of Time Deadlines.  To be used if you don’t want time deadlines to end at 11:59 pm.  “All time deadlines set forth herein shall expire at ____am or pm on the day of the deadline.”

 
For additional detail, please see the RMAA Hub Resources Library for a Power Point of Missy Robinson’s class on the changes, as well as the Campbell and Brannon class presented by Christian Ross and Peter Babcock.  The new forms can also be found in the RMAA Hub in the Resources Library.  There will be additional classes on the changes to the forms.  We highly recommend that you register for one and attend!

As noted in last week’s Broker Corner2021-gar-contract-changes-part-1.html, the 2021 GAR contract changes are final.  Last week the changes to the Listing Agreement were summarized. This week we will cover the changes to the Buyer Brokerage Agreement and the Purchase and sale Agreement. For additional detail, please see the RMAA Hub Resources Library for a Power Point of Missy Robinson’ s class on the changes.  The new forms can also be found in the Resources Library.  There will be additional classes on the changes to the forms.  We highly recommend that you register and attend!
 
Important changes to the Buyer Brokerage Agreement:
 

1. The name has been changed to “Exclusive Buyer Brokerage Engagement Agreement.”
2. Independent Contractor has been moved to a definition at C97)(i).  No need to select it anymore.
3. Dual agency is not offered by RMAA.  That has not changed.  If it were offered, there is now a requirement that the Buyer consent to dual agency.  
4. Section B has been expanded to include an acknowledgment by the Buyer that Buyer is not a party to another Buyer Brokerage Engagement and, if the Buyer is a party to a previous agreement or terminated a previous agreement without consent from the previous broker, the Buyer may have to pay the previous broker a real estate commission.  Further, a commission may be due to a previous broker should there be a purchase or lease on a Protected Property during a Protected period.
5. Unilateral Extension of the Buyer Brokerage Term for a period the property was under contract: The Broker must now give notice to the buyer within 5 days of a deal falling through, but, in any event, the notice MUST be given before the Buyer Brokerage expires. 
6. Added under miscellaneous:  Broker has no liability for third party vendors that may have been referred to the buyer.
7. Notice to Extend Listing Period has been renamed to cover all brokerage agreements (Buyer, Seller or Lease).  The new name is “Notice to Extend Brokerage Engagement Agreement.”

Note that there are other miscellaneous changes in the Exclusive Buyer Brokerage Engagement Agreement, including renumbering and content location changes.  Please review the new Agreement before using it.
 
 
Important Changes to the Purchase and Sale Agreement:

1. An option was added for Earnest Money to be via ACH.  However, please check with attorneys if the earnest money will be held by them.  Many attorneys will not accept an ACH payment.
2. Broker Relationships have been changed to “Buyer’s Broker” and “Seller’s Broker.”  The old terminology of Selling Broker and Listing Broker are eliminated.
3. Section B(3)(c).  Sentence added at the end of the paragraph:  Buyer agrees to indemnify Seller against any and all claims of the county for unpaid ad valorem real property taxes for the year in which the property is sold.
4. Language in the Right to Inspect paragraph has been expanded to clarify that the Buyer can inspect with prior notice and at reasonable times.  (This would include tomes after the due diligence period has ended.)
5. Language added to recognize that brokers are express third party beneficiaries to the Agreement. B(10)(b).
6. Language is added that the Buyer is to examine the propensity of the property to flood and flood zone certifications. B(10)(c).
7. Language is changed from damaged to destroyed at (C)(3) : Risk of damage to property
8. Added disclaimer language regarding GAR Forms: “No representation is made that the GAR Forms will protect the interests of any particular party or will be fit for any specific purpose.” C(4)(g)
9. Written representations of the Seller regarding the property or neighborhood will survive the closing.  (Be sure your Seller knows to complete the Seller Property Disclosure correctly!)
10. Language added above the signature lines: “By signing this Agreement, Buyer and Seller acknowledge that they have read and understood this Agreement and agree to its terms.”

 
Note that there are other miscellaneous changes in the Purchase and Sale Agreement, including renumbering and content location changes.  Please review the new Purchase and Sale Agreement before using it.
 
There are miscellaneous changes and updates to the New Construction PSA and the New Construction Exhibit.
 
There are several new forms that are welcome additions to the GAR Forms.  Please review them.

1. NEW! F289 Request for Confirmation of Presentation of Offer/Counteroffer. This is only signed by brokers.  You can use this form if you feel a broker did not present your offer.
2. NEW! F290 Agreement to Reinstate Contract. This form can be used if a contract was unintentionally terminated and the parties want to continue.  The form does not change deadlines, but if changes need to be made to the original agreement, they can be added in Paragraph 2.

 
Next week we will summarize changes to Disclosures, Exhibits and Authorization.