IGNORANCE IS NOT A DEFENSE FOR NEGLIGENCE=STANDARD OF CARE

INJURY TO BUYER WHILE SHOWING HOMES:  Kim Panazzo's husband was showing property to a buyer yesterday.  The buyer fell off the lip of the garage floor. Took a tumble.  Said her elbow hurt a bit, but they went on and actually looked at another house after that one.  Today, the buyer sent them a text saying her elbow is broken and she's flying home for emergency surgery on it.  What are our next steps?  Listing agent has not been informed yet of what happened.

 

Unless the buyer is asking us for money or something - probably just say - good luck with surgery.  Any claim wold be against the seller's homeowner's insurance.  Kim should probably let the listing agent know what happened. 

 

INCOME PROPERTY-USE:

 

1) RESIDENTIAL INCOME PROPERTY ADDENDUM TO AAR RESIDENTIAL RESALE PURCHASE CONTRACT

 

2) RESIDENTIAL INCOME PROPERTY ADDENDUM TO RESIDENTIAL SPDS

 

INSURANCE CLAIMS HISTORY ONLINE:     LexisNexis.com, Home seller disclosure report, 888-497-0011,  $19.99

https://personalreports.lexisnexis.com/homesellers_disclosure_report/landing.jsp 

http://www.lexisnexis.com/risk/products/insurance/clue-home-seller.aspx     http://www.lexisnexis.com/risk/insurance/home-insurance.aspx    

IRS, REAL ESTATE TAX TIPS     https://www.irs.gov/businesses/small-businesses-self-employed/sale-of-residence-real-estate-tax-tips

IRS-HOME SALE, CAPITAL GAINS     https://www.irs.gov/taxtopics/tc701.html    

http://realestate.findlaw.com/selling-your-home/the-home-sale-tax-exemption.html

 

INSPECTION, GAS NOT ON LANGUAGE, ACCEPT PROPERTY AS IS                                                                                                                                                      Seller to demonstrate to buyers satisfaction that Gas Utilities and any and all Gas related equipment and Gas Appliances are in good working order no later that 3 days prior to COE.”

Good Morning,

I have an escrow that was supposed to close tomorrow, but our final walk through revealed the gas company removed the meter & gas lines due to a leak.
They will replace the meter & lines free of charge, but a trench needs to be dug for the lines & paid for by seller.
My buyer is willing and wanting to close asap. The lender on a USDA loan can not allow an escrow holdback. We don't have an amount needed yet, as I'm trying to obtain estimates, but the gas company has to meet with the laborer to show where the new lines must be.
I have no idea how to proceed? Do you have any suggestions?  We have an extension signed for close of escrow, but the buyer wants to close prior to the gas issue being resolved.  Southwest Gas has agreed to trench and place a new line & gas meter.  What do I need to have the buyer sign, to relieve liability of any issues that may come about with closing prior to this issue being resolved? 

"Buyer and Seller Acknowledge that Buyer agrees to close escrow and accepts the property in it's present physical condition without the Southwest Gas utilities installed.  Seller & Buyer acknowledge and agree that Buyer will assume all responsibility for having said gas utilities and all related equipment installed after close of escrow, and Buyer agrees to indemnify and hold harmless Seller and both brokerages of record regarding gas utilities."  OR

Send Cure Notice:  “Gas utilities are not turned on at property as required in the Purchase Contract.  Inspection period will begin once gas utilities are turned on.” 

INSPECTION WRAP UP—CAN SELLER’S AGENT ATTEND INSPECTION WRAP UP?

I represent the buyer. The seller's agent asked me to let her know when the inspection is taking place because she wants to be at the buyer's "wrap up" with the inspector. I've never been asked this before. Should I include the other agent? Or should I ask my client first since they're the ones paying for the inspection? Thoughts?

You can ask your buyer, but it's very typical for both agents to be at the wrap up. I've never had a buyer refuse. Especially since you are required to deliver all inspection reports to the seller's agent anyway. It often makes repair negotiations easier if both agents hear "from the horse's mouth" what needs to be addressed.  KA

INSPECTION, BUYER’S WAIVER OF INSPECTIONS:  “BUYER ACKNOWLEDGES THAT BUYER WAS ADVISED TO OBTAIN INSPECTIONS OF THE PREMISES BY QUALIFIED INSPECTOR(S) AND BUYER DECLINED.  By acting against Broker’s advice, Buyer accepts responsibility and hereby releases, indemnifies and holds harmless Brokers from any and all liability for all matters that professional inspections could have revealed.

