re97r15 due diligence in seller(s) representation in ... · m.g.l. c 93a a superior court judge...
TRANSCRIPT
Due Diligence in Seller(s) Representation in Residential
Real Estate Transactionswith
kate lanagan macGregor
RE97R15
Why Do We Care?
How hard to we have to work…
I mean...Homes are selling like hotcakes!
So many Options!
You Are Responsible!
❏ Yourself❏ Principal (Seller)
❏ Broker/Owner To reduce the risk of liability for themselves, their company, and the consumers they represent relative to the following a
❏ Real Estate licensees are NOT attorneys
❏ Do not mistake diligence for legal representation!
Warning!
Why Verify?
❏ Real Estate licensees deal with contracts every day.
❏ Verifying available data will:
❏ Avoid confusion❏ Promote trust❏ Avoid litigation❏ Respect time
Legal ‘Help’?❏ Establish if Seller has legal
representation. If not, suggest they consider having an attorney.
❏ What does that mean?❏ Ensure accurate information
Objective is to Reduce Risk
What Information?❏ Check all the data
Who Does Due Diligence?
❏ Advise clients & customers to perform their own due diligence.
❏ Why not YOU?
‘Higher Authority’
❏ Advise clients & customers to get legal representation
❏ Why not YOU?
❏ NAR Legal Pulse❏ MAR Legal Hotline
Resources & Examples
Quinlan vs Clasby
❏ “Should Have Known”❏ Broker. Consumer Protection Act,
Unfair or deceptive act.
M.G.L. c 93A
A Superior Court judge erred in ruling that the defendant real estate broker was liable for unfair and deceptive acts or practices under G. L. c. 93A, based on her having advertised a house as a three-family dwelling when, in actuality and without the broker's knowledge, the home as configured violated zoning requirements, where there was little, if any, reason for the broker to suspect that the property was not lawfully a three-family residence, and where the broker did all that was legally required of a real estate broker in the sale of the property to the plaintiffs. [102-104]
DeWolfe vs Hingham Center, LTD
Broker. Negligence, Real estate broker, Misrepresentation. Zoning.
464 Mass. 795In an action brought in Superior Court alleging that the defendants (a real estate agency and broker) misrepresented the zoning classification of a property offered for sale, the judge erred in granting summary judgment in favor of the defendants, where the broker owed a duty to exercise reasonable care in making representations to prospective buyers, and where the evidence could support a finding that the broker, who was on notice that the information provided by the seller regarding the zoning classification might be unreliable, did not exercise reasonable care when making written representations without further investigation [799-802]; further, the warranties and representations clause of the purchase and sale agreement, which permitted reliance on prior written representations not set forth or incorporated in the agreement, did not relieve the defendants of any liability [802-806].
Verification of Ownership of Property❏ Registry of Deeds❏ Why not the one
they provide you?
Agent Responsibilities to Seller & Broker/Owner
Deed Review
❏ Right of way or easements❏ Life Estates❏ Restrictions or Covenants
❏ Registry of Deeds overview❏ Liens on property❏ $$
Agent Responsibilities
Orders of Notice
❏ The foreclosure process has two parts.
Servicemember
❏ In the first, the lender files a complaint in the Land Court seeking a declaration that the borrower is not entitled to the protection of the Servicemembers’ Civil Relief Act of 2003.
Land Court
❏ The Land Court issues the lender an Order of Notice intended to notify the borrower of the complaint and the procedure for responding.
Recorded or Registered?
❏ Registered versus recorded❏ Hybrid-parcels fall within both
categories of recorded and registered
❏ Field card review ❏ What can this show you?
Agent responsibilities
Permits filed & fully executed
❏ Building, plumbing, electrical etc.❏ Completed and signed off
❏ Horror stories?
Zoning Board of Appeals
❏ Special Permits or variances❏ Know your Town Hall!
Online Vs In Person
❏ Assessors Card vs Building Department
❏ Variations
Mandatory?
❏ Sellers Statements❏ Who fills it out❏ Full disclosure of known defects
❏ Lead Paint Disclosure
Property Transfer Lead Paint Notification
Proper completion of the form ~up to 10k
When is this done?❏ Before signing
❏ Checks, x’s and initials
❏ Who signs?
1600’s-1978
❏ Lead paint & new construction?
Don’t Assume it’s Deleaded!
❏ Lead paint & rehab liability❏ ( Piers vs Wheeler)
Verification
❏ Certificate of Compliance❏ Letter of Interim Control
❏ Home Inspection❏ Attend or not❏ Actual Knowledge
Agents’ responsibilities
Affirmative disclosure?
❏ Proprietary information
Sitting at the Table?
❏ Actual knowledge & subsequent disclosure
❏ Heresay knowledge
❏ Condominiums❏ Check approval for FHA
Approval on HUD.gov❏ Look up by state, town and condo
name
Condos
Keep on ‘File’
❏ Condominium Documents❏ Declaration of trust❏ Master deed❏ Unit deed
Update regularly
Read to Understand
❏ By laws, Rules & Regulations
Financial Stability
❏ Budget, Owner occupancy❏ Reserves, special assessments
❏ Reserve study
What Is their Financial Picture?
Ownership Policies
❏ Number of units owned by a single person
The Condo Crisis of the Recession
❏ # of Condo owners whose fees in arrears
Additional Information
❏ Certificate of Insurance
Fees to Association Paid?
