en-us Fri, 10 Feb 2012 07:22:44 -0500 Fri, 10 Feb 2012 07:22:44 -0500 www.kansasrealtor.com http://www.kansasrealtor.com/rss/KAR_Articles.xml http://www.kansasrealtor.com/rss/KAR_Articles.xml webmaster@kansasrealtor.com (Managing Editor) 60 KAR Articles We are pleased to announce that John Ringgold has been named the new President/CEO of Real Estate Business Resources, Inc. (REBR) beginning March 5, 2012. John has been a supervising broker at Coldwell Banker Griffith Blair American Home in Topeka since 2008 and before that was a top real estate agent for them. John has been very involved with both the Topeka Area Association of REALTORS and the Kansas Association of REALTORS by contributing his knowledge to many committees and being involved in leadership roles as a member of the Board of Directors and the Executive Committee of both Associations. If you haven't yet met John, you may recognize his name from our annual KAR conventions in 2010 and 2011, where he has given presentations about using Facebook in Real Estate. Karen France, outgoing REBR president and CEO, said John is the perfect person to start new chapters for REBR. "I'm excited to pass the reins of REBR over to John. His firsthand knowledge of the real estate industry combined with his expertise in real estate related technology and social media will be great assets for REBR and all of our customers," said Karen. Sandy Green, chairman of REBR said, We are pleased that John Ringgold has accepted our challenge and will be growing the REBR business model for the future. He is an exceptional leader and has a vast knowledge of real estate which will allow him to be a great resource for brokers and agents. Its an exciting time for him to join our team. Welcome, John! Thu, 09 Feb 2012 00:00:00 -0500 http://www.kansasrealtor.com/news/article436.html#1328876564 http://www.kansasrealtor.com/news/article436.html Legal Hotline Attorney Vern Jarboe answers frequently asked questions from Kansas REALTORS about their transactions. REBR Legal Hotline is available in the ! Only 150 will keep you and your entire firm in touch with Vern Jarboe, the REBR Legal Hotline Attorney all year long! To search Legal Hotline Archives, click on the "Search Our Site" box and type in "Legal Hotlines" to get all of the past Hotline articles. License Law - Confidential Information Question: You have a situation where you were a designated seller agent on a listing and found the buyer yourself. In that situation you were working as a seller's agent only and the buyer was unrepresented. The buyer now has problems and would like contact information you have regarding the seller's current location. Answer: Without the seller's permission you should not release that information. If the buyer hires a lawyer and a court order is issued then the story would change but for the moment your duties are owed to the seller and that would include the seller's contact information as confidential. Contract - Lease Purchase Agreement Question: You have a situation where buyer and seller have agreed to enter into a lease purchase agreement. You asked about the preparation of this contract. Answer: Lease purchase agreements are typically not subject to standardized forms. If you have a standardized form in your office that has been prepared and approved by an attorney then it would be usable. Otherwise, the parties should be referred to an attorney. There are many significant and important legal rights which may not be abundantly clear from the face of the document with respect to lease purchase and contract for deed instruments. The parties probably should be referred to an attorney for independent legal advice. License Law - Documents Required for File Retention Question: You use a final walk through document typically signed by the buyer after they have been through and accepted the condition of the property. Another real estate firm, selling your listing, has failed and refused to provide this document. Answer: Since this document is not one of the ones technically required for a real estate transaction either by contract law or license law, then you are not on very good footing to force the issue. It sounds as though the document is probably useful, valuable, and would be beneficial for both brokers to have in their files. However, there is no mechanism for dealing with a document such as this that is not otherwise specifically required by the law. Agency - Changes to Designated Agency Question: Explain changes to Designated Agency please. Answer: The license law allows buyer agency, designated buyer agency, seller agent, designated seller agent and transaction broker relationships. The license law also allows a change from any of these relationships to any other relationship with the informed written consent of the parties. Someone working as a designated agent represents that consumer and all other licensees within the office are transaction brokers as to that consumer. This permits other licensees within the office