ADDITIONAL TERMS AND CONDITIONS:  This page left intentionally blank.

ADDITIONAL INSURED:  Additional interest--3rd party is indemnified against any claims:  In US insurance policies, an additional insured is a person or organization that enjoys the benefits of being insured under an insurance policy, in addition to whoever originally purchased the insurance policy.  Q:  2/18/2020:  The HomeSmart policy manual states HS is to be added as an additional insured. I am being asked by insurance companies if this means additional insured driver or additional interested party. Can you specify the details of this requirement?  A:  The additional insured is for an interested party, not an interested driver.  It's basically an indemnification for HomeSmart when you are driving clients around looking at real estate.  I just checked with my personal carrier (Am Fam Ins), he said they do this frequently and there is no additional fee for naming the additional insured as an interested party (much like an auto loan or leasing company would require).

ADVERSE POSSESSION:  ALSO SEE ENCROACHMENT:  Write a Letter To Stop Adverse Possession  By Christopher Combs | June 22, 2013

 

ADVERTISING:  BRANDING:  SEE CHECKLIST ON TABLE OF CONTENTS PAGE

ADVERTISING:  ALSO SEE ADRE BROCHURE, AAR GUIDELINES,

ADVERTISING: ARIZONA ADMINISTRATIVE CODEPromotional Activities, R4-28-503  Az Adm Code  Article 5, Advertising         http://blog.aaronline.com/wp-content/uploads/2016/05/AAC_R4-28-502_Advertising-by-a-Licensee.pdf              R4-28-502. Advertising by a Licensee     R4-28-503. Promotional Activities

ADVERTISING:   AAR is getting many complaints about advertising for teams and groups. The Broker name must be "prominent" in the ad. In other words it should be as large or larger than the team/group name. Please revise and resend for approval- Thank you!

ADVERTISING, GENERAL MAILING, GENERAL TELEPHONE CANVASS:  Bulk mailing is allowed, Article 16, SOP 16-2, solicitation disclaimer recommended but not required.

ADVERTISING SOLD PROPERTIES:     http://realtormag.realtor.org/law-and-ethics/ethics/article/2004/08/advertise-ethically

ADVERTISING:  Q: When agents are advertising "recently sold" properties, are we asking them to put in a disclaimer stating they weren't all necessarily sold by that agent?    A: I'd ask Laurie about her take on that. We always have asked for the disclaimer that they were not involved in the transactions if they are advertising SOME recent sales versus ALL of the recent sales (meaning they cherry picked the nicer ones).  A: she said yes, we need a disclaimer. Something like, "properties sold by various MLS participants,"

ADVERTISING:  “Blind Ads”: A licensee must not advertise property in a manner that implies that no salesperson or broker is taking part in the offer for sale, lease, or exchange. A.A.C. R4-28-502(A). In other words, “blind ads”, including advertising a property for sale or lease without the (broker and agent’s names), in newspapers, on Craigslist, Zillow, Trulia, or otherwise is prohibited.

Per department rules, HomeSmart and the logo need to be prominent, at least as large or larger than your info.  Please revise and resend for approval.

ADVERTISING OTHER AGENTS & BROKERS LISTINGS:  You can only market other brokers listings with their express, written permission and authorization (both listing agent and designated broker or managing broker).  You may advertise HomeSmart listings, but if the listing agent requests that you stop, you must comply immediately and cease and desist the advertising.  That being said, you can do all of these items in your email, however, please remember that we must approve of the final product.  Please forward any videos or print adverting to this email address for broker approval prior to publication.                               Q: I have always been in the understanding that you only share listings within your brokerage. In the Yuma, AZ area many agents share other brokerages listings as their own. Are we allowed to share other brokerage listings?  A: HI x,  ARMLS Rule 10.11 would apply to this scenario.  Our internal policy is that you can advertise any other HS listings, but any outside listings you'd need to have written permission from the other agent to advertise it.  It also doesn't apply to IDX feeds on websites since that's something you sign up for with your MLS membership.  ARMLS Rule 10.11. ADVERTISING OF LISTINGS FILED WITH ARMLS. A Listing shall not be advertised by any Subscriber, other than the Listing Participant/Subscriber, in any medium whatsoever, without prior consent of the Listing Subscriber.

