RE97R15. Due Diligence in Seller(s) Representation in Residential Real Estate Transactions with kate lanagan macgregor

Transcription

1 RE97R15 Due Diligence in Seller(s) Representation in Residential Real Estate Transactions with kate lanagan macgregor

2 Why Do We Care? How hard to we have to work I mean...homes are selling like hotcakes!

3 So many Options!

4 You Are Responsible! Yourself Principal (Seller)

5 Broker/Owner To reduce the risk of liability for themselves, their company, and the consumers they represent relative to the following a

6 Warning! Real Estate licensees are NOT attorneys Do not mistake diligence for legal representation!

7 Why Verify? Real Estate licensees deal with contracts every day. Verifying available data will:

8 Avoid confusion Promote trust Avoid litigation Respect time

9 Legal Help? Establish if Seller has legal representation. If not, suggest they consider having an attorney.

10 Objective is to Reduce Risk What does that mean? Ensure accurate information

11 What Information? Check all the data

12 Who Does Due Diligence? Advise clients & customers to perform their own due diligence. Why not YOU?

13 Higher Authority Advise clients & customers to get legal representation Why not YOU?

14 Resources & Examples NAR Legal Pulse MAR Legal Hotline

15 Quinlan vs Clasby Should Have Known Broker. Consumer Protection Act, Unfair or deceptive act.

16 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. [ ]

17 DeWolfe vs Hingham Center, LTD Broker. Negligence, Real estate broker, Misrepresentation. Zoning.

18 464 Mass. 795 In 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 [ ]; 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 [ ].

19 Agent Responsibilities to Seller & Broker/Owner Verification of Ownership of Property Registry of Deeds Why not the one they provide you?

20 Deed Review Right of way or easements Life Estates Restrictions or Covenants

21 Agent Responsibilities Registry of Deeds overview Liens on property $$

22 Orders of Notice The foreclosure process has two parts.

23 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.

24 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.

25 Recorded or Registered? Registered versus recorded Hybrid-parcels fall within both categories of recorded and registered

26 Agent responsibilities Field card review What can this show you?

27 Permits filed & fully executed Building, plumbing, electrical etc. Completed and signed off Horror stories?

28 Zoning Board of Appeals Special Permits or variances Know your Town Hall!

29 Online Vs In Person Assessors Card vs Building Department Variations

30 Mandatory? Sellers Statements Who fills it out Full disclosure of known defects

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32 Property Transfer Lead Paint Notification Lead Paint Disclosure

33 Proper completion of the form ~up to 10k

34 When is this done? Before signing

35 Checks, x s and initials

36 Who signs?

37 1600 s-1978 Lead paint & new construction?

38 Don t Assume it s Deleaded! Lead paint & rehab liability ( Piers vs Wheeler)

39 Verification Certificate of Compliance Letter of Interim Control

40 Agents responsibilities Home Inspection Attend or not Actual Knowledge

41 Affirmative disclosure? Proprietary information

42 Sitting at the Table? Actual knowledge & subsequent disclosure Heresay knowledge

43 Condos Condominiums Check approval for FHA Approval on HUD.gov Look up by state, town and condo name

44 Keep on File Condominium Documents Declaration of trust Master deed Unit deed Update regularly

45 Read to Understand By laws, Rules & Regulations

46 Financial Stability Budget, Owner occupancy Reserves, special assessments

47 What Is their Financial Picture? Reserve study

48 Ownership Policies Number of units owned by a single person

49 The Condo Crisis of the Recession # of Condo owners whose fees in arrears

50 Additional Information Certificate of Insurance

51 Fees to Association Paid? 6D Certificate [MGL c. 183A s. 6(d)] When do you request it?

52 Policies Rental restrictions

53 Pet policy

54 Professional Management or Owner Managed List of Trustees Why is this relevant?

55 Legally Speaking... Any litigation? Why?

56 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

57 Selling a Multi family Copies of leases Ask their preference

58 This is their Home.. Names and contact info of the tenants Notice needs to be given to the tenants How to secure cooperation

59 Bank Requirements Rental history Litigation or evictions in place Security deposits or last month rent information Occupancy Certificates

60 City Records Verification of legal use Assessors records Building department utilities

61 Walk through & Data collection Note items such as: electrical system, heating system, fuel, hot water (owned or leased),

62 Inspect for possible items to disclose to eliminate surprises. water stains, freshly painted basements, sheds & outbuildings

63 Disclose or No? Stigmatized properties

64 ws/ part1/titlexxv/chapter93/section114

65 For Further Information RE91R14 (ce class on disclosure)

66 Walk Through & Data Collection Environmental Issues Department of Environmental Protection

67 Moisture Penetration Contamination, mold, discoloration

68 Can They Make it Their Own? Conservation commission

69 Outstanding Permits Orders of condition

70 Conservation Rivers Protection Act

71 Soil Pollution? Underground tanks

72 Hazardous Materials Asbestos, Radon, Lead

73 Title 5 Well & Septic (if applicable)

74 GIS Mapping (Geographic Information System)

75 Owned or Leased? Solar panels

76 Walk through & Data collection In law and Accessory units Community zoning bylaws vary by town Restrictions Transferability

77 Contracts to PurchasePurchase & Sale Note specific clauses & the origins

78 Don t Be Creative Use preset addenda when available

79 Attorney Oversight Use extreme caution when writing contingencies We are not attorneys! The challenge of language

80 Registry of Deeds Online Verification of accuracy of the information Deed description

81 Silva~ Silvia Correct sellers names and address Full Legal Name

82 Clarify Early! Excluded or included items Real vs Personal Property Encourage to remove

83 Lawyer s Favorite (NOT!) As Is, Where Is If willful non-disclosure of known defect is found, clause may not survive in court

84 Pre closing & Closing Final utility readings Allow for time Who is buying oil? TILA-RESPA Guidelines

85 Time for Fire Department Smoke & CO Certificate from the fire department Building Permits?

86 (Excise) tax stamps ($4.56 per thousand) They won t remember you told them!

87 Septic? Title 5 (if applicable)

88 Turn around Times TRID (CE course RE93R15) CFPB effect on RE closings.

89 Walk through What is the purpose? When do you do it?

90 Walking the line! Licensee or Attorney Know the laws of Agency Commonwealth of MA MGL ch. 112, Section 87

91 OLD CAR

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93 Learn to recognize red flags

94 Guide sellers to the proper authority City Hall Websites for Town Lawyer

95 If you don t know, say so! Know where to find the info. Let Me Double check!

96 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

97 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/ 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.

98 Be the source of the source

99 You are not an attorney unless you passed the bar!

100 Questions? For the Slides and Curriculum Outline visit:

101 Thank You! WE are here to help you. Rise to the TOP! Agent Rising Real Estate School and Training Centers Educator Instructor Training Institute Certified Distance Educator Institute Certified Trainer, zipforms Owner/Instructor- Agent Rising Presenter/Trainer - NAR,MAR, NEAR, SEMAR, RASEM,NSAR epro, ABR, Notary, B.A Volunteer Massachusetts Realtor of the Year President RASEM 2018 MAR Chairperson Pro Development 2016 Member- Professional Standards 2016 Dean- Leadership Academy 2016

102 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 MacGregor Kate@KateLanaganMacGregor.com