Legal Tips : Real Estate Law - Residential

 

29-Oct-2009

Q&A on RESPA

The Department of housing and Urban Development (HUD) has released a 16 page frequently asked questions report on August 13. Following is information contained within that report. <B>Q; What happens if a GFE (Good Faith Estimate) is not pro...

 

19-Oct-2009

Is a commission due to the real estate agent if the owner does not accept the contract?

In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to the table that he felt was a very good offer. Th...

 

19-Oct-2009

A Zoning for Agricultural Use may be difficult to change

Municipalities are precluded from rezoning land that was used for agricultural purposes as of May 10, 1998 and continues to be used for agricultural purposes. See T.C.A. 6-54-126 for more information regarding this. The key to this rule is that the p...

 

19-Oct-2009

Fannie Mae has implemented Anti- Flip Language

Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language may vary but will be included. Stay tuned next week for the language that will be...

 

19-Oct-2009

Fannie Mae has implemented Anti- Flip Language

Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language that will be included is as follows: (This language may vary) Grantee (Buy...

 

19-Oct-2009

Protecting Tenants at Foreclosure Act

Under this Act, a tenant’s lease survives foreclosure and the tenant is allowed to remain on the property for the remainder of the lease. There, however is one big exception… If the immediate successor in interest in the property is purchasing the...

 

19-Oct-2009

Protecting Tenants at Foreclosure Act

Under this Act, a tenant’s lease survives foreclosure and the tenant is allowed to remain on the property for the remainder of the lease. There are also other stipulations in addition to the immediate successor in interest not purchasing the property...

 

19-Oct-2009

What Amount do I have to pay in order to redeem my property after a tax sale?

In Home Funds Direct v. Garrett, 34 TAM 24-4 (Tenn. App., May 5, 2009), the Court of Appeals held that the Owner (delinquent tax payer) only had to deposit the amount of the bid at the tax sale, plus interest on the purchase price to redeem their pro...

 

19-Oct-2009

What Amount do I have to pay in order to redeem my property after a tax sale?

In Home Funds Direct v. Garrett, 34 TAM 24-4 (Tenn. App., May 5, 2009), the Court of Appeals held that the Owner (delinquent tax payer) only had to deposit the amount of the bid at the tax sale, plus interest on the purchase price to redeem their pro...

 

20-Jul-2009

Fannie Mae Has Implemented Anti- Flip Language

Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language may vary but will be included. Stay tuned next week for the language that will be...

 

03-Apr-2009

Is a commission due to the real estate agent if the owner does not accept the contract?

In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to the table that he felt was a very good offer. Th...

 

20-Mar-2009

Is a commission due to the real estate agent if the owner does not accept the contract?

In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to the table. In this case, the owners entered into ...

 

13-Mar-2009

Is a commission due to the real estate agent if the owner does not accept the contract?

It depends on how the listing agreement reads. In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to th...

 

27-Feb-2009

I just found out that a house that I am doing a lease/purchase on is about to be in foreclosure. What about my deposit and all of my money that was t

This situation is a very real risk involved in doing a Lease/Purchase transaction. Contractually, if your landlord is in default of the contract, you are entitled to a refund of your deposit (unless your contract states otherwise). Having said that.....

 

20-Feb-2009

I am doing a lease/purchase and I am the buyer. What if we get down to closing time and the property does not appraise for the sales price?

If the contract reads that the deposit given under the Lease/Purchase was NON-REFUNDABLE in any event, then the Buyer would not be entitled to their deposit back. This is a very common provision in Lease/Purchase contracts. The moral of this sto...

 

13-Feb-2009

I am doing a lease/purchase and I am the buyer. What if we get down to closing time and the property does not appraise for the sales price?

This depends on how the contract reads. If there is a contingency in the contract for the property to appraise at or above the sales price and the property does not appraise at that value, you could be released from the purchase contract based upon a...

 

06-Feb-2009

My landlord that I am doing a lease/purchase with is being sued for injuries from an automobile accident. Should I be worried ?

This is a potential issue with lease/purchases transactions. If the seller/landlord has a judgment placed against him... this judgment is recorded as a lien against any real property that he owns. So, in this scenario, if a judgment is obtained in co...

 

30-Jan-2009

What if my LANDLORD files bankruptcy during the lease period?

If your landlord files for bankruptcy protection during the lease period or even during the purchase period... this is an issue. When someone files for bankruptcy protection, there is somewhat of a freeze (automatic stay) put on their assets by the ...

 

09-Jan-2009

What if my tenants damage my property while they are under the Lease?

First, you need to go back to the contents of the lease agreement and see what the lease states. Most leases state that the tenants will be responsible for any damage that is done to the property while they are under the lease. There may also be a p...

 

19-Dec-2008

How do the agents get paid with a Lease/Purchase?

There are several ways that the agents can be paid when doing a Lease/Purchase. One way that the agents can be paid is at the beginning of the deal. In this case, the agent would be paid their commission or a portion of their commission at the closin...

 

12-Dec-2008

How Can I Minimize My Risks Associated with a Lease/Purchase?

Lease/Purchase transactions definitely have risks. However, these risks can be minimized by being fully informed by a lawyer and by having a lawyer draw up the documents associated with the Lease/Purchase transaction. By having this full disclosure t...

 

05-Dec-2008

ARE THERE RISKS INVOLVED IN DOING A LEASE/PURCHASE?

Yes Yes and Yes. There are risks. However, they can become calculated risks when entering these agreements with the correct information. Some risks that the Seller could encounter are as follows: (1) The Buyer could decide that they do no...

 

03-Oct-2008

EDUCATION, EDUCATION, EDUCATION

As a real estate licensee, the more educated you are, the better level of service you can provide to consumers. You should not limit your education to "continuing education" classes. Here are several suggestions: 1. Attend Continuing Ed...

 

12-Sep-2008

When Must a Tennessee Residential Property Condition Disclosure or Disclaimer be Delivered to a Buyer?

According to Section 66-5-203 of the Tennessee Residential Property Condition Disclosure Act, a Disclosure or Disclaimer must be delivered to the buyer prior to the "acceptance" of a purchase and sale agreement OR an exchange or lease with an option ...

 

05-Sep-2008

How should real estate licensees handle clients' or customers' requests for referrals of service providers?

When your clients or customers ask you for a referral for a service provider such as a home inspector or a mortgage broker, be sure to recommend more than one person or business. You should refrain from making any statements as to the quality of the...

 

22-Aug-2008

Three Reasons for Not Quitclaiming Your Property:

1. Medicaid Lockout: For persons that may have to apply for Medicaid benefits to cover the cost of nursing home care, whether in the near future or a few years down the road, it is never a good idea to quitclaim your interest in property without rec...

 

11-Aug-2008

New FACT Act Rules and Regulations - Part 2 of a 2 Part Series

New rules and regulations under the Fair and Accurate Credit Transactions Act of 2003 will go into effect this Fall. The Identity Theft Red Flags and Address Discrepancy Rules go into effect on November 1, 2008. These rules require any users of c...

 

31-Jul-2008

New FACT Act Rules and Regulations - Part 1 of a 2 Part Series

New rules and regulations under the Fair and Accurate Credit Transactions Act of 2003 will go into effect this Fall. The Affiliate Marketing Regulations go into effect on October 1, 2008. These regulations, issued by the Federal Trade Commission a...

