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Old 08-09-2012, 02:07 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,395,642 times
Reputation: 4893

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Quote:
Originally Posted by Silverfall View Post
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..
I agree about bad policy. That said, IF a seller instructs, in writing, to present only certain types of offers, in writing only, no less than, and I, as the broker agree to such limitations, then there are where my limitations lie. In 44+ years in the business, I have only had ONE listing with such limitations - I feel uncomfortable with those limitations - it is not my property and I want the seller to know EVERYTHING that has been offered on THEIR property.

 
Old 08-09-2012, 02:12 PM
 
1,726 posts, read 2,280,146 times
Reputation: 3424
Quote:
Originally Posted by Silverfall View Post
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.
Its a knee jerk reaction and a direct effort to protect his livelihood above the best interest of his clients...rather than adapt and be flexible in the face of a changing profession he gets defensive and attempts to protect the status quo....he also does not think non-realtors should be allowed to use the realtor promulgated forms.

Just more good ole boy mentality....You should consult your attorney about how specific this must be spelled out....I would think if your going to modify your statutory fiduciary duty that such a modification should probably be in bold print, larger than the rest of the text of the page and require a separate signature or initial next to it indicating the Seller understands that the implication of this action may mean that he has fewer offers presented to him and therefore may not get the best possible price.

Though it probably wont come up....Most attorneys don't use their own forms anyway they dont fear the copyright threats and just use the standard realtor form. The only time I ever veer off the TREC forms is when there is something special that needs to be addressed and can not be done through the TREC form.
 
Old 08-09-2012, 02:19 PM
 
Location: DFW - Coppell / Las Colinas
29,975 posts, read 34,607,289 times
Reputation: 35998
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:



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".
Mark... First you are quoting TX law with someone who's in a different state. You should know their state law may not have this requirement.

Second... NAR and being a Realtor is purely volentary and he may not be a member. Not all RE agents are Realtors.

As an attorney you should know state laws do vary. What is required here in TX may be different in AZ.
 
Old 08-09-2012, 02:24 PM
 
1,726 posts, read 2,280,146 times
Reputation: 3424
Quote:
Originally Posted by Rakin View Post
Mark... First you are quoting TX law with someone who's in a different state. You should know their state law may not have this requirement.

Second... NAR and being a Realtor is purely volentary and he may not be a member. Not all RE agents are Realtors.

As an attorney you should know state laws do vary. What is required here in TX may be different in AZ.
Of course I know that....but I am making an educated guess that the fiduciary obligation in his state is the same...I am betting, guessing, whatever you want to call it - that his state also requires an Agent/Broker to submit all offers that are made in writing.

Arizona's fiduciary duties include both:

Loyalty -this means at all times the client's best interest must be first and foremost. The client's interests are ahead of the Realtor, and their broker's interests.
----->Thus failing to submit all written offers b/c you dont like the form, the fact that the buyer is unrepresented, or a commission reduction request WOULD be a breach of the duty of loyalty....Again, the realtor is not required to negotiate his commission with a buyer.

DISCLOSE - A Realtor must always disclose any material fact...
----> A written offer is very material.

Last edited by marksmu; 08-09-2012 at 02:33 PM..
 
Old 08-09-2012, 02:37 PM
 
Location: Pinal County, Arizona
25,107 posts, read 34,395,642 times
Reputation: 4893
Quote:
Originally Posted by marksmu View Post
Of course I know that....but I am making an educated guess that the fiduciary obligation in his state is the same...I am betting, guessing, whatever you want to call it - that his state also requires an Agent/Broker to submit all offers that are made in writing.

Actually Mark - AZ statutes and Rules require that, unless specifically instructed, in writing, we have to present ALL OFFERS RECEIVED FROM ANY SOURCE WHATSOEVER - this includes VERBAL OFFERS.
 
Old 08-09-2012, 02:38 PM
 
1,726 posts, read 2,280,146 times
Reputation: 3424
Quote:
Originally Posted by Greatday View Post
Actually Mark - AZ statutes and Rules require that, unless specifically instructed, in writing, we have to present ALL OFFERS RECEIVED FROM ANY SOURCE WHATSOEVER - this includes VERBAL OFFERS.
Even better...I did not find it with a fast google search so I just went with the fiduciary duty requirements as a written offer meets both the loyalty and disclosure prongs of the duty as well.
 
Old 08-09-2012, 03:07 PM
 
Location: Salem, OR
13,752 posts, read 31,616,112 times
Reputation: 12124
Quote:
Originally Posted by Greatday View Post
I agree about bad policy. That said, IF a seller instructs, in writing, to present only certain types of offers, in writing only, no less than, and I, as the broker agree to such limitations, then there are where my limitations lie. In 44+ years in the business, I have only had ONE listing with such limitations - I feel uncomfortable with those limitations - it is not my property and I want the seller to know EVERYTHING that has been offered on THEIR property.
I can see it being pretty rare that someone would want to limit themselves. As long as they have been informed, they are adults that can make their own decisions.

Most people pay us to deal with nonsense. I'm thinking there was an agent on here that got an offer on a property for $1. I think it was this forum that we were chatting about it. I could be wrong though. It is offers like that, that make me love Docusign for the rejection.
 
Old 08-09-2012, 03:16 PM
 
Location: Tempe, Arizona
4,511 posts, read 11,572,543 times
Reputation: 2180
Quote:
Originally Posted by Greatday View Post
Actually Mark - AZ statutes and Rules require that, unless specifically instructed, in writing, we have to present ALL OFFERS RECEIVED FROM ANY SOURCE WHATSOEVER - this includes VERBAL OFFERS.
Quote:
Originally Posted by marksmu View Post
Even better...I did not find it with a fast google search so I just went with the fiduciary duty requirements as a written offer meets both the loyalty and disclosure prongs of the duty as well.
And as noted, the seller can instruct the agent in writing to not present certain types of offers, such as those below a certain amount, or even if on the wrong form as Bill proposes.
 
Old 08-09-2012, 03:29 PM
 
1,726 posts, read 2,280,146 times
Reputation: 3424
Quote:
Originally Posted by rjrcm View Post
And as noted, the seller can instruct the agent in writing to not present certain types of offers, such as those below a certain amount, or even if on the wrong form as Bill proposes.
I agree it can be done. I think the disclaimer on it should be ENORMOUS and in multiple language. This type of change and bold printed disclaimer is especially important for first time sellers whose agent may be very aggressive in using his negotiation skills to get the seller to sign everything thrust at him...

For Example: Many of the employees that work for my company are of Vietnamese descent...Many are immigrants....many speak very limited English and are not at all familiar with our customs...I have had them bring me listing contracts to review that clearly showed that the Agents that they were thinking about listing with were taking advantage of them. I had one employee bring me a listing that had an exclusive right to sell commission of 9% for a $300,000 track home in the suburbs....that type of agreement is FAR from the normal acceptable contract in that area of town.

Some buyers/sellers are very uneducated, especially foreigners who have very limited English skills and they trust their Broker/Agent to not take advantage of them. Unfortunately a pushy or smooth talking salesperson is often able to convince these people that this is the normal rates and they sign....I would shudder to think if he just said this type of thing is normal and just pushed it on his clients.
 
Old 08-09-2012, 04:13 PM
 
3,404 posts, read 4,145,764 times
Reputation: 2397
Quote:
Originally Posted by rjrcm View Post
And as noted, the seller can instruct the agent in writing to not present certain types of offers, such as those below a certain amount, or even if on the wrong form as Bill proposes.
Yes, a contract can be written to not present certain types of offers, but if it conflicts with the sellers best interest I think it could get you into trouble.
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