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March 14, 2017  -  Stay Connected!
 
    

 
QUESTION:  Are sign companies or real estate brokers subject to the "call before you dig" statute when digging a post hole for a yard sign? If a sign company or broker provides the sign to the owner and the owner puts it in the ground does the broker still have liability regarding the Dig Law?


ANSWER: Yes. The "Call Before You Dig" law requires a person who intends to dig or excavate to call "811" 48 hours prior to digging so that any underground utilities may be marked and thus, avoided, during the digging. While it may seem unlikely for a post hole digger to contact, much less damage, an underground utility, it can and does happen. As a result, even the simple act of digging a single post hole is subject to the state law that requires calling "811" before the hole is dug.
 
The definition of "excavation" subject to the statute is: "any operation in which earth, rock, or other material on or below the ground is moved or otherwise displaced by any means . . ." RCW 19.122.020(4). Any person who engages in an "excavation" is subject to the statute.  There is an exception for the owner of non-commercial property who digs no more than 12 inches deep but the exception does not apply to agents of the property owner. RCW 19.122.060. Moreover, it is the understanding of the Hotline lawyer that most post holes for yard signs typically exceed 12 inches in depth.
 
If a person digging fails to comply with the statute and an underground utility is damaged, the person digging is liable for repair of the damage and a civil penalty of up to $10,000 depending on the nature of the utility that is damaged.
 
This is not a new statute but legislation in 2011 created enhanced enforcement and dispute resolution procedures through the State Utilities and Transportation Commission. Accordingly, when intending to dig a post hole for a yard sign, it is imperative to call "811" and schedule a utility locate at least 48 hours prior to digging the post hole. If a yard sign is required prior to utilities being marked, a smaller, temporary sign should be used, that does not require digging.
 
Because the post hole required for most real estate yard signs is more than 12 inches, the "owner" exception will not protect property owners who dig their own post holes. If the owner has a problem, it is unlikely that the owner will absorb the liability willingly if owner figures out that broker gave owner the sign to post so that broker could avoid the responsibilities of the Dig Law. 

 

The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org . Please tell us your NRDS number when you e-mail the Hotline with your question.



Thank you, Corporate Sponsors!

  VHT Studios 

 

 
 
Housing Is Realigning With Historic Trends
(Source: REALTORMag) Do your agents know how to answer the buy-versus-rent question from clients? Essentially, what people are asking is what’s the best way to accumulate wealth, says Ken Johnson, a real estate economist, associate dean of graduate programs, and professor at Florida Atlantic University College of Business. “Historically, housing has won,” he says. [Read more...]
 

 
 
 
Gen X Homeowners Make Comeback after Coming Up in the Crash
(Source: RIS Media) Homeowners in Generation X are making a comeback after coming up in the housing crash, according to the National Association of REALTORS® (NAR) recently released Home Buyer and Seller Generational Trends study for 2017. More Gen X homeowners—who were most dogged by the downturn—are set to sell this year, having regained enough equity lost in the recession. [Read more...]
 

 
 
What Handle Should You Use for Social Media?
(Source: Katie Lance) When people think of you and your brand do they think of your company name or do they think of you? I would imagine for a lot of you if you’re real estate professionals, if you’re small business owners, entrepreneurs, a lot of your brand has to do with your name. [Read more...]
 

 
 
Help! Should I tell my clients or biz contacts that I looked them up in advance?
(Source: Realtor.com Results Series) So you googled a potential client, or maybe you even ran their name through one of those personal dossier apps we talked about earlier this week. Before you bring up “The Big Game” you know they watched, or the big deal you know they just finished negotiating, it’s important to consider how you roll out this information. [Read more...]
 

Primary Mortgage Rates Survey
(updated every Thursday)

 
APRIL 27TH - HILTON SEATTLE AIRPORT & CONFERENCE CENTER
The 2017 Washington REALTOR Business Symposium is proud to announce nationally recognized speaker Jackie Leavenworth will be spending the day with us and sharing her knowledge, energy, and passion for real estate. Jackie will present two of her most demanded classes: Negotiations: The Games People Play and It's a Price War to the Door. Lunch and parking included! [Get more info and register today.]
 