ADVERTISING: HomeSmart Logo/DIAMOND: Must have HomeSmart too. The HS on logo doesn't prominently identify the employing broker. Thank you!  Hi Beth, While you and I certainly know what the Diamond stands for, many consumers do not.  Therefore, when we use the Diamond we must also include the word HomeSmart.  Please make that change and resubmit...Also, please feel free to call with questions.  NOTE:  You can use the Words Without the Diamond.

ADVERTISING:  If a brokerage fails to advertise their value proposition and brand to the public, it may lose the loyalty of customers over the long term.  And while promotions may attract a client occasionally, promotions alone will fail to retain a client who wants more that a quick deal or gimmick.  NOTE:  An agent who partners with a supportive brokerage to offer consistent, well placed advertisements in addition to occasional promotions will have a higher success rate of attracting and keeping clients.

AFFILIATED BUSINESS DISCLOSURE:   Q: I've been seeing Affiliated Business disclosures from other brokerages a lot lately.  I'm not entirely sure we need to present these to our clients because, in part, our clients aren't their clients.  What is HomeSmart's position on this?  Should I recommend to my client that he sign their ABD?  A: Hi X, My thought on this is that there's really no harm in your client signing it if the other side is asking for it.  You're right, our clients are not their clients so it's pretty much an exercise in futility, but just to be helpful I'd at least present it to my clients.  If your clients read it and don't want to sign it though, then I'd let the other agent know that.  KF.     NEW: Q:  I am getting a lot of push back on the new verbiage in the ABD.  Where it states the affiliates can share the person’s information for marketing.  I looked back and reviewed the older ABD’s and that verbiage is not in there.  Do we have another updated ABD without authorization to share information?  BP:  A: No, this is the only version, although as you know it may be updated from time to time. Our DB Laurie McDonnell is aware that there are some concerns with the language.  If there are any changes, she will communicate those as required. I have also copied Laurie on this email.

AFFIDAVIT OF DISCLOSURE:  ARMLS OVERVIEW OF COUNTY ISLANDS: https://armls.com/county-islands

AFFIDAVIT OF DISCLOSURE:  DUE WITHIN 5 DAYS OF CONTRACT ACCEPTANCE (PC, SECTION 4e)  Affidavit of Disclosure, un-subdivided lands or unincorporated area of county.

Q: Hi, I have a listing in Rio Verde.  Address is 28511 N. 148th St. Scottsdale AZ 85262  MLS #5536236.  My seller says his property is in an unincorporated area. The SPDS states that an affidavit of disclosure is required if five or fewer parcels, other than subdivided land are being transferred.  Would this come in to affect? I feel like this is subdivided land but I could be interpreting the statement wrong.  Your help and insight would be great.  Thank you!  A: Is it in a subdivision?  What does the legal description say?   Legal description is:  W2 NW4 SW4 SE4 SEC 29 EX S 414.97F TH/OF (Local jurisdiction shows no city/town, + County Services),   28511 N 148th St, Scottsdale, AZ, 219-39-097C, this is a metes and bounds property description, plus I checked the county assessor website, no city or town is listed, so it appears the Affidavit of Disclosure will be required here.  Jeff.

Maricopa County Tax Assessor "UNINCORPORATED AREA" Sample; Another Sample?  503-02-029-B?   http://mcassessor.maricopa.gov/mcs.php?q=21939097C&mod=pd                                                                https://mcassessor.maricopa.gov/mcs.php?q=30279176       GOOD SAMPLE HERE: https://mcassessor.maricopa.gov/mcs.php?q=211-24-012-f

AFFIDAVIT OF DISCLOSURE REQUIRED?  Q: How can I be sure if land is in an unincorporated area of the county or not?  I have searched Monsoon and cannot find this information, and the seller does not know. Kindly point me in the right direction.  A: Hi X, Reach out to the Maricopa County Assessors Office, the should be able to help you answer your question.  Here is a link to their website:                                                                   https://mcassessor.maricopa.gov/     Criteria: 1) 5 or fewer parcels, 2) unsubdivided, and 3) unincorporated area of the county).  Call the county assessors office and ask them to confirm incorporated or unincorporated.

