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Old 08-07-2012, 12:34 PM
 
Location: Central Texas
19,952 posts, read 36,571,181 times
Reputation: 21563

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Quote:
Originally Posted by marksmu View Post
In Texas, lawyers are exempt from the entire Real Estate Act except we cant act as a broker by employing agents. However, we are not agents/brokers...we get Credit for much of the course work if we want to be agents/brokers, but still must pass the exam and be an agent first and then after 2 years can be a broker..

We are permitted to buy/sell for ourselves and others, but Agents/Brokers claim we are forbidden from collecting commission and refuse to pay one to attorneys...There is a great deal of debate about whether or not a lawyer can accept a commission...The statute is not 100% clear on this issue...That has not ever come up for me though b/c I have never even asked for a commission for what I do.
From the Journal of Texas Consumer Law regarding the Texas Real Estate Licensing Act (TRELA) and attorneys: (I haven't had a chance to read the whole article or to go research the pertinent statutes so that I can give you chapter and verse and am heading out the door to an appointment, but will do that when I get back):


If the subsequent purchaser is represented by a salesperson or broker (the “buyer’s agent”), the listing
agent will typically agree to split the six percent commission with the buyer’s agent. If the subsequent purchaser is represented by an attorney who is not also a licensed salesperson or broker, the listing agent is precluded from splitting his commission with the attorney. Instead, the attorney must seek direct compensation for his services from either the seller or the purchaser.

 
Old 08-07-2012, 12:40 PM
 
Location: NJ
17,579 posts, read 38,501,356 times
Reputation: 16102
Attorneys and RE Agents arguing over which profession is more sleazy. This thread should be stickied.
 
Old 08-07-2012, 12:59 PM
 
Location: Salem, OR
13,764 posts, read 31,732,541 times
Reputation: 12151
Quote:
Originally Posted by manderly6 View Post
Attorneys and RE Agents arguing over which profession is more sleazy. This thread should be stickied.
Isn't that the truth...
 
Old 08-07-2012, 01:00 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,722,585 times
Reputation: 3810
Quote:
Originally Posted by manderly6 View Post
Attorneys and RE Agents arguing over which profession is more sleazy. This thread should be stickied.

I think the discussion has calmed down nicely to a reasonable discussion on issues and not on individuals.
 
Old 08-07-2012, 01:10 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,722,585 times
Reputation: 3810
Quote:
Originally Posted by marksmu View Post
- but in general it is a safe assumption to say that most lawyers are better prepared to handle contract issues than a realtor. That is why in Texas realtors are forbidden from modifying contracts on their own.
Attorneys in Arizona fought for a long time to prevent agents from being able to work with contracts. It's certainly reasonable for attorneys to want to protect their turf and claim that no one but attorneys can understand a real estate contract. But while attorneys may claim that being a Realtor is a no-brainer because of it's low bar to entry, the Arizona constitution differs with the attorney's opinion that one must have a law degree in order to understand contracts and contract law that pertain to real estate. It just takes some study.

The Realtors won and the Arizona constitution allows us limited permission to write contracts. We have required contract classes and study the contract law, law of agency and the Arizona standard contract. Most of us are quite proficient in writing additional terms into the contract within this limited practice. We can only write a contract for our transaction. In 1980 I spend a full year studying contract law. I would certainly agree that an agent should NOT attempt to write a full non standard contract, nor attempt to interpret a non-standard contract. The AZ contracts are well written and only require, at times, some additional term clauses.

If, however, someone presented an offer using a different contract than our AZ contract, such as a form from Staples or one that an attorney wrote, I would not attempt to interpret it. The AZ standard contract is written so that it provides equal protection to buyer and seller. Another contract would not do that. Consequently, I would advise my client to consult with an attorney to interpret the contract, or to reject the contract and request the buyer submit an offer on the standard contract. While our contracts are copyrighted, I can furnish a copy to a buyer to write an offer for my transaction.

Quote:
by Marksmu.....In Texas the submission of an offer is a substantive contact that requires the agency form if the buyer comes unrepresented. I am guessing that the same holds true for Arizona....an offer is a very substantial contact.
If the agent is talking to the buyer prior to the buyer emailing an offer, the agent would inform the buyer on the first contact that s/he is representing the seller. If the buyer said he was going to submit a contract, the agent would probably send an Agency Disclosure form showing he represents the seller and request the buyer to sign and submit with the offer.

In the OP scenario, an unrepresented seller emailed an offer, and there was no mention of prior contact.

In the AZ contract the space for Buyer Agent contact information has fields to select who the agent is representing. An unrepresented buyer who has not contacted the agent in advance would most likely submit an offer without the agent information being filled out. If my seller is going to respond by accepting or countering the offer, then I would send the buyer the Agency Disclosure and check the space where it says that the sellers agent represents the seller, and have the buyer sign that and return to me. In addition to the Agency Disclosure form, the contract space for listing agent has a field to state that the listing agent is representing the seller.
Quote:
Marksmu.....I dont know many agents who get sued. You must be doing something wrong or unethical to have such a problem handling a transaction without a realtor on both sides.
I don't personally know any agents who have been sued, but throughout the country many agents have been sued, and just googling will bring up some cases.

In 2009 the AAR drafted a new form to be signed by sellers and buyers titled "Market Conditions Advisory" (written in 2009) which is a brief 4 paragraph form that essentially states that the Real Estate Market is Cyclical and Real Estate Values go Up and Down.

