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HOLD HARMLESS (EXAMPLE): "Should Buyer/Seller waive the SPDS (or xxxx), Buyer does so against the advice of HomeSmart. Buyer agrees to defend, indemnify and hold harmless HomeSmart, it’s Designated Broker and Agent of Record against any and all claims that may be made regarding the property (or xxxx) and its condition." BUYER/SELLER IS HEREBY ADVISED TO SEEK LEGAL, TAX AND ANY OTHER PROFESSIONAL ADVICE DESIRED BY CLIENT.” OR “Seller and Buyer acknowledge and agree that (Buyer or ___) is hereby indemnified and shall be held harmless from any and all liability regarding home repair contractors and their scope of work at 123 Main Street, Phoenix, AZ.”
HOLD HARMLESS, INDEMNIFICATION: "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." HOLD HARMLESS LANGUAGE: ALSO SEE WAIVER OF CONTRACT PROVISIONS LANGUAGE WHICH READS AS FOLLOWS: HOLD HARMLESS (OR WAIVER OF CONTRACT PROVISION(S): "Should Buyer/Seller waive the SPDS (or xxxx), Buyer does so against the advice of HomeSmart. Buyer agrees to defend, indemnify and hold harmless HomeSmart, it’s Designated Broker and Agent of Record against any and all claims that may be made regarding the property (or xxxx) and its condition." BUYER/SELLER IS HEREBY ADVISED TO SEEK LEGAL, TAX AND ANY OTHER PROFESSIONAL ADVICE DESIRED BY CLIENT.”
HOME INSPECTION: GIVE COPY OF PRIOR INSPECTION TO NEW BUYER: With the home inspection stuff though, I think we all need to be on the same page that it's best practice for Sellers in possession of previous inspection reports to provide those for disclosure purposes to subsequent Buyers. (Or at least a fully-updated SPDS, right? NO.) I think our advice is to give the report. It's not realistic to think that the SPDS will be complete with all of the information contained in an inspection report, and that's the conversation you have with the seller. If the report is provided, there can never be a question as to whether or not the Seller disclosed all material info, if you try to transfer info into the SPDS, that argument is possible. KF 7/30/2019
HOME WARRANTY: What is a home warranty and should my client get one? Home Owner Warranties (HOW’s) are highly recommended. The standard home warranty is a one-year service contract that protects a resale home buyer or current homeowner against the cost of unexpected repairs or replacement of major systems and appliances that break down due to normal usage. Coverage is also available to home sellers during the listing and escrow period. HOME WARRANTY: USE EXCESS SELLER CONCESSION FUNDS FOR HOW?: Q; I have a listing closing today. My seller agreed to give $5500 in seller concessions. According to the final Lender Settlement Statement, the Buyer only had $4700 in closing costs. The Buyer’s agent just emailed an Addendum stating that the Buyer is now opting for a Home Warranty. I’m assuming to drive up the closing cost amount. I understand that my Seller originally agreed up to $5500, but my Seller already signed a settlement statement showing that they’re getting a certain amount of cash back. What would be the normal way to handle this? A: Hi X, The seller is not required to amend the terms of the contract and allow the buyer to request the HOW. That being said, if the seller committed to $5500, and was ok with that, I wouldn't let that delay or jeopardize closing since he was already onboard with that number. You might have to grind it out though, as I'm sure the buyers agent will take the opposite side of the argument here. Take care and stay safe out there, Jeff. HOME WARRANTY TRANSFER: “Seller to transfer current Home Warranty at no cost to buyer. Current Home Warranty is issued to ____. Expiration date is xx/xx/xxxx. Buyer to contact x at 123-4567 or xx.com for more information.” HOMESMART: Firm state license #LC506032000 Broker MLS Code, Corporate CRIL01 HOMESMART, AGENT CHANGE OFFICES: Q: How do I change HomeSmart offices? I want to move to corporate from Gilbert. A: Hi X, Send an email to our agent services dept and tell them which office you want to move your license to and they will take care of that for you...they will automatically notify ADRE for you as