 

INSPECTION ACCESS:  Let our owner agent know we think it is a bad idea to not let the buyer have the city inspector on the property.  If he wants t say that they must have a contractor with them - I guess he can state that - but not wise.  The agent needs to know if we have issues after COE - it will be 100% on him to defend himself and HomeSmart - should it escalate.  

Hi Trudy, I have been talking to Sandy Karpen at Remax about a transaction we have with them, our owner/agent seller has a firepit/fireplace that is not built to code.  The buyer asked for more information regarding that on the BINSR, when our agent found out it was not to code he updated the SPDS and disclosed that to the buyer, the buyer has 5 days to disapprove.  Now the buyers want to bring a city inspector to the property to determine what needs to be done to bring the firepit/fireplace into compliance.

KICK OUT CLAUSE:   A kick out clause is called that because it allows a seller to continue showing the house for sale and to "kick out" the buyer if the seller receives an offer from another buyer without a home sale contingency.  (Use with Buyer Contingency Addendum).

 

http://www.rcshea.com/Articles/Real-Estate/Kick-Out-Clauses-a-Valuable-Tool-in-Real-Estate-Contracts.shtml

 

 

LAND CONTRACT (SELLER FINANCING)     https://en.wikipedia.org/wiki/Land_contract

LANDLORD ATTORNEY:  Andrew Hull (Hull, Holliday & Holliday, PLC)       http://www.doctorevictor.com/    Forms and notices, ie, medical marijuana, five day pay or quit, fair housing, etc.

LANDLORD TENANT ACT:  REMOVE/RELEASE TENANT FROM LEASE: 

"All parties agree that Z is hereby removed/released as tenant from the lease dated xx/xx/xxxx for the property located at 123 Main Street, Tempe, AZ.  Z is hereby relieved from any further responsibility and liability regarding said lease."   (All parties should sign, Landlord(s), Remaining Tenant(s), along with Tenant who is being relieved).

LANDLORDOLOGY, ARIZONA RENTAL LAWS:   https://www.landlordology.com/arizona-landlord-tenant-laws/

LANDLORD TENANT ACT:  RENTAL INVOICE:  If you are looking for an invoice for the landlord to pay commissions, you will find this invoice on your agent smart panel under Downloads and HomeSmart Forms.  The Closing Department does not send invoices for leases only commission instructions on sale files.

LANDLORD TENANT ACT:  MAXIMUM RENTAL DEPOSITS:  FYI (NO ACTION REQUIRED) - Please be aware on any future lease transactions,  the maximum allowable refundable security deposit and pre-paid rents (including pro-rated rents)  may not exceed 1.5 x the monthly rent. If the tenant offers to pay more, then have the Tenant state in writing that they are "Voluntarily" paying more than the AZ Residential Landlord Tenant Act allows. Thank you.

“Tenant acknowledges that they are voluntarily paying more than the AZ Residential Landlord Tenant Act allows for refundable security deposits and pre-paid rents.”

or

"Tenant acknowledges that the maximum allowable refundable security deposit and pre-paid rents (including pro-rated rents)  may not exceed 1.5 x the monthly rent as per the AZ Residential Landlord and Tenant Act.  Tenant is Voluntarily paying more than the AZ Residential Landlord Tenant Act allows."

LANDLORD TENANT ACT:  Landlord/Tenant Disputes (Neighborhood Services Dept)    

https://www.phoenix.gov/nsd/programs/landlord-tenant-counseling

LANDLORD TENANT ACT: FREE COMMUNITY LEGAL SERVICES     https://housing.az.gov/general-public/landlord-and-tenant-act

LANDLORD LICENSING:  Are there any exceptions to the requirement that an Arizona property manager have a broker's license?

https://www.allpropertymanagement.com/propertylaw/property-management-law-in-arizona.html

LANDLORD TENANT ACT:  TREBLE DAMAGES   

https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=treble+damages

LANDLORD TENANT ACT:  TENANT EVICTION PROCESS:    

http://equalaccesstothelaw.com/library-of-services/evictions-library/tenant/eviction-process

LANDLORD TENANT ACT:  Tenants Rights and Responsibilities Handbook (Arizona)

https://www.azag.gov/sites/default/files/sites/all/docs/civil-rights/fha/TenantRightsResponsibilities.pdf

LANDLORD TENANT ACT:  TERMINATION OF TANANCY AND DISPOSITION OF DEPOSITS, USE:

 

Statement of Disposition of Deposits and Accounting Form in zipForms

 

LANDLORD TENANT ACT:  TENANT BUYING PROPERTY FROM LANDLORD:  “This lease shall terminate at close of escrow.  Seller agrees to credit buyer $XX at closing to account for both refundable and non-refundable deposits.”