to be either a transaction broker or a designated agent on the other side of the transaction without causing a conflict. All licensees within the firm, except the broker, may be designated agents. The change from seller agency or buyer agency to designated agency requires a written designation signed by the broker and the salesperson and the client. Contract - Disagreement Between Parties Question: You have a situation where a repair estimate has caused the buyer and seller to be unhappy with one another. Answer: In those situations the licensee's perspective is to either mediate the situation to resolution, refer the parties to attorneys or get out of the way. Sometimes by remaining in the middle and attempting to mediate the situation the licensee may, themselves, become the target of litigation. On that basis, simply getting out of the way may be the best choice. Disclosure - Buyer to Have Repairs Done Question: You have a situation where problems with the chimney were detected. An estimate was provided and a bid obtained from someone not licensed as a fireplace inspector. The buyers would like to simply take a check and have the work done on their own. You asked whether there is a risk of liability to the sellers in proceeding this way. Answer: There certainly could be a risk of liability. The assessment of that liability would be the province of an attorney working for the seller and buyer each to work out and advise them. On the hotline we are not able to provide complete advice to the parties without looking at the documents and, of course, we are not their attorney nor are you. Your concern should stop with - there may be some risk and if you are concerned you should seek legal counsel. Agents should avoid practicing law which certainly includes risk assessment from a course of action. Ethics - Possible Advertising Issue Question: You have an agent who would like to use the phrase "everyone's favorite realtor" in advertising. Answer: The problem with such advertising would be the invitation for an ethics complaint over the word "everyone." This could arguably be a violation of the true picture requirement for advertising unless there is some statistical base for the assertion. If the assertion were based upon survey results, then I think it might be acceptable and otherwise is possibly a violation of the obligations for truth in advertising both for license law and code of ethics purposes. Contract - Selling on Installment Question: You have a question about the process for terminating an agreement where the buyer is going to make payments on installments. Answer: This type of transaction is variously known as contract for deed, installment sale contract or purchasing under contract. A related term, lease purchase agreement, is structured slightly differently but they all basically refer to the same type of transaction. Because of the similarities, the Courts typically treat them the same at the time of default by the purchaser. Generally, a lawyer review should be encouraged because the situation arises in default will usually result in a foreclosure rather than an eviction despite the terms one assumes from reading the instrument. Disclosure - Sex Predator in Area Question: You have a situation where a property went under contract. The buyer has now discovered that there is a sex predator living in the neighborhood. The buyer has indicated an interest in not closing. Answer: The buyer and seller probably need attorneys unless the contract was specifically made contingent upon the buyer resolving this issue. It appears to you that the seller likely knew of this condition and did not inform you. There is no case law in Kansas on whether this condition will allow a buyer to terminate an agreement but it seems likely it would. Inspections - Home Inspector Licensing Act Question: You asked a question about interpretation on the Home Inspector Licensing Act in Kansas. Answer: The law seems to require the inspector to be licensed as a home inspector if more than two features to the home are inspected. That probably creates a problem more for the inspector than it does for a Realtor. As long as the realtor reasonably believes the inspector competent for the purpose for which they were retained it is likely acceptable to use them. Contract - Sale of an Undivided Interest Question: You have a situation where one party owns and undivided interest in a tract. That party has listed the tract for you. You know indicate that one of the other co-owners may be initiating a partition action. You asked whether that prohibits you from selling the undivided interest you currently have listed. Answer: I do not believe it prohibits you from selling the single undivided interest. However, it certainly makes it less likely that any buyers would be interested. Any time one owns an undivided interest in property with others there is a risk of a partition action. You would need to disclose to any buyer the undivided interest that in this instance