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Old 08-06-2012, 08:23 PM
 
12,973 posts, read 12,149,749 times
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Quote:
Originally Posted by Captain Bill View Post
That article discusses "blank" forms.

The AZ 10-pagePurchase Contract does not fit the description of a blank form.

The fillable portions are for Names, addresses, dates, prices, and terms.
After going back and looking through the literature I think Capt Bill has some reasonable right on his side.

What we are really into is whether a contract that is available in the ether can be copyrighted. And the answer appears to be yes.

The actual issue is one that is widely practiced in the legal community. And it is complex and unresolved.

The problem is that there are a vast number of issues about standard contracts and their copyright. Practically it appears virtually no one has won a significant copyright action on a widespread contract.

The problem of course is that the language in contracts is often centuries old. And likely has been adopted into the modern version. So who is the copyright holder. There are other doctrines that also apply...but basically how much of this is "original" to AARs.

First question is what was there before the latest version of AARs? Then what was there before that? To hold that the AARs team developed all new language would be a stretch. If AARs wishes to claim that I would think they lose if you can find any similar clauses prior to AARs or in parallel universes.

Then you get off into whether the individual clauses define things that can't be said any other way. If so no CR.

I would note that the attorneys en mass have failed to resolve this issue with respect to their forms...

And that it does not appear any RE Brokerage has successfully defended theirs...

So yes they have a copyright. But no they have no basis for presuming it will hold.
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Old 08-06-2012, 09:22 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,678,138 times
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Quote:
Originally Posted by lvoc View Post
...
First question is what was there before the latest version of AARs? Then what was there before that? To hold that the AARs team developed all new language would be a stretch. If AARs wishes to claim that I would think they lose if you can find any similar clauses prior to AARs or in parallel universes.

Then you get off into whether the individual clauses define things that can't be said any other way. If so no CR...
If you haven't already, you can view the Purchase contract here:

AAR Forms and Related Materials

They make periodic revisions as events happen, so as to keep up with what is happening in the field as reported by Realtors, their contract committees, and legal counsel.

On the current contract several changes were made, (and I'm using my faulty memory) the addition of lines 30 through 39, as the result of short sale sellers moving out and taking all the fixtures, when they were in the home when the buyer entered into the contract. The seller is now long gone, and the bank won't pay for the missing items so the buyer is stuck, unless he wants to cancel. Now the listing agent has that language to point out to the seller to remind them that what's there stays unless they state in the mls that something does not convey.

Loan contingencies was modified to include the Prior to Document conditions. This was to protect the buyer from losing their earnest money if underwriting would not give approval without PTD conditions by 3 days prior to close of escrow.

Another change was the language replacing LSR (Loan Status Request) with a more comprehensive Pre-Qualification, and the requirement for buyers to provide an LSU (loan status update) within 5 days of contract. The LSU is meant to help protect the seller by having the loan officer fill out and signing the form stating exactly what has taken place with the loan. The seller can also request additional periodic updates.

Someone may recall some other changes, but these are the ones I recall.

I don't think there is much in the contract that I would consider to be boiler plate, such as Time is of the Essence, Copies and Counterparts, Days reference, and the jurisdiction state.

Much of their language was developed over a long period of time as they progressed from contracts being heavily weighed to protect the seller, (Caveat emptor) to the contract today which is meant to protect buyers and sellers evenly.
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Old 08-06-2012, 10:35 PM
 
397 posts, read 491,621 times
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Quote:
Our TX forms are available as downloads to the public.

TREC - Contract Forms, Addenda, Notices

They are created by Attorney's, the Public and RE Professionals for the state mainly for RE agent use but not exclusively.

Quote:
Ok, here is a link to the AAR forms which are copyrighted and marked "SAMPLE", but they are legible.

AAR Forms and Related Materials
Interesting that neither state's RA posts the listing agreement contract. I guess you would not want the sellers to see this lopsided contract prior to signing.
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Old 08-06-2012, 10:39 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,374,882 times
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Quote:
Originally Posted by RE Skeptic View Post
Interesting that neither state's RA posts the listing agreement contract. I guess you would not want the sellers to see this lopsided contract prior to signing.
There is no "State" listing contract in Az (or Texas for that matter) due to the individual Multiple Listing Services. Here in the Phoenix Metro area, we have ARMLS - Arizona Regional Multiple Listing Service. Their listing contract IS AVAILABLE at armls.com.