❏ 6D Certificate❏ [MGL c. 183A s. 6(d)] ❏ When do you request it?
Policies
❏ Rental restrictions
❏ Pet policy
❏ Professional Management or Owner Managed
❏ List of TrusteesWhy is this relevant?
Legally Speaking...
❏ Any litigation?❏ Why?
Condo Questionnaire
❏ Who gets it filled out❏ Who pays for it❏ What if the association has no
documents❏ What if management refuses to fill
out the form
❏ Copies of leases❏ Ask their preference
Selling a Multi family
This is their Home..
❏ Names and contact info of the tenants
❏ Notice needs to be given to the tenants
❏ How to secure cooperation
Bank Requirements
❏ Rental history❏ Litigation or evictions in place❏ Security deposits or last month rent
information❏ Occupancy Certificates
City Records
❏ Verification of legal use❏ Assessors records❏ Building department❏ utilities
❏ Note items such as:❏ electrical system, ❏ heating system, ❏ fuel, ❏ hot water (owned or leased),
Walk through & Data collection
Inspect for possible items to disclose to eliminate surprises.
❏ water stains, ❏ freshly painted basements, ❏ sheds & outbuildings
Disclose or No?
Stigmatized properties
https://malegislature.gov/laws/generallaws/
part1/titleXXV/chapter93/section114
For Further Information
RE91R14 (ce class on disclosure)
❏ Environmental Issues❏ Department of
Environmental Protection
Walk Through & Data Collection
“Moisture Penetration”
❏ Contamination, ❏ mold, ❏ discoloration
Can They ‘Make it Their Own’?
❏ Conservation commission
Outstanding Permits
Orders of condition
Conservation
Rivers Protection Act
Soil Pollution?
Underground tanks
Hazardous Materials
❏ Asbestos, ❏ Radon, ❏ Lead
Title 5
Well & Septic (if applicable)
❏ GIS Mapping ❏ (Geographic Information
System)
Owned or Leased?Solar panels
❏ In law and Accessory units❏ Community zoning bylaws vary by town❏ Restrictions❏ Transferability
Walk through & Data collection
Note specific clauses & the origins
Contracts to Purchase-Purchase & Sale
Don’t Be Creative
Use preset addenda when available
Attorney Oversight
❏ Use extreme caution when writing contingencies❏ We are not attorneys!
❏ The challenge of language
Registry of Deeds Online❏ Verification of accuracy of the information
❏ Deed description
Silva~ Silvia
❏ Correct sellers names and address❏ Full Legal Name
Clarify Early!
❏ Excluded or included items❏ Real vs Personal Property❏ Encourage to remove
Lawyer’s Favorite (NOT!)
❏ As Is, Where IsIf willful non-disclosure of known defect is found, clause may not survive in court
❏ Final utility readings❏ Allow for time❏ Who is buying oil?❏ TILA-RESPA Guidelines
Pre closing & Closing
Time for Fire Department
❏ Smoke & CO Certificate from the fire department
❏ Building Permits?
❏ (Excise) tax stamps ($4.56 per thousand)
❏ They won’t remember you told them!
Septic?
Title 5 (if applicable)
Turn around Times
❏ TRID (CE course RE93R15) ❏ CFPB effect on RE closings.
Walk through
❏ What is the purpose?❏ When do you do it?
❏ Know the laws of Agency❏ Commonwealth of MA ❏ MGL ch. 112, Section 87
Walking the line!Licensee or Attorney
OLD CAR
Learn to recognize red flags
Guide sellers to the proper authority
❏ City Hall❏ Websites for Town❏ Lawyer
❏ If you don’t know, say so! ❏ Know where to find the info.
❏ “Let Me Double check!”
Review!
❏ Recognize the limits of your knowledge. Don’t guess!
❏ OLD CAR❏ Learn to recognize red flags and guide
Sellers to the proper authoritative source
Do your homework & research
❏ 1. Lana Schroeder, Esq., Claims Specialist for Rice Insurance Services Company, LLC
❏ 2. According to Lana, Breach of Duty was the second highest cause of suits reported by their company between 1/1/2001 and 7/31/2010
❏ 3. Example cited: Client reported the real estate agent breached her duty by failing to verify the lot she contracted to purchase was the same lot she showed her.
Be the source of the source
You are not an attorney unless you passed the bar!
Questions?
For the Slides and Curriculum Outlinevisit:
www.agentrising.com
Thank You!WE are here to help you…. Rise to the TOP!
Agent Rising Real Estate School and Training CentersEducator
Instructor Training InstituteCertified Distance Educator InstituteCertified Trainer, zipFormsOwner/Instructor- Agent Rising Presenter/Trainer - NAR,MAR, NEAR, SEMAR, RASEM,NSARePro, ABR, Notary, B.A. 2018 VolunteerMassachusetts RealtorⓇ of the YearPresident RASEM 2018MAR Chairperson Pro Development 2016Member- Professional Standards 2016Dean- Leadership Academy 2016
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Thank You!WE are here to help you…. Rise to the TOP!
Agent Rising Real Estate School and Training Centers
Let’s Get Social!Find Me! Friend Me! Like Me! Share!Kate Lanagan [email protected]
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