the litigation has already commenced. Other than that disclosure I don't think the filing of a partition action actually has any impact on your listing. Contract - Purchase of a Property in Foreclosure Question: You have a situation where a foreclosure sale has been held. You are in the redemption period. You asked about a buyer being interested in acquiring the property during the redemption period. Answer: My opinion you would simply write a normal sale contract indicating the special circumstance that the property has been foreclosed upon. You might talk with your local title company about how they want to handle the transaction and include any special language they might require. Contract - Money Paid Outside of Closing Question: You have a situation where the transaction requires the seller to pay the buyer some money outside closing. Answer: You have a situation where the transaction requires the seller to pay the buyer some money outside closing. Contract - Transfer of Earnest Money to New Transaction Question: You have a situation where seller and buyer have entered into a contract. That transaction is now being cancelled and the buyer intends to acquire an alternative property. You asked whether the buyer needs to write a new check or the existing earnest money can simply be transferred to the new transaction. Answer: There is certainly nothing illegal about transferring the money to a different transaction. From the seller's perspective in the first transaction they should have no interest nor care in what the buyer does with the earnest money assuming the seller is willing to cancel the agreement. The second seller similarly should not have any care as to the source of the earnest money so long as it actually exists. It may be a problem for the title company or whomever is serving as escrow agent to handle this transfer and properly document it. However, a document signed by all parties involved should suffice. Tue, 31 Jan 2012 00:00:00 -0500 http://www.kansasrealtor.com/news/article434.html#1328876565 http://www.kansasrealtor.com/news/article434.html Keri Renner assumed her duties as director of communications for the KAR on January 30, 2012. Keri will oversee all KAR communications such as the weekly newsletters, website content and management as well as marketing of the association through social media and other means. Keri is a native of Hutchinson, Kansas, and has lived in Topeka for 11 years. She is a graduate of Washburn University with a BA in mass media, with an emphasis in public relations. Her experience includes working for a professional photographer; a state legislator; as a freelance writer for the Topeka Capital-Journal; a lobbying/association management firm, and most recently worked in communications for a statewide non-profit substance abuse prevention agency. Keri enjoys volunteering with her daughters school teaching art and serving on the PTO, as well as helping with her daughters Brownie troop. She has served on the boards of Girl Scouts of Kaw Valley Council, and ERC Resource and Referral, and was a madrina (mentor) in the Mana de Topeka Hermanita mentoring program that pairs women with young Hispanic girls. She has also been active in both the Topeka chapters of the Association of Women in Communications and the International Association of Business Communicators (IABC), respectively. Keri has one daughter, Grace, with her husband Chuck, and has three step-children, Amy, Kelly and Michael. She also has two step-granddaughters, Shanna and Bailey. Keri is a fan of the Hutch Salthawks, KU Jayhawks and any spare time is spent chasing Grace around wherever she may be. Keri is excited to become a part of the KAR team and looks forward to meeting members and helping to make their membership experience a great one. To contact Keri at KAR, e-mail her at or at (800) 366-0069, extension 2126. Tue, 31 Jan 2012 00:00:00 -0500 http://www.kansasrealtor.com/news/article435.html#1328876566 http://www.kansasrealtor.com/news/article435.html Last July, Move Inc. acquired SocialBios, a social technology that helps consumers see their online connections and affiliations with people across multiple online social networks. SocialBios is now being integrated into the new REALTOR.com HyperSocial suite of agent search tools designed to connect buyers, sellers and agents, while helping agents better manage their online reputations through recommendations. The first two opportunities include HyperSocial Agent Profile Pages and HyperSocial Agent Recommendations. Now in beta testing, these new free opportunities will be integrated into the REALTOR.com Find a REALTOR (FAR) directory in early 2012. We are hoping to get this message out to as many NAR members as possible to advise REALTORS who havent already signed up for SocialBios to sign up now before the busy home buying season! Registration is available now for REALTORS with a valid NRDS number by going to: . These HyperSocial agent search tools will initially include