 

Plus put something in the lease you write for tenant to protect you in case they end up buying the Rental Property (See Listing Language for verbiage that protects Listing Agent):  “If this lease develops into a sale between the landlord and tenant, seller agrees to compensate the Sellers Agent X% of the sales price at COE.” 

 

LEASE, VERBAL LEASE: 

I am working with a self-employed buyer who’s been renting a house that the landlord wants to put on the market. Landlord offered the house first to my buyer, but they could not come to terms.

 Now the landlord called and said he’s sending an email telling the tenant to move out by February 1. Can you tell me legally where the tenant/prospective buyer stands? Currently, tenant has no written lease.

So, this is an "oral" lease agreement?  Was it "week to week" or "month to month?"  If week to week, that is acceptable notice.  If month to month, he should have given notice on Jan 1 to vacate by Feb 1.

Here is what the AZ Tenants Rights and Responsibilities Handbook says:

Oral Lease Agreements 

1. Agreements to rent for one year or more must be in writing (see “Signing a Lease,” above). 

2. If you have an oral agreement, it can be week-to-week or month-to month. Terms and conditions are negotiable from one term to the next.  JT

LEASE PURCHASE ADDENDUM:  See  lease purchase addendum in pdf files, LANGUAGE.

LEASE, WHAT HAPPENS IF PROPERTY IS SOLD?   The sale is subject to the lease.  Arizona law says the tenants get to stay in the property through the term of their current lease.  Terms and conditions of the lease cannot be modified.  So, the tenants get to stay, no changes.  They will start paying rent to the new owner, however.

LEASE, BROKEN LEASE REIMBURSEMENT LANGUAGE:  Tenant acknowledges and agrees that should this lease be broken for any reason, Tenant will be required to reimburse the owner the pro-rated share of the brokerage fee paid to the brokers involved in this transaction. 

LATENT DEFECT:  (ALSO SEE DISCLOSURE ABOVE)  In the law of the sale of property (both real estate and personal property or chattels) a LATENT DEFECT is a fault in the property that could not have been discovered by a reasonably thorough inspection before the sale.

LEAD BASED PAINT DISCLOSURE RULE    HUD.Gov     http://portal.hud.gov/hudportal/HUD?

LBP cannot be signed in counterpart, others can.

LEGAL AGE     http://www.lawchek.com/Library1/_books/contract/qanda/legalage.htm

LEAK FOUND ONE MONTH AFTER COE

I have a huge problem in the bathroom near the two bedrooms.   I originally asked you guys to check to ensure there were no leaks in the bathroom near the bedrooms.  I had the Saltillo tile removed because I am putting down new flooring; my daughter went to take a shower and I noticed that water is seeping underneath the tub.   My fear is that this has been going on for a while and we are going to have mold issues.    Can you please let me know when you would be able to send someone out?  This should be covered under the warranty you provided. 

Hi, I sold a home a month or so ago and received the below email.  The buyer is asking if she has recourse with the seller.  Would you advise for her to call the seller and discuss with clear communication?

Hi Alyssa,  This is always tough.  Unfortunately there's probably no recourse here for the Buyer.  If the leak wasn't going on (or able to be seen) during the inspection process, then the inspector would have no way of finding it, and the Seller wouldn't have known about it.  I can appreciate your clients wanting some sort of recourse, but in order to get that from the Sellers they would have to prove that the they were aware of the issue and just failed to disclose.  That's a tough thing to do.  I would tell my buyers that they could call the Seller to sort of feel them out, but if they want to force the issue it's going to have to be legal in nature so they'll have to consult an attorney.  KF

LEXIS NEXIS ONLINE INSURANCE CLAIMS HISTORY:  See Insurance Claims History

LIABILITY RELEASES do not mean you cannot be held liable if you cause damage to your client (negligence).

