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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.
Yes, I agree that the seller should be fully aware and supportive of any limitations. I was just emphasizing that our state law allows offers to be withheld if agreed to in writing. No large type needed.
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.
I would want an agent who will advise me properly and not be afraid to tell me that the contract submitted to me is not in my best interest and will provide me with the proper advice. I would not want an agent who would have me accept a 15 page contract written by someone else, that I know the agent has never seen before, and has not had any training on.
I want an agent who is confident in his skills and is willing to take a stand for me and be honest enough to tell me that he is not qualified to offer legal advice on a 15 page contract that he has never seen. I would think that agent may be willing to have me sign anything just to get a commission. We have a very limited window in which we can practice contract law.
The banks are the giant and if you want to buy their property you have to play their game. Their contract wipes out just about everything in a standard contract. It is favoring only the bank. I do not interpret the bank 15 page addendum that wipes out our 9 page contract. I inform my buyer that I am not an attorney and do not have the legal training to interpret that addendum, and advise them to consult with an attorney. None have done that so far. If they want that property they have to sign the contract.
It is an entirely different situation when it comes to a seller client accepting a contract drawn by someone else. It would be extremely foolish for an agent to not advise his seller client to either reject that contract or seek legal advice.
The seller does not have to accept a contract drawn up by someone else. The buyer who wants to bring his own contract to the table is attempting to gain an advantage over the seller. Otherwise he would use the standard AAR contract. I have many hours of studying that contract and understand it. I have not had training on this 15 page contract that the buyer is submitting, therefore, I cannot interpret it.
Protecting my clients best interest by offering sound advice is what I'm paid to do.
To counter a contract, you sign the contract to accept all the terms except the items you counter in the counter offer form. You are still subjecting the client to that initial contract.
The purchase offer has to be written by the buyer, not the seller. Therefore, if we want the buyer to present a new offer on our form it has to be written by the buyer and presented. It does not make sense for the seller to write the purchase offer and send it to the buyer.
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.
The seller can instruct the agent in writing to not present certain types of offers. It is the sellers decision to do this. The writing can be in the listing agreement, or in a separate written statement.
I've had a few verbal offers, which I have to and always have communicated to my seller. Usually they are something like the last one.
Q......Hey Bill this is Lazy Harry from Reclining Realty. I have a cash buyer for your listing. It's listed at $290k. Will your buyer accept $235k?
When I informed the seller of the offer, I suggested that we tell them to write the offer up and then we'll respond. He agreed. I asked the agent to write the offer up and we'll respond. He said he isn't going to write it up unless he knows he'll get an acceptance.
This was a lowballer who was throwing it against every wall hoping it would stick. It was a waste of time even talking to him.
I encourage my sellers to counter every offer (written) no matter how low, but we develop a counter offer strategy based on how we perceive the buyer. Once we have a written offer, then if both buyer and seller agree, and if we're close enough, we can proceed with verbal or email counters until we reach a deal.
But from my experience, an initial verbal offer is not worth anything, and I inform my sellers so they can make an informed decision.
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...
A changing profession. You mean we're changing to allow people to interfere with our contracts. I don't think so. There are only a very few of your type around, and if I run into one in a transaction, I guarantee you that he will not succeed.
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Marksmu.....
.he also does not think non-realtors should be allowed to use the realtor promulgated forms.
Promulgated forms?????
The AAR forms are the private property of Realtors. We paid for their design. They are copyrighted. I'm amazed at an attorney encouraging people to steal contracts in complete disregard for copyrights and have them risk getting sued.
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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.
Modify my fiduciary duty. That is pure BS, and again shows your ignorance of what constitutes fiduciary duty.
I have no fiduciary duty to renegotiate my contract to accommodate people who do not have the skills to negotiate for a property and have to resort to illegally interfering with a third party contract.
Last edited by Captain Bill; 08-09-2012 at 07:45 PM..
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.
: VICARIOUS LIABILITY
When one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For instance, a parent sometimes can be vicariously liable for the harmful acts of a child and an employer sometimes can be vicariously liable for the acts of a worker.
In the case of a real estate agent and a client, if the agent does something illegal then the client can be held responsible for the actions of the agent.
This discussion has nothing to do with vicarious liability. Creating an accidental dual agency that can injure the agent has absolutely nothing to do with vicarious liability.
If I want advice from an attorney it will be from someone who knows the definition of" vicarious" liability and "promulgated", and one who respects that third party contracts should not be interfered with, and that copyright laws are to be respected.
When one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For instance, a parent sometimes can be vicariously liable for the harmful acts of a child and an employer sometimes can be vicariously liable for the acts of a worker.
In the case of a real estate agent and a client, if the agent does something illegal then the client can be held responsible for the actions of the agent.
This discussion has nothing to do with vicarious liability. Creating an accidental dual agency that can injure the agent has absolutely nothing to do with vicarious liability.
If I want advice from an attorney it will be from someone who knows the definition of" vicarious" liability and "promulgated", and one who respects that third party contracts should not be interfered with, and that copyright laws are to be respected.
You sir, would not be that person.
There are so many incorrect legal statements here that I don't even know where to start but since I'm on my phone I'll save it for another time....I don't need google to tell me legal theories... Vicarious liability is a theory used to pass liability to another AFTER an injury or TORT. In the context of the statement from yousaf I was pointing out that there can be no vicarious liability when there has been no damage or tort....there is ZERO risk of vicarious liability from an unrepresented buyer. You continue to spew your self important ignorant statements without ANY understanding of the basic concept of what damages or a tort actually consist of.