AFFIDAVIT OF DISCLOSURE:  By Christopher Combs | December 8, 2019:  Disclosure requirement for parcels of land:  Q: We recently signed a contract to sell our three-acre parcel of land in Coconino County near Flagstaff. The title company says that we will be required to furnish the buyer with an Affidavit of Disclosure relating to the condition of this three-acre parcel. What is this Affidavit of Disclosure?  A: Under A.R.S. §33-422 a seller of five or less parcels of land in an unincorporated area of a county is required to furnish an Affidavit of Disclosure to the buyer. Similar to a Seller’s Property Disclosure Statement in home sales, in the Affidavit of Disclosure a seller is required to disclose to the buyer certain facts such as legal and physical access, sewer/septic waste disposal, and availability of telephone and electricity. The buyer then has the right to cancel the purchase contract within five days after receipt of this Affidavit of Disclosure. If the buyer does not cancel the purchase contract, the Affidavit of Disclosure is recorded at closing.  NOTE: A subdivision of more than five parcels of land generally requires an extensive subdivision public report filed with the Arizona Department of Real Estate. This A.R.S. §33-422 Affidavit of Disclosure for five or less parcels is a mini-subdivision public report.

AFFIRMATION THAT OFFER WAS PRESENTED: CASE STUDY PAGE…….. 2) CODE OF ETHICS, AFFIRMATION THAT OFFER WAS PRESENTED

AGE RESTRICTED (SEE REMARKS):  SPECIAL LISTING CONDITION IN ARMLS          AGE, LEGAL AGE     http://www.lawchek.com/Library1/_books/contract/qanda/legalage.htm

AGENCY, CLAIRFY EARLY IN THE RELATIONSHIP:  1) REAL ESTATE AGENCY DISCLOSURE AND ELECTION FORM OR 2) DECLINATION OF REPRESENTATION FORM:   No fiduciary responsibilities if unrepresented party, honesty & fairness only. 

AGENCY:  DUAL, This is a policy change for HomeSmart.  Basically, it's a risk reduction tool to help minimize risk for both agents and the brokerage regarding agency disclosure (see line #'s 3-5 on the READE form). We now require that agents review the Real Estate Agency Disclosure and Election Form (READE) with the client and have them sign that prior to signing the Consent to Limited Representation Form (Dual Agency, if applicable).  The reason for this is the opening paragraph (line #’s 3-5) of the READE form.  In that section it states that the party being represented will understand the type of agency or relationship that they will have with the broker BEFORE they enter into discussions with a licensee.  For that reason the client should sign the agency form up front.  This will ensure that the client has a thorough understanding of the Broker's fiduciary responsibilities which include loyalty, obedience, disclosure, confidentiality, accounting and reasonable skill and care in the transaction.  Once the Consent to Limited Representation Form is executed, the Duties and Limitations of the Broker will change as the Broker now represents both Buyer and Seller and neither Broker nor the Broker's Licensees can represent the interests of one party to the exclusion or detriment of the other party in the transaction.  Hopefully that helps to clarify the policy going forward.  Please let us know if you have any Q’s.

AGENCY, DUAL, ALWAUS SAY “THIS IS WHAT THE CONTRACT SAYS.”   DUAL AGENTS ARE STILL ALLOWED TO ADMINISTER THE CONTRACT!!!   DUAL:  Do not disclose confidential information, emphasize disclosure by seller, cannot act for the benefit of one to the detriment of the other, facilitate the transaction, ASK, “What do you want me to tell them?  What do you want me to ask them?        OR  That is tricky, we always need to be cautious about inserting our own opinions and/or advice when we are in a dual agency situation.  I always recommend starting out each discussion with the words "Here is what the contract says" and stick to that.  I suppose you could say something like "that seems reasonable, but the decision is yours of course"...Please feel free to call if you would like to discuss further.

AGENCY, DUAL:  Also see agency Also see owner/agent:  The dual agent cannot advise on purchase price, the terms of the offer or negotiate on behalf of either party.  Do not act for the benefit of one to the exclusion of the other.  Be more neutral, a facilitator, ask them "what would you like me to ask, how would you like me to respond...Per Kyle, can we run comps?  Yes we can whether same or separate agent…(Jeff Otero Q)...