Commissions are all negotiable so there is no reason for a seller NOT TO SEE the form.
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Old 08-07-2012, 06:58 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,678,138 times
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Quote:
Quote:
Ok, here is a link to the AAR forms which are copyrighted and marked "SAMPLE", but they are legible.

AAR Forms and Related Materials
Quote:
Originally Posted by RE Skeptic View Post
Interesting that neither state's RA posts the listing agreement contract. I guess you would not want the sellers to see this lopsided contract prior to signing.
The thread here is about whether the OP should use a Staples contract, and it graduated into a discussion about copyrighted contracts.

The link that I posted are to the contracts that AAR has made public as SAMPLES so the public can see them. However, they are marked as copyrighted, and clearly have SAMPLE marked on them so they cannot be used.

I posted the link so Ivoc could look through the contract to further discuss the language in the contract because he was being very constructive in his evaluation of whether certain contracts could be copyrightable.

The discussion is not about real estate agents, their practices, their commissions, or whether the contract is lop sided or not. Another poster has tried to denigrate the discussion into a Realtor commission rant, and the moderator has warned posters to keep it civil. .
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Old 08-12-2012, 09:12 PM
 
Location: Illinois
718 posts, read 1,750,616 times
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And, no matter what the state...Realtors cannot practice law. Very specific, and the punishment is outlined. If you choose to do differently, good luck to you, but I wouldn't want you to be my realtor. End of story.
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Old 08-12-2012, 09:18 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,374,882 times
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Quote:
Originally Posted by LynnKK View Post
And, no matter what the state...Realtors cannot practice law. Very specific, and the punishment is outlined. If you choose to do differently, good luck to you, but I wouldn't want you to be my realtor. End of story.
With due respect, the Arizona Supreme Court has ruled, on several occasions that real estate licensees (no just "REALTORS") have the right to "practice law" albeit on a very limited scope. If you think about it, we can prepare binding documents of all types to consummate a real estate transaction, starting from a blank sheet of paper. We are not required to use Legal Counsel in Az. Licensees can create all the language necessary from scratch.

Mind you, I'm not suggesting that licensees shouldn't recommend attorney's (IMO they should).
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Old 08-13-2012, 12:12 PM
 
12,973 posts, read 12,149,749 times
Reputation: 5398
Yup - It is reasonably clear that RE Agents in the west practice a limited form of law. What they do would clearly be a violation in the east. The inability of eastern agents to understand this is really quite strange.

The legal gal from the real estate board responded to a request for cases. Her response was that AAR enforces its copyright, has taken cases to court successfully but has won no publishable cases.

That is the standard for questionable copyright. You enforce with the threat of expensive litigation...not with successful law suits.

Anyone who wants to see what happens when such a strategy backfires might want to follow the Review Journal Copyright story at...

VEGAS INC
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Old 02-13-2013, 07:07 AM
 
Location: southwest TN
8,178 posts, read 14,264,444 times
Reputation: 14779
Quote:
Originally Posted by Omaha Wind View Post
Hi, there is really no need to buy those forms from an attorney in my opinion. That is just a waist of large amounts of money because all they use are templates as well. Staples should be fine and just in case here is another bunch of forms I have found so inexpensive and useful it is amazing.

Real Estate Forms ~ How to Master Real Estate Secrets

I hope this helps you. Take care ok.
I'd not rely upon the opinion of someone who uses body parts to mean a waste of time (waist not waste).

But note that most attorneys at least understand the meaning of the forms they are using. A simple word in English may have a legal meaning that will have ramifications the user of that form/boilerplate does not wish.
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Old 02-13-2013, 01:52 PM
 
Location: North Idaho
21,008 posts, read 25,794,422 times
Reputation: 39409
Real estate forms are area specific. Don't use generic forms.

For leases, most states have an association of apartment managers and they will sell a lease written by a local lawyer.

For purchases, the board of realtors forms are best, and I've always been able to hire an agent to do my paperwork for a couple hundred dollars.

If in doubt, it is worth the money to pay a local lawyer to do it.
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