March 2014: California Court of Appeal Further Decide on Extent of Brokers’ Fiduciary Duties

Recently, in Saffie v. Schmeling, the California Court of Appeal considered what the selling broker’s fiduciary duty to his buyer is regarding further investigating an earthquake report provided by the listing broker, and the extent of the duty of the listing broker and seller to the buyer. The Court clarified that the selling broker has a duty to further investigate an old report and that the duties of the listing broker and the seller do not include performing research for the buyer. Read more by clicking HERE.

 


January 2014: New Laws in 2014 that May Affect Real Estate Practitioners: Part 1

This month’s Newsletter focuses on the newly enacted laws that may affect how real estate practitioners conduct their business.  Part 1 of a two-part series.  We also reference the forms released and discontinued by the C.A.R. in December 2013. For the full article, please click on the following link: http://srcar.org/assets/2014/01/January2014-Newsletter_New-Laws.pdf

Oct. 2013: Court Ruling Allows Landlords to Conduct Open Houses on Weekends

In August, the California Court of Appeal handed down a decision in Dromy v. Lukovsy, et al. that could affect how landlords and their listing agents are able to market tenant-occupied properties. To read the most recent Courtside Newsletter, click here.


You can also find copies of previous Courtside Newsletters under the “NEWS/BLOGS” tab of THE GIARDINELLI LAW GROUP, APC website:


Sept. 2013: CALIFORNIA SUPREME COURT OVERTURNS 78-YEAR PRECEDENT

The California Supreme Court recently handed down a decision in Riverisland Cold Storage v. Fresno-Madera Credit Association that may affect how real estate practitioners conduct their business in the future. Specifically, what they say before, during, and after negotiations. To read the most recent Courtside Newsletter, click here.


REALTOR® Safety – Recent events bring the topic back to the front of the line.

BY: JOHN V. GIARDINELLI, ATTORNEY AT LAW
CASEY MCINTOSH, PARALEGAL

“A real estate agent makes a living meeting a complete stranger in an empty home,” says Tracey Hawkins, owner and safety product speaker at Safety and Security Source. REALTORS® can be vulnerable to robbers, thieves, squatters, angry ex-homeowners, hostile pets, stalkers, rapists, and murderers. With this in mind, it is no wonder that the real estate profession is sometimes considered a dangerous career.

Recently, there have been reports of a man in the Menifee area, calling on female agents at a local development and visiting the office on numerous occasions. He has also been seen sitting outside of the building in his car. The man’s disarming behavior has been reported to authorities and is under investigation, but it is an important reminder to real estate professionals to stay alert and aware.

The last several years have seen an upsetting increase in the amount of violence towards real estate professionals. There have been many harrowing tales of open houses and home tours gone awry, and many experts have attempted to address the issue of REALTOR® safety. The following is a compilation of the best tips and tricks in the industry.

  • Always trust your instincts in any given situation. If a potential client does not seem trustworthy or you do not feel comfortable, don’t take a risk just to make a sale.
  • Meet potential clients at the office first. Do not meet people for the first time at the property you are showing. Criminals hate witnesses and meeting people at the office generally ensures that someone else will see them and know who they are.
  • Gather as much information on potential clients as possible. At minimum, get a copy of the person’s driver’s license or other identification. You can also have them fill out a more detailed “Prospect Identification Form,” which is available on NAR’s website (www.realtor.org).
  • Tell your coworkers, friends or family members where you will be and who you will be with when you show a property or have an open house.
  • Try to finish showing properties well before the sun goes down. Avoid showing properties after dark
  • If you must show a property after dark, arrive early and open every blind or shade, and turn on all the lights.
  • When possible, show homes with a coworker.
  • Follow clients through doors and into rooms. Do not go in first.
  • Avoid going into basements and attics. These rooms are enclosed and muffle calls for help.
  • Unlock all doors and windows in the home, and make sure you have an escape out of the backyard should something happen.
  • Always have your cell phone fully charged and on your person in an easily accessible place (i.e. front pocket).
  • Download personal security apps such as StreetSafe. StreetSafe has a discrete “Silent Red Alarm” that communicates your location and profile information to the local 911 center. If the situation is not yet significant enough to call 911, the “Walk With Me” feature will put you in touch with a live safety advisor who will offer tips and call the police if the situation escalates.
  • Make sure you get cell signal where at the property you are showing.
  • Insist on driving to the property separately from the client. If you must drive together, make sure it is in your car.
  • Always have your car’s gas tank at least ¼ full.
  • Park in a well-lit, visible location.
  • If you have to walk to your car alone at night, call your friend and chat until you’re safely in your vehicle.
  • Be aware of your surroundings. Follow NAR’s “10-Second Rule” and take 2 seconds when you get to the property, get out of your car, walk toward your destination, arrive at the door, and enter the door to make sure you feel safe.
  • Keep marketing material professional. Criminals have been known to choose victims based on their pictures.
  • Dress professionally. Do not wear loose clothing or scarves that a perpetrator could grab onto.
  • Check the rooms and backyard after an open house to make sure everyone is gone. Be prepared to defend yourself.
  • Agree on a distress code at the office. NAR recommends saying, “Hi, this is Jennifer. I’m with Mr. Henderson at the Elm Street listing. Could you email me the RED FILE?” This alerts the office, but hopefully not the perpetrator.
  • Have an “out” for threatening situations, such as fictionalized phone call, or saying that another agent is on his way.
  • Never say you’re alone, even if you are. If someone shows up to your office when you’re the only one there, casually mention that someone else is with you.
  • Carry pepper spray on your key chain and/or a Taser gun to protect yourself.
  • Take a self-defense class. Many community associations offer these courses for free.

