In case one didn’t know it, the actions taken on a contract are all tied to the “execution” date, also known as the “date of final acceptance” (Texas Association of REALTORS┬« (TAR) form 1601, pg.7). This means that all addendums or agreements with specified time limits must be met within the time specified on a calendar day basis with day one beginning the day after the executed date.

The most important time frame that the home buyer or home seller should keep in mind is the option period, if one has been negotiated. For simplicity sake, let’s use a hypothetical contract signed by all parties and executed on December 31st with a ten day option period. This means that day one of the option period begins on January 1st and ends at midnight on January 10th. This option period is often used for inspections of a property, insurance quotes, and repair negotiations. Once this hurdle is jumped, appraisal and survey follow to complete the closing process.

When dealing with home owner’s association documents, surveys, and third party financing approvals, the same rule applies. If the addendums specify a certain number of days, one must be sure to comply with the deadlines or be in default – which is never a good thing.

Remember, the clock starts ticking on the date of final acceptance, also known as the execution date or the effective date. Professional REALTORS® should always be aware of time constraints within your contract, and need to remind you of the date as a buyer or seller. If not, be sure to ask your REALTOR® what the time frame is.

 

You may be wondering if the title of real estate consultant is a meaningful one, and if it indicates anything different from the same old licensed real estate brokers with a vested interest in the fate of a property. While it is true that anyone can call himself or herself a consultant, the term is not meaningless window dressing. For those who take their real estate consulting business seriously, it represents a different model, a different approach to real estate practice.

The first and most important difference is objectivity. Whereas a real estate broker typically is paid contingent on an outcome-in other words, they receive a commission-a real estate consultant is paid solely for their expertise. They have no stake in the outcome. Salespeople are paid only for getting a result-a sale. Real estate consultants are paid for their expert advice only, and by design have no stake in achieving a particular outcome to a particular transaction. This gives them the capacity to be more objective and inherently more trustworthy than a traditional real estate salesperson. Think about it-even the most honest salesperson will unconsciously try to steer you toward a sale. After all, that’s where their pay comes from-from selling! The consultant is paid the way other professional advisors or service professionals like CPAs are, with a retainer regardless of outcome.

Consulting can involve a variety of skills and areas of expertise. You can hire a consultant for legal advice, market research, or to locate possible properties to invest in, among other things. Since they are paid as much for their time if they advise you that there are no properties in an area worth investing in as if they advise you of dozens of viable properties, they have no stake in anything except giving you the best advice possible. After all, their future business depends on word-of-mouth endorsements from investors like you.

If you are looking for properties to invest in, a real estate consultant can tip you off to developer closeouts and bulk opportunities, equity partnerships, joint ventures, and possibly even some very unique and profitable turnkey investment opportunities. The consultant is selling information and expertise, and therefore can provide you with a layer of insulation between you and the people selling the properties. They can work out a lot of the details and business prospects of a property before you have to talk to a salesperson. Once you face the salesperson, you can approach the negotiation fully armed with an array of appropriate information, and thus avoid being bamboozled and negotiate from a position of strength.

If, on the other hand, you are selling properties, especially if you have a lot of properties to sell, a real estate consultant can help you create a strategy to sell the units before you get involved with actual salespeople, which can have many advantages. For example, you can sell a lot of properties in a relatively short time without creating the appearance of a bulk sale by having a real estate consultant distribute the properties among several different sellers.

 

In any Listing Agreement there is a point in time when the agency relationship ends.

A Listing Agreement, as it is widely known, is none other than a contract between the rightful titleholder of an interest in land (the ‘Principal’) and a duly licensed real estate firm (the ‘Agent’), whereby the firm stipulates and agrees to find a Buyer within a specified timeframe who is ready, willing and able to purchase the interest in land that is the subject matter of the contract while acting within the realm of the authority that the Principal confers onto the Agent, and wherein furthermore the titleholder stipulates and agrees to pay a commission should the licensee ever be successful in finding such Buyer.

As in all contracts, there is implied in a Listing Agreement an element which is commonly know at law as an ‘implied covenant of good faith and fair dealings’. This covenant is a general assumption of the law that the parties to the contract – in this case the titleholder and the licensed real estate firm – will deal fairly with each other and that they will not cause each other to suffer damages by either breaking their words or otherwise breach their respective and mutual contractual obligations, express and implied. A breach of this implied covenant gives rise to liability both in contract law and, depending on the circumstances, in tort as well.

Due to the particular nature of a Listing Agreement, the Courts have long since ruled that during the term of the agency relationship there is implied in the contract a second element that arises out of the many duties and responsibilities of the Agent towards the Principal: a duty of confidentiality, which obligates an Agent acting exclusively for a Seller or for a Buyer, or a Dual Agent acting for both parties under the provisions of a Limited Dual Agency Agreement, to keep confidential certain information provided by the Principal. Like for the implied covenant of good faith and fair dealings, a breach of this duty of confidentiality gives rise to liability both in contract law and, depending on the circumstances, in tort as well.

Pursuant to a recent decision of the Real Estate Council of British Columbia (http://www.recbc.ca/) , the regulatory body empowered with the mandate to protect the interest of the public in matters involving Real Estate, a question now arises as to whether or not the duty of confidentiality extends beyond the expiration or otherwise termination of the Listing Agreement.

In a recent case the Real Estate Council reprimanded two licensees and a real estate firm for breaching a continuing duty of confidentiality, which the Real Estate Council found was owing to the Seller of a property. In this case the subject property was listed for sale for over two years. During the term of the Listing Agreement the price of the property was reduced on two occasions. This notwithstanding, the property ultimately did not sell and the listing expired.

