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Old 06-03-2008, 06:13 AM
 
Location: Turn Left at Greenland
17,763 posts, read 39,583,552 times
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web ... not to rub salt, but are you having buyers remorse? Drees has a good reputation among builders in Indy, at least I've never heard any bad things. Relax ok?
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Old 06-03-2008, 09:48 AM
 
Location: The Fruited Plain
172 posts, read 509,601 times
Reputation: 58
Quote:
Originally Posted by Naptowner View Post
Real estate agents are not qualified, nor are they legally permitted, to negotiate a construction contract for you. That is unauthorized practice of law, and is a felony.
Are you an attorney? I would be very interested in reading any information you have used to make this claim. Can you cite any case law or state or federal statute?

If you could post any links you have to substantiate your position, we would all like to read them.

I wonder why the prisons aren't full of C21, ReMax, CB and Tucker agents that have negotiated contracts in the past?

Please enlighten me and the rest of the board.
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Old 06-03-2008, 10:23 AM
 
Location: Carmel, IN
38 posts, read 180,145 times
Reputation: 22
Agreed with domer and others, hire an inspector to check at the framing stage and finished stage at minimum, stop by the house as much as possible to look for yourself, and above all, don't close until you're satisfied.

Money talks, and pushing back a closing speaks louder to builders than anything. Their people are under pressure to get houses closed, and not under pressure to fix things for you after you've closed.

If you are able to refuse to close until things are done to your satisfaction (within reason) its amazing how they'll change their tune and those post-closing items will get fixed pre-closing. None of the production builders around here will sound proof walls without charging extra though
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Old 06-03-2008, 11:38 AM
 
1,095 posts, read 3,985,167 times
Reputation: 664
Quote:
Originally Posted by webuser View Post
When I say fight, I mean literally being tough to get what I expected while writing the contractor. Most of the terms in the contract are abstract not to construction specification level. So builder can build in the low ball park with the range of standard. say, he might build the dry wall weak enough to make the people talking inside make audible to out side the room when th door is shut. The same can be built with proper sound proof material in the dry wall, We don't define that in contract but expect.

This is just one example, but there might be lots of things you might have faced. can some one list few here... thanks in davance...

1> I heard Pulte do not use glue and nail both to build the dry wall. Other good builders use both and that make the home strong... many more like this.

2> I have been to beazer home decorated model and found the paint smells like gasoline. Do they use cheaper paints.

any pointers like this might help......: )
Most builders have a written warranty manual they will give you that describes the standards they are going to build to. Others use industry standards - for example, many Indianapolis builders us the BAGI (Builder's Association of Greater Indianapolis) standards. There is a HUGE difference between 'up to code,' which is just a minimum standard for habitability, and up to industry standards. High-end or 'custom' homes often have an architect involved and quality standards written into the contract. But in a normal-priced home, there are often some abstract areas that might need clarification for you. In general, a builder is required to build the home in a "workmanlike" manner, which doesn't mean perfect. The warranty manual often describes what the builder considers acceptable vs. unacceptable. I'm not suggesting you go out and hire an attorney, not just yet. But before the construction really gets underway you should probably make an appointment with the builder to go over the quality standards and address any issues of particular concern - drywall nail pops, fit and finish tolerances on molding, etc. The builder will generally be happier to upgrade the quality of the interior components and finishes, and it's a lot cheaper and easier all the way around to choose these materials before construction gets underway, since some materials have longer 'lead times' than others.
Most builders use latex-based paints because they are cheapest. I bet you smelled the solvents used in staining and finishing interior wood trim.
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Old 06-03-2008, 12:04 PM
 
1,095 posts, read 3,985,167 times
Reputation: 664
Quote:
Originally Posted by TraderJack View Post
Are you an attorney? I would be very interested in reading any information you have used to make this claim. Can you cite any case law or state or federal statute?

If you could post any links you have to substantiate your position, we would all like to read them.

I wonder why the prisons aren't full of C21, ReMax, CB and Tucker agents that have negotiated contracts in the past?

Please enlighten me and the rest of the board.
The practice of law is governed by state statutes, not federal. See Indiana Code § 33-43-2-1. I DID make a mistake - it's a Class B Misdemeanor, not a felony.

As to what constitutes the "practice of law," under this section, the "practice of law" includes the giving of legal advice and counsel as to legal matters, and the preparation of legal instruments and contracts by which legal rights are secured, as well as attending to legal matters pending in court. Fink v. Peden, 214 Ind. 584, 17 N.E.2d 95, 1938 Ind. LEXIS 217 (1938).