Your statements lead me to my final conclusion that you are exactly what is wrong in real estate today. An agent who believes he is gods gift to real estate unwilling and unable to learn or do anything beyond the bare minimum and yet still holding your hand out for a big piece of the pie you did not earn and certainly don't deserve. Your clients are poorly represented by your arrogance.
It's abundantly clear to any unbiased third party that you are only looking out for yourself.
I would want an agent who will advise me properly and not be afraid to tell me that the contract submitted to me is not in my best interest and will provide me with the proper advice. I would not want an agent who would have me accept a 15 page contract written by someone else, that I know the agent has never seen before, and has not had any training on.
I want an agent who is confident in his skills and is willing to take a stand for me and be honest enough to tell me that he is not qualified to offer legal advice on a 15 page contract that he has never seen. I would think that agent may be willing to have me sign anything just to get a commission. We have a very limited window in which we can practice contract law.
The banks are the giant and if you want to buy their property you have to play their game. Their contract wipes out just about everything in a standard contract. It is favoring only the bank. I do not interpret the bank 15 page addendum that wipes out our 9 page contract. I inform my buyer that I am not an attorney and do not have the legal training to interpret that addendum, and advise them to consult with an attorney. None have done that so far. If they want that property they have to sign the contract.
It is an entirely different situation when it comes to a seller client accepting a contract drawn by someone else. It would be extremely foolish for an agent to not advise his seller client to either reject that contract or seek legal advice.
The seller does not have to accept a contract drawn up by someone else. The buyer who wants to bring his own contract to the table is attempting to gain an advantage over the seller. Otherwise he would use the standard AAR contract. I have many hours of studying that contract and understand it. I have not had training on this 15 page contract that the buyer is submitting, therefore, I cannot interpret it.
Protecting my clients best interest by offering sound advice is what I'm paid to do.
To counter a contract, you sign the contract to accept all the terms except the items you counter in the counter offer form. You are still subjecting the client to that initial contract.
The purchase offer has to be written by the buyer, not the seller. Therefore, if we want the buyer to present a new offer on our form it has to be written by the buyer and presented. It does not make sense for the seller to write the purchase offer and send it to the buyer.
Do you also want an agent that will reject a full price cash offer at his own discretion, without even showing it to you just because it is drawn up on a form he doesn't like? Captain Bill, people aren't that stupid.
Not all things drawn up by a lawyer are so far to the buyers favor to be scary. A buyer purchased something from me this way and it was quite the opposite. The property was desirable enough that they obviously wanted to make sure they bought and the contract was written accordingly. Why encourage sellers to reject offers they don't even yet have?
Do you also want an agent that will reject a full price cash offer at his own discretion, without even showing it to you just because it is drawn up on a form he doesn't like? Captain Bill, people aren't that stupid.
Not all things drawn up by a lawyer are so far to the buyers favor to be scary. A buyer purchased something from me this way and it was quite the opposite. The property was desirable enough that they obviously wanted to make sure they bought and the contract was written accordingly. Why encourage sellers to reject offers they don't even yet have?
It's only reasonable for an agent to demand an offer on a standard form - in my area, unless you opt out, listings are all packaged up & posted on hundreds of third-party websites, and those websites often have an "ask seller a question button". A potential buyer can ask "will you take $xx" , and that would qualify as a "written offer".
So a provision in the listing agreement that allows the agent to require offers on a standard contract is only prudent, as is a provision allowing the agent to ignore verbal offers. If buyers wanted to field calls from wack-jobs and Internet lawyers, they wouldn't be using an agent.
It's only reasonable for an agent to demand an offer on a standard form - in my area, unless you opt out, listings are all packaged up & posted on hundreds of third-party websites, and those websites often have an "ask seller a question button". A potential buyer can ask "will you take $xx" , and that would qualify as a "written offer".
So a provision in the listing agreement that allows the agent to require offers on a standard contract is only prudent, as is a provision allowing the agent to ignore verbal offers. If buyers wanted to field calls from wack-jobs and Internet lawyers, they wouldn't be using an agent.
Why do you equate verbal offers and non standard contracts with buyers fielding calls from anyone? Isn't that the agent's job?
Call it whatever you want, but any agent that didn't want to have to communicate verbal offers and non standard forms would not be my agent for very long.
The seller does not have to accept a contract drawn up by someone else. The buyer who wants to bring his own contract to the table is attempting to gain an advantage over the seller.
When isn't a buyer trying to gain advantage over a seller?
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Originally Posted by Captain Bill
my clients best interest by offering sound advice is what I'm paid to do.
If that is the case, then you'd need to advise your client to seek legal counsel before agreeing to your listing agreement clause regarding your exclusionary policy and what it means for them.
Quote:
Originally Posted by Captain Bill
To counter a contract, you sign the contract to accept all the terms except the items you counter in the counter offer form. You are still subjecting the client to that initial contract.
The purchase offer has to be written by the buyer, not the seller. Therefore, if we want the buyer to present a new offer on our form it has to be written by the buyer and presented. It does not make sense for the seller to write the purchase offer and send it to the buyer.
This makes no sense whatsoever. Are you telling me that reverse offers are illegal in Arizona?
You don't counter their offer. You reject their offer and reverse offer on your forms. It is the cleanest way to do things and to my knowledge no state has a law that says that a seller can't initiate the offer process.
rjrcm, true? In AZ a seller can't reverse offer?
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That is pure BS, and again shows your ignorance of what constitutes fiduciary duty.