Following the expiration of the listing the Seller entered into three separate ‘fee agreements’ with the real estate firm. On all three occasions the Seller declined agency representation, and the firm was identified as ‘Buyer’s Agent’ in these fee agreements. A party commenced a lawsuit as against the Seller, which was related to the subject property.

The lawyer acting for the Plaintiff approached the real estate firm and requested that they provide Affidavits containing information about the listing of the property. This lawyer made it very clear that if the firm did not provide the Affidavits voluntarily, he would either subpoena the firm and the licensees as witnesses to give evidence before the Judge, or he would obtain a Court Order pursuant to the Rules Of Court compelling the firm to give such evidence. The real estate firm, believing there was no other choice in the matter, promptly complied by providing the requested Affidavits.

As a direct and proximate result, the Seller filed a complaint with the Real Estate Council maintaining that the information contained in the Affidavits was ‘confidential’ and that the firm had breached a duty of confidentiality owing to the Seller. As it turned out, the Affidavits were never used in the court proceedings.

The real estate brokerage, on the other hand, took the position that any duty of confidentiality arising from the agency relationship ended with the expiration of the Listing Agreement. The firm argued, moreover, that even if there was a duty of continuing confidentiality such duty would not preclude or otherwise limit the evidence that the real estate brokerage would be compelled to give under a subpoena or in a process under the Rules Of Court. And, finally, the realty company pointed out that there is no such thing as a realtor-client privilege, and that in the instant circumstances the Seller could not have prevented the firm from giving evidence in the lawsuit.

The Real Estate Council did not accept the line of defence and maintained that there exists a continuing duty of confidentiality, which extends after the expiration of the Listing Agreement. Council ruled that by providing the Affidavits both the brokerage and the two licensee had breached this duty.

The attorney-client privilege is a legal concept that protects communications between a client and the attorney and keeps those communications confidential. There are limitations to the attorney-client privilege, like for instance the fact that the privilege protects the confidential communication but not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not an attorney, and then gives the same information to an attorney, the attorney-client privilege will still protect the communication to the attorney, but will not protect the information provided to the third party.

Because of this, an analogy can be drawn in the case of a realtor-client privilege during the existence of a Listing Agreement, whereby confidential information is disclosed to a third party such as a Real Estate Board for publication under the terms of a Multiple Listings Service agreement, but not before such information is disclosed to the real estate brokerage. In this instance the privilege theoretically would protect the confidential communication as well as the underlying information.

And as to whether or not the duty of confidentiality extends past the termination of a Listing Agreement is still a matter of open debate, again in the case of an attorney-client privilege there is ample legal authority to support the position that such privilege does in fact extend indefinitely, so that arguably an analogy can be inferred as well respecting the duration of the duty of confidentiality that the Agent owes the Seller, to the extent that such duty extends indefinitely.

This, in a synopsis, seems to be the position taken by the Real Estate Council of British Columbia in this matter.

Clearly, whether the duty of confidentiality that stems out of a Listing Agreement survives the termination of the contract is problematic to the Real Estate profession in terms of practical applications. If, for instance, a listing with Brokerage A expires and the Seller re-lists with Brokerage B, if there is a continuing duty of confidentiality on the part of Brokerage A, in the absence of express consent on the part of the Seller a Realtor of Brokerage A could not act as a Buyer’s Agent for the purchase of the Seller’s property, if this was re-listed by Brokerage B. All of which, therefore, would fly right in the face of all the rules of professional cooperation between real estate firms and their representatives. In fact, this process could potentially destabilize the entire foundation of the Multiple Listings Service system.

In the absence of specific guidelines, until this entire matter is clarified perhaps the best course of action for real estate firms and licensees when requested by a lawyer to provide information that is confidential, is to respond that the brokerage will seek to obtain the necessary consent from the client and, if that consent is not forthcoming, that the lawyer will have to take the necessary legal steps to compel the disclosure of such information.

You don’t have to be a real estate expert to have heard of release agreements. A release is one of the most common types of contracts in the world of law. They are used to allow a company to use someone’s image for commercial use. However, a real estate release agreement isn’t quite the same thing. In most cases, releases are used by prospective buyers to release the seller from the mortgage or liens they have on a property so that the property is debt free. The form is extremely short and is often only one page when presented. Let’s take a look at a typical contract requiring a seller to obtain release of mortgage on a property.

The first part of the contract clearly outlines the date that this agreement is being signed, the names of both parties involved in the transfer of the property as well as any spouses of the members involved in the agreement. The second part of the agreement outlines the terms and conditions that the property in question is under. It goes over how much debt the property has attached to it and whether the property has a mortgage debt or a lien debt associated with it. It also outlines the purchase price of the property and how that purchase price can now be used to pay off any and all debt associated with the property. This type of form is used mostly to ensure that the seller will eliminate all debt from a piece of property when the sale is complete as agreed upon in the original sale agreement. Some people consider this form to be a bit redundant, but you can never be too careful when it comes to legal wrangling and property.

The final part of the agreement only requires the signer to include their names, the amount of the total debt still present on the property and finally, the amount that is being paid off. Much of the contract will simply be pre-typed text, often a template, that outlines the seller’s responsibilities once the sale is finalized.

If the buyer and seller of the property agree beforehand, a real estate release agreement isn’t necessary. It could be part of the original sale agreement that the buyer is responsible for paying off any existing debt on the property and not the responsibility of the seller. Since every legal agreement is different and many of them have their own unique provisions, some real estate release agreements can vary considerably from the one outlined here.

In conclusion, the real estate release agreement is a safeguard instituted by the buyer to ensure that a piece of property that has debt associated with it is paid off in full with the money gained during the sale by the seller so that when the final transfer of the property is finalized, it is debt free. It is vital that this agreement be included if you are buying property that has debt attached to it.