 

14-Jul-2008

ERRORS AND OMISSIONS INSURANCE - PART 3 OF A 4 PART SERIES

What are the limits of liability for your errors and omissions insurance policy have limits of liability? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and adminis...

 

03-Jul-2008

ERRORS AND OMISSIONS INSURANCE - PART 2 OF A 4 PART SERIES

What is not covered by your policy? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and administered by Rice Insurance Services Company, LLC (RISC), the policy will gen...

 

27-Jun-2008

ERRORS AND OMISSIONS INSURANCE - PART 1 OF A 4 PART SERIES

What does your policy cover? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and administered by Rice Insurance Services Company, LLC (RISC), the policy will generally ...

 

16-Jun-2008

MANAGING BROKER'S SERIES - BUSINESS ADDRESS

TREC Rule 1260-2-.05 prohibits the use of a P.O. Box as the sole business address for a real estate brokerage firm. A physical address must be used instead. You may, however, include a P.O. Box in a business address for the purpose of receiving mai...

 

10-Jun-2008

Municipal Ordinances– The “Substantial Effect” Test is to be used

In Cherokee Country Club, Inc. v. City of Knoxville, the Tennessee Supreme Court invalidated a municipal ordinance that temporarily disallowed demolition permits. This was a zoning ordinance and the court found that it did not comply with the applica...

 

30-May-2008

MANAGING BROKER'S SERIES - TELEPHONE ANSWERING SERVICES

TREC RULE 1260-2-.04 permits "reasonable use" of a telephone answering service by a real estate broker. Posting a license at a telephone answering service or conducting the major part of one's real estate business through a telephone answering servi...

 

12-May-2008

Legal Duties of Managing Brokers Series: ADVERTISING Part 2

SECTION 62-13-310(b) of the Brokers' Act requires that signs posted on a property by a licensee must contain the firm's name and that the firm's name must be the same size or larger than the name of the licensee. SECTION 62-13-312(4) of the Discipli...

 

02-May-2008

Legal Duties of Managing Brokers Series: ADVERTISING Part 1

All advertising, regardless of the medium used, must comply with TREC Rule 1260-2-.12. Section (2)(b) of this rule provides as follows: all licensees shall advertise under the firm name offers to purchase, sell, rent, or lease any property; all adv...

 

17-Apr-2008

MANAGING BROKER'S SERIES - BUSINESS LOCATIONS

Section 62-13-309 of the Brokers' Act requires each real estate office to have a real estate firm license, a principal broker, and a "fixed location" for affiliate brokers. Branch locations must meet this requirement as well. This Section of the B...

 

28-Mar-2008

Legal Duties of Managing Brokers Series: Termination of Affiliation

When the relationship between a principal broker and an affiliate broker is terminated, regardless of the reason, Section 62-13-310 of the Brokers' Act requires the principal broker to sign and date the TREC change of affiliation form immediately. A...

 

28-Feb-2008

Legal Duties of Managing Brokers Series

Section 62-13-112 of the Real Estate Brokers' Act requires all principal and affiliate brokers to maintain errors and omissions insurance coverage. If a licensee fails to maintain the required insurance, TREC will deny the renewal of his/her license...

 

22-Feb-2008

Legal Duties of Managing Brokers Series

TREC Rule 1260-2-.01 (Supervision of Affiliate Brokers) states that a licensee may be affiliated only with a principal broker who is involved primarily in the real estate business and accessible during normal daytime working hours. In other words, a...

 

19-Feb-2008

Legal Duties of Managing Brokers Series

TREC Rule 1260-1-.04(1) provides that "No principal broker shall permit an affiliate broker (or broker) under his supervision to engage in the real estate business unless the affiliate broker (or broker) has been issued a valid license." In order ...

 

08-Feb-2008

Legal Duties of Managing Brokers: Escrow Accounts -- Part 3

Pursuant to TREC Rule 1260-2-.09(5), a broker may disburse funds from an escrow or trustee account upon: (1) a reasonable interpretation of the contract pursuant to which the broker is holding said funds; (2) securing a written agreement allowing di...

 

01-Feb-2008

Legal Duties of Managing Brokers: Escrow Accounts -- Part 2

TREC Rule 1260-2-.09 When must earnest money or other such funds be deposited into an escrow account? TREC Rule 1260-2-.09(8) provides that earnest money must be deposited "promptly upon acceptance of the offer, unless the offer contains a state...

 

25-Jan-2008

Legal Duties of Managing Brokers: Escrow Accounts -- Part 1

Section 62-12-321 of the Tennessee Real Estate Brokers' Act requires every broker to keep an escrow or trustee account of funds deposited with the broker that are related to real estate transactions. This Section of the Act also requires brokers t...

 

17-Jan-2008

LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING

Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded. Because the statute of limitations for the various types of lawsui...

 

17-Jan-2008

LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING

Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded. Because the statute of limitations for the various types of lawsui...

 

17-Jan-2008

LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING

Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded. Because the statute of limitations for the various types of lawsui...

 

11-Jan-2008

Hot Topic - A Real Estate Broker's Duty to Adequately Supervise Licensees-Part I

Editors Note: The Tennessee Real Estate Commission has raised the issue of whether Principal Brokers are meeting their duty to adequately supervise the licensees in their firms. We will be running a series of tips regarding the legal duties of super...

 

11-May-2007

Change in the Law regarding Restrictions on Mobile Homes/Modular Homes Continued

In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Supreme Court held that unlike a mobile home or house trailer, a modular home is...

 

27-Apr-2007

Change in the Law regarding Restrictions on Mobile Homes/Modular Homes Continued

In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Supreme Court ruled that unlike a mobile home or house trailer, a modular home i...

 

20-Apr-2007

Change in the Law regarding Restrictions on Mobile Homes/Modular Homes

In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Court of Appeals had decided that there was not a distinction between modular ho...

 

28-Mar-2007

Repairs made within the 1 year redemption period on a tax sale property may not be reimbursed

The Tennessee Court of Appeals held in State of Tennessee v. Delinquent Taxpayers (Tenn. App., Nov. 2, 2006) that the purchaser at a tax sale is not automatically entitled to be reimbursed for repairs made to the property prior to redemption. In Tenn...

 

09-Mar-2007

One Must be a Licensed Real Estate Broker in order to receive a commission

The Tennessee Court of Appeals held in Burks v. Elevation Outdoor Advertising, LLC (Tenn. App. July 24, 2006) that unlicensed individuals who were paid a commission in connection with the sale of an outdoor advertising business violated the Tennessee...

 

01-Mar-2007

Notice Requirements to become a purchaser of property

The Tennessee Court of Appeals held in Williams v. Title Guaranty & Trust Co., 212 S.W. 2d 897, 901 that notice of a prior contract that interest will be effective to charge a subsequent purchaser with knowledge of its existence may be either direct...

 

16-Feb-2007

Can I buy a property when there is already a contract on that property?

The Tennessee Court of Appeals recently ruled in Aslinger v. Price (Sept. 1, 2006) that a purchaser with "notice" of another contract on the same property must honor the seller's prior contract. The facts in this case surround a tract of land that t...

 

26-Jan-2007

If a Purchaser has notice of the existence of another contract on the same property- Are they bound by that contract?

Maybe yes... The Tennessee Court of Appeals has ruled in Aslinger v. Price (Tenn. App., Sept. 1, 2006) that a purchaser with notice of another contract on the same property must honor the seller’s prior contract. The facts in this case surround a ...