As this specifically pertains to real estate brokers, see the following:

Real estate brokers and agents should, within certain limitations, be permitted to fill in the forms of the following legal instruments prepared by attorneys, the use of which is here placed in issue: listing agreement, earnest money contract, proposition, offer to purchase, option, option (with listing clause), affidavit (real estate vendor), purchase agreement, exchange agreement, bill of sale, contracts of sale. The execution of legal instruments other than these should be limited to members of the legal profession. State ex rel. Indiana State Bar Ass'n. v. Indiana Real Estate Ass'n, 244 Ind. 214, 191 N.E.2d 711, 1963 Ind. LEXIS 179 (1963).

(emphasis supplied).

Note that I referred specifically to a construction contract. Realtors are certainly permitted to negotiate on behalf of a client for the purchase or lease of real estate, but you are not permitted to negotiate or attempt to change the terms of a construction contract, since that is outside your area of training and expertise. A lawyer holds a doctoral degree, Doctor of Jurisprudence, which means they must also graduate from high school and college. A real estate agent can be any 18 year old who's taken a 5 day course. Because of the very, very low education requirements for a real estate agent, they may not do anything more than fill in blanks on a form prepared by an attorney, which is something pretty much anyone with a pulse can do.


Links:

Indiana Code 25-34.1-3 (realtor license requirements)
Indiana Code 33-43-2 (prohibition on unauthorized practice of law)

I trust this information will suffice.
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Old 06-03-2008, 12:12 PM
 
1,095 posts, read 3,985,167 times
Reputation: 664
Quote:
Originally Posted by Mike Taylor View Post
I guess it can't hurt, but it doesn't matter who you are the builder's contract are pretty much unchangeable. The best thing to do is make sure you are on the construction site often and if you don't know what you are doing hire an inspector to monitor the building of the home.
I disagree that the contract is unchangeable, but as a lawyer, I think it's a waste of money to hire a lawyer to try to negotiate "tough" with the builder. If there's one thing I would try to take out, it would be the mandatory arbitration clause that those contracts have.

I also think it's often a mistake to constantly come by the jobsite. Under your contract, you're only permitted to communicate through the builder. If you come out to the site and start telling the subcontractors to make changes, they end up submitting a change order to the builder, who will usually pass the extra cost along to you. Or they'll send you a bill at the end of the job. And trying to negotiate directly with the subs can breach your contract with the builder and give him grounds for a suit against you for tortious interference with contract. Unless you're personally qualified to inspect the construction, it's not going to make any difference whether you watch them frame the house or not.
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Old 06-03-2008, 01:31 PM
 
Location: The Fruited Plain
172 posts, read 509,601 times
Reputation: 58
Quote:
From Naptowner - Real estate agents are not qualified, nor are they legally permitted, to negotiate a construction contract for you. That is unauthorized practice of law, and is a felony.
Quote:
Originally Posted by TraderJack View Post
Are you an attorney? I would be very interested in reading any information you have used to make this claim. Can you cite any case law or state or federal statute?

If you could post any links you have to substantiate your position, we would all like to read them.

I wonder why the prisons aren't full of C21, ReMax, CB and Tucker agents that have negotiated contracts in the past?

Please enlighten me and the rest of the board.
So... you are an attorney? or not?

The links you provided are strictly interpreted to admonish against the illegal practice of law.
Quote:
IC 33-43-2
Chapter 2. Prohibition on Practicing Law by Nonattorneys
IC 33-43-2-1
Engaging in practice by person not admitted
Sec. 1. A person who:
(1) professes to be a practicing attorney;
(2) conducts the trial of a case in a court in Indiana; or
(3) engages in the business of a practicing lawyer;
without first having been admitted as an attorney by the supreme court commits a Class B misdemeanor.
As added by P.L.98-2004, SEC.22.
They do not prohibit negotiation.

You stated that RE agents are 'not qualified, nor are they legally permitted to negotiate construction contracts'. That is not true as a general statement. Some agents are certainly not qualified, but they can still perform negotiations. Any person can ask another to negotiate on their behalf.

Agreed that, it is unlawful to insinuate that one is an attorney when one is not, or to offer legal advice to someone when one is not an attorney, or to create a document that will act as a contract on a third party's behalf when one is not an attorney. But, as long as all partes understand that the agent is negotiating for the client as an 'agent to purchase real estate' and not as an 'attorney', said negotiations are perfectly legal.

Real estate agents have always negotiated contracts. They just don't prepare them. The contracts that Realtors use are approved by each state's Board of Realtors in conjunction with existing state law. Realtors know that they cannot give legal advice. Realtors know that they cannot give tax advice.