 
 
 
 

 
 
MAY 24TH - SEATTLE AIPORT MARRIOTT
The 2017 Washington REALTOR Legal Symposium is back and better than ever!  This event has outgrown our original venue so we've relocated to the Marriott Hotel across from the airport.  This event gathers leading real estate attorneys in Washington to share current legal issues affecting the industry & to help our members to stay out of trouble! This year, we have; Annie Fitzsimmons, Justin Haag, Lars Leste, Doug Tingvall, Chris Osborn, Jeannie Simpson, and Mark Schedler. [Get more info and register today.]
 

 
 
UPCOMING CLASSES
 

Current Issues in Residential WA Real Estate
Wednesday, March 15, 2017 (9:00 AM to 12:00 PM) 3.0 CE Hours
Windermere Real Estate, Puyallup

Real Estate Safety Matters
Wednesday, March 22, 2017 (9:00 AM to 12:00 PM) 3.5 CE Hours
Hood River Elks Club, Hood River, OR
 
Top Shelf Business Practices
Wednesday, March 22, 2017 (12:30 PM to 3:30 PM) 3.0 CE Hours
Hood River Elks Club, Hood River, OR
 
Current Issues in Residential WA Real Estate
Wednesday, March 29, 2017 (8:30 AM to 12:00 PM) 3.0 CE Hours
The Bellingham Golf & Country Club, Bellingham

NAR Code of Ethics - 3.0
Wednesday, March 29, 2017 (1:00 PM to 4:00 PM) 3.0 CE Hours
The Bellingham Golf & Country Club, Bellingham
 
Current Issues in Residential WA Real Estate
Thursday, March 30, 2017 (8:30 PM to 12:00 PM) 3.0 CE Hours
Yakima Association of Realtors, Yakima

Real Estate Safety Matters
Thursday, March 30, 2017 (1:00 PM to 4:00 PM) 3.5 CE Hours
Yakima Association of Realtors, Yakima

Statewide Forms - Full Day
Monday, April 3, 2017 (8:30 AM to 5:30 PM) 7.5 CE Hours
Silverdale Beach Hotel, Silverdale

Business Symposium
Thursday, April 27, 2017 (8:30 AM to 4:00 PM) 7.5 CE Hours
Hilton Seattle Airport & Conference Center, Seattle

Disclosure Requirements in RE Transactions
Thursday, April 27, 2017 (8:30 AM to 4:00 PM) 7.5 CE Hours
Yakima Association of Realtors, Yakima
 


 

 
 
QUESTION from 3/30/2016 - Managing broker (listing side) says that a signed and countersigned counteroffer addendum constitutes a binding purchase and sale agreement even if the purchase and sale agreement has 1) not been signed and 2) the seller signed p/s agreement has not delivered to the purchasing agent/office. Further, managing broker says that his lawyer has assured him that he is correct in this position. Lowly buyers’ broker says “Wow, that’s awesome news and I’m really impressed to hear you say that.” Should the buyers’ broker really be impressed or is the 30+ year managing broker misguided?


  
ANSWER - Best practices require that all forms be signed by seller even if the counteroffer is made on Form 36. The reason it is important for seller to sign/initial all pages is so that it can be proven later that seller saw and agreed to the terms set forth on all pages of the agreement. As a purely technical matter, if the counter offer is written on Form 36, there is language at the top of Form 36 that incorporates the terms of buyer's offer into seller's counter offer. From a technical stand point, seller does not have to sign anything but the Form 36. However, this is not a good business practice for listing broker. Broker should have seller sign/initial all pages of the agreement. If seller is reluctant to sign the purchase agreement over concern that buyer may not see seller's counter offer, then above seller's signature, broker can write the words, "subject to the attached counter offer". Buyer's broker, of course, has no control over whether listing broker employs good business practices or not. From buyer's perspective, the agreement is binding and the parties have reached mutual acceptance when buyer signs seller's counteroffer, even if seller never signed all of the forms that constituted buyer's original offer.
 
(You will need your NRDS# & password to access the Legal Hotline)
 
The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org. Please tell us your NRDS number when e-mail the Hotline with your question.