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April 11, 2017  -  Stay Connected!
 
    

 
QUESTION:  A firm is promoting a “Certified Pre-Owned Property” program where they, as listing firm, have already had a property inspection completed. The inspection report and a copy of a contractors estimate of repairs is included in the MLS Associated Documents and the PACMLS listing “Agent Confidential Remarks" state the following:

“The Seller will not be accepting any offers at this time that include an Inspection Contingency Form 35.”
 
Really? Seller will not be accepting any offers that include a Form 35? How many sellers come up with that restriction on their own? The firm representing these sellers has 21 active resale listings, of which 9 have the identical verbiage prohibiting a Form 35 from being included with an offer. With 9 out of 21 listings using the same language it could be found this dangerous practice is advocated by the listing firm. Is that firm oblivious to the many risks the Hotline Attorney has made abundantly clear to WA REALTORS® over the years and again very directly in the recent 3/24/17 Friday Legal Update video?
 
I believe the listing firm is playing with fire, this practice places not only their firm, agents, and sellers at great danger of legal peril but also the selling agents and selling firms. Going further it concerns me there may be selling agents who do not properly represent their clients and do not educate their buyers on the risks of not including a Form 35.
 
What can our firm do to best educate our agents and their clients who wish to make an offer on one of this firm's Form 35 restricted listings? What sort of buyer signed disclosure and documentation should we retain that makes it clear to them this is an ill-advised practice and exposes them to risk?



ANSWER: All that buyer brokers can do is warn buyers of the risks associated with making offers that do not include a home inspection contingency, failure to conduct due diligence, reliance on an inspector selected by the seller, etc. Broker should also advise buyer to seek the advice of legal counsel if buyer wants to proceed with an offer that does not include an inspection contingency. Finally, if buyer ultimately chooses to make an offer that does not include an inspection contingency, broker should include a Form 35 in buyer's offer, with the box marked waiving the inspection contingency, so that buyer has to make an active and knowing waiver of the standardized inspection contingency language. All warnings and advice should be given in conversation and followed up in writing, with a copy of the written advice retained in the firm's transaction file.
 
If buyer chooses to make an offer including an inspection contingency, notwithstanding the listing agent remarks, and listing broker fails to present the offer, buyer and/or buyer's broker should consider filing a DOL complaint against the listing broker and/or listing firm. The Agency Law is very clear. All written offers must be timely presented. Certainly, listing broker has no discretion to withhold presentation of an offer because the offer includes an inspection contingency.
 

 

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!

   

 

 
 
Fix Hirst Update
The Hirst decision is having a seriously negative impact on many property owners and in some circumstances, is resulting in catastrophic losses for them. Washington REALTORS® is working hard on the Hill to help fix the Hirst decision by supporting #SB5239.  [Read more...]
 

 
 
Job Announcement
The Real Estate Program with the Department of Licensing Business & Professions Division is looking for a Real Estate & Home Inspector Programs Manager.   [Read more...]
 

 
 
April is Fair Housing Month!
REALTORS® are the leading advocates for housing and protecting the dream of home ownership and we join the nation every year in recognizing Fair Housing Month in April.  Click here to learn how to talk about fair housing and diversity. Want to show your commitment to Fair Housing?  Print this poster and display it in your office.
 

 
 
NAR Committee Application Process Open Now!
The NAR Committee Application Process is open! Are you interested in getting involved at NAR? Now is the time! Find an area to serve that you are passionate about and apply today. Follow the link to update your member profile and apply to serve on a committee. [Read more...]
 

 
Using Live Video to Build Your Real Estate Business
(Source:  Speaking of Real Estate) The rise of live video streaming technology on social media has given real estate professionals a powerful new way to promote listings, create brand awareness and attract business. Video platforms such as Facebook Live make it possible to show a property to potential buyers who might not be able to visit it in person, and they can help you connect with prospective clients you might not otherwise have a chance to meet. Learn more about using these tools to expand your reach in this video. [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 Neste, Doug Tingvall, Chris Osborn, Jeannie Simpson, and Mark Schedler. [Get more info and register today.]
 

 
 
UPCOMING CLASSES

 


   

 
 

 
 
QUESTION from 4/18/2016 - A past client wants to list his home that he has owned for less than 1 year. They have done a complete remodel on it and one would consider it a flip. Most of the work was contracted out, with the owner mostly coordinating the work…doing only some of the minor things himself. Can he proceed and sell it now does he have to wait 12 months in order to avoid liability?


  
ANSWER - The definition of contractor was modified in the last legislative session and now says: "Contractor" also includes any person, firm, corporation, or other entity covered by this subsection (1), whether or not registered as required under this chapter or who are otherwise required to be registered or licensed by law, who offer to sell their property without occupying or using the structures, projects, developments, or improvements for more than one year from the date the structure, project, development, or improvement was substantially completed or abandoned. A person, firm, corporation, or other entity is not a contractor under this subsection (1)(c) if the person, firm, corporation, or other entity contracts with a registered general contractor and does not superintend the work. The last sentence was added to allow flippers who hire a general contractor to sell within the year. Based on the facts presented, it appears that this seller acted as his own general and thus, this exemption would not apply. From the facts presented, this seller will be in violation of the Contractor Registration Act to sell within one year from performance of the remodeling work. Broker will not be in violation of the law for listing and marketing the property. Broker should advise seller to seek legal counsel for assistance in understanding seller's rights and obligations under the law.
 
(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.