well. Once your request completed, you will receive confirmation from agent services with your new branch office information. (such as: Hi X, Your office transfer to Corporate has been completed. Your new office address is 8388 E. Hartford Dr Suite.100 Scottsdale,AZ 85255. The office ID# is CRIL01 and the license# is LC506032000. Your mail folder will be available over the next few days. Please let me know if you have any questions or concerns. Regards,) IMPORTANT: You will also need to contact your local association (SAAR, PHX, SEVRAR, WEMAR,) to notify them of your branch office change and request a branch office change form for any listings you currently have as your listings also need to be changed over to your new branch office. I have also copied Agent Services on this email. Take care, Jeff. HOMESMART FEES: Hello Jerry, I was informed that you will not be taking commission for the file above and will be paying the HomeSmart fees on your own. In order to pay the fees of $350 to HomeSmart you will need to write a check to the title company so they can pay us. Title Co Commission Instructions should read $300 to HomeSmart to cover your transaction fee’s, please have them correct to show $350 to HomeSmart. Please let us know if you have any further questions. Thank you, Jessica HOMESMART FILES: Agents will not be paid their commissions if the documentation in the transaction file is incomplete. Further, HomeSmart file requirements are in full compliance with ADRE rules. HOMESMART FILE, BOTH AGENTS HOMESMART, ONE AGENT LATE WITH PAPERWORK: Both agents are HomeSmart, Listing file is complete, buyers agent is delinquent with paperwork on the sale file. Please release Listing Agent's commission check to listing agent Valerie Cox. I have copied her on this email. HOMESMART FORM: PROPERTY DISCLOSURE: Used to disclose anything material that you are aware of regarding this property. It is used on REO Listings. HOMESMART: QUARTERLY DUES, DO I GET A REFUND IF I LEAVE HOMESMART? Q: if I left the HomeSmart brokerage and started at a new brokerage in mid-May, would the dues be prorated to me and would a check be sent to me? A: Yes, if an agent severs in the middle of a quarter, the dues that were paid upfront are prorated and a refund check is issued to the agent for the balance. HOMESMART TRANSACTION FEES, ZERO FEES NOT ALLOWED: Q: The Buyer on this transaction is also a HS Agent. He is forgoing his commission on this sale, but in the HS Portal it won't allow me to enter "0" for gross commissions on the Buy Side. Can you please help me? A: Hi Katie, this is a question for the closing dept. I do not believe they allow zero dollars, the HomeSmart transaction fee must be accounted for at a minimum. I have also copied our closing dept on this email. AA: Hi X, The broker is correct. We do need to account for Homesmart fees. If there is no commission received, you will just need to add the fees as commission. NOTE: Whenever a HomeSmart agent is forgoing their commission, their "commission" then becomes just the HomeSmart fees. This has been edited on the file. HOMESMART, TRANSACTION FEES: 2ND AGENT, 2 FEES? Q: I have put a second agent on my transactions, will this incur two transaction fees? I called the broker line and was told no but I see they are on there in RSA. Can you clarify this for me? A: When adding Inhouse agent to a transaction, yes it will add the full fees to the agent account. If you are splitting or one agent is paying fees please indicate that in the special instructions below the commission section. Then when the closing department sends out the commission instructions they will split or remove the fees. HUD OWNED PROPERTY: SPECIAL LISTING CONDITION IN ARMLS...sold “AS-IS”, may not be a SPDS or BINSR, etc… HUD PROPERTIES, CAN I BID ON HUD PROPERTIES? Q: I have a very quick and easy question. Is Homesmart currently an approved R.E. broker with HUD? A: Yes our agents can represent buyers for HUD properties. Our NAID number is CNTNNT7578. You have to register yourself as a bidder on the HudHomeStore.com website before you can submit a bid for a client, just so you know. You cannot list HUD homes though. Hope this helps, Kyle.