I understand that form was developed because of law suits against agents when buyers bought houses at the top of the market and then sued their agent when the market declined.

I never conduct myself in an unethical manner in any part of my life, and I value my license too much to even consider being unethical in my real estate business.

I will work with an unrepresented buyer if my seller wants to entertain their offer. However, as I've stated, the risks of working with an unrepresented buyer are high. If you're familiar with "implied" agency and accidental dual agency creation, you will understand the risks. Some states have made dual agency illegal. I wish Arizona would.
 
Old 08-07-2012, 01:13 PM
 
1,731 posts, read 2,298,641 times
Reputation: 3428
Quote:
Originally Posted by TexasHorseLady View Post
From the Journal of Texas Consumer Law regarding the Texas Real Estate Licensing Act (TRELA) and attorneys: (I haven't had a chance to read the whole article or to go research the pertinent statutes so that I can give you chapter and verse and am heading out the door to an appointment, but will do that when I get back):


If the subsequent purchaser is represented by a salesperson or broker (the “buyer’s agent”), the listing
agent will typically agree to split the six percent commission with the buyer’s agent. If the subsequent purchaser is represented by an attorney who is not also a licensed salesperson or broker, the listing agent is precluded from splitting his commission with the attorney. Instead, the attorney must seek direct compensation for his services from either the seller or the purchaser.
It is a good read, I have read it in the past.

Source: http://www.jtexconsumerlaw.com/V7N3pdf/V7N3trela.pdf

The crux of the artical in my recollection was that TRELA prohibits sharing commission with anyone other than a broker or salesperson....

Attorneys argue that the prohibition does not apply to them since the first paragraph of the TRELA expressly states that Attorneys are exempt from the act - thus even though they are not a broker or salesperson a fee can still be shared.

Brokers/Agents are not going to take the chance of getting in trouble for sharing a fee with a non broker/salesperson....So far no court has actually fully considered the issue....

The article concludes with a recommendation that attorneys who do real estate transactions and want a commission just get licensed to avoid the issue altogether....the problem is finding a sponsoring broker who knows they just want to use them until they get their own brokers license...few brokers are willing to do that these days.

Its a gray area....the act says one thing, but exempts attorneys from it. Brokers/Salespeople would never risk it...but for what I do, since I dont charge anything it has never come up.
 
Old 08-07-2012, 01:32 PM
 
Location: Salem, OR
13,764 posts, read 31,732,541 times
Reputation: 12151
Quote:
Originally Posted by Captain Bill View Post

If, however, someone presented an offer using a different contract than our AZ contract, such as a form from Staples or one that an attorney wrote, I would not attempt to interpret it. The AZ standard contract is written so that it provides equal protection to buyer and seller. Another contract would not do that. Consequently, I would advise my client to consult with an attorney to interpret the contract, or to reject the contract and request the buyer submit an offer on the standard contract. While our contracts are copyrighted, I can furnish a copy to a buyer to write an offer for my transaction.
When that happens, I just counter offer using our full contract. I supply unrepresented buyers with counter offer forms, addenda, etc.

All of the unrepresented buyers I have worked with have been investors, contractors, mortgage brokers, or attorneys. People that comfortable with homes, or the process. They were all great to work with except one mortgage broker.

It is such a non-issue to me.
 
Old 08-07-2012, 01:42 PM
 
1,731 posts, read 2,298,641 times
Reputation: 3428
Quote:
Originally Posted by Silverfall View Post
When that happens, I just counter offer using our full contract. I supply unrepresented buyers with counter offer forms, addenda, etc.

All of the unrepresented buyers I have worked with have been investors, contractors, mortgage brokers, or attorneys. People that comfortable with homes, or the process. They were all great to work with except one mortgage broker.

It is such a non-issue to me.
You seem to be the experienced voice of reason....some agents/brokers would claim that what your doing is doing twice the work....Seems that you are looking out for your clients best interests...I applaud you.
 
Old 08-07-2012, 01:53 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,722,585 times
Reputation: 3810
Quote:
Originally Posted by Silverfall View Post
When that happens, I just counter offer using our full contract. I supply unrepresented buyers with counter offer forms, addenda, etc.

All of the unrepresented buyers I have worked with have been investors, contractors, mortgage brokers, or attorneys. People that comfortable with homes, or the process. They were all great to work with except one mortgage broker.

It is such a non-issue to me.
I agree it is a non-issue when you're dealing with people who have experience and know what they're doing.

It's the inexperienced, and the ones who are are after the agents commission and instigating to get the seller to renegotiate the agents commission, who are going to create double the work, and double the risk.
 
Old 08-07-2012, 02:46 PM
 
Location: Columbia, SC
8,873 posts, read 17,523,219 times
Reputation: 6265
Quote:
Originally Posted by RE Skeptic View Post

The RAs out there can try to skirt this issue by arguing that contracts vary by state, but I think most state LA's include these provisions. So...do RA's out there feel obligated to discuss these details (#1-3 above) with their sellers prior to signing or do you think it is up to your seller to glean these details from the contract on their own?
I can only speak for myself but I do actually use a form I typed up myself with services I offer. It spells out the total and co broke commissions that correspond the service plan they want. It also delves into what happens if they buyer is unrepresented or wants me to go into dual agency.
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