AGENCY, DUAL:  Q: You may recall Chrissy Donnelly, also a HomeSmart agent, keeps missing deadlines on this transaction and essentially lost her buyer's $5000 earnest because she didn't understand the contract.  Her lender has been making the requests below since the 22nd, with no action on her part.  Yesterday she missed the BINSR deadline and lost any potential negotiating power for her client. If I ask her what's going on, she accuses me of harassment.  This was supposed to close on Nov. 25th, but the seller agreed to push it out till December 12th.  I'm really lost as to how I should be handling this.  In my clients' eyes, I must look like I have no control over this transaction.  Any suggestions?  I don't want to drag this deal out if the buyer has lost interest.                 A: Hey John, I understand the perception that the Seller may have, but what you said is exactly right, you don't have control over the transaction.  It's up to Chrissy to take care of her requirements, and if she doesn't then that's on her, not you.  All you can do is continue to work on your side, and the Seller side, as if the transaction is going to close on the 12th as stated.  I know dual agency obviously plays into this a bit, at this point, all I can say is keep handling your stuff, and hope that Chrissy handles hers.KF

AGENCY, DISCLOSURE, WHEN DISCLOSE…?  Q: A prospective buyer has contacted me about a property I have listed. The buyer does not have a real estate agent. They would like me to show  the house to them this weekend. Do I need to have them sign the real estate declination addendum at the time of showing or not until an offer is made?  A: You should discuss with the prospective buyer as soon as practical that your fiduciary duty is to your seller and that they can have their own representation or be unrepresented or dual agency if you are comfortable pursuing that.  You could have them sign the Declination form when you show the home, or they could sign it once they are ready to formulate an offer.  Just be sure to explain how agency works at your earliest opportunity.  Hope it works out, JT.

AGENCY, PRINCIPAL: WHEN YOU ARE A PRINCIPAL IN THE TRANSACTION:  So we are all aware you cannot represent yourself and the other party. Q: What are your thoughts when representing someone you are related to and another party (dual).. Thoughts (When you are a principal in the transaction, you cannot represent the other principal).  A: Same theory, and also not allowed because the same argument applies.  It's too easy to claim that there's no way you can adequately represent this poor Buyers interests when you are representing your Brother, Sister, Parents, Cousin, etc. on the other side of the deal.

AGENCY:  READE: REAL ESTATE AGENCY DISCLOSURE AND ELECTION (ZIPFORMS)

Buyer’s Broker: A broker other than the Seller’s broker can agree with the Buyer to act as the broker for the Buyer. In these situations, the Buyer’s broker is not representing the Seller, even if the Buyer’s broker is receiving compensation for services rendered, either in full or in part, from the Seller or through the Seller’s broker:

A Buyer’s broker has the fiduciary duties of loyalty, obedience, disclosure, confidentiality, and accounting in dealings with the Buyer. Other potential Buyers represented by broker may consider, make offers on, or acquire an interest in the same or similar properties as Buyer is seeking. (OLD CAR)

Seller’s Broker: A broker under a listing agreement with the Seller acts as the broker for the Seller only: A Seller’s broker has the fiduciary duties of loyalty, obedience, disclosure, confidentiality, and accounting in dealings with the Seller. Other potential Sellers represented by broker may list properties that are similar to the property that Seller is selling.

Regardless of who the Broker represents in the transaction, the Broker shall exercise reasonable skill and care in the performance of the Broker’s duties and shall be truthful and honest to both the Buyer and Seller and shall disclose all known facts which materially and adversely affect the consideration to be paid by any party. Pursuant to A.R.S. §32‐2156, Sellers, Lessors and Brokers are not obligated to disclose that a property is or has been: (1) the site of a natural death, suicide, homicide, or any crime classified as a felony; (2) owned or occupied by a person exposed to HIV, or diagnosed as having AIDS or any other disease not known to be transmitted through common occupancy of real estate; or (3) located in the vicinity of a sex offender. Sellers or Sellers’ representatives may not treat the existence, terms, or conditions of offers as confidential unless there is a confidentiality agreement between the parties.