Are you just drumming up business? Or are you anti-RE agent?
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Old 06-03-2008, 02:10 PM
 
1,095 posts, read 3,985,167 times
Reputation: 664
Quote:
Originally Posted by TraderJack View Post
So... you are an attorney? or not?
Yes, I am. What difference does that make?

Quote:
The links you provided are strictly interpreted to admonish against the illegal practice of law. They do not prohibit negotiation.
Define "negotiation." Unauthorized practice of law includes the revision of contracts. When I, as an attorney, 'negotiate' a contract, I normally suggest changes in the contract terms to the other side, which is the practice of law.

Quote:
You stated that RE agents are 'not qualified, nor are they legally permitted to negotiate construction contracts'. That is not true as a general statement. Some agents are certainly not qualified, but they can still perform negotiations. Any person can ask another to negotiate on their behalf.
I stand by my statement. A non-attorney is not qualified, nor is (s)he permitted, to consult with a client about the legal ramifications of a contract or to suggest changes in contract terms. Obviously, a client may authorize an agent to speak on her behalf, but a real estate agent's authority is limited to the purchase or lease of real estate. A contract for construction of a home does not fall within that authority. The fact that real estate agents routinely do this does not make it legal or appropriate.

Quote:
Agreed that, it is unlawful to insinuate that one is an attorney when one is not, or to offer legal advice to someone when one is not an attorney, or to create a document that will act as a contract on a third party's behalf when one is not an attorney. But, as long as all partes understand that the agent is negotiating for the client as an 'agent to purchase real estate' and not as an 'attorney', said negotiations are perfectly legal.
How do you propose to negotiate changes to a construction contract without suggesting those changes to your client? And how do you think you can do that without offering legal advice? It's one thing to fax counteroffers back and forth, or to otherwise communicate on behalf of your client. If that's what you consider "negotiation," then you're correct. But recall that MikiJayne was offering to help the original poster negotiate the terms of the construction contract with the builder. That's outside the scope of her authority as an agent.

Quote:
Real estate agents have always negotiated contracts. They just don't prepare them. The contracts that Realtors use are approved by each state's Board of Realtors in conjunction with existing state law. Realtors know that they cannot give legal advice. Realtors know that they cannot give tax advice.
In my experience, realtors routinely give legal advice. Are you seriously telling me you don't ever explain the terms of a purchase agreement to your client? When you do so, you're giving legal advice. And it's irrelevant whether the Board of Realtors approves the contracts. As nonlawyers, they're not qualified to pass judgment on the legal sufficiency of the documents. Only an attorney can prepare or make changes to a contract. Anything more than filling in blanks is the practice of law.

Quote:
Are you just drumming up business? Or are you anti-RE agent?
No. Unlike MikiJayne, who routinely tries to drum up business for herself, I don't request that anyone contact me, nor do I otherwise attempt to use message boards to generate business. If you read my previous posts on this thread, you would see that I disclosed that I'm an attorney, and that I recommended the buyer NOT retain an attorney to deal with the builder.

I'm not particularly anti-RE agent either. There are plenty of areas in which they can add value, including knowledge of local market conditions, evaluation of property values, and assistance in making a home more marketable. That said, I think agents are grossly overpaid for the value of their services, especially as they relate to buyers.
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Old 06-03-2008, 02:38 PM
 
90 posts, read 601,786 times
Reputation: 53
This post has been diverted in different direction from my original posting.

All I am asking is, What all the things to be noticed carefully during the construction of the home from the builder like Drees. What might go wrong if I do not monitor process carefully.

I red in other posts, some one has to argue with the builder to build home in his way with in the limits of contract.

Anything that could go wrong if I dont monitor carefully. builder might just wrap up few things to save his time and money ....
?????????
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Old 06-03-2008, 02:52 PM
 
Location: The Fruited Plain
172 posts, read 509,601 times
Reputation: 58
Thank you for your reply. I'm sure everyone here will gain from it.

Explaining the contract, with all terms and conditions included, is what competent real estate agents do for their clients. It must be made clear that the role of the agent is to facilitate the purchase for the client, as well as to help their client understand the general language of the contract. It is not the agent's role to 'change' the contract.

They just need to be careful and make sure their role is 'agent for procuring real estate' and not as one 'giving legal advice'.

Agents are in no way to suggest a price or a condition that will jeapordize the written intent of the contract.

Any decision made regarding the purchase is to be at the sole descretion of the client. Agents should review these decisions in detail with their client, before any signature is applied to the contract.

All agents should remind their clients that if any part of the contract is confusing or unclear, the client should seek legal counsel.

Again thanks Naptowner, for you prompt and informative reply.
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