IDX: Q: Is there any specific IDX connection requirement for a personal website from HomeSmart ? Also, Do you recommend any particular vendor for IDX ? A: Reach out to ARMLS, they control the IDX vendor relationships, technical requirements, etc. You can reach them at 480-921-7777 or https://armls.com/ IGNORANCE IS NOT A DEFENSE FOR NEGLIGENCE=STANDARD OF CARE ILLEGAL ALIEN: Q: Important question. If I decided to take a rental agreement say for either side, and the applicant was an illegal alien, am I still allowed to service him considering they're using some ITIN or social? How does that work? I mean we are not immigration, and OBVIOUSLY I'd never lend a blind eye to a lender like that bcz it's just wrong right but as far as rentals go, what are the rule? A: Hi Moises, I think that parties need to be advised to seek independent legal counsel to get the details on that type of situation. My guess is that it's fine to rent to a person that's not a citizen, but I'm not 100% certain that there aren't extra guidelines or laws that cover that sort of relationship. That's where these parties should be pointed. KF. IMPROPER BINSR SUBMISSION: CASE STUDY: Q: Buyer only asked for money on the BINSR, how do I handle this? A: NOTE, you will also attach aaronline.com “Request for money on BINSR improper” and the BINSR. Also, you can reply on the BINSR itself, prob best to reply on Notice/Disclosure form, as follows: “Buyer has submitted an improper BINSR. Sect 6i and 6j of the purchase contract state that the buyer can either 1) cancel, or 2) provide seller an opportunity to make repairs. The request in the BINSR for a monetary credit is an offer to amend the contract which the seller rejects. We now consider the inspection period to be over and the inspection contingency to be concluded and satisfied.” See attached article from legal hotline along with a copy of the BINSR. INJURY TO BUYER WHILE SHOWING HOMES: Q: KimPanazzo'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. A: 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 ADDITIONAL FORMS: 1) RESIDENTIAL INCOME PROPERTY ADDENDUM TO AAR RESIDENTIAL RESALE PURCHASE CONTRACT 2)RESIDENTIAL INCOME PROPERTY ADDENDUM TO RESIDENTIAL SPDS
INDEMNIFICATION: SEE “HOLD HARMLESS” FOR LANGUAGE
INDEPENDENT CONTRACTOR AGREEMENT; See Below
INDUCEMENT: noun A thing that persuades or influences someone to do something. "companies were prepared to build only in return for massive inducements" In the law of contracts, the inducement is a pledge or promise that causes an individual to enter into a particular agreement. An inducement to purchase is something that encourages an individual to buy a particular item, such as the promise of a price reduction. Consideration is the inducement to a contract. Real estate property incentive offered for reasons other than individual merit. Anything you offer or give to a person who is, or could be a party to a real estate or mortgage transaction, to assist, persuade or cause that person to enter into a particular real estate or mortgage transaction. Q: have a listing for new build (owner is a Homesmart agent). The listing information included a $7500 seller credit to install an outdoor bbq area. We are under contract and the purchase contract does not make reference to this credit. Is the Seller still required to extend this credit to the Buyer? They are asking about it now (within inspection period). A: Hi X, I think the buyer will be able to argue that was offered as an "inducement" ie, it was used to persuade the buyer and it was material for them to get the credit that was offered in the builders marketing and advertising materials. Why was that not included in the contract...? My opinion is that the seller should honor that, otherwise risk having an issue with the buyer.
INMAN SUBSCRIPTION: Q: Do you happen to have a subscription to Inman that you can share with us CB's? A: Yes, my info is below. Username: bsanchez@hsmove.com Password: 6022307600 Britton Feb 22, 2021
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, APPRAISAL DURING INSPECTION PERIOD: 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." INSPECTION; ASHI, AMERICAN SOCIETY OF HOME INSPECTORS: https://www.homeinspector.org/ INSPECTON, COMPLAINT PROCESS: For home inspectors licensed in AZ: HOME INSPECTORS – Contact the Arizona State Board of Technical Registration, click here: www.btr.az.gov Also, here is a link to ASHI (American Society of Home Inspectors). https://www.homeinspector.org/ Type in the word "complaint" in the search box and it should populate a form to fill out along with instructions for that process. 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. "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, SELF-INSPECT: CASE STUDY: Q: Buyer has elected to waive their home inspection by a professional, but they would like to walk through the home (with me present) to "inspect the home themselves". We do have SPDS and insurance history, which I'll provide in advance of this " self inspection. What is the protocol for this? I know they do not carry enough insurance to be climbing on the roof, up in the attic, etc. What if they break something, hurt themselves? While I want to honor their request, I need to protect myself and possibly protect them from themselves. RESPONSE: A: Hi X, From time to time we have buyers who want to "self inspect" for whatever reason, usually to save the cost $ or fee for that or just don't think it's necessary. Regardless, keep in mind that licensed home inspectors carry additional liability insurance should anything occur such as breaking or damaging items in the home, or god forbid an accident such as falling off a ladder or even off the roof. This would be in addition to the sellers homeowners insurance (which may or may not cover based on the extent and terms of the homeowners policy). That being said, the buyers should NOT be allowed to go on the roof or go beyond a routine visual inspection and walk-through such as testing appliances and in-home systems to ensure they are functional and in working condition (ie, garage door opener, garbage disposal, air conditioner, hot water heater, toilets/tubs/drains, pool pump, etc etc). We do not want anyone who is unlicensed to put themselves, the homeowner or even you and/or HomeSmart in harms way by engaging in activities that are beyond their scope or field of expertise. Also, I would still recommend they have a professional pest inspection which might be required by the lender (ie, termite) and you will still use the BINSR to request repairs and have the bottom of page 2 of the BINSR signed in two places as noted below. (SEE BOTTOM OF PAGE) INSPECTION: SHARE: ALSO SEE “PRIOR 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.” INSPECTION, CAN NEW BUYER GET OLD INSPECTION? SEE CASE STUDIES……..11) CAN THE NEW BUYER GET A COPY OF THE OLD INSPECTION? INSPECTION: SHARE, BUYER WON’T SHARE WITH SELLER: Q: I am representing a Buyer. The Buyer decided to cancel the contract based on the expected repairs and also refuses to provide the Home Inspection report to the Sellers. I emailed her that per the contract lines 222-223, "Buyer shall provide Seller & Brokers upon receipt, at no cost the inspection report ..." A: The Seller's agent requested the report and they are willing to do the repairs for the next Buyer. What to do? A: I would let the buyer know that all parties agreed to abide by the contract when they signed it, it is an enforceable legal document with terms that she agreed to. Someday she might be on the other side, how would she feel if the buyer would not provide that if she were the seller...? How would she feel if the title co would not return her Earnest Money? Really, it's just the right thing to do and puts you (the agent) in a difficult position if she refuses to give the seller their copy. Hope this helps, JT. INSPECTION WRAP UP—CAN SELLER’S AGENT ATTEND INSPECTION WRAP UP? Q: 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? Can she insist on that? Does the seller have a right to have his agent present? Thoughts? A: You can ask your buyer, but it's fairly 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 A2: They can certainly request to be there...some sellers insist that their agent attend all inspections, etc. I know sometimes our agents want to attend the wrap up too, even when they are the listing agent. So, I think it is ok if they do attend the wrap up or summary portion of the inspection. INSPECTION, WAIVER, 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, WAIVED, WHAT DO WE NEED IN THE FILE? Q: The buyer waived inspections in the contract and signed page 2 of the BINSR waiving the inspections. Please advise. A: We will always need page one of the BINSR with one of the boxes marked (accept, reject or repairs requested) and the buyers signature on page one as well. This is true even when buyer waives the inspection (as in your case here). This is confirmation that the buyer does in fact accept or reject the property, whatever the case may be.
INSPECTION: WHY HAVE AN INSPECTION? Finding Leaks, Revealing Issues, Evaluating the Structure, Helping the Buyer: ADVANTAGE INSPECTION SERVICE: HERE
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 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. Here is sample language if the seller does end up providing a written statement due to not being insured. There is also a new form in zipForms titled Notice/Disclosure that you could use for this, or you could draft your own "word" document as well. 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.” Buyer understands that there will be no insurance claims history report on this property provided by seller other than this self-disclosure. Seller_____________________ Date ________________ INSURANCE: Hey, Jessica. Unfortunately, similar to legal or tax advice, we're not insurance experts so we can't advise the owner on this matter. If I were you, I'd look into a business owner's policy for yourself and possibly recommend marketing the unit to investor buyers on a sight unseen basis. Obviously, that will result in wholesale vs retail offers, but you can't have your cake and eat it too. Hope that helps! |