Personal safety should always be a REALTOR®’s top priority. Although you may miss out on a sale, you may also be avoiding a potentially dangerous situation. In times like these, common sense goes a long way. If something doesn’t seem safe or doesn’t feel right, find a way out.

More REALTOR® safety information can be found on NAR’s website (www.realtor.org), C.A.R.’s website (www.car.org), and various locations on the Internet.


July 2013: C.A.R. JULY 2013 FORM RELEASE

BY: SYLVIA J. SIMMONS, ATTORNEY AT LAW
CASEY MCINTOSH, PARALEGAL

The California Association of REALTORS® (C.A.R.) released several new and revised forms on July 29th. The following is a brief summary of those forms and what their  changes mean to real estate practitioners.

New Forms
Two new forms replace the Seller Instruction to Exclude Listing (SEL). REALTORS® should take note that C.A.R. does not monitor the legal validity of any prior form version and the C.A.R. User Protection Agreement only applies to the most current version of a form.

Seller Instruction to Exclude Listing from the Multiple Listing Service (SELM)
The SELM provides a request by the seller to the broker to advise the MLS that the seller wants to completely exclude the property from the MLS. Paragraph 6, “Impact/Reduction of Exposure,” has been added to expound on the fact that any reduction in exposure may lead to a reduction in the number of offers made and may negatively impact the sales price. Paragraph 7, “Seller Opt-Out,” has been reformatted to make it easier to identify the time limitation on the exclusion.

Seller Instruction to Exclude Listing from Internet (SELI)
The SELI provides a request by the seller to the broker to advise the MLS that the seller wants to (1) opt-out of Internet display of the property or its address and/or (2) try to prevent comment features or value estimate features on MLS-related internet sites.

Revised Forms – 8 Listing Agreements
According to C.A.R., it is okay to use prior revisions for each of the following forms.

Commercial and Residential Income Listing Agreement (CLA)
The CLA now includes the following new provisions:

 

  1. A checkbox to indicate whether the listing will or will not be provided to the MLS.
  2. A blank to fill in the name of the MLS of which the broker is a participant or subscriber.
  3. A checkbox to indicate whether the MLS is or is not the primary MLS for the geographic area of the property.
  4. Boxed language (from the RLA with revisions) to be initialed by the seller and broker that explains to the seller the purpose and benefits of using the MLS, the impact of opting out of the MLS, the difference between the MLS and closed/private listing clubs or groups, and the requirement that a broker must present all offers to the seller.
  5. A section explaining the MLS rule that a listing must be submitted to the MLS within a certain amount of time, but that certain MLS data can be opted out of if the seller executes a Form SELM or the local equivalent form.
  6. A section with the dispute resolution language found in the Residential Purchase Agreement form requiring mediation and agreeing to arbitration if the seller and broker initial the provision.

Manufactured Home Listing Agreement for Real and Personal Property (MHL)

The MHL contains all the same additions as added to the CLA.

Probate Listing Agreement (PL)
The PL contains the same additions as added to the CLA regarding the MLS (1 through 5 above), but not the dispute resolution language.

Residential Listing Agreement (RLA)
The RLA boxed language regarding the MLS is revised to be the same as in the CLA (now includes “presenting all offers,” “clubs or groups,” “excluding it from the MLS”, and “reduction in exposure”). Also, “DRE” is changed to “BRE.”

Residential Listing Agreement-Agency (RLAA)
Residential Listing Agreement-“Open” (RLAN)
Trust Listing Agreement (TLA)
Vacant Land Listing Agreement (VLL)
Each of these forms contains the same additions as made to the CLA regarding the MLS (1 through 5 above). Also added to each form is a warranty by seller that seller is the owner, no other persons or entities have title to the property, and seller has authority to execute the form and sell the property.

* * *

The new forms released on July 29th emphasize the benefits the MLS offers to sellers and brokers, including the exposure that listing a property in the MLS offers. This implies that the property will sell more quickly and with less stress (and legwork) for both the seller and the broker.

As always, real estate practitioners should thoroughly understand the forms presented to their clients for signature. If a REALTOR® has any questions or concerns about which form is appropriate or how to complete a form, the broker, brokerage attorney, or other qualified legal counsel should be consulted.

Newsletter July 2013