Real Estate Attorney? (Austin, Howe: sales, home, transfer)

[TexasHorseLady]

You're quoting E.(1), having to do with review of the title commitment, not the writing of the offer. And, yes, as I've said repeatedly, I go over every paragraph (while emphasizing that I'm not an attorney and cannot give legal advice and if they wish to consult an attorney, they should do so).

You didn't answer my question, though:

Short of refusing to write the offer for our clients and telling them they have to go to Austin-Willy (or another real estate attorney) to write it for them, what solution would you find acceptable?

[Rakin]

What a red herring. Surely someone as smart as you is not trying to claim there are no bad agents.

AW - Funny how someone from a profession that is know for it's bad behavior is on a forum throwing out insults. I wonder if there are as many shyster lawyers around as you feel like there are bad agents?

I would agree real estate agents could do a lot to improve their image & profession. But in the overall list of professions to be cleaned up, I believe lawyers rank above Used Car salesmen.

OK, politicians might be lower, but then again most politicians are lawyers.

[Austin-Willy]

If you're familiar with that provision, why did you imply that the form did not unequivically recommend the buyer hire an attorney? Go back to the OP and you'll see he was asking about involving an attorney at any stage, not only when writing the contract.

To answer your question, I guess my suggestion would be for all agents to fully comply with the Texas Administrative Code, and "not attempt to prevent nor in any manner whatsoever discourage any principal to a real estate transaction from employing a lawyer."

I realize that you profess to not do so, but since you find it useful to read back through the thread, you tell me: have any agents (including yourself) discouraged, in any manner whatsover, the employment of a lawyer?

(answer: suggesting that an attorney is not necessary = discouraging)

Now, since you put a question to me, I'll repeat my question to you: tell me why a buyer should not have an opportunity to object to subdivision restrictions, when they have an opportunity, generally speaking, to object to title? I realize this is outside your qualifications, but you must have a reason, since you feel comfortable recommending this form to your clients.

[Austin-Willy]

Rakin, from the standpoint of anticompetitive behavior, agents have lawyers beat. I don't think there is much disagreement about that. Price fixing, monopolies... I don't think you're in much of a position to sling mud.

[TexasHorseLady]

When a HOA is involved, it's standard procedure to include the appropriate addendum that DOES give the buyer the opportunity to object to the provisions and get out of the contract, and that's what I do. (In fact, such a recommendation is made in the contract itself. I refer you to the last sentence in E(2): "If Buyer is concerned about such matters, the TREC promulgated Addendum for Property Subject To Mandatory Membership in a Homeowner's Association should be used.") That's in the contract itself, and the Addendum itself gives a deadline for the time the information is to be provided to the Buyer and specifies the deadline by which the Buyer should object.

As a Buyer's Agent, I try to get the restrictions before the Buyer makes an offer so that they can be reviewed prior to making that offer. As a Seller's Agent, I try to get a copy so that I can have them available if a Buyer or Buyer's agent requests them for a similar reason (though these days many are online, of course). Having seen deals fall through (not my own, but those of others) after there's a contract specifically because of the restrictions (which would seem to indicate that, contrary to what you're saying, there IS a procedure in place to allow the Buyer to object to the restrictions and, indeed, the documents themselves bear that out - 7 days after receiving them if the seller provides them, and if the seller fails to provide them, prior to closing - actually, it says, for any reason within 7 days after they are provided or before closing, if they aren't, to be exact), it seems to me that information should be available as early as possible to avoid undue angst, and expense on everybody's part.

Have you read the addendum?

[Rakin]

Price fixing, monopolies...

You couldn't be farther from the truth. It's a very competitive business and neither of these situations exist.

I'd like to know any company / brokerage that holds a monopoly in this business. Can you name one?

We are all free to set our prices, just like the legal business. Do your fees run less or higher then your competitors? Why should anyone pay you more that the next attorney? Appears to me you guys are all about equal in training & knowledge so your fees should be about the same.

Oh I see, knowledge, experience and skill might have something to do with you getting your income. Funny, that's how much of ours is determined also.

I'm sure you have skills I'll never have but when it comes to helping someone purchase a home I'd bet I can do a much superior job than your abilities allow.

For the record, I've never advised anyone to not seek legal help if needed on a contract. I think it's good advice if thats what they'd like.

[Austin-Willy]

Originally Posted by TexasHorseLady

Have you read the addendum?

There was already a discussion about the addendum on this thread. The addendum is required only where there is mandatory membership in an HOA. There are circumstances where membership is not required, but subdivision restrictions do exist. In those cases, the addendum is not used and the buyer is at risk.

[TexasHorseLady]

Are you talking about deed restrictions? I request those, as well, if they are a concern for my buyers. That would fall under due diligence that is to be performed during the option period, I would think. During which time, as I'm sure you know, the buyer can also walk for any reason.

[Austin-Willy]

Originally Posted by Rakin

Appears to me you guys are all about equal in training & knowledge so your fees should be about the same.

You hit the nail on the head (other than the ridiculous claim that all lawyers' abilities are the same). If the industry colludes to set a certain fee, what do you call it?

Originally Posted by Rakin

I'd like to know any company / brokerage that holds a monopoly in this business. Can you name one?

Have you not followed the litigation relating to this?

"SEPTEMBER 8, 2005
The Department of Justice's Antitrust Division today filed a lawsuit against the National Association of Realtors (NAR), challenging a policy that obstructs real estate brokers who use innovative Internet-based tools to offer better services and lower costs to consumers. The Department said that NAR's policy prevents consumers from receiving the full benefits of competition and threatens to lock in outmoded business models and discourage discounting."

Justice Department Sues National Association of Realtors for Limiting Competition Among Real Estate Brokers

and:

"Tue May 27, 2008
The National Association of Realtors will open its vast listing of homes for sale to cheaper, Internet-based brokers in an agreement to settle a federal lawsuit, the government said in a statement on Tuesday."

Realtors to open listings to settle lawsuit | Reuters

[Austin-Willy]

Originally Posted by TexasHorseLady

That would fall under due diligence that is to be performed during the option period, I would think.

You are wrong. There is a separate title review period (NOT in the addendum, which is only used where there is mandatory membership in the HOA, but in the body of the contract) which commences when the seller causes the title company to deliver the commitment and title documents (e.g. the restrictions) to the buyer. This is when title documents are intended to be reviewed. The seller typically doesn't have to cause those documents to be delivered until after the option period has expired (though in many cases they do). Then, the buyer has a right to object or terminate if they don't like something, unless what they don't like is a restrictive covenant common to the subdivision.

Originally Posted by TexasHorseLady

Having seen deals fall through (not my own, but those of others) after there's a contract specifically because of the restrictions (which would seem to indicate that, contrary to what you're saying, there IS a procedure in place to allow the Buyer to object to the restrictions...

Based on your logic, since I've seen FSBO deals work just fine, I guess we can all agree that agents aren't really needed after all.

Again, I'm not asking you how you operate so as to protect your clients. All agents may not be as diligent as you, but they are using the same contract form.

Please "tell me why a buyer should not have an opportunity to object to subdivision restrictions."