Facebook, LinkedIn, Twitter, Google and FourSquare. Information on how to register in seconds can be found at: . Thu, 19 Jan 2012 00:00:00 -0500 http://www.kansasrealtor.com/news/article433.html#1328876567 http://www.kansasrealtor.com/news/article433.html KAR now offers The Code of Ethics: Our Promise of Professionalism, good for 4 hours of Kansas Elective CE AND, meets the NAR quadrennial mandate for Code of Ethics training for all REALTORS - online! The interactive class will step you through the Code of Ethics with narration, video and short practice quizzes. You can purchase the class at the , then take it at your convenience. Our online education system notifies KAR AND the Kansas Real Estate Commission by email and creates a certificate for your records as well. All REALTORS must have at least 2.5 hours of continuous Code of Ethics training by or before December 31, 2012. Wed, 11 Jan 2012 00:00:00 -0500 http://www.kansasrealtor.com/news/article427.html#1328876568 http://www.kansasrealtor.com/news/article427.html "On December 21, during the REBR Board of Directors meeting, President and CEO, Karen France announced that she has accepted a position with RPR as their Vice President of Programs and Events and the REBR Board accepted her resignation with reluctance and also with great pride. This is quite an honor for Karen as RPR has recognized her abilities and talents", says REBR Board Chair, Sandy Green. She will not be leaving immediately and has negotiated with RPR to continue to serve REBR and its customers during the transition.She will be attending the KAR Legislative and Education Conference in Topeka in January. We invite you toattend a farewell celebrationfor Karenduring theMeetings on Wednesday, January 11, in the EmeraldBallroom of the Topeka Capital Plazafrom 5:30- 7 p.m. Join us as we say good-bye to Karen and recognizeher vast contribution to Kanas REALTORSduring the last twenty-eight plus years. We wish you all the best, Karen! Thu, 29 Dec 2011 00:00:00 -0500 http://www.kansasrealtor.com/news/article423.html#1328876569 http://www.kansasrealtor.com/news/article423.html Under Kansas state law, a home inspector must be registered with the state before they are allowed to do business in Kansas. If a home inspector is not registered, they are acting in violation of state law and may be subject to prosecution by the district attorney or the Kansas Attorney Generals office. As a good risk management precaution, real estate professionals should under no circumstances provide the name of a home inspector who is not registered to a client or customer. You can find a complete list of registered home inspectors in Kansas by visiting the following website: For a summary of the Kansas state law on home inspections, . Thu, 22 Dec 2011 00:00:00 -0500 http://www.kansasrealtor.com/news/article424.html#1328876570 http://www.kansasrealtor.com/news/article424.html Legal Hotline Attorney Vern Jarboe answers frequently asked questions from Kansas REALTORS about their transactions. REBR Legal Hotline is available in the ! Only 150 will keep you and your entire firm in touch with Vern Jarboe, the REBR Legal Hotline Attorney all year long! To search Legal Hotline Archives, click on the "Search Our Site" box and type in "Legal Hotlines" to get all of the past Hotline articles. Mold Disclosure Question: You have a question about the potential use of an additional form for purposes of mold disclosure. Answer: The form is designed as an additional warning statement to buyers from sellers about the possible existence of mold. Kansas, at this point, does not require any such additional disclosure form. However, the use of such a form may in fact be helpful. You should, however, be aware that if you initiate the use of such a form and then from time to time fail to get the form included as a part of the disclosure and should that be the transaction where mold becomes a problem, then you may in fact have increased your liability by the failure. So long as you are doing a good job of making sure all files are accurate and complete, then I see nothing inherently wrong with the form. Any form used by a real estate agent which becomes and addendum to a real estate contract should, be approved by an attorney and indicate that it has been approved by an attorney. Contract - Buyer and Seller Enter Into Negotiations Question: The seller made a verbal counter offer and then buyer no. 1 was thinking about the proposal. Meanwhile, seller sells to a buyer no. 2 without notifying buyer no. 1. Answer: The law of real estate contracts requires that agreements be in writing and signed by both parties. On that basis, it does not appear that buyer no. 1 had a contract with the seller. Better form would have been for the seller to have withdrawn the offer to buyer no. 1 before making an offer to buyer no. 2. There are some circumstances where a written agreement may be inferred from the conduct of the parties. Without representing the parties I am unable to offer a firm