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© 2014 OnCourse Learning Chapter 3 Additional Legal Update and Hot Topics
© 2014 OnCourse Learning Sponsoring Broker’s Executive Summary of New TREC Regulations “To Do” Lists
Advise sales people of scope of activities. Review all advertising. Establish team leader or supervisor. Keep the following for at least FOUR years: All Disclosures. Compensation agreements, all work files, contracts, exhibits, and addenda. Receipts and disbursements. All property management contracts. All agent agreements © 2014 OnCourse Learning
Prepare policy and procedure manual which: Confirms four-year record-keeping policy. Has procedure to maintain licenses current. Compensation to be paid through broker. Fees not be shared with unlicensed entity. Trust account cannot be comingled. REQUIRES USE OF TREC Form RSC-1, DISCLOSURE OF RELATIONSHIP WITH RESIDENTIAL SERVICE COMPANY. © 2014 OnCourse Learning
Make sure all licensees disclose licensee is engaging in a real estate transaction: On his or her own behalf On behalf of a business entity in which licensee owns more than 10 % On behalf of the licensee’s spouse, parent, or child. Set up a procedure for immediately delivering all mail to sponsored salespersons. © 2014 OnCourse Learning
Texas Contracts The following Real Estate Commission forms are currently promulgated for use by all real estate licensees, and their use is required in all transactions to which the form is applicable.
TREC 9-10 Unimproved Property Contract TREC One-to-Four Family Residential Contract (Resale) TREC New Home Contract (Incomplete Construction) TREC New Home Contract (Completed Construction) TREC Farm and Ranch Contract TREC Residential Condominium Contract (Resale) © 2014 OnCourse Learning Texas Contracts Addendums for the above-referenced forms are also promulgated and required for use by licensees in all transactions in which the form is applicable:
© 2014 OnCourse Learning TREC 10-6 Addendum for Sale of Other Property by Buyer TREC 11-7 Addendum for “Back-Up” Contract TREC 12-3 Seller’s Release of Liability and VA Restoration of Entitlement TREC 15-5 Seller’s Temporary Residential Lease TREC 16-5 Buyer’s Temporary Residential Lease TREC 26-6 Seller Financing Addendum Texas Contracts
TREC 28-2 Environmental Assessment, Threatened or Endangered Species, and Wetlands Addendum TREC 32-3 Condominium Resale Certificate TREC 33-2 Notice for Coastal Area Property TREC 34-4 Addendum for Property Located Seaward of the Gulf Intercoastal Waterway TREC 36-7 Addendum for Property Subject to Mandatory Membership in an Owners’ Association TREC 37-4 Resale Certificate for Property Subject to Mandatory Membership in an Owners’ Association © 2014 OnCourse Learning Texas Contracts
TREC 38-4 Notice of Termination of Contract TREC 39-7 Amendment to Contract TREC Consumer Information Form TREC 40-5 Third-Party Financing Condition Addendum for Credit Approval TREC 41-2 Loan Assumption Addendum TREC 44-1 Addendum for Reservation of Oil, Gas, and Other Minerals TREC 45-1 Short Sale Addendum © 2014 OnCourse Learning Texas Contracts
© 2014 OnCourse Learning Other Forms Also Promulgated by TREC TREC OP-C Notice to Prospective Buyer TREC OP-H Seller’s Disclosure of Property Condition TREC OP-I Texas Real Estate Consumer Notice Concerning Recognized Hazards TREC OP-K Information About Brokerage Services TREC OP-L Lead-Based Paint Addendum TREC OP-M Non-Realty Items Addendum RSC 1 Disclosure of Relationship with Residential Service Company
© 2014 OnCourse Learning Computerized Forms TREC regulations provide computer-driven printers can print forms Practicing Law – TREC requires all licensees use promulgated forms or forms prepared by owner or attorney Pertinent Provisions
© 2014 OnCourse Learning Specific Paragraphs Paragraph 1. Parties Paragraph 2. Property Paragraph 4. Financing Paragraph 5. Earnest Money Paragraph 6. Title (C,D,E) Humphrey v. Camelot Retirement Community
© 2014 OnCourse Learning Specific Paragraphs Paragraph 7. Property Condition Paragraph 8. Broker Fees Paragraph 9. Closing Paragraph 10. Possession Paragraph 11. Special Provisions Paragraph 12. Sales Expenses Paragraph 14. Casualty Loss Paragraph 15. Default
© 2014 OnCourse Learning Specific Paragraphs Paragraph 16. Mediation Paragraph 17. Attorney’s Fees Paragraph 18. Escrow Paragraph 20. Federal Tax Requirement Paragraph 21. Notices Paragraph 22. Addenda Paragraph 23. Option to Terminate Paragraph 24. Consult and Attorney