 

15-Dec-2006

NEW LAW PASSED RE: SEPTIC SYSTEMS

The State of Tennessee has passed an amendment that is vital to real estate as we know it. Under TCA 66-5-212 known as Disclosure of known percolation tests or absorption rates, the laws surrounding the Tennessee Residential Property Disclosure have ...

 

05-Oct-2006

Murder of a Spouse-What happens to your Real Estate?

What happens to the title to the property when it is vested as tenants by the entirety (husband and wife as an indivisible unit) and one spouse murders the other? Can the surviving spouse sell the family home and collect on the proceeds? The Supre...

 

22-Sep-2006

Square Footage- How to Avoid "Intentional Misrepresentation" when dealing with square footage

The Tennessee Court of Appeals determined that the listing agent "estimated" the square footage in the home. Therefore, the agent did not negligently or intentionally misrepresent the square footage of the home. Under Tennessee law, a person is d...

 

15-Sep-2006

Square Footage- How to Avoid "Negligent Misrepresentation" when dealing with square footage

The Tennessee Court of Appeals determined that the listing agent "estimated" the square footage in the home. Therefore, the agent did not negligently misrepresent the square footage of the home. The square footage that was provided designated the ...

 

11-Sep-2006

Square Footage- How Agents Can Avoid Liability

The Tennessee Court of Appeals has ruled in The Cadco, LLC v Barry (2006 Tenn. App. LEXIS 37) that a real estate agent was not responsible for an alleged misrepresentation of the square footage in a listing on MLS. Even though the square footage was ...

 

25-Aug-2006

Square Footage- How Agents Can Avoid Liability

The Tennessee Court of Appeals has ruled in The Cadco, LLC v Barry (2006 Tenn. App. LEXIS 37) that a real estate agent was not responsible for an alleged misrepresentation of the square footage in a listing on MLS. Even though the square footage was ...

 

14-Aug-2006

Will Bankruptcy Affect My Real Estate Lease?

Maybe yes... Maybe No.... Real property leases have special treatment under the Bankruptcy Code. A lease that is not expired must be either assumed by the debtor or rejected by the debtor completely. If the debtor wishes to assume the lease, the d...

 

26-Jul-2006

Why the Court determined that Modular Structures violate Mobile Home restrictions

The Tennessee Court of Appeals has held in Williams v. Fox, (Tenn. App., March 20, 2006) that a restriction against mobile homes also included a restriction against modular housing. There was proof brought to the case that manufactured homes were dis...

 

05-Jul-2006

Restrictions against Mobile Homes include Modular Homes

Many subdivisions include restrictions today. One of the most common restrictions may be the restriction against mobile homes. The Tennessee Court of Appeals has held in Williams v. Fox, (Tenn. App., March 20, 2006) that this restriction also include...

 

28-Jun-2006

Agreement to Agree to Option Sales Price in a Lease is Not Enforceable

The Tennessee Court of Appeals has ruled in Four Eights, LLC v. Salem (Tenn. App., Nov. 29, 2005) that an option in a lease agreement to purchase the property for its fair market value , as agreed upon by the parties, is not enforceable. The Court he...

 

28-Jun-2006

Agreement to Agree to Option Sales Price in a Lease is Not Enforceable

The Tennessee Court of Appeals has ruled in Four Eights, LLC v. Salem (Tenn. App., Nov. 29, 2005) that an option in a lease agreement to purchase the property for its fair market value , as agreed upon by the parties, is not enforceable. The Court he...

 

09-Jun-2006

Part II: How do the tax assessor and an appraiser measure the square footage in a home?

There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and when the Tax Assessor’s office appraises the p...

 

17-May-2006

Part II: How do the tax assessor and an appraiser measure the square footage in a home?

There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and when the Tax Assessor’s office appraises the pro...

 

17-May-2006

Gift Tax—The Gift that Keeps on Costing

The gift tax that is recognized in Tennessee may keep costing taxpayers– even after death. The gift tax also plays a big role in inheritance scenarios. All real and personal property which the decedent owned or has an interest in must be shown on th...

 

03-May-2006

Beware of Zoning Changes to the Subject PropertyDuring the Negotiation of a Real Estate Contract

The Tennessee Court of Appeals has ruled in Westchester Co. , LLC v. Metropolitan Government, (Tenn. App. , Dec. 20, 2005) that a landowner did not have a vested right in an existing zoning classification. The Court utilizes the term “vested ri...

 

21-Apr-2006

Beware of Zoning Changes to the Subject Property During the Negotiation of a Real Estate Contract

The Tennessee Court of Appeals has ruled in Westchester Co. , LLC v. Metropolitan Government, (Tenn. App. , Dec. 20, 2005) that a landowner did not have a vested right in an existing zoning classification. The defendant municipality in We...

 

07-Mar-2006

Mobile Home assessed as Real Property

The Tennessee Court of Appeals has held in CMH Homes, Inc. v. McEachron, (Tenn. App., Sept. 29, 2005) that the purchaser at a tax sale did not acquire the mobile home that was located on the property that was being auctioned. The Tennessee Co...

 

10-Feb-2006

Tax Sale does not include mobile home

The Tennessee Court of Appeals has held in CMH Homes, Inc. v. McEachron, (Tenn. App., Sept. 29, 2005) that the purchaser at a tax sale did not acquire the mobile home that was located on the property that was being auctioned. A piece of land was t...

 

30-Jan-2006

Is the Seller responsible for not disclosing item on Property Disclosure if it was apparent to the buyer?

Maybe not.... The Tennessee Court of Appeals has held in Daniels v Basch, (Tenn. App., October 27, 2005) that the seller of real property cannot be held liable for failing to disclose an items that is obviously apparent to the buyer with common obse...

 

19-Jan-2006

Is the Seller responsible for not disclosing item on Property Disclosure if it was apparent to the buyer?

Maybe not.... The Tennessee Court of Appeals has held in Daniels v Basch, (Tenn. App., October 27, 2005) that the seller of real property cannot be held liable for failing to disclose an items that is obviously apparent to the buyer with common obse...

 

13-Jan-2006

Do I owe the people who pass in front of my home a duty even if they never enter my property?

The Supreme Court of Tennessee ruled in Hale v. Ostrow, 30 TAM 28-1, that a property owner owes a duty of care to a passerby to ensure that brush or foliage on his property do not obstruct the sidewalk. According to Hale, that duty attaches regardles...

 

30-Dec-2005

Do I owe the people who pass in front of my home a duty— even if they never enter my property?

Maybe yes. In Hale v. Ostrow, 30 TAM 28-1, the Tennessee Supreme Court held that a property owner owes a duty of care to a passerby to ensure that brush or foliage on his property do not obstruct the sidewalk. According to the Hale court, this duty a...

 

16-Dec-2005

Installment Contracts- “Are they enforced?

The Tennessee Court of Appeals ruled that an in favor of the sellers and found that an installment sales contract was enforceable in Kafozi v. Windward Cove, LLC , (Tenn. App., August 26, 2005) The Court agreed that the ruling was harsh due to the ...

 

03-Nov-2005

Mortgages

Public Chapter (PC) 16 extends the maximum duration of an open- end credit agreement made pursuant to an open- end mortgage from 20 years to 30 years from date of original execution. Public Chapter (PC) 273 enact “Residential Closing Funds Dist...