opinion on that question. Disclosure - Inadequate Sewage System Question: You have a situation where you sold a property that seller failed to disclose was in fact using a holding tank and/or grey water system for disposal of sewage. Buyer has now learned that installation of a septic system is impossible due to lot conditions and operation of a holding tank is exceedingly expensive. Answer: This may be a situation where the buyer has some remedy against someone for failure to disclose on the basis of passive fraud. The buyer would need to acquire the services of an attorney to review this circumstance on his own. I cannot provide information to the buyer regarding his rights without representing the buyer and you cannot provide information to the buyer without practicing law. Miscellaneous - Virtual Tours of Neighborhood Question: You have a question about the use of a virtual tour photographic image not of the subject property but of its neighborhood. You ask whether or not this should be acceptable. Answer: I know of no law that would prohibit this technique. I think you need to be careful that you do not create a false impression and violate the code of ethics by making things look better than they are. It would not be appropriate to have photographs that included persons that have not given their written permission to be photographed. It would also be a potential problem if the pictures in some way resulted in a fair housing complaint on the allegation that you were steering people based upon their ethnicity or otherwise to or away from a given neighborhood. Contract - Failure to Cancel Question: You have a situation where buyer and seller entered into a contract contingent upon the buyer's ability to get a loan. The buyer is unable to get a loan and seeks a cancellation. The seller has refused to enter into a cancellation agreement. Answer: There is likely no remedy for the buyer accept going to court. Earnest money had to be held until there is a closing, which under your facts will not occur, the parties agree to cancel, which does not appear to be occurring, or a court order. The buyer could potentially use small claims court to seek a refund of earnest money. Ethics - Argument About Commission Question: You have a situation where a buyer had apparently entered into a buyer agency agreement with someone involved with another company. The buyer advised your agent that the buyer agency agreement had expired and then purchased a home. After closing, the agent with the other company is now making a demand from your firm for a commission. Answer: Procuring cause debates are not available for answers on the hotline. Both brokers may have the right to contact the hotline for advice. On that basis, we do not comment on which claim may be better or worse. If you do not feel you owe the commission then you should decline to pay it and let the other firm seek arbitration if that is their desire. That is the appropriate remedy. Disclosure - Timing of Lead Paint Disclosure Question: You have a question about when a lead paint disclosure form should be acquired from the seller for houses built prior to 1978. Answer: It makes sense that the listing agent would acquire from the seller at the time of the listing. Because buyers can not be bound to a contract without first having received the lead paint disclosure form, it does not appear feasible to obtain the form for the buyer unless the listing agent already has one in file and available for distribution. On that basis, a board requirement that the lead paint disclosure form be annexed to and part of the MLS data would be appropriate. Contract - Refund of Money on Failed Transaction Question: You have a question about refund of earnest money on a failed transaction. Buyer and seller entered into a contract and buyer was unable to obtain financing. Seller has refused to make a refund of earnest money. Answer: Earnest money cannot be refunded without a closing, consent of both parties or a court order. It would appear that you are unable to get either the first two and therefore would have to rely on the third. Assuming the earnest money is less than 4,000.00, then using small claims court to get a refund of earnest money would be an appropriate remedy. Disclosure - Terms of Borrower Qualification Question: You have a question about a contract which was written conditioned upon a loan. The buyer had produced a prequalification letter which indicated the loan would be available but you subsequently learned that the loan was likely contingent upon the sale of the buyer's home. This information was developed by way of a conversation with the buyer's lender. Answer: Since you were the seller's agent the disclosure by the lender was probably inappropriate. As to whether or not the seller has a remedy for termination of the contract that would be an evaluation of risk made by a lawyer acting on behalf of the seller and not the subject of an answer I gave you on the hotline. Contract - Citizenship