© 2014 OnCourse Learning Addenda Third-Party Financing Addendum For Credit Approval Assumption Seller Financing Addendum Addendum for “Back-Up” Contract Addendum for Sale of Other Property by Buyer
© 2014 OnCourse Learning Addenda Addendum for Property Subject to Mandatory Membership in an Owners’ Association Subdivision Information, Including Resale Certificate for Property Subject to Mandatory Membership in an Owners’ Association Addendum for Seller’s Disclosure of Information on Lead-Based Paint and Lead Based Paint Hazards
© 2014 OnCourse Learning Addenda Buyer’s and Seller’s Temporary Residential Lease Amendment Notice of Termination of Contract Non-Realty Items Addendum Short Sale Addendum Addendum for Reservation of Oil, Gas, and Other Minerals
© 2014 OnCourse Learning Effective Date Broker is required to fill in date of final acceptance and party’s addresses. Extremely important because effective date keys all time requirements. If contract is tendered to title company 5 or more days after effective date, it substantially alters title company’s ability to issue the title commitment and all other contingencies and may create significant liability for brokers
© 2014 OnCourse Learning Homestead Issues Two Types of Homesteads, Urban or Rural Liens Judicial Foreclosure Fees Lines of Credit Prepayment Penalty Additional Collateral Agricultural Property Exemption Decrease in Market Value
© 2014 OnCourse Learning Homestead Issues One Debt Substantially Equal Payments/Full Interest Amortization Cooling Off Period Location of Closing Cross Default Authorized Lenders
© 2014 OnCourse Learning Homestead Issues See Section 50(a)(6)(P) Anti-Flipping Provision Anti-Redlining Provision Home Improvement Loans Reverse Mortgage Loans Urban Homestead Judgment Liens – do not attach to homesteads
© 2014 OnCourse Learning Homestead Issues In re Henderson Court noted decision in Tarrant Bank demonstrated judicial lien does impair homestead exemption Property Code amended - judgment lien may be discharged under Federal Bankruptcy New Statute – Regarding judgment liens Affidavit Not a Release
© 2014 OnCourse Learning Homestead Issues New Bankruptcy Rules Federal Homestead Cap $125,000 Homestead Cap
© 2014 OnCourse Learning Recent Homestead Cases In re Preston In re Box Norris v. Thomas, Texas Supreme Court London v. London Prudential Ins. Co. of America v. Italian Cowboy Partners, Ltd
© 2014 OnCourse Learning New Federal Landlord and Tenant Law! Enables tenant leasing premises that are foreclosed upon, to continue occupancy unless new owner intends property as primary residence. Owner must give tenant 90 days notice. Applies to a federally regulated mortgage. Tenant can’t be mortgagor or their relatives. Problems for creditors if there are long term leases
© 2014 OnCourse Learning Fair Housing Adults Only, Familial Status U.S. v. Fountainbleau Housing Opportunities Project for Excellence, Inc. v. Key Colony No. 4 Condominium Assoc., Inc. In U.S. v. Matusoff Rental Co. Lender Liability-----’Reverse red-lining’’ M & T Mortgage Corp. v. Foy Sex Offenders - Doe v. Miller
© 2014 OnCourse Learning Title Insurance Closing Attorney’s - Referral Fees Newington Limited v. Forrester
© 2014 OnCourse Learning WATER RIGHTS Surface Water Rights – In Texas, government controlled use of water through prior appropriation Texas Supreme Court held vested right to water only a usufructuary use of what state owns Surface Water Rights State may authorize use of state water Conflicting Claims
© 2014 OnCourse Learning WIND FARMS Texas has become nation’s leading source of wind power. Rankin vs. FPL Energy, LLC
© 2014 OnCourse Learning Mortgage Fraud The ‘‘Flip’’ - usually use of a straw man established in the middle of the transaction The Old Switch The Contractor’s Scheme The Ultimate Lie “Trust Me’ Identity Theft Fake Check/Fast Closing
© 2014 OnCourse Learning Mortgage Fraud Who’s Liable? Brokers may have some potential liability Title company seems to be in the middle of everything! Home Loan Corporation v. Texas American Title Company Red Flags
© 2014 OnCourse Learning RESPA Under new rules all third parties’ charges paid by title agents must be separately itemized and cannot exceed amount actually paid. Another amendment provides for a new good faith estimate of closing costs and provides for “tolerances” for variations. New rule publishes two new HUD-1 and HUD-1A forms.
© 2014 OnCourse Learning Texas Deceptive Trade Practices Act One Important Change
© 2014 OnCourse Learning DTPA Consumer can maintain DTPA action if it is a producing cause of damages The plaintiff only has to show producing cause “Economic damages” Definitions: Goods Services Consumer Unconscionable action or course of action
© 2014 OnCourse Learning Other Important Provisions Section Waivers now valid and enforceable Waiver of Consumer Rights - Does not require signature of consumer’s attorney New Section prohibits a claim for damages based on rendering of a professional service The Laundry List Unconscionable Action or Course of Action
© 2014 OnCourse Learning Brokerage Cases Interpreting DTPA Spradling v. Williams Holloman v. Denson Lerma v. Brecheisen Henry S. Miller Management Corp. v. Houston State Associates Trenholm v. Ratcliff Robertson v. United New Mexico Bank at Roswell. Cameron v. Terrell & Garrett, Inc
© 2014 OnCourse Learning Brokerage Cases Interpreting DTPA Pleasant v. Bradford Ridco v. Sexton Autohaus, Inc., v. Aguilar Kelley v. TREC Henry S. Miller v. Bynum Ramsey v. Gordon
© 2014 OnCourse Learning Other DTPA Cases Weitzel v. Barnes Prudential Wyatt v. Petrila. Canada v. Kearns Miller v. Keyser ECC Parkway Joint Venture v. Baldwin O’Hern v. Hogard
© 2014 OnCourse Learning Other DTPA Cases Haney v. Purcell Company, Inc. Chrysler Plymouth City, Inc., v. Guerrero. Century 21 Page One Realty v. Naghad Nix v. Born Chastain v. Koonce Sanchez v. Guerrero
© 2014 OnCourse Learning Other DTPA Cases Lefmark Management Company v. Old Shapiro v. Sutherland NUISANCE; diminished property value? Smith v. Kansas Guest Service Co. et al, Smith v. Herco, Inc
© 2014 OnCourse Learning Other DTPA Cases McFarland v. Associated Brokers Brokers; Can you represent two buyers? Zuazua v. Tibbles Rivkin v Century 21 Teran Realty LLC
© 2014 OnCourse Learning Defenses Under the DTPA Statutory Defenses Section Section Compulsory Mediation Section Didn’t say it. Newsome v. Starkey; Didn’t know. Robinson v. Preston Chrysler Plymouth, Inc.. Not me. Baxter & Swinford, Inc., v. Mercier
© 2014 OnCourse Learning Case Law Defenses I told him. Zak v. Parks. Too vague. Autohaus v. Aguilar, supra; Not my job. Kubinsky v. Van Zandt Realtors, “As Is.” The Prudential Insurance Company of America v. Jefferson Associates Smith v. Levine Fletcher v. Edwards In Larsen v. Langford & Associates, Inc.
© 2014 OnCourse Learning Case Law Defenses Cole v. Johnson Cherry v. McCall Boehl v Boley Exceptions to “as is” rule Kupchynsky v. Nardiello
© 2014 OnCourse Learning Licensed Real Estate Property Inspectors Head v. U.S. Inspect DFW, Inc Seller Disclosure Forms Zak v. Parks; Dubow v. Dragon; Pfeiffer v. Ebby Halliday Statute does not apply to transfers Seller Disclosure Forms
© 2014 OnCourse Learning Seller’s Disclosures in the Courts Kessler v. Fanning Seller Didn’t Know - Bynum v. Prudential Residential Services, et al Sherman v. Elkowitz Structural Repairs - Robertson vs. Odom
© 2014 OnCourse Learning The amount of economic damages found by the trier of fact. An order adjoining such acts or failure of act. Orders necessary to restore to any part of the suit any money or property, real or personal, which may have been acquired in violation of this subchapter. Any other relief court deems proper. Damages Under the DTPA
© 2014 OnCourse Learning Negligent Misrepresentation Another cause of action beginning to permeate cases is negligent misrepresentation Hagans v. Woodruff
© 2014 OnCourse Learning Real Estate Recovery Fund Texas Real Estate Commission v. Century 21 Security Realty, Inc.. Texas Real Estate Commission v. Hood Only actual damages (not treble damages) may be recovered. State v. Pace St. Paul Ins. Co. v. Bonded Realty, Inc.