 

26-Oct-2005

Four Types of Warranties given in a General Warranty Deed

The warranties found in a General Warranty Deed read as follows: TO HAVE AND TO HOLD the said tract or parcel of land, with the appurtenances, estate, title and interest thereto belonging to the said GRANTEES, their heirs and assigns, forever, and...

 

26-Oct-2005

I have been deeded the property– does it really matter what kind of deed was conveyed to me?

Yes, it does matter. There are several types of deeds that convey ownership. This is very important in determining the warranty that was conveyed in the closing. The three types of deeds are as follows: (1) Quitclaim Deed- This type of deed convey...

 

26-Oct-2005

Quitclaim deeds and gift taxes The gift that keeps on costing? Part I of a multi-part tip

Here’s a common scenario. Mom and Dad decide to start giving away real estate before they die (a little pre- death estate planning so to speak), and they start asking for quitclaim deeds to effect the transfers. Pause a second and reflect on fede...

 

26-Oct-2005

Tennessee Residential Property Disclosure– Seller: “ What if I did not know that the problem existed?”

The Tennessee Court of Appeals has held in Robinson v. Currey, 29 TAM 33-9 (Tenn. App. June 29, 2004) that sellers cannot be liable under the Tennessee Residential Property Disclosure Act for problems they knew nothing about. The Tennessee Residen...

 

26-Oct-2005

Tennessee Residential Property Disclosure– Seller: “ What if I did not know that the problem existed?”

The Tennessee Court of Appeals has held in Robinson v. Currey, 29 TAM 33-9 (Tenn. App. June 29, 2004) that sellers cannot be liable under the Tennessee Residential Property Disclosure Act for problems they knew nothing about. In this case, the pur...

 

26-Oct-2005

More 2004 Legislation that could affect You.....Landlord and Tenant

Public Chapter (“PC”) 683 amends the Tennessee Uniform Residential Landlord and Tenant Act to give a landlord ten business days after lease termination(rather than three business days) to inspect the premises and compile a list of repair expenses to ...

 

26-Oct-2005

More 2004 Legislation that could affect You.....Loans and Mortgages

Public Chapter (“PC”) 657 requires that deeds of trust securing certain low or zero interest homes from non-profit lenders prominently state that the loan cannot be refinanced without the prior, written approval of the local board of directors of the...

 

26-Oct-2005

During the 2004 session, the Legislature passed several statutes relating to real estate. Following are some the changes that were made:

Recording Public Chapter (“PC”) 497 allows the recording of affidavits relating to title, including affidavits correcting scrivenor’s errors and any other affidavits in furtherance of title. Construction PC 741 requires those asserting clai...

 

26-Oct-2005

Could I be liable for negligent misrepresentation?

Negligent misrepresentation is defined as one who, in the course of business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transact...

 

26-Oct-2005

Tip 206 Part IV of a multi-part tip on square footage “It was no big deal... I only added the extra square footage for advertising purposes. I never

Unfortunately in Tennessee, the answer is NO!! The Tennessee Real Estate Commission will likely refer you to the old saying, “You should have known better.” Tennessee forcefully upholds contracts. In order to have a contract, there has to be mutu...

 

26-Oct-2005

Part III “ Does the square footage advertised have to be exact?”

There may never be an exact square footage measurement. You can have two appraisers measure the same house and come up with two different square footage amounts. This is going to happen. A small margin of error is almost expected in dealing with an ...

 

26-Oct-2005

Part II: How do the tax assessor and an appraiser measure the square footage in a home?

There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and when the Tax Assessor’s office appraises the pro...

 

26-Oct-2005

Part I of a Multi- Part Series regarding legal and ethical issues surrounding representation about square footage of buildings

Our office was presented with the following question regarding making representations in advertising about the square footage of a house for sale: Q: I recently approached TREC with a question that I had regarding square footage. I’ve been seeing...

 

21-Oct-2005

Liens

Public Chapter (PC) 306 provides that judgments and decrees obtained by governmental entities after July 1, 2005, in any court in Davidson County will be a lien upon the debtor’s land from the time a certified copy of the judgment or decree is regist...

 

23-Sep-2005

Disclosures

Public Chapter (PC) 171 requires owners of residential property in transfers involving the first sale of a dwelling, to furnish to purchasers a statement disclosing the amount of any impact fees or adequate facilities taxes paid to any city or count...

 

31-Aug-2005

Residential Closing Funds Distribution Act of 2005

The changes that have been brought about by the Residential Closing Funds Distribution Act of 2005 will apply to the following: (a) This chapter applies to transactions involving loans made by mortgage lenders utilizing settlement agents, which lo...

 

30-Aug-2005

Residential Closing Funds Distribution Act of 2005

The changes that have been brought about by the Residential Closing Funds Distribution Act of 2005 may have major implications for closing agents and Realtors. The Act states that... (a) No settlement agent shall disburse any funds from an escrow or ...

 

05-Aug-2005

Residential Closing Funds Distribution Act of 2005 and How It May Affect Your Closings

Tennessee Code Annotated, Title 47 has been amended and this section affects Residential Real Estate Closings. One of the big changes is the disbursement of funds. T.C.A. defines the disbursement of funds as the delivery of the funds by the mortgage ...

 

25-Jul-2005

RESIDENTIAL REAL ESTATE TIP OF THE WEEK ERRORS AND OMISSIONS INSURANCE - PART 4 OF A 4 PART SERIES

E & O Reminders: (1) Make sure your policy is renewed timely every year so that there is no gap in coverage; (2) READ your policy so that you know what is and is not covered; (3) Contact the insurance carrier if you have any questions regarding you...

 

22-Jun-2005

Disposal of Consumer Report Information and Records

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. In part the Act amends the Fair Credit Reporting Act by imposing a new requirement on persons who possess or maintain, for a business purpose,...

 

03-Jun-2005

FHA Eliminates MIP Refunds for Loans Issued on or After Dec 8th, 2004

FHA refunds to borrowers who pay off their federally insured mortgages have been eliminated!! This was an approval by Congress that took place effective in January of 2005. This is a change that will not be welcomed by many borrowers who have been t...

 

02-Jun-2005

Involuntary Liens Part IV: Lien Lis Pendens

A lien lis pendens is a type of lien that is provided for by statute in Tennessee. It attaches to the real estate described in the lien when an abstract of the suit against the property owner is recorded at the Register of Deeds office. A lien ...

 

02-Jun-2005

Limiting Real Estate Licensee liability for property condition matters under the Tennessee Property Condition Disclosure Act-Part III of III: A Checkl

Below is a great reference chart for you and your clients. It is a chart explaining Buyer’s and Seller’s rights and obligations under the Tennessee Property Condition Disclosure Act. You may feel free to make copies for your own distribution and ma...

 

02-Jun-2005

Exclusive Buyer Representation Disclosures Part 1

Irate Buyers, dazed and confused about exclusive buyer representation arrangements, have besieged Tennessee Real Estate Commission with complaints, thus leading to a policy statement by TREC. This tip contains Tennessee Real Estate Commission Poli...

 

02-Jun-2005

Exclusive Buyer Representation Disclosures Part 2

Here is a form for your Buyers under exclusive Buyers Agency agreements to sign to comply with the new TREC policy. Dear Buyer, Thanks for choosing our firm as your Exclusive Buyers Agency. The Tennessee Real Estate Commission requires that yo...