Requirements for Buying Property Question: You asked whether or not one has to be a citizen in the United States to own real estate. Answer: It is not required that one have citizenship in order to acquire property. Obviously, one's status as a legal non-citizen could be important for loan purposes but it technically has nothing to do with the rights for property ownership. Contract - Appraisal Limitation on Buyer's Purchase Question: You have a situation where property is listed with another company. You are working as a buyer's agent and a property placed under contract contingent on financing and inspections. The appraisal came in lower than the sale price. Answer: In that circumstance under the terms of your contract the buyer and seller can either agree to negotiate a lower purchase price and keep the contract in place or cancel the agreement. However, unless they both agree one may not force the other into retaining a contract. Contract - Release Question: You have a situation where a buyer and seller went under contract. The buyer has now refused to sign a release. Answer: The property stays under contract until closing, consent of both parties or a court order. In the event you describe the contract would appear to still be in force. One party or the other may be in default but there is still a contract until one of the three conditions exists. The parties may need referred to legal counsel. Contract - Contingent On Buyer Loan Approval Question: You have a situation where a contract was written contingent on buyer loan approval. Answer: If the contingency for buyer loan approval is additionally contingent upon the buyer selling the second home then that information should be disclosed to the seller as soon as reasonably known. However, the fact that the buyer can get a loan even without selling their currently existing home is not necessarily something the seller needs to be informed of. Contract - Pre-Inspection Agreement Question: You have a situation where local inspectors asked buyers to sign a pre-inspection agreement. This agreement recites various elements of the Kansas Home Inspection Law. You asked whether or not the buyer should sign this agreement even when the seller is paying for the inspection. Answer: If the inspection is ordered for the benefit of the buyer then I think the buyer is the client and even if the seller is paying for the inspection then the agreement to inspect should be between the buyer and the inspection company. It is likely that in the event of an issue and the buyer is the one with the claim against the inspector and therefore the one subject to any limitations on the rights to make a claim. Regulations - Transaction File Requirement Question: You have a question about the situation where the listing company would not accept an offer so you are considering working for a referral fee. You asked whether or not this creates a file with a closing number. Answer: Your company will not be identified in the contract because everything is under the listing company. A referral agreement does not create a transaction. Referrals are ministerial acts under the brokerage relationships law and therefore not buyer or seller agency nor even transaction brokerage. On that basis, it would not seem a transaction file should be required. Thu, 15 Dec 2011 00:00:00 -0500 http://www.kansasrealtor.com/news/article422.html#1328876571 http://www.kansasrealtor.com/news/article422.html From 1997 to 2010, overall property taxes collected in Kansas have nearly doubled from roughly 1.97 billion in 1997 to 3.8 billion in 2010, which is a 93% increase in just 13 years. If nothing is done to reverse this troubling trend, Kansas home owners and businesses will continue to see dramatic increases in their property tax burdens over the next decade. In 2012, KAR will be working to pass comprehensive property tax reform to combat this extremely serious problem. Over the next few months, we will be releasing more information about how you can help with this important effort. If you would like more information on the property tax burden in your particular county, . Thu, 15 Dec 2011 00:00:00 -0500 http://www.kansasrealtor.com/news/article425.html#1328876572 http://www.kansasrealtor.com/news/article425.html Over the last year, false emails have been circulating that make various misleading claims about a 3.8% tax on all home sales that was allegedly included in the federal health care reform legislation. Thankfully, these emails are absolutely false and there is no 3.8% tax in the health care reform bill that will be imposed on all real estate transactions. If you receive one of these emails, please help combat these negative emails by setting the record straight with your clients and colleagues. For more information on this issue, to access an analysis of these false claims from FactCheck.org. Thu, 15 Dec 2011 00:00:00 -0500 http://www.kansasrealtor.com/news/article426.html#1328876573 http://www.kansasrealtor.com/news/article426.html