Washington Real Estate Fundamentals Lesson 9: Purchase and Sale Agreements © 2011 Rockwell Publishing.
IHCDA CDBG Compliance Training. IHCDA Compliance and Asset Management Staff.
Connecticut Real Estate Law: Updated and Revisited Connecticut Real Estate Licensee Mandatory Continuing Education Course CE Cycle Approved by.
Washington Real Estate Fundamentals Lesson 11: Applying for a Residential Loan © 2011 Rockwell Publishing.
© 2013 Rockwell Publishing Washington Real Estate Practices Lesson 11: Closing the Transaction.
DRAFTING DURABLE POWERS OF ATTORNEY FOR THE NEW FLORIDA LAW - WITH FORMS 5:00 P.M. Tuesday, September 20, 2011 By: Alan S. Gassman, J.D., LL.M.
Washington Real Estate Fundamentals Lesson 16: Property Management © 2011 Rockwell Publishing.
© 2013 Rockwell Publishing Washington Real Estate Practices Lesson 3: Listing Regulations.
CAI - Illinois Presents Financial and Legislative Updates for Property Managers Presenters: David Sugar Lara Anderson.
1 HB 1038 – The New TRCC Mandatory Contractual Disclosures, New Penalties and Fines, and Procedural Revisions Stephen Polozola, Attorney Matthew Motes,
The Impact on Housing Finance How Financial Regulatory Reform Legislation Will Impact Banks ABA Telephone Briefing/Webcast Series Wednesday, July 28, 2010.
Anthony L. DeWitt. Typical Problems for Tenants Sources of Landlord Tenant Law Typical Fixes for Typical Problems Your mileage may vary and some restrictions.
Breakfast and Business Law Brought to you by: Carroll County Chamber of Commerce The Burson Center PRESENTS &
Chapter 8 – Real Estate Brokerage. Agency Theory Principal – a person who authorizes another to work for them Agent – the person empowered to act by and.
Application Basics Ask? Need? Know?. Group Membership Social Disadvantage Economic Disadvantage Business Size Ownership Control Certification.
Copyright McKissock L.P. - P.O. Box Warren, PA Page 1- APPRAISING IN A POST- HVCC WORLD by Daniel A. Bradley, SRA.
Donald J. Weidner 1 Construction Lender vs. Permanent Lender (Text p. 728) Construction lender usually a commercial bank primarily interested in making.
Washington Real Estate Practices Lesson 1: Real Estate Agency © 2013 Rockwell Publishing.
1 THE LAW OFFICE OF DENNIS NEGRON. 2 REDUCING EXPOSURE RIGHTS, RESPONSIBILITIES OF TENANTS AND LANDLORDS; AND IMPORTANT LEASE PROVISIONS.
ADOT Audit Procedures ADOT = The Standard of Excellence for Transportation Systems and Services. Arizona Department of Transportation Right of Way AUDIT.
© 2013 Rockwell Publishing Washington Real Estate Practices Lesson 9: Loan Qualifying.
Arizona Landlord and Tenant Law State Bar of Arizona Annual Convention June 11, 2010 Prepared by: Honorable C. Steven McMurry, Encanto Justice Court Jeffrey.
WISCONSIN HOUSING ALLIANCE Builder Continuing Education Training: Lien Law Presented By: Saul C. Glazer Axley Brynelson, LLP.
Telcoms RMC 2009 Boston MA Telecommunications Operational Activities and the Resulting Exposures they Create Presented by Peter J. Elliott, CPCU, President.
GALVESTON HOUSING AUTHORITY PUBLIC HOUSING DWELLING LEASE.
Welcome. Legal Aspects Of Optometric Practice Pamela J. Miller, O.D., F.A.A.O., J.D. Highland, California.
Welcome To RESPA REFORM and the New GFE and HUD 1 Presented by Michael Deery January 13 th 2010.
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TITLE 101 Introduction A real estate investment is substantial, perhaps your clients largest outlay of money, and therefore, the largest risk. A real estate.
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