AGENCY, RELATIONSHIPS, consumer guide     http://krec.ky.gov/legal/Alternate%20Agency%20Forms/A110.pdf    (Also see agent RESIGNS agency below…)

AGENCY, REQUIRED DISCLOSURES:  UPDATED MARCH 2019:  Q: Whats the difference between the READE form and Consent To Limited Representation forms? What circumstances is each one used for in dual agency?  A: The basics are that the READE should be signed when you first meet with a client.  If you look at the first paragraph of that document, it says that the client should be aware of the agency before entering into real estate discussions.  So that form you'll need on every transaction, signed by your client.  It lays out the fiduciary duties to the client.  The Consent to Limited Representation form is used when you are representing both parties in a deal yourself, OR when you're representing one party and the other party is also represented by a HomeSmart agent.  Those are both considered Dual Agency transactions, and the Consent form is needed.  It should be signed by the parties prior to entering into the purchase contract.  Hope that helps, have a great day! 

AGENCY, TERMINATION, AGENCY TERMINATION:  After the termination of an agency relationship, the fiduciary duties are no longer owed with the execption of confidential information.

AGENT:  ADD SECOND AGENT TO TRANSACTION, SEE HOMESMART, TRANSACTON FEES

AGENT, BUYER, AGENT DECIDES TO PURCHASE LISTING:  4/3/17, Andy McDonald Tucson (Plus talked with Kyle) Avoid conflict of interest!

1)  Resign Listing (Mutual Cancellation)  When you are a principal in a transaction, you can’t represent the other principal.  That would be a conflict of interest and would not be an arm’s length transaction.  It would also create a conflict of your fiduciary duties to your client (OLD CAR)

2)  Advise seller to get their own representation and to seek out a professional BPO. 

“Seller acknowledges that Listing Agent has resigned the listing for Sellers property located at 123 Main Street, dated xx/xx/xxxx.  Seller further acknowledges that Listing Agent intends to enter into a contract to purchase Sellers property and will represent himself/herself exclusively in this transaction.  Seller acknowledges and Agrees that he/she has been strongly advised to seek out their own exclusive representation along with a Brokers Price Opinion (BPO) and any legal, tax or other professional advice regarding this transaction.

3) Seller can then be represented or unrepresented (Declination of Representation).

 

AGENT, BUYER: AGENT WANTS TO PURCHASE HIS/HER LISTING FORM SELLER:  Q: I’m I able to purchase a property that I have listed, thus getting both sides of the commission?  Is that allowed?  A: No.  If an agent decides to purchase a property they currently have listed, you need to follow the following protocol:  1) Resign Listing ( or Mutual Cancellation)  When you are a principal in a transaction, you can’t represent the other principal.  That would be a conflict of interest and would not be an arm’s length transaction.  It would also create a conflict of your fiduciary duties to your client.  2) Advise seller to get their own representation and to seek out a professional BPO.  Prepare an addendum with the following language:  “Seller acknowledges that Listing Agent has resigned the listing for Sellers property located at 123 Main Street, dated xx/xx/xxxx.  Seller further acknowledges that Listing Agent intends to enter into a contract to purchase Sellers property and will represent himself/herself exclusively in this transaction.  Seller acknowledges and Agrees that he/she has been strongly advised to seek out their own exclusive representation along with a Brokers Price Opinion (BPO) and any legal, tax or other professional advice regarding this transaction. 3) Seller can then be represented or unrepresented (Declination of Representation).  Please call with questions.  JT.

 

AGENT, CHANGING OFFICES:  SEE HOMESMART, AGENT CHANGE OFFICES

 

AGENT, EQUITY POSITION, AGENT HOLDS AN EQUITY POSITION IN THE LISTING:  Q: I have an upcoming listing that I do not own the property but do have a financial interest in the sale. My question is I understand that when an agent owns the property they have to display agent owned on the yard sign and such but how do I have to describe my interest in the home?  A: Michael, if you are not on the title but do have a financial interest in the property, you will need to disclose that on 1) page six of the ER listing agreement and 2) in the private remarks section of the MLS and 3) in the purchase contract once you receive that.  Something like "Listing Agent holds a financial interest in the property being conveyed" or "Listing Agent holds a financial interest in the property being sold" or something along those lines.