LICENSE TERMINATION:  When a license has been expired for more than one year after the expiration date, the applicant must re-examine and apply as an original applicant and submit a valid fingerprint clearance card.  If pre-licensing education occurred more than ten years prior to application, pre-licensure education must be taken again.  Visit ADRE.gov to obtain the candidate handbook for instructions and qualifications for licensure. 

LIENS:  PRELIMINARY TITLE REPORT, SPDS DISCLOSE?  CANCEL, EXTEND COE, SELLER REIMBURSE BUYER COSTS?

LIEN, CLOUD ON TITLE:  Lien is discovered during escrow.  Was not disclosed by seller?  Did buyer/seller review preliminary title report?  Was it listed on Schedule A or B?  Did buyer exercise 5 day right to disapprove?  Did seller know previously? 

Seller Disclose on SPDS, line #34 (Liens)?  IF NO, SELLER MUST IMMEDIATELY UPDATE SPDS (“CHANGES DURING ESCROW”).  BUYER HAS 5 DAYS TO DISAPPROVE.  Buyer can then cancel, reimbursed for costs? 

Sellers intentions?  Resolve?  Legal?  Cancel Transaction?     Buyers intentions?  Resolve?  Wait?  Cancel Transaction?  Legal? 

AGENT NEEDS TO COMMUNICATE YOUR CLIENTS INTENTIONS TO ALL PARTIES, SIGNED BY CLIENT IF AGREES.  ADVISE YOUR CLIENT IN WRITING TO SEEK LEGAL, TAX AND ANY OTHER PROFESSIONAL ADVICE DESIRED BY CLIENT.” 

IF THEY ARE NOT GOING TO RESOLVE, RESIGN BUYER AGENCY/LISTING.

 

LIEN, POSSIBLE LEAN ON LISTING:  Contact your favorite title company and have them start a preliminary title report so you can see what is happening.  Give Equitable title a shout, I'm sure they can help you out.  Jeff.

Equitable Title, 8388 E Hartford Dr, Ste 110, Scottsdale, AZ 85255

Mike Barsema

480-889-7000

Team1@EQEscrow.com

 

LIS PENDENS:  A lis pendens means that there is a pending lawsuit against the property.  Buyer can’t blackmail seller with Earnest Money.

http://www.combslawgroup.com/buyer-cant-blackmail-seller-earnest-money/

LOAN OFFICER LICENSE INFORMATION     http://www.loanofficerlicense.net/arizona-loan-officer-license-requirements/

LOAN DENIAL:  ALSO SEE “UNFULFILLED LOAN CONTINGENCY”

LOAN DENIAL AND RECEIVED CURE NOTICE FROM UPSET SELLER (WE REPRESENT BUYER)                    Roger I want the ernest money because buyers did not come through on the loan. I also want the money for all repairs made that I was told I had to do to close on the house. All of this money came out of my pocket. 

Kyle, Thanks for your help today.  I did not receive the decline letter from Wells Fargo as promised.  Was told by loan officer at 5:30 pm their system was down but they were working on it.  I did receive the email below and the attached cure notice.  Can you please call me when you get this email?  Have also not experienced a cure notice in my 11.5 years as a Realtor. 

Faye, I'd write something like the paragraph below, send it to Roger, and CC the escrow officer.  I'm trying to soften the statements, because you don't want to sound defensive, while at the same time letting him know that you're Buyers most likely have the better case here.  Take care, KF.

“Hi Roger, I understand the Sellers frustration, and trust me, the Buyers feel the same way.  As you know there was no indication that this was going to happen until yesterday.  It was dropped in all of our laps at the same point.  That being the case, there's no way that the Buyer should lose their earnest money in this case.  They did everything they were supposed to do, and the lender came back with a denial very late in the process.   I wish that weren't the case, but here we are.  Your Cure Notice references that the Buyers are in non-compliance with section 2b of the contract, which was true until the Unfulfilled Loan Contingency form was delivered.  At that point we met our contractual obligation and the earnest money should be refunded.  Again, we all want to be able to move forward with the deal and close on Friday.  Unfortunately that won't be able to happen given what the lender said.”

LOGOS:  You can have a personal, branded logo.  It can’t look like you are a real estate company.

 

LUCK:  But luck, as they say,  falls on those in position to receive it.  (Roger Federer)

A quote by Seneca:  “Luck is what happens when preparation meets opportunity.”