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April 25, 2017  -  Stay Connected!
 
    

 
QUESTION:  We have a seller who accepted an offer from our buyer, my buyer flew to the home to see the inspection and the inspection contingency was satisfied. The seller has now decided that they don't want to sell. Does our buyer have any options? Do we as the buyer's agent?



ANSWER: Assuming seller has no contingencies allowing seller to terminate (such as a short sale contingency), seller will be in breach if buyer tenders performance and seller fails or refuses to close. Depending on the facts surrounding this particular dispute, it may or may not be important for buyer to actually go through the steps of signing closing documents and evidencing preparedness to produce loan funds, etc. Assuming seller is in breach of the purchase agreement, however, there will be remedies available to buyer.
 
Buyer's remedies include the option to ask a court to order damages and/or specific performance. Damages could include anything from buyer's out of pocket costs for inspections, appraisals and the like up to the difference in value between what buyer would have paid for seller's property versus what buyer would have to pay for a similarly situated property. Specific performance is an order by the court requiring seller to perform the terms of the agreement and convey title in exchange for buyer's performance.
 
Broker has no ability to advise buyer or seller on these issues. Advice as to the consequences, rights and remedies of breach is clearly the practice of law. Broker is not licensed to give buyer or seller this information. Rather, each broker should advise his/her client, in writing, to seek legal counsel. Seller needs legal counsel before seller breaches the agreement. Seller's breach could take place by refusing to sign closing documents but seller's breach could also take place prior to the closing date, with seller's stated refusal to proceed to closing. Accordingly, listing broker's written advice to seller should be given sooner rather than later.
 
Buyer needs legal counsel for assistance in determining how to proceed in the face of seller's breach. Should buyer continue with efforts to obtain financing and actually sign closing documents? There is no answer to that question satisfactory to every scenario. Accordingly, buyer must seek legal counsel as to how to proceed. Moreover, assuming buyer can prove seller's breach, what are buyer's best remedies and what is the preferred strategy for achieving buyer's objectives with the least expenditure of resources. Again, buyer's broker should immediately advise buyer, in writing, to seek legal counsel.
 
Finally, should seller breach the purchase agreement, both brokers have a claim for compensation through their firm. Seller agreed to compensate brokers if brokers produced a ready, willing and able buyer. The brokers did that in this case and earned compensation, regardless of whether seller breaches the agreement or not. Should seller breach, brokers and firm should seek legal counsel for assistance in determining how to proceed with respect to a commission claim.
 

 

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.



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Fannie Mae announces new programs to break through student loan roadblock
(source: HousingWire.com) Confirming what sources told HousingWire yesterday, Fannie Mae this morning announced a significant expansion of its student loan cash-out refinance program and introduced new policies to help borrowers with student loan debt get qualified for mortgage loans. [Read more...]
 

 
 

 

 
 
Fair Housing Posters Are Available!
Washington REALTORS® has a limited quantity of printed 18" x 22" NAR 2017 Fair Housing posters left over from our Spring Business Conference. If you'd like one for your office, please email Cara McNeil and we'll mail one out to you. Quantities are limited and available on a first-come, first-serve basis. The digital version can be accessed here.
 

 
 
Is This the Best Seller's Market Ever?
(Source: REALTORMag) The inventory squeeze has left home buyers with fewer options on the market than they've seen in decades. While that's bad news for them, the continuously high demand means it's one of the best times to be a seller—ever. "I've been selling real estate for 25 years, and this is the strongest seller's market I have ever seen in my entire real estate career," [Read more...]
 

 
 
 
#GETSOCIALSMART Secret Facebook Page Tips
(Source: katielance.com) It’s episode 16, and today I am excited to share with you three little-known tips you may not know about your Facebook business page. There’s a lot we could talk about when it comes to Facebook business pages. Sometimes Facebook just kind of rolls things out quietly and we don’t all know about it, and I want to make sure you guys know about some of the latest things that are happening with business pages. [Read more...]
 