 

AGENT, FLIPPER, MUST DISCLOSE FINANCIAL INTEREST (SELL AT A PROFIT)  (Used by Kahuna invesements, Jaime Starks/Judy Van Essen)  “Buyer(Agent) intends to acquire legal, equitable title in order to Sell at a Profit.”  “Seller agrees to allow xyz LLC to advertise the property and enter into a resale agreement during the escrow period.  Seller acknowledges that a member of xyz LLC is licensed in the state of Arizona.  Buyer waives SPDS and CLUE Report.  Buyer agrees to pay all Seller’s escrow closing costs except any cost incurred to provide marketable title.  Seller shall be responsible tor all unpaid taxes, utilities, liens, judgements or fines attached to the property.  Close of Escrow shall be on the date stated on line #x, or earlier with written mutual agreement between the parties.  Seller agrees to release Earnest Money back to the Buyer at any time that the contract is cancelled within the inspection period or if the Title Report reflects undisclosed clouds on title that inhibit the transfer of good title.”

 

AGENT, FLIPPER, AGENT WANTS TO BUY/FLIP HOUSES:  WANTS TO ADVERTISE SELL WITH ME OR I’LL BUY YOUR HOUSE!

Hi X, Just a quick note to follow up on our brief phone conversation from yesterday. Advertising as a realtor to help sell a prospective clients home and offering to buy the home in the same conversation is a slippery slope.  What do you tell them as their realtor, that your fiduciary duty is to help them sell at the highest and best price in the shortest amount of time?  And in the same discussion offer to buy or flip the home at a discounted amount?  There's just so much liability in these situations when you're an agent and also proposing to be the buyer. If the owner feels in any way that they were mislead or cheated, and if it looks like you took advantage of the situation, an attorney would have a field day with that type of thing.  And, as you know, as a licensee we are held to a "higher standard" and we can't abandon our fiduciary duty to a client once it's established. 

 

We need to make sure the owner has all of the information to make an informed decision.   Here are just a few examples of language that must be included in your disclosure if you intend to buy and/or flip the property, and seller must acknowledge receipt of this information in writing: 1) “Buyer(Agent) intends to acquire legal, equitable title in order to Sell at a Profit.” 2) "Buyer intends to acquire property at less than fair market value." 3) “Seller agrees to allow (BUYER) to advertise the property and enter into a resale agreement during the escrow period.   (NOTE: If you cannot find an end buyer to wholesale it to, are your intentions to complete the purchase?)”  4) "Seller acknowledges that (BUYER) holds an active Arizona real estate license and intends to represent her/himself in this transaction.” 5) "Seller acknowledges and Agrees that he/she has been advised to seek out their own exclusive representation along with a Brokers Price Opinion (BPO) from a separate, independent outside brokerage.” 6) "Seller acknowledges that they have been advised to seek outside legal, tax or other professional advice regarding this transaction as required.” Go ahead and position yourself as “I buy houses”, just don’t try to take that position and also propose listing the home in the same presentation.

 

AGENT, FLIPPER/INVESTOR;  July 22, 2020, Q:  Question: I am making a small loan to an investor to cover the cost of some upgrades to a property that he intends to sell. I will be the listing agent. I will not be on the title.  He is paying me back plus interest after the property sells and closes.  Is this allowed? What disclosure do I need to list on the MLS? My thought is: "Agent holds a financial interest in property" or something along those lines.                             A: Good morning X, I talked with our DB Laurie McDonnell and some of the other brokers about your proposal of lending funds to Investors/Sellers to improve and get the property ready to sell, listing the property for sale and being reimbursed for the loan at COE.  HomeSmart Corporate will not allow agents to participate in this type of activity for a number of reasons including the following:  1) Liability/Risk concerns as to offering a loan/financial assistance to a Seller which is outside the scope of HomeSmart Policies and Procedures, 2) E&O coverage concerns due to acting outside the scope of HomeSmart Policy and ADRE guidelines, 3) E&O insurance provides coverage with limitations set forth in the policy for the Agent acting as an Agent in the transaction, 4) There is NO insurance coverage for an Agent acting as a principle in the transaction or in any other capacity, 5) Any Equitable interest in the property could be interpreted or imply an “Owner/Agent” transaction, 6) If any dispute, claim, cause of action or otherwise is filed against an Agent-Owned property, Agent is responsible to pay an E&O deductible in the amount of $20,000.00.  We get calls from agents from time to time who inquire about our policy regarding this, especially considering the agent in Casa Grande who advertises on the radio that he offers this type of service.  As a HomeSmart Franchise operating under a separate license with ADRE, they are allowed to establish their own guidelines and policies regarding the services they offer.  We believe it's a high risk proposition for them, but it's their call.  Take care, Jeff.

