MLS Training with Laura Graber at our office on Tuesday, Sept. 17th at 1:30P..

posted Sep 7, 2019, 11:17 AM by Brian G. Walsh   [ updated Sep 7, 2019, 11:17 AM ]

Hope you can make it. Thanks, BGW

Listing extensions & price changes..

posted Aug 26, 2019, 10:43 AM by Brian G. Walsh   [ updated Aug 26, 2019, 1:47 PM ]

Effective immediately we will be using an amendment to our listing agreement when changing a listing price or extending a listing. I have attached the form for your review and you can find it under Agency Agreements in our Documents (it is called Listing Amendment). I have also set up a Docusign template to make using it a little easier. Texts, emails & the MLS status change form will no longer be accepted. Thanks very much, BGW

Front desk staffing..

posted Aug 8, 2019, 2:06 PM by Brian G. Walsh   [ updated Aug 8, 2019, 2:06 PM ]

Good day:

Nora will be going back to school starting Monday, August 19th.  She will continue to work on Fridays moving forward and I have hired Carrie Simon to work Monday - Thursday.  Carrie won't start until Tuesday September 3rd (the day of our next meeting) so I will be covering Monday - Thursday for those two weeks.  Carrie is an upbeat and personable gal and I am sure you will enjoy working with her.

Thanks,

BGW

Shopping offers: So is it...illegal? Unethical? Or is it just not right??

posted Jun 22, 2019, 8:23 AM by Brian G. Walsh   [ updated Jun 22, 2019, 8:24 AM ]

By Peg Ritenour, OAR Vice President of Legal Services/Administration

As multiple offer situations become common place, REALTORS are increasingly running into situations where the seller wants to “shop” an offer. Here's an example: Let's say you represent a seller who has received three offers to purchase. One of the offers is higher than the other two, but the seller prefers the closing and possession dates on the lower offers. He directs you to disclose the price of the highest offer to the agents who represent the buyers with the lower offers, instructing them that their clients will have to match or beat that price. Is this legal for a seller to do? As the listing agent, is it OK for you to do this or will you run afoul of the license law or the Code of Ethics?

Certainly the buyer who wrote the higher offer will think it's illegal, unethical and just plain wrong for the seller or the listing agent to disclose his offer to other buyers. Why? Because most buyers believe that the terms of their offer to purchase will be confidential and will not be revealed to other buyers. Further, buyers believe such a disclosure would be “unfair”. These assumptions are false in most cases.

First, as to the seller, under Ohio law a seller does not owe a buyer any duty of confidentiality regarding the fact that a buyer has made an offer or the terms of that offer. Therefore, even though the buyer may think it's unfair, the seller is free to disclose the terms of a buyer's offer to anyone he wants.

The only way a buyer can prevent such disclosure by a seller would be to negotiate a confidentiality agreement with the seller in advance of submitting an offer. (Including such a confidentiality provision in an offer is not effective as the seller will not have agreed to this term unless he accepts the buyer's offer.) Because a confidentiality agreement would be a legally binding agreement between third parties, it must be drafted by an attorney. Buyers seeking an assurance from the seller that their offer will not be disclosed to competing buyers should consult their personal attorney to prepare such an agreement. As a brokerage, if you find that buyers are asking for a confidentiality agreement you may want to have your brokerage attorney draft a form that can be provided to buyers.

As to the listing agent's legal and ethical duties, if the agent represents only the seller, under both the license law and the REALTOR Code of Ethics, he owes a duty of confidentiality to the seller only. The fact that the seller has received multiple offers and the terms of those offers may be considered confidential by the seller and therefore the listing agent cannot take it upon himself to disclose that a multiple offer situation exists or the terms of any offer unless he has been instructed to do so by the seller. If he receives such instructions, the listing agent's fiduciary duty of obedience to the seller would require him to carry out that directive.

This issue becomes more complicated if the listing agent is acting as a dual agent also representing the buyer whose offer the seller has instructed the listing agent to disclose. That is because as a dual agent the listing agent owes a duty of confidentiality to the buyer as well as to the seller. As such, he cannot disclose the terms of the buyer's offer to competing buyers without that buyer's consent, which the buyer is unlikely to give. Without such consent from the buyer client, the dual agent is unable to follow the seller's instruction to disclose the terms of the buyers offer to competing buyers. Of course there is nothing the listing agent or buyer can do to prevent the seller from directly providing a copy of the buyer's offer or disclosing its terms to a competing buyer or their agent unless the seller has entered into a confidentiality agreement as discussed above.

Due to buyers' confusion about the confidentiality of offers, Standard of Practice 1-13 of the NAR REALTOR Code of Ethics requires REALTORS to address this issue with their buyers. Under this Standard, REALTORS are required to advise their buyer about the possibility that the seller or listing agent may not treat the existence, terms or conditions of their offer as confidential unless the seller has agreed to do so under a confidentiality agreement. This disclosure must be made at the time a REALTOR enters into an agreement to represent a buyer. It can be done verbally, but it is recommended that REALTORS do so in writing. This could be included in a buyer agency contract or in the brokerage's Consumer Guide to Agency.

In today's market, sellers are largely sitting in the driver's seat and are increasingly pitting one buyer against the other to achieve the optimum terms on the sale of their property. Helping clients understand the realities of the negotiation process is crucial to establish realistic expectations and avoid buyers get turned off by the home buying process.

-- Originally published in the Ohio REALTOR magazine (Summer/Fall 2015)

Legally speaking: Can I write a purchase contract for parties involved in a FSBO transaction?

posted Apr 23, 2019, 5:06 AM by Brian G. Walsh   [ updated Apr 23, 2019, 5:06 AM ]

By Peg Ritenour, OAR Vice President of Legal Services/Administration

Q: I was contacted by a former client who found a FSBO he wants to purchase. He and the seller have already negotiated the terms, but they want me to draft the purchase agreement and will pay me $500.00.  Can I do this?  Who would I represent?  Am I required to show the buyer the house before writing the purchase agreement?

A: While it is important to clarify who you will represent in this situation, the first and most crucial issue that must be addressed is the potential risk that you could be found to have engaged in the unauthorized practice of law by merely drafting a contract for the buyer and seller. Under Ohio law, drafting legal documents for third parties is conduct that requires a license to practice law. However there is a exception that permits a real estate licensee to fill in the blanks on pre-printed, form purchase contracts and leases that have been prepared by an attorney. This is because such conduct is perceived as falling within the ordinary course of a licensee's business duties. But in the situation where a licensee is being hired to merely write a purchase contract on behalf of buyers and sellers for a fee, such conduct could be considered the practice of law if you are not also performing any other duties that are part of your real estate related services as a licensee. Thus, to avoid a claim that you engaged in the unauthorized practice of law, you need to make sure that you are providing other services that you would normally perform as a real estate licensee. Examples of such duties would include showing the property, reviewing comparable sales in the area, making sure that the seller has provided the buyer with the Residential Property Disclosure Form and the Lead-based Paint Form (if required), assisting with the financing and inspection process, and other steps necessary to see the transaction through to closing. In determining what services will be provided, it is important to understand that under Ohio licensing law you must establish an agency relationship with either the seller, the buyer or both. Moreover, Ohio law also specifies that you owe that client(s) fiduciary duties of due care and diligence, obedience, confidentiality, disclosure, etc. In this scenario you should clarify with the parties who you will represent, what services will be provided, what your compensation will be and who will pay it. Your agency choices would be to represent the seller only, the buyer only, or both as a dual agent. Once that is decided you will be able to better determine the services that you will perform. Of course this agreement should be reduced to writing and because it will likely constitute an agency agreement, it must contain the fair housing language and logo and a definite expiration date.

This content is copyright 2019 Ohio REALTORS.

Zillow / Trulia syndication..

posted Apr 12, 2019, 12:17 PM by Brian G. Walsh   [ updated Apr 12, 2019, 12:17 PM ]

Good day TFPs,

On Monday we will be switching methods for syndicating our listings to Zillow from HomeSmart to our MLS.  HomeSmart's system has been relatively reliable but we have had a few hiccups so I did my due diligence and by going with the MLS method we will remove two links from the chain which will lower the risk of issues.  You do not need to do anything but we may have a short period of down time where our listings don't appear on Monday.

Thanks,

BGW

Home Inspector Licensing effective 4-4-19 (how it affects us)..

posted Apr 11, 2019, 10:23 AM by Brian G. Walsh   [ updated Apr 11, 2019, 10:24 AM ]

If a real estate broker or real estate salesperson provides the name of a home inspector to a purchaser or seller of real estate, the broker or salesperson shall provide the buyer or seller with the names of at least three home inspectors. Any home inspector named shall be licensed under Chapter 4764. of the Revised Code.

Providing a purchaser or seller of real estate with the names of licensed home inspectors does not constitute an endorsement or recommendation of those inspectors and does not obligate the broker or salesperson to satisfy any due diligence requirements with respect to the licensed home inspectors.

This section does not require a broker or salesperson to provide purchasers or sellers of real estate with information on home inspection services or home inspectors. No cause of action shall arise against a broker or salesperson for providing or failing to provide the names of licensed home inspectors or information on home inspection services or for failing to recommend a licensed home inspector to a purchaser or seller


Amending the residential property disclosure after it has been completed..

posted Apr 9, 2019, 6:18 PM by Brian G. Walsh   [ updated Apr 9, 2019, 6:18 PM ]

At our meeting we discussed the above topic.  My stance is the same as it is with a fully executed contract (use a separate amendment, do not update or replace a completed document).  If something occurs after the home is listed and it requires updating the property disclosure I would ask that you please use a new form that I have provided in the Addenda section of our Documents entitled Residential Property Disclosure Amendment.  I discourage updating the existing disclosure or replacing it with a new one as it lends towards confusion and possible errors in updating the form in supplements and in our paperless system which can fall back on us should the buyer not receive proper documentation.  Thanks, BGW

Buyer / Seller Letters..

posted Apr 4, 2019, 9:59 AM by Brian G. Walsh   [ updated Apr 4, 2019, 9:59 AM ]

Prior to our meeting I spoke Peg Ritenour at OAR to get some guidance on above and we had a discussion about it at the meeting.  It is too much to spell out here so if you use either of the above or plan on it please get with me and we can discuss it.  Thanks, BGW

Buyer Broker Compensation field in MLS..

posted Mar 31, 2019, 11:31 AM by Brian G. Walsh


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