January 25th, 2016 at 11:30 pm
Question: I am the listing agent for a single family home. I gave the disclosures to the sellers to complete. I just got the Transfer Disclosure Statement (TDS) form back with nothing completed other than the words “Not Applicable” written across the form. The sellers said they are exempt from completing the TDS because they have never lived in the house. Is that right?
Answer: No. You can advise the sellers in writing that non-owner occupied sellers of a residential property up to 4 units are not exempt from the TDS, NHD, and other disclosure requirements. You can attach? for their review the TDS exemptions set forth in section 1102.2 of the California Civil Code and/or C.A.R.’s legal article on TDS exemptions, available at http://www.car.org/legal/disclosure-folder/tds-exemptions/ (password protected for C.A.R. members only). You can also point out that, even if they don’t know certain things about the property because they haven’t lived there, writing “Not Applicable” across the form is unlikely to satisfy the TDS law’s specific requirement to act in good faith in completing the form (Civil Code section 1102.7). The sellers should simply complete the TDS based on their actual knowledge. Under the comment section at the bottom of page 2 of the TDS, they can explain that they have never lived in the house to alert the buyers of that fact.
January 18th, 2016 at 11:00 pm
Question: I am the buyer’s agent. We submitted an offer and, in response, we received a Seller Multiple Counter Offer (SMCO). We then submitted a Buyer Counter Offer (BCO) #1, which the seller accepted. However, the seller never signed in the box at the bottom of the SMCO (paragraph 8) to indicate acceptance of our buyer in the multiple offer situation. Should we ask the seller to sign the bottom of the SMCO?
Answer: Yes, that’s a good idea. Your buyer arguably has a valid contract without the missing signature. However, as a matter of prudence, getting the missing signature now prevents the seller from trying to use the lack of signature against the buyer at a later time. After all, the SMCO as revised in December 2015 specifically states in paragraph 2 that the “Seller shall have no duties or obligations” to sell unless, among other things, “Seller signs in paragraph 8.” Next time you counter an SMCO, you can just insert the following language in your BCO to avoid having to go back to get the seller’s missing signature:? “Seller agrees that, by signing in paragraph 4 below, Seller is entering into a binding Agreement with Buyer, regardless of whether Seller signs in paragraph 8 of the SMCO #1.”
January 11th, 2016 at 7:50 pm
Many new laws have recently been enacted concerning homeowners’ associations (HOAs) for condos, townhomes, and planned developments. Here are some highlights:
These new laws and many other new laws that may affect your real estate practice are set forth in C.A.R.’s website at http://www.car.org/legal/recent-news-laws/2016laws/.
January 4th, 2016 at 3:29 pm
Question: I am the listing agent for a? lease. Mr. Tenant X, who is not represented by any agent, is interested in renting the property. Am I obligated to be a dual agent for both the landlord and tenant?
Answer: No, no, no. Under one scenario, Scenario A, you can voluntarily create an agency relationship with Mr. X which generally includes helping him rent this property, showing him comps, and if this property doesn’t work out, helping him rent another property. In Scenario A, you are acting as a dual agent. Under Agency Confirmation (paragraph 44) in the C.A.R. Residential Lease Agreement (LR), you should check the box that you are representing “both the Landlord and Tenant.”
Alternatively, under Scenario B, you can just facilitate the renting of the property to Mr. X as the lease listing agent only. Do not act as Mr. X’s agent. Under Scenario B, you don’t have to worry about protecting Mr. X. After all,? he comes into these lease negotiations with the majority of landlord-tenant laws already stacked in his favor. For Agency Confirmation, check the box in the LR stating that you are representing the “Landlord exclusively.”
You will receive the same commission in Scenario A or B under your Lease Listing Agreement which states in part: “Owner agrees to pay to Broker [compensation] for services, irrespective of agency relationships” (emphasis added).? Yet, by? opting for? Scenario B, you will substantially minimize our exposure to potential liability because Mr. X cannot hold us to the? higher standard of? care of a tenant’s fiduciary agent.
December 26th, 2015 at 6:32 pm
A new California law allows certain homeowners to create a revocable transfer on death (TOD) deed to leave their homes to their loved ones without the hassles of a will, trust, or probate. Starting January 1, 2016, a TOD deed can generally be used for single family residences (including condos) up to 4 units. For more information, click? here for? our TOD flyer. You can customize the flyer to send to your clients, use at open houses, and? solicit homeowners in your farming area, especially those with only one name on title.
