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Source: TREC ADVISOR - AUG. 2016
It has come to our attention at the Commission that in a hot market some buyers’ agents are drafting and adding problematic language into the contract, generally into the One to Four Family Residential Contract (Resale) Paragraph 11. Special Provisions. For example, something like this is inserted:
“Buyer will pay above appraised value” or “Buyer will pay $1,000 more than any other offer.” In some communities, agents are adding language to special provisions written by a title company or the real estate brokerage’s attorney. All of these practices violate the License Act and Commission Rules. The following Q & A’s explain why!
When can a license holder inserts language into paragraph 11, Special Provisions that makes the purchase price vary based on either other offers or an appraisal?
Short answer: Never! Making the purchase price vary from the amount set out in the contract based on outside variables could affect the rights and remedies of one or both of the parties to the contract and is considered the unauthorized practice of law. Please note that license holders cannot draft inserts or addenda for these purposes either.
Can an attorney for a license holder or an attorney for a title company draft language for such contingencies that the license holder can then recommend their clients insert into paragraph 11, Special Provisions?
Short answer: No. License holders are prohibited from employing an attorney, directly or indirectly, to represent the interest of a party to a transaction when they are acting as an agent of their client. It creates confusion and possible conflict as to who the attorney represents and can create additional liability for the broker if the suggested language results in a problem down the road.
Can an attorney for a party to a contract draft language for such contingencies that the party can then insert into paragraph 11, Special Provisions?
Short answer: Yes. If a party to a contract is the attorney’s client, the party can then follow any advice the attorney gives the party regarding making changes to that particular contract. Keep in mind that the license holder may not recommend or make any additional changes to the contract, but simply follow the party’s instructions based on the party’s consultation with the party’s own attorney.
Can an attorney for a license holder or an attorney for a title company draft a contract form or addendum for use by a license holder’s clients?
Short answer: Only under very specific circumstances. If there is no standard contract form or addendum for that type of transaction promulgated by TREC, a licensed Texas attorney may prepare a standard contract form or addendum and authorize its use for a particular kind of transaction. Keep in mind that unless the attorney specifically authorizes the use of that form by all license holders or the general public, the license holder or title company who hired the attorney is the only one authorized by the attorney to use that form. In other words, license holders cannot legally use a contract or addendum form for their own clients that was created for another brokerage in a different transaction without express authorization from the attorney who created the form.
“The pathway to TREC disciplinary action is sometimes paved with good intentions.” (Standards & Enforcement Services division staff attorney.) “I had good intentions,” however, is not a defense to a violation.
Your Helpful Personality May Not Always Help Many individuals who work in real estate brokerage have friendly personalities and like to “help” people. A sales agent or broker may do something in a transaction that is inappropriate not because they want to do wrong but because they believe a client expects it, has requested it, or will be pleased. The Commission hears about these situations when someone files a complaint against the license holder. For example: A busy client might ask an agent to “please go ahead and sign my name to that amendment.” That should not be done unless the agent has a valid power of attorney from the client. An energetic agent might have extra time before a showing appointment and decide to “tidy up” the residence by doing dishes and making beds before prospective buyers arrive. The occupant of the property may be offended and file a complaint. Yes, this happens. Source: TREC Advisor 20160201
The listing or sale of property for an owner who might not be competent to provide informed consent should be done with extreme caution. For example, the owner might be elderly and suffering from diagnosed dementia. In such a situation, the license holder should perhaps require that the owner’s attorney or someone with a power of attorney from the owner review the documents and provide necessary signatures on behalf of the owner. Responding to a complaint or lawsuit filed by a suspicious relative after the sale can be an unpleasant, expensive, and time-consuming experience. Being well-educated on these issues and using good judgment in your real estate brokerage activities can allow you to continue to be the “helpful” agent or broker that you want to be while still limiting the possibility of disciplinary action. - SOURCE: TREC Advisor 20160201.
Friends and Family? The Rules Still Apply. Be Careful. A license holder may sometimes take a “short cut” when working with a family member or friend. This is risky. The license holder should not assume that the friend or relative understands real estate brokerage. An Information About Brokerage Services form should still be provided at the time of the first substantive communication, all paperwork should still be prepared carefully, no “under the table” rebates should be given or promised, and the importance of a professional property inspection, other property issues, and possible amendments during the option period should still be discussed and acted upon.
Recently a few agents in our company have had questions regarding what is legal when it comes to advertising rules. Here is some helpful information to clear up any issues regarding advertising and font size. On March 9, 2012 some new rules passed by TREC explain how agent advertising must be clear and conspicuous to the public. The advertising must include the either the individual name of the sponsoring broker, the corporate entity name of sponsoring broker or DBA of sponsoring broker on file with TREC. No size requirement was mentioned, however TREC did add a policy which states a safe harbor which states that if the font size of the brokers name is at least half the size of the largest font this would be sufficient in size for TREC enforcement. Agents should get approval from the sponsoring broker on all advertising if the agent is unsure about advertising rules. Listen to the latest Texas REALTOR® Update podcast for more information about these rule changes. Click here to listen.
CONGRATULATIONS TO CHRIS BAIAMONTE FROM RICHARDSON, TEXAS FOR JOINING US. WE ARE SO EXCITED TO HAVE YOU ABOARD!
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