 
 
Don't get caught by the phishing hook
(Source: The Tech Helpline) It’s spring home buying season, but that also means it’s phishing season, and not the kind that puts fresh trout on the dinner table. “Phishing” is an attempt to try to trick you to give up financial or other confidential information, such as your user ID or password, by sending you a communication that looks as if it is from a legitimate organization. The communication typically is from scammer who is using the name and likeness of a financial institution or other trustworthy organization. It contains a call to action or link to a fake website that can look identical to the real one and usually features a web address that is nearly identical. [Read more...]
 

Primary Mortgage Rates Survey
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UPCOMING CLASSES
Date Class Location CE  

26-Apr Current Trends in WA Residential RE (CORE) Walla Walla 3.5 More info...
26-Apr NAR Code of Ethics - 3 Walla Walla 3 More info...
27-Apr 2017 RE Business Symposium Seattle 7.5 More info...
27-Apr Disclosure Requirements in RE Transactions Yakima 7.5 More info...
17-May Into the Breach Dalles, OR 4 More info...
17-May CORE Dalles, OR 3 More info...
22-May Statewide Forms - Full Day Vancouver 7.5 More info...
24-May 2017 Legal Symposium Seattle 7.5 More info...

 
 
QUESTION from 4/18/2016 - As I audit files, I seem to get a handful of forms that do not have one of the buyer or seller names typed in at the top. Trying to get one of the parties to fill this out properly can be challenging after mutual acceptance. What affect does this have on the contract? Who can fill out the names? Do all parties need to initial this addition?


  
ANSWER - Brokers are held to the standard of care of a lawyer when filling in the blanks on a purchase and sale agreement. Addenda are part of the purchase and sale agreement. This question illustrates unacceptably sloppy practices by brokers who are NOT conforming to the standard of care required of them when practicing law ... which brokers are absolutely doing when they fill in the blanks on purchase agreements.
 
How difficult can it be to write the last name of each of the parties at the top of the addenda, along with the property address and the date of the purchase agreement? Guaranteed, an expert witness at any trial where a broker's practice of law, in completing purchase agreements, is questioned, will testify that a lawyer would properly identify the purchase agreement to which any addendum is attached.
 
The question is, if the purchase agreement to which the addendum is attached is not properly identified, then is the addendum actually part of the purchase agreement. A court would ultimately answer that question, ruling in favor of one of the broker's client and against the client of another broker. Answering that question today is not possible because a court would have to review all of the facts associated with the particular transaction in order to answer that question.
 
The lesson that is the relevant by-product of that question, however, is that brokers should be completing all of the blanks at the top of any addendum that is part of the purchase agreement. By engaging in that very simple practice, brokers avoid litigation, for their clients, as to the impact of broker failing to include the identifying information. After all, if a party is involved in litigation, a broker is in trouble if the litigation was necessitated by actions that the broker took or failed to take. Failing to completely fill in the identifying blanks at the top of an addendum is a simple and required action that prevents the risk of litigation on this issue.
 
With that said, answering the question actually asked is not easy. To some degree, identifying the contract to which the addendum is attached is secretarial in nature. Identifying the contract is not a "term" of the agreement so perhaps it should be simple for reviewing broker to simply add the party names to addenda when the defect is noticed during contract review. But, it is possible for a party to argue that they never intended this particular addendum to be attached to this particular contract. In some cases, that argument would be strained at best. There are fact patterns, however, where that argument could be viable. At the same time, it makes no sense to have parties initial and date the inclusion of the identifying information because it would not constitute a counter offer and would not contribute to the calculation determining the date of mutual acceptance.
 
DB's first effort should be to solve this problem through education. All brokers should be including all identifying information on every addendum. If DB is confronted with this issue nevertheless, then the identifying information should be added and both parties should be provided a new copy of the purchase agreement, including the addendum with the newly added identifying information at the top, and notification that the missing information was included for clarification only.
 
(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.