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.
1) RESIDENTIAL INCOME PROPERTY ADDENDUM TO AAR RESIDENTIAL RESALE PURCHASE CONTRACT
2) RESIDENTIAL INCOME PROPERTY ADDENDUM TO RESIDENTIAL SPDS
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.
INSPECTION ACCESS AND UTILITIES AND WALKTHROUGH(S):
Section 6l, Walkthrough(s): Seller grants Buyer and Buyer’s inspector(s) reasonable access to conduct walkthrough(s) of the Premises for he purpose of satisfying Buyer that any corrections or repairs agreed to by Seller have been completed, and the Premises are in substantially the same condition as of the date of Contract acceptance. If Buyer does not conduct such walkthrough(s), Buyer releases Seller and Broker(s) from liability for any defects that could have been discovered.
Section 6m, Seller’s Responsibility Regarding Inspections and Walkthrough(s): Seller shall make the Premises available for all inspections and walkthrough(s) upon reasonable notice by Buyer. Seller shall, at Seller’s expense, have all utilities on, including any propane, until COE to enable Buyer to conduct these inspections and walkthrough(s).
INSPECTION: When seller gives buyer a copy of PRIOR inspection report: Write on SPDS: Prior inspection report is attached for Buyer’s use and review. This prior inspection should be considered as a supplement, not a replacement of Buyer’s primary inspection.”
Q: I represent the Buyer who made a cash offer on a home to close in 12 days. After the accepted contract, he decided he wants to do an appraisal and I have an appraiser who says he can get it done in the 10 day inspection period. I am thinking we can do this and if there is an issue with the appraisal we can either walk or approach the Sellers to reduce the price. Correct?
A: That is correct. You must complete that during the inspection period. Line #215 in the Due Diligence section of the purchase contract states "...and investigations to determine the value and condition of the Premises."
INSURANCE CLAIMS HISTORY ONLINE: LexisNexis.com, Home seller disclosure report, 888-497-0011, $19.99
Q: When I asked the LA for the CLUE, she stated the buyer says they never had insurance on the property! The tax records show it was purchased in 2012 as an All Cash deal. Should I get something from the seller stating they never had insurance on the property? This is a first for me…
A: Section 4b of the purchase contract, Insurance Claims History:
The purchase contract says the seller can either contact their insurance company or a consumer reporting agency (for example, LexisNexis.com) to provide a written five year history, or, if unavailable from these sources, a written statement from the seller regarding any past claims. This would be considered a material disclosure from the seller as the buyer would be relying on the sellers written statement regarding this.
INSURANCE CLAIMS HISTORY, SELF REPORTING DISLCOSURE STATEMENT: “Seller has owned the property for x years. Seller has been self insured for the entire time of ownership. Seller hereby certifies that there have been no insurance claims during her/his period of ownership.”
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
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).
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/CREDIT REPORTS…Q: Where is the best place to get a credit check done?
A: We encourage agents to suggest that landlords use one of the online resources for that. Landlord sets up an account then invites the potential tenant in to give their private info. That way, you can take yourself out of the equation when it comes to reviewing someone's personal information. If you use ntnonline.com (National tenant network), you can use the promo code "Homesmart" and I think there's some kind of discount to the landlord. There are many other sites like this out there Hope that helps.
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).
LANDLORD TENANT ISSUES: Please know that putting a lock box on the property requires the written permission of the tenant. Alyssa said she did not do this, so the lock box will need to be removed. Also, at this point, the terms of the lease agreement are between the owner/landlord and the tenant. You, as the listing agent cannot give the tenant notice and promise a return of any rent amounts or anything else. This would need to come directly from the owner/landlord. I know it gets difficult sometimes to juggle a rental that's for sale, but these are rules that need to be adhered to.
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)
LANDLORD TENANT ACT, REPAIR ISSUES: ISSUE: We are required to send licensed contractors, which we have done and which we will continue to do. Making statements that our actions are insufficient, that the licensed contractor is unqualified and that you will circumvent our authority is not a misunderstanding on our part. Additionally, Arizona law and your lease require that you use your best efforts to mitigate any secondary damage or it will be YOUR responsibility.
Again, we encourage you to read the ARLTA to better understand your rights and responsibilities as well as the rights of the landlord. This matter is closed.
RESPONSE: They should reach out to an attorney as soon as possible. Please follow this link for further information:
"If you are seeking guidance concerning the Residential Landlord and Tenant Act you may wish to consult an attorney. Public members who are not represented by an attorney, may find it helpful to contact free community legal services:"
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?
LANDLORD TENANT ACT: TREBLE DAMAGES
LANDLORD TENANT ACT: TENANT EVICTION PROCESS:
LANDLORD TENANT ACT: Tenants Rights and Responsibilities Handbook (Arizona)
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