 

02-Jun-2005

Federal Law Alert: HUD publishes Amended Anti-Flipping Rules

The Department of Housing and Urban Development recently finalized its amended regulations related to the “flipping” of properties financed by FHA mortgage loans. Under the new rules, which became effective June 2, 2003, only the record owner can sel...

 

02-Jun-2005

Tennessee Courts and “Procuring Cause” Part 1 of a Multi-Part Series

What constitutes a “procuring cause” is always a hot topic with realtors. It comes up in the context of Board arbitration and Broker vs. Broker as to who was the procuring cause to be paid split commission. Agent:“I introduced the buyer and sell...

 

02-Jun-2005

Why was the Broker in Whitten v. Smith not entitled to a commission?

The Court looked at the language in the listing agreement that stated “If within 12 months after the termination of this agreement I sell or transfer this property to a prospect procured by you prior to its termination, I shall pay you your commissio...

 

02-Jun-2005

Anti-Flipping Rules and Real Estate Investors (Forewarned is Forearmed)

Do you “bird dog” property for a real estate investor who is looking to buy distressed property, fix it up and make a quick resale? This used to be the quintessential model of capitalism- buy low/sell high and don’t waste any time doing it so as to...

 

02-Jun-2005

Agent May Accept Service under the URLTA Part I of a multi-part series

The Tennessee Court of Appeals have ruled in Boone v. Gibson (Tenn. App., Feb. 27, 2004) that under the Uniform Residential Landlord Tenant Act, T.C.A. § 66-28-101, et.seq., a tenant may acquire personal jurisdiction over his landlord by serving proc...

 

02-Jun-2005

Why did the Tennessee Court of Appeals hold that a Landlord’s former wife qualified as “ a person authorized to enter into a rental contract?” Part I

The Court looked at the authority that she had or purported to have. “Apparent authority of an agent must be determined by the acts of the principal and not those of the agent.” Edmond Bros. Supply Co. v. Boyle and Adams, 44 S.W. 3d 530, 534 (Tenn. C...

 

02-Jun-2005

RESPA Continued....Prohibited Practices under RESPA and Enforcement of RESPA: Section 8: Kickbacks, Fee-Splitting, Unearned Fees

Section 8 of RESPA prohibits anyone from giving or accepting a fee, kickback or anything of value in exchange for referrals of settlement service business involving a federally related mortgage loan. In addition, RESPA prohibits splitting and receivi...

 

02-Jun-2005

RESPA (Real Estate Settlement Procedures Act) Continued....More Information about RESPA

The Real Estate Settlement Procedures Act (RESPA) is a consumer protection statute, first passed in 1974. The purposes of RESPA are: (1) to help consumers become better shoppers for settlement services (2) to eliminate kickbacks and referral fees...

 

02-Jun-2005

RESPA and Kickbacks–What You Need to Know Part 1 of a Multi-part Tip of the Week

We have been asked on numerous occasions to address the topic of referral fees, otherwise known (when improperly paid or received) as kickbacks.” What law applies? What if the referral fee is disclosed - doesn't that cure the problem? (Not if the pa...

 

02-Jun-2005

Part 2 of a multi part tip of the week on kickbacks and RESPA Questions and Answers Regarding RESPA

The following are excerpts from questions presented to the RESPA enforcement division at the HUD regional office in Atlanta. The answers are straight from the HUD investigator who pursues RESPA complaints. (1) Can a title company give the real est...

 

02-Jun-2005

Part I of a multi-part series on Conservation easements

What is a conservation easement and can it benefit my client? A conservation easement is a negotiated agreement between a landowner and certain governmental entities that are qualified to monitor and enforce restrictive land use easements, all pursu...

 

02-Jun-2005

Part II of a multi- part series on Conservation easements

What is a conservation easement and can it benefit my client? How will a conservation easement affect my property? The restrictions in a conservation easement generally prohibit any uses of the land that may adversely affect those resources that th...

 

02-Jun-2005

Part III of a multi- part series on Conservation easements

Tax consequences of Conservation easements There are several benefits available to a landowner who donates a conservation to a qualified organization. These benefits are: (1) A charitable income tax deduction equal to the value of the donated ...

 

02-Jun-2005

Landowners and Tree Liability

Landowners can be liable for damage caused by healthy trees Trees are a great form of adornment for one’s home. However, your neighbor may have a differing opinion about your trees. Healthy trees grow and may grow over the property line or prevent...

 

02-Jun-2005

Home Inspector’s Liability Limitation is not Enforceable

The Tennessee Court of Appeals has ruled in Russell v. Bray (2003) that a provision in a home inspection contract limiting the inspector’s liability to the fee paid is void. The plaintiffs (home buyers) in Russell entered into a contract to purchase ...

 

02-Jun-2005

Contracts limiting liability- Enforceable or not?

As a general rule, Tennessee courts have recognized that parties may contract that one shall not be liable for his negligence to another. However, this is not without exceptions. The Tennessee Supreme Court has also held that an exculpatory clause in...

 

02-Jun-2005

Non Use of an Express Easement is not Abandonment

The Tennessee Court of Appeals held in Moore v. James Devault, et al (2002) that necessity is not a prerequisite to establishment of an express easement. Therefore, the principle that an easement ceases with lack of necessity has no application. Mere...

 

02-Jun-2005

Part III of a multi-part series on Building Permit Basics “Call before you build”–Getting a Property Address

You cannot get a building permit without first having an address. This is one of the very first steps that you need to take after purchasing a lot to build on. Some lots will already have an address. However, if they do not and are listed only as Lot...

 

02-Jun-2005

Family Real Estate Deals...Don’t Find Yourself in a Family Feud

Some real estate deals are tough, but family deals always seem to be tougher. The Courts have a reasonable amount of understanding when a contract to purchase real estate falls through. However, the Tennessee Court of Appeals has decided that con...

 

02-Jun-2005

For Your Protection: Get a Home Inspection, Which Now Includes Radon Testing

Most realtors are very familiar with home inspections. For several years, FHA has required that the buyer sign a disclosure form entitled “For Your Protection: Get a Home Inspection.” A home inspection gives the buyer more detailed information abou...

 

02-Jun-2005

Part III of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability

You’ve also got to love the last sentence of T.C.A. section 66-5-208 (d)(1). It is poetry to the ears of real estate agents seeking to limit liability for property condition matters. The statute reads: A real estate licensee may not be the subje...

 

02-Jun-2005

Part IV of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability

The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads: Nothing in this subsection shall be construed to exempt or excuse a real estat...

 

02-Jun-2005

Part V of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability

The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads: Nothing in this subsection shall be construed to exempt or excuse a real estat...

 

02-Jun-2005

Part VI of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability

The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads: Nothing in this subsection shall be construed to exempt or excuse a real estate...

 

02-Jun-2005

Part VII of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability

Summary Over the last six tips we examined the new law in Tennessee which limits Real Estate licensee liabilities for property condition matters. Because the statute also states that it does not excuse a licensee from other agency and property ...

 

02-Jun-2005

A Recipe for Success in 2004

The attorneys and staff at Smith.Sholar.Associates wish you and yours a very happy, healthy, and wealthy New Year Here’s a few ideas for New Year’s resolutions. Studying biographies of successful people led to this recipe for success in 2004....