 

NOTE: SOURCE:  HomeSmart Policy and Procedures Manual

HomeSmart does allow its Agents to list and to sell 1-4 unit residential property in which the Agent has any ownership interest, provided that title is held in the Agent’s name.

Should a claim be filed that is NOT covered by our E&O policy, Agents agree to defend, indemnify, and hold harmless, HomeSmart, its Owners, and its Brokers, against all claims that may arise from this claim. In addition, Agent agrees to reimburse HomeSmart for all costs, fees and judgments for the uninsured claim.

Advisory and Notification. Should a claim be made on an Owner/Agent transaction, the Agent’s deductible shall be $20,000 and shall be due and payable to HomeSmart when the claim is made. The deductible is due and payable whether HomeSmart submits a claim to the E&O insurer or engages legal counsel without a submission.

 

AGENT, FSBO, CAN HOMESMART AGENT SELL AS FSBO OR BUY FOR THEMSELVES OUTSIDE OF HOMESMART?  NO!   All transactions must be run through HomeSmart.  They cannot put on and take off their HomeSmart hat.  ADRE requires a broker to review all transactions that a licensee is involved in.  The brokerage is required to exercise “reasonable supervision” over all licensees real estate activities.  It being in the MLS or where he advertises it - has nothing to do with our policy.  If he doesn't want to run his transactions through us - we probably are not the company for him.   TM

 

AGENT, LOAN OFFICER, AGENT AS LOAN OFFICER:  Q: Does HomeSmart have a policy that allows or disallows a HomeSmart agent to also be the loan officer in the same transaction?  A: No, we don't allow an agent to also act as an LO on the same transaction. They may do both independently from one another in separate transactions, but not in the same transaction.  Creates E&O Issues as well.   Laurie/Kyle  OR   Good morning Moises, You can certainly be a licensed MLO and hold a Real Estate License at the same time.  HomeSmart's policy is that an agent is not allowed to act as an LO and Realtor in the same transaction.  You are also not allowed to earn a referral fee from a loan officer if you are the buyers real estate agent of record in a transaction. You may do both independently from one another in separate transactions, but not in the same transaction.  E&O Issues are one of the larger concerns.  JT.

 

AGENT, REPLACED, BUYERS AGENT BEING REPLACED: “Both Sellers and Buyers acknowledge and agree that Buyers original agent of record, XYZ, hereby relinquishes her agency relationship with the Buyers.  The parties further agree that the new Buyers agent of record shall be ABC, from the same brokerage.

AGENT, REPLACED, BUYER WANTS TO REPLACE AGENT:  Q: I think both our agent and the buyer are frustrated with each other and now I'm concerned about protecting the clients EM due to their difficulty in communicating with each other.  Your thoughts?  Should we consider replacing or adding someone to the transaction to assist?  Not sure how that would work...A: If the agent isn’t goingto take the high road to work through the transaction, perhaps a TC or co-agent can be added.  But our agent needs to understand that a TC and/or co-agent needs to be compensated through the commission as well.

AGENT, RESIGN, HOW DOES AGENT RESIGN AGENCY?  Actual language from AllisonBrown file from 12/17/2015, she was repping ball player for $2500, vacant land fee along to her was $8K!  Language from Trudy: (Word Doc):  Effective immediately, I am no longer representing or providing advice to any parties involved in the transaction involving X5137X E Dobletree Ranch Road, PV, AZ 85253, Signed & Dated

AGENT, