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Old 08-09-2012, 09:43 AM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,700,380 times
Reputation: 3810

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I've formulated in my mind how I will deal with an unrepresented buyer wanting to interfere with my third party contract --- if I ever run into one. Fortunately there are only a few unethical people who think it's ok to interfere with another persons contract.

This will be a policy statement that will be in the Risk Management section of my company policy manual, for all agents in my company.
  • In my listing agreement I already spell out my rate in the event I'm asked to be a dual agent.
  • I'll add an additional clause that spells out the rate in the event of an unrepresented buyer.
  • Add a clause in the listing agreement that says: "Seller instructs LA to not submit verbal offers or offers not on AAR standard contract forms" (We're not going to accept any napkin drawn or office store forms, or plagiarized forms from other states or web sites, or offers drawn up by an attorney- which will favor the buyer).
  • I'll have a letter for the unrb that will cma
The letter will spell out what I, as the sellers agent, can and cannot do in working with an unrb, and will advise that he seek the advice of an attorney. Once finished, I'll run the letter by my attorney to make sure I'm in compliance with the Agency laws.

I'll furnish the unrb with blank forms pre-filled with my agent information and advise that all offer documents must be on standard AAR forms or the offer will be deemed to be not complete and will not be submitted to the seller.

 
Old 08-09-2012, 10:46 AM
 
936 posts, read 1,754,254 times
Reputation: 934
Our license law has a section about providing ministerial acts for unrepresented consumers. It basically outlines what those ministerial acts are (things like just filling out paperwork) and lets the agent know what they can do for the unrepresented consumer without having their services be construed as active representation.

I laugh when I read posts like this one where the original poster has all sorts of ideas as to how he thinks the real estate business should work. He's more concerned about what someone's elses agent will be making that he puts that above his own interest in finding suitable housing. That's called an unmotivated buyer. As soon as I end up with someone like this on the other end of an offer I let my seller know the type of person they are dealing with. I don't like to have a seller accept an offer where the buyer has an attitude of trying to get someone elses money as opposed to genuinely wanting to buy a house and be cooperative. It's just asking for problems down the line. The majority of the time my seller and I wouldn't consider working with someone like this.

There's a lot of vicarious liability from an unrepresented party. There are all sorts of lawsuits from buyers and sellers who claim that they thought they were receiving representation from an agent who had no agnent/client relationship. It's also interesting when I hear from buyers who think that an attorney will provide the same level of service as a buyer's agent. Good luck getting that attorney help you with financing and being there for home inspections, etc.
 
Old 08-09-2012, 01:12 PM
 
Location: Gilbert - Val Vista Lakes
6,069 posts, read 12,700,380 times
Reputation: 3810
Quote:
Originally Posted by yousah View Post
Our license law has a section about providing ministerial acts for unrepresented consumers. It basically outlines what those ministerial acts are (things like just filling out paperwork) and lets the agent know what they can do for the unrepresented consumer without having their services be construed as active representation.

I laugh when I read posts like this one where the original poster has all sorts of ideas as to how he thinks the real estate business should work. He's more concerned about what someone's elses agent will be making that he puts that above his own interest in finding suitable housing. That's called an unmotivated buyer. As soon as I end up with someone like this on the other end of an offer I let my seller know the type of person they are dealing with. I don't like to have a seller accept an offer where the buyer has an attitude of trying to get someone elses money as opposed to genuinely wanting to buy a house and be cooperative. It's just asking for problems down the line. The majority of the time my seller and I wouldn't consider working with someone like this.

There's a lot of vicarious liability from an unrepresented party. There are all sorts of lawsuits from buyers and sellers who claim that they thought they were receiving representation from an agent who had no agnent/client relationship. It's also interesting when I hear from buyers who think that an attorney will provide the same level of service as a buyer's agent. Good luck getting that attorney help you with financing and being there for home inspections, etc.
Well said.

These types don't realize how low the sellers may place them on the ethical list. They don't realize that the seller chose their listing agent because they trust them with their transaction, and after they've entered into a listing agreement, they probably would not want to sour a good team working relationship by dealing with an unrb who wants to interfere with their listing contract.

After all, the seller and listing agent are operating as a team; and anyone who has ever participated in a team of any type understands that when the team members begin to have issues, the team as a whole will suffer losses.

It probably wouldn't take me more than a few minutes to convince my seller client that working with this particular unrb who wants to illegally interfere with our contract will probably be a bad idea. For starters, he doesn't know what is in our contract, and it's none of his business.

They also don't realize that when they begin the interference they are starting off on a adversarial tone with the listing agent, and any good negotiator understands that an adversarial tone is a terrible way to start off a negotiation.

In my opinion, an attorney in Arizona is valuable for providing legal advice to a client regarding certain issues that may arise in a contract during the real estate transaction. Having an attorney draft a contract for a buyer in AZ is a bad idea because most agents would advise their seller to reject it or pay to have an attorney interpret it. The seller is not going to pay to have an attorney interpret a contract when the AZ contract is well written, easily understandable, and protects both parties.

An addendum written by an attorney that would wipe out many of the protective clauses in the contract would be equally unacceptable. Therefore, having an attorney draft a new contract, or write an onerous addendum would be a waste of money for the buyer.

Just as a tax attorney or accountant should be consulted if a buyer or seller is trying to determine if it is financially feasible for them to enter into a transaction.
 
Old 08-09-2012, 01:21 PM
 
3,404 posts, read 4,149,408 times
Reputation: 2397
Quote:
Originally Posted by Captain Bill View Post
  • Add a clause in the listing agreement that says: "Seller instructs LA to not submit verbal offers or offers not on AAR standard contract forms" (We're not going to accept any napkin drawn or office store forms, or plagiarized forms from other states or web sites, or offers drawn up by an attorney- which will favor the buyer).
  • I'll have a letter for the unrb that will cma
If you want opinions here's mine. As a seller I would have a problem with the first one of these because if you are selling my house I want to know about all offers and don't want to see good offers turned away just because they are written on a form that you don't like. I think to a seller this looks like you are just trying to avoid something that will make your job a harder. It is legal to have an offer written on anything there is no reason to avoid looking at offers that are outside of the box.

The second one makes no sense to me. Did you leave some words out of it?
 
Old 08-09-2012, 01:42 PM
 
1,727 posts, read 2,284,700 times
Reputation: 3424
You are welcome to do what you want with your Brokerage - I am not the type to tell you what to do, but you should consult your attorney about this statement because you will lose your license if you implement it:

Quote:
Originally Posted by Captain Bill View Post
Add a clause in the listing agreement that says: "Seller instructs LA to not submit verbal offers or offers not on AAR standard contract forms" (We're not going to accept any napkin drawn or office store forms, or plagiarized forms from other states or web sites, or offers drawn up by an attorney- which will favor the buyer).
Your fiduciary duty to submit ALL written offers IS a REQUIREMENT not a suggestion....

Texas 535.2 - Broker Responsibility:
A real estate broker actng as an agent owes the very highest fiduciary obligaton to the agent's
principal and is obliged to convey to the principal all information of which the agent has knowledge and which may affect the principal's decision.

The NAR also has this statement in its code of ethics Standard of Practice 1-6
"REALTORS® shall submit offers and counter-offers objectively and as quickly as possible"

It does not say realtors shall submit all offers and counter offers on the forms the realtor likes to use.

If I were a seller and found out that you refused to submit an offer to me b/c you did not like the form it was on, I would fire you, and file a complaint.

You have an obligation to tell the seller that you do not know the form and that you can not offer an opinion on the form...you even have the right to recommend that he request the offer be made on your standard form, but you do not have the Right to refuse to accept the form.

You may not like that other non-agents can force you to do things, but the law is the law. You are required to submit the offer whether or not you like it.
 
Old 08-09-2012, 01:44 PM
 
1,727 posts, read 2,284,700 times
Reputation: 3424
Quote:
Originally Posted by Zyngawf View Post
If you want opinions here's mine. As a seller I would have a problem with the first one of these because if you are selling my house I want to know about all offers and don't want to see good offers turned away just because they are written on a form that you don't like. I think to a seller this looks like you are just trying to avoid something that will make your job a harder. It is legal to have an offer written on anything there is no reason to avoid looking at offers that are outside of the box.

The second one makes no sense to me. Did you leave some words out of it?
Second one is shortened, Ill have an agreement for the urb - unrepresented buyer that will cma - cover my ass.
 
Old 08-09-2012, 01:55 PM
 
1,727 posts, read 2,284,700 times
Reputation: 3424
Quote:
Originally Posted by Captain Bill View Post

It probably wouldn't take me more than a few minutes to convince my seller client that working with this particular unrb who wants to illegally interfere with our contract will probably be a bad idea. For starters, he doesn't know what is in our contract, and it's none of his business.

They also don't realize that when they begin the interference they are starting off on a adversarial tone with the listing agent, and any good negotiator understands that an adversarial tone is a terrible way to start off a negotiation.
You keep saying "Illegally interfere" when nobody has illegally interfered with anything. This is me yelling to get it through your head....THE BROKER HAS THE UNILATERAL RIGHT TO REJECT ANY REQUIREMENT OR REQUEST THAT HE SHARE THE COMMISSION OR REDUCE HIS SHARE OF THE COMMISSION.

There can be no illegal interference when the Broker MUST agree to something for it to be interfered with. If the broker agrees its a modified contract. If the broker rejects nothing has happened.

Yousah --There is NO vicarious lability unless you as the agent or broker are an idiot and create it. Its very easy to not create liablity. I will spell it out for you AGAIN...

1. Send your Agency letter to the unrepresented buyer at the first contact.
2. Answer only the questions pertaining to the property condition
3. IN WRITING - each and every time the Unrepresented buyer asks you something that does not pertain to the PROPERTY CONDITION remind them that you are not their agent/broker and you can not provide them with a recommendation or answer.

IF you do those things and you do them correctly there is a ZERO chance of creating vicarious liability....If you don't understand that then you should not be selling real estate.
 
Old 08-09-2012, 01:57 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,414,265 times
Reputation: 4893
Quote:
Originally Posted by marksmu View Post
You are welcome to do what you want with your Brokerage - I am not the type to tell you what to do, but you should consult your attorney about this statement because you will lose your license if you implement it:

"We" have consulted counsel.

Also, the "ability" to insert such language is allowed by our state RED.

"We" will NOT lose our license if implemented provided a) its in writing, b) it is explained to the seller and c) the seller agrees.
 
Old 08-09-2012, 01:59 PM
 
Location: Salem, OR
13,754 posts, read 31,653,769 times
Reputation: 12131
Quote:
Originally Posted by Captain Bill View Post
[*]Add a clause in the listing agreement that says: "Seller instructs LA to not submit verbal offers or offers not on AAR standard contract forms" (We're not going to accept any napkin drawn or office store forms, or plagiarized forms from other states or web sites, or offers drawn up by an attorney- which will favor the buyer).
I think this is a bad policy and you should rethink it. All you have to do is "counter offer" with the standard contract that is used that is more balanced. If I were a seller this policy would bother me because it would suggest to me that you aren't confident in your skills as an agent to handle different kinds of buyers and situations. I mean banks throw out their 12 page mandatory contracts at us all the time. What's the difference? At least with these contracts, they aren't mandatory.

I would want an agent that felt confident to handle situations that get thrown their way. That is why I would be hiring an agent.
 
Old 08-09-2012, 02:01 PM
 
1,727 posts, read 2,284,700 times
Reputation: 3424
Quote:
Originally Posted by Zyngawf View Post
I think people like Mark that like to brag about giving away their services for free or at a really cut rate often deep down aren't happy about doing it. When most other people aren't willing to do the same it just doesn't sit well with them. It's the whole counting other peoples money thing again.
I get paid a salary to do legal work for a corporation and its employees. I am not working for free. I am working at a predetermined level of compensation...whether I do contracts for my employees or purchase health insurance for them - I am getting paid the exact same dollar amount every two weeks.

I do not resent it - and when my employees are happy they work harder and are more loyal to the company. Its win-win....there is no loser in my scenario. Especially since I enjoy it.
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