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GO FOR THE GOLD

GO FOR THE GOLD. TAR WINTER MEETING RISK REDUCTION FORUM Avis Wukasch & Kerri Lewis. “Cool running” through contract forms. SHARING COMMISSION. Attorneys Party to a Transaction Rebates Gifts Donations. ATTORNEYS. RULE § 535.31 & RULE § 535.146.

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GO FOR THE GOLD

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  1. GO FOR THE GOLD TAR WINTER MEETING RISK REDUCTION FORUM Avis Wukasch & Kerri Lewis

  2. “Cool running” through contract forms

  3. SHARING COMMISSION • Attorneys • Party to a Transaction • Rebates • Gifts • Donations

  4. ATTORNEYS

  5. RULE §535.31 & RULE §535.146 • An attorney who is not actively licensed as a broker or salesperson: • is exempt from the requirements of the Act and can represent clients in real estate transactions • BUT: • cannot sponsor real estate salespersons • cannot serve as the designated officer or manager of a licensed corporation or limited liability company, or designated partner of a partnership • cannot share in a commission or fee

  6. PARTY TO A TRANSACTIONRebates/gifts/donations in name of party

  7. Examples – Allowable? • Buy any house listed with our company and we will give you two round trip tickets for travel anywhere in the United States on Southwest Airlines. • Let our buyer agent help you find your dream home and as your closing gift, we will pay your first month’s mortgage! At the closing, you will get a credit from us in the amount of your first month’s mortgage, principal and interest! • List your property with us and after closing we will donate 1% of the commission to your favorite charity.

  8. Party to transaction RULE §535.146 • A license holder can pay a portion of the license holder's commission or fees to a party in the transaction. • BUT: • Must not mislead a broker, lender, title company or governmental agency regarding the real estate transaction or the financial resources or obligations of the buyer. • must obtain the consent of the party represented if making the payment to a party the license holder does not represent.

  9. MISLEADING ADVERTISING

  10. RULE §535.154 Advertising • (d) For purposes of this section and §1101.652(b)(23) of the Act, deceptive or misleading advertising includes, but is not limited to, the following: •   (1) advertising that is inaccurate in any material fact or in any way misrepresents any property, terms, values, services, or policies; •   (2) advertising a property that is subject to an exclusive listing agreement without the permission of the listing broker and without disclosing the name of the listing broker unless the listing broker has expressly agreed to waive disclosure; •   (3) failing to remove an advertisement about a listed property within a reasonable time after closing or termination of a listing agreement, unless the status is included in the advertisement; •   (4) an advertisement by a salesperson which identifies the salesperson as a broker; or •   (5) advertising a property in a manner that creates a reasonable likelihood of confusion regarding the permitted use of the property.

  11. Advertising – Mortgage rebate ExampleDisclaimer included in Ad – so not misleading • * “credit” to buyer  or buyer’s “rebate” is subject to lender guidelines as well as state and federal regulations.  Certain types of loans restrict the amount of contributions payable to the buyer at closing.  The buyers’ rebate will be distributed at closing and listed on the closing statement in the form of a credit for closing costs to the buyer.   If this is not possible due to lender, state or federal restrictions, we will attempt to issue the credit/rebate as a price reduction. 

  12. Excerpts from current website • "Get paid to find your dream home" • “You do the initial legwork and identify a house you want to make an offer on. We write the offer and handle all the negotiations and paperwork. An agent representing a buyer normally gets 3% of the purchase price. We give you 2%, and we keep 1%.” • “In Texas, an agent has no claim against you or anyone else for any commission or compensation just for showing you a house.” • “According to Texas real estate law, you are not represented by an agent until you have a written agreement with that agent.” • “When you come across a house you want to see, call the listing agent for a showing.”

  13. Excerpts from current website • “Buyers who are thinking about using our rebate plan sometimes tell us they don't want to lie, and are having problems getting agents to show them properties if they tell them we are their agent. The truth is that we are not your agent until you sign a representation agreement. If an agent asks you if you have an agent, the most appropriate response is (if you have nothing signed with us): • ‘We don't have an agent at this time, but are considering having someone represent us.’ • That simple sentence gives them more incentive to show you the house, because they may have a shot at representing you in your quest of finding your ideal house. At the same time, it shouldn't be a shock to them if you end up choosing a different Realtor. (Hopefully that will be us.)”

  14. RECENT TREC COMPLAINTS BY rEGIONs(data from 7/2013 - 1/2014)

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