 

02-Jun-2005

Meth Lab Busts Impact Real Estate Community

The scourge of “home brewed” methamphetamine is impacting realtors, landlords and property owners, and creating environmental clean up sites, costly remediation, and disclosure issues for real estate agents. This problem is here, it’s now, and it ex...

 

02-Jun-2005

Part I of a multi-part series on Building Permit Basics

One of the questions Realtors and Real Estate Attorneys are asked frequently is “How do I get a building permit?” The procedure and requirements on obtaining building permits and inspections vary- each county or municipal building, community, or plan...

 

02-Jun-2005

Part II of a multi-part series on Building Permit Basics

Once the permit has been obtained, there are several government inspections required during the building process. Using Sumner County, Tennessee inspection requirements as an example, here’s how they go. Inspections for Residential Structures with...

 

02-Jun-2005

Part V of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft

Here are a few more ways fraudsters get personal information so they can steal your identity: “red flagging” and “dumpster diving.” “Red flagging” refers to the practice of stealing outgoing mail from residences. Think about it- a mail thief can g...

 

02-Jun-2005

SSA Most Requested Hits

We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a form to give to your Buyer and Seller clients and cus...

 

02-Jun-2005

SSA Most Requested Hits

We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a form to give to your Buyer and Seller clients and cus...

 

02-Jun-2005

SSA Most Requested Hits

We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a form to give to your Buyer and Seller clients and cus...

 

02-Jun-2005

SSA Most Requested Hits

Here’s a form that you will want to use. It is a complete list of all of the exemptions under the Tennessee Property Condition Disclosure Report Act. Just have the Seller check the appropriate box and sign it so that you can document for the TREC aud...

 

02-Jun-2005

New USA Patriot Act Identification Requirements

As of October 1, 2003, The USA Patriot Act requires lenders to collect information from borrowers to confirm their identity. The Patriot Act requires: Borrower’s name(s) Borrower’s date(s) of birth Address(es) -For an individual, collect a s...

 

02-Jun-2005

Part I of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability

Rejoice In June of 2003 an amendment to T.C.A. section 66-5-208 became the law of the land and serves to further limit Real Estate licensee (and Broker) liability for property condition matters, but like most laws the new statute takes a bit of stud...

 

02-Jun-2005

Part III of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft

Virtually the only way you can protect yourself from identity theft is to annually obtain copies of your credit reports from the three major credit reporting agencies. Then scrutinize the reports to see if there are any new credit application...

 

02-Jun-2005

Part IV of a multi-part tip on identity theft and fraud in real estate transactions: Home equity theft

Another way to protect yourself and your clients is to do business with mortgage companies and closing attorneys that you know and trust. Beware of transactions that totally take place “by mail,” where you have never actually met any or a large numb...

 

02-Jun-2005

Part I of a multi-part series on fixtures: Singlewides and doublewides–When is manufactured housing a fixture?

In Tennessee, manufactured housing (single and doublewide) is considered personal property and has a “title” document issued by the state which is virtually identical to a car title. Manufactured housing can become a fixture, and real estate agents ...

 

02-Jun-2005

Part II of a multi-part series on fixtures. Practical problems and limitations on financing.

Last week we addressed manufactured housing as fixtures and what documents must be filed for the housing to be deemed affixed to the land. Why is this important? Freddie Mac and Fannie Mae (and probably FHA and VA in the near future) require the s...

 

02-Jun-2005

Part III of a multi-part series on fixtures: What are “Trade Fixtures”?

We’ve already discussed what classifies property as a “fixture.” So what is a “trade fixture”? Definitions vary, but most agree that a trade fixture is personal property used in a trade or business (such as display counters, shelves, special equip...

 

02-Jun-2005

Part I of a Multi-Part Series on HUD Regulations: Addressing “Flipping.”

Do back flips over “flipping” – FHA targets fraudulent multiple transfers. Though “flipping” has been present for quite some time, it has become especially prevalent lately. Essentially, “flipping” is purchasing a property and reselling it with...

 

02-Jun-2005

Part II of a Multi-Part Series on HUD Regulations: Addressing “Flipping.” FHA targets fraudulent multiple transfers.

Here are the new rules you need to know: 1. If the seller has acquired the property within the past ninety days, it is not eligible for an FHA-insured mortgage. 2. If the current owner has acquired the property within ninety-one to 180 days,...

 

02-Jun-2005

“Why should I buy title insurance?” - Part I of a Multi-Part Series

Buyers are often confused by the various title insurance policies available to them. The following are a few of the most frequently asked questions. “Why should I even purchase title insurance?” A title insurance policy protects the insured’s...

 

02-Jun-2005

“Why should I buy title insurance?” - Part II of a Multi-Part Series

Buyers may question the likelihood of an incident arising in which they would even need title insurance, but title problems are very real. The buyer has little say in the purchase of lender’s title insurance, as lenders recognize title issues are a...

 

02-Jun-2005

Part I of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft

Identity theft is the largest and fastest growing category of crime in America, and the Internet has certainly facilitated this. Now a version of identity theft is impacting real estate loans and sales in what is being referred to as “home equity t...

 

02-Jun-2005

Part II of a multi part tip on identity theft and fraud in real estate transactions: Home equity theft

A second form of “home equity theft” involves the fraudulent purchase and sale of a victim’s property and works like this: Two “fraudsters” steal the identities of two victims. One con person then poses as the “Seller” and the other poses as the “B...

 

02-Jun-2005

Part III of a multi-part series on “As Is” contracts and sales: How to draft a true “As Is” contract

In order to draft a true “As Is” contract where the Seller has no obligation to make repairs, several contract drafting areas must be addressed. Here are three points to consider: 1. You must remove all warranty language and all provisions that ...

 

02-Jun-2005

Part IV of a multi part series on “As Is” contracts and sales: Using appropriate disclaimers to disclaim any UCC warranties

The Uniform Commercial Code in Tennessee governs the sale of items of personal property in Tennessee and creates two types of implied warranties: implied warranty of fitness for a particular purpose, and an implied warranty of merchantability. The ...

 

02-Jun-2005

Part VI of a multi-part series on “As Is” contracts and sales: What are the Real Estate Agent’s duties to disclose known defects?

Even if a property is being sold “As Is,” a real estate agent has several affirmative duties to disclose known defects. They are found in Tennessee agency laws and the Property Condition Disclosure Report Act. T.C.A. Section 62-13-403 sets fort...

 

02-Jun-2005

Limiting Real Estate Licensee liability for property conditions under the Tennessee Property: Condition Disclosure Act-part II of III: Duties of rea

The Property Condition Disclosure Report statute limits your liability if you live up to your duties under the act. What are they? Here you go In order to eliminate liability for property condition matters under the Tennessee Property Condition ...

 

02-Jun-2005

Three new Compliance Forms from Smith.Sholar.Associates for the Tennessee Property: Condition Disclosure Report Act-part I of III

This three-part series delivers to you three new forms designed by the attorneys at Smith.Sholar.Associates to help you comply with the Tennessee Property Condition Disclosure Report Act. The first form is a complete list of all exemptions availab...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 15B

1260-5-.14 Repetition of Course Content is amended by deleting the text of the rule in its entirety and replacing it with the following language so that as amended the rule shall read: 1260-5.14 Repetition of Course Content. Effective January 1, 200...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 15A

1260-5-.01 Purpose is amended by deleting the text of the rule in its entirety and replacing it with the following language so that as amended the rule shall read: 1260-5-.01 PURPOSE. The Tennessee Real Estate Broker License Act of 1973 (as amended)...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 14 of 15

1260-7-.03 BRANCH OFFICES. (1) A firm will be deemed to maintain a “branch office” if it utilizes an office or business location other than that which is on file with the Commission and: (a) Advertises the office in any manner for the purpose of ...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 13 of 15

1260 -7.02 Escrow/Trust Accounts. (1) Escrow/trust accounts shall be established and held in a federally insured and properly licensed financial institution within the state of Tennessee. (2) The licensee shall execute with each owner a written...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 12 of 15

1260-6.15 Conduct. It shall be improper dealing within the meaning of T.C.A. 66-32-121(f) for a developer or sales agent to retain the services of an individual or entity required to be registered with or licensed by the Commission where such indivi...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 11 of 15

1260-2-.38 Limitations of Liability. It shall be improper conduct for a licensee to enter into or request or require a party represented by said licensee to enter into any agreement which attempts to waive the licensee’s liability for the performance...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 7 of 15

1260-2-41 UNLICENSED EMPLOYEES. Utilization of unlicensed employees or independent contractors by a licensee shall be subject to the following guidelines: 1. Unlicensed individuals who are employed by or under the direction of a licensee may: a. ...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 8 of 15

The new advertising regulations contain the newest changes to existing law. Also, they are the most likely of the new regulations to have portions postponed and delayed for implementation, particularly the new signage rules. Read the new Internet ad...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 9 of 15

The Tennessee Real Estate Commission has added new teeth to existing regulations, adding penalties for licensee violations of Real Estate Commission regulations. Rule 1260-2-.32 CIVIL PENALTIES is amended by deleting the text of the rule in its ...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 10 of 15

This tip contains two of the shortest new regulations. 1260-2-.39 Comparative Market Analysis and Broker Opinions. Where a licensee provides a comparative market analysis or a broker opinion the licensee shall comply with the following requirements:...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 6 of 15

This amended section has to do with the principal broker’s duties as broker. Note that the biggest new requirement is that the broker must provide 10 hours of mandatory new education to new affiliate brokers. Check out the list of education topics b...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 5 of 15

Note that the big changes in this section have to do with using model homes and modular buildings as offices and whether their use constitutes a branch office that would require a principal broker’s presence. Rule 1260-2-.03 Offices is amended by...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 4 of 15

Rule 1260-2.11 Personal Interest is amended by adding a new paragraph (3) which shall read as follows: (3) (a) In any transaction where a licensee provides real estate services and where the licensee proposes to recommend or refer any party to the ...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 3 of 15

New Rule 1260-2.09 deals with deposits and earnest money. The new rule reads as follows: Rule 1260-2.09 Deposits and Earnest Money is amended by deleting the text of the rule in its entirety and by substituting instead the following new language so ...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 2 of 15

The proposed regulation changes from the Tennessee Real Estate Commission contain new requirements for record retention. These regulations have not been enacted at this time, but may be coming your way soon. The new regulation mirrors the old law ...

 

02-Jun-2005

Termite Letter Problems

It seems we discover new and unique termite letter problems every day. Recently a closing was briefly put on hold due to the following termite letter notation. The pest control inspector noted that an outbuilding had “wood to soil” contact, and the ...

 

02-Jun-2005

Fair Housing Advertising Requirements

Complying with the Fair Housing Act regarding advertising can be a challenge. For example, is it required that all of your advertising contain the fair housing logo (the house with the = sign)? According to information received from N.A.R., it is...

 

02-Jun-2005

Property Lying in Two Different Counties

Often one parcel of property will be split by a county boundary and thus be in two different jurisdictions. The best practice is to search the title and record the documents in both counties. Tennessee Code Ann. Sec 66-24-103 has this to sa...

 

02-Jun-2005

Unclaimed Property Escheat to the State

In order to enhance revenue to state government, the State of Tennessee Treasury Department Division of Unclaimed Property is becoming more aggressive in seizing unclaimed property. This would include unclaimed funds in broker escrow accounts. Tennes...

 

02-Jun-2005

No Contract? No Commission

A recent Tennessee Court of Appeals decision affirmed prior Tennessee case law and ruled that without an express agreement, buyers are not liable to real estate brokers for a real estate commission, even if the buyer works with the agent and a sale ...

 

02-Jun-2005

Fraud and Property Condition Matters: Part II of III

In Anderson v. Warren ( Tenn. App. Dec 12, 2001) a trial court found liability for fraud for misrepresentation of the property’s condition by the sellers and the real estate agent, and held that contract disclaimers are not sufficient to overcome li...

 

02-Jun-2005

Fraud and Property Condition Matters: Part III of III

The past two tips of the week examined Anderson v. Warren ( Tenn. App. Dec. 12, 2001). This case deals with seller liability for fraudulent misrepresentations and with property condition issues. As a fact in the case, the buyers asserted that the ...

 

02-Jun-2005

Fraud and Property Condition Matters: Part I of III

A recent Tennessee Court of Appeals decision sheds light on the interaction of fraud, the Tennessee Property Condition Disclosure Report laws, contract condition disclaimers and property acceptance forms signed at closing. Here’s the short story: I...

 

02-Jun-2005

The VA Loan

This continues a series on basic types of loan financing. We will address conventional loans, FHA loans, FHA/THDA loans, and VA loans, and their ability to meet your clients' unique financial needs. One of the benefits of serving in the United Stat...

 

02-Jun-2005

A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- Part 1 of 15

The Tennessee Real Estate Commission has adopted 23 pages of new and amended administrative regulations that highly impact real estate brokers and licensees and affect exactly how they conduct business. This series of the SSA Real Estate Tip of ...

 

02-Jun-2005

Statute of Frauds

Contracts for the sale of real estate must be in writing and signed by all parties to be enforceable in the state of Tennessee. This is due to the “statute of frauds,” which in Tennessee holds that, in order to be enforceable, the promise or agreem...

 

05-May-2005

Payoffs are a key element in determining a listing price– Especially if the property is in foreclosure

There are many factors that an agent takes into consideration when determining a listing price. One of those factors is the payoff. Typically, the owner gives you a ballpark figure for the payoff and this is a big factor in the listing price. However...

 

25-Apr-2005

FHA MIP Refunds – “ Do I get any money back?- How?”

Q: I had an FHA mortgage, and I think that I may be due a refund of my mortgage premium. How can I find out? A: A homeowner can check the website for the U.S. Department of Housing and Urban Development at http://www.hud.gov/faqs/faqrefund.cfm. to...

 

25-Mar-2005

Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your Purchasers

There are many different exemptions to the Interstate Land Sales Act. The below exceptions would exempt a developer from being under ANY of the rules and regulations of the Act. (1) The sale or lease of lots in a subdivision containing less tha...

 

18-Mar-2005

Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your Purchasers

The Interstate Land Sales program protects consumers from fraud and abuse in the sale or lease of land. Following is a continuation of questions and answers in purchasing land: Q: Can HUD take action against a developer who is not enforcing t...

 

11-Mar-2005

Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your Purchasers

The Interstate Land Sales program protects consumers from fraud and abuse in the sale or lease of land. In 1968 Congress enacted the Interstate Land Sales Full Disclosure Act, which is patterned after the Securities Law of 1966 and requires land deve...

 

04-Feb-2005

Landlords– “Self Help” evictions are costly– Obtain a court order first!!

The Tennessee Court of Appeals has ruled in 94th Aero Squadron v. Memphis-Shelby Co. Airport Authority (Tenn. App., Nov. 2, 2004) that a lessor may not reclaim leased premises without complying with T.C.A. § 29-18-101 ,which outlines the forcible ent...

 

14-Jan-2005

Quitclaim Deeds, Special Warranty Deeds and General warranty Deeds–All Deeds are not created equal!!

There are several types of deeds that convey ownership. The difference between them are the contractual warranties of title given by the seller. The three types of deeds are as follows: (1) Quitclaim Deed- This type of deed conveys all interest of...

 

05-Jan-2005

Exclusive Buyer Representation Disclosures: Part 2

Here is a form for your Buyers under exclusive Buyers Agency agreements to sign to comply with the new TREC policy. Dear Buyer, Thanks for choosing our firm as your Exclusive Buyers Agency. The Tennessee Real Estate Commission requires that yo...

 

05-Jan-2005

Exclusive Buyer Representation Disclosures: Part 1

Irate Buyers, dazed and confused about exclusive buyer representation arrangements, have besieged Tennessee Real Estate Commission with complaints, thus leading to a policy statement by TREC. This tip contains Tennessee Real Estate Commission Poli...

 

05-Jan-2005

Why did the Tennessee Court of Appeals hold that a Landlord’s former wife qualified as “ a person authorized to enter into a rental contract?” Part I

The Court looked at the authority that she had or purported to have. “Apparent authority of an agent must be determined by the acts of the principal and not those of the agent.” Edmond Bros. Supply Co. v. Boyle and Adams, 44 S.W. 3d 530, 534 (Tenn. C...

 

05-Jan-2005

Agent May Accept Service under the URLTAAgent May Accept Service under the URLTA: Part I of a multi-part series

The Tennessee Court of Appeals have ruled in Boone v. Gibson (Tenn. App., Feb. 27, 2004) that under the Uniform Residential Landlord Tenant Act, T.C.A. 66-28-101, et.seq., a tenant may acquire personal jurisdiction over his landlord by serving proc...

 

05-Jan-2005

Tennessee Courts and “Procuring Cause” : Part 1 of a Multi-Part Series

What constitutes a “procuring cause” is always a hot topic with realtors. It comes up in the context of Board arbitration and Broker vs. Broker as to who was the procuring cause to be paid split commission. Agent:“I introduced the buyer and sell...

 

29-Dec-2004

Part III of a multi-part series on Building Permit Basics

“Call before you build”–Getting a Property Address You cannot get a building permit without first having an address. This is one of the very first steps that you need to take after purchasing a lot to build on. Some lots will already have an addr...

 

12-Jun-2003

Part I of a multi-part series on “fixtures.” What is a fixture?

This is the first in a series of tips dealing with real estate fixtures. Oftentimes, confusion arises regarding exactly what qualifies as a “fixture.” Definitions vary and abound, but the Encyclopedia of Real Estate Terms defines a fixture as “...

 

03-Feb-2003

"AS IS" Contracts and Sales

Part II of a multi part series on "As Is" contracts and sales - How to protect a Buyer in an "As Is" sale. Some Agents and Buyers are skeptical about properties being sold "as is," fearing that the owner has something to hide. Maybe yes, pr...

 

28-Feb-2002

The Conventional Loan

Conventional loans are defined as any loan made by a lender aside from an FHA or VA loan. Most mortgage loans are designed to comply with Federal National Mortgage Association requirements so that the loans can be sold by the lender on the secondar...

 

21-Feb-2002

The FHA/THDA Loan

THDA stands for the Tennessee Housing Development Agency, a branch of the State government that assists in public housing programs. THDA underwrites an FHA loan programs whereby THDA is the lender for FHA first mortgage loans made to qualifies firs...

 

15-Feb-2002

The FHA Loan

This continues a series on basic types of loan financing. We will address conventional loans, FHA loans, FHA/THDA loans, and VA loans, and their ability to meet your clients' unique financial needs. FHA loans are loans which meet Federal Housing A...

 

01-Feb-2002

Earnest Money-Can You Do Without It?

A recent Tennessee Court of Appeals decision ruled that a Buyer could not enforce a contract that allowed the Buyer to unilaterally terminate the contract without a penalty. The contract failed for “lack of mutuality of obligation” in that there was...

 

18-Jan-2002

Trees

A recent Tennessee Court of Appeals case illustrates that a landowner is generally not required to trim or remove healthy trees that cause damage to the property of a neighbor. In this case, the defendant landowner’s large trees overhung the plainti...

 

31-Dec-2001

The Secrets to successful Real Estate Deals

Buy low, sell high. Treat people the way you want to be treated. Be honest and ethical- the good guys win one often enough to make it worth while! Happy Christmas and Merry New Year and Thank you for a Great 2001! ...

 

13-Dec-2001

Fair Housing Act

This week we begin a multiple part series concerning the Fair Housing Act. The Act protects persons who fall within seven classifications: Race, Color, Religion, Sex/Gender, Handicap, Familial Status, National Origin. Need an easy way to remember the...

 

06-Dec-2001

Fair Housing Part III

When crafting your listing advertisements, try to avoid words which can trigger scrutiny under the Fair Housing Act. Some examples of “catch words” to avoid: restricted, integrated, exclusive, private, traditional, or “membership approval required”...

 

29-Nov-2001

Divorces and Closings-Part 1

Americans change houses, spouses, and jobs once every seven years, so says the demographers and statisticians. Because lots of housing changes take place due to divorce, we are faced with many practical and legal problems in real estate transactio...

 

07-Nov-2001

Absolute Auction -- What is Wrong with this Picture?

What is Wrong with this Picture? An inquiry from a licensed auction broker asked "what is wrong with this picture?" Are there any legal problems with the following facts: An auction is advertised as being "absolute." The auctioneer has cut...

 

21-Oct-2001

Property Condition Report and Disclosure issues-Mold, Fungus, and other “Allergy” problems.

We have received a number of calls regarding mold, fungus, and other property conditions that Buyers are literally allergic to. Usually this is not discovered until the Buyer has taken possession of the property and then finds it to be virtually unin...

 

18-Oct-2001

An overview of the Closing Process: Part V of VI

Once the loan is approved, the lender froward “closing instructions” to the attorney or closing agent. These instructions usually contain the following information: 1.) The names of the borrowers and the property address; 2.) The loan amount; ...

 

18-Oct-2001

An overview of the Closing Process: Part III of VI

Real estate contracts are executory in nature. That is, they are agreements to close a transaction at a later date. They are often made contingent upon future events, such as the buyer being able to arrange suitable financing to purchase the home, ...

 

27-Sep-2001

The Closing Process: Part II of VI

The process begins when the owner of a home decides to sell his property. He may sell it himself, but more often than not he engages the services of an experienced real estate agency. The home owner will sign a listing contract with the real state ...

 

27-Sep-2001

An Overview of the Closing Process: Part I of VI

The largest financial transaction the average American will ever enter into is the purchase and sale of their residence. In past years, Americans owned but one or two homes in their lifetimes. However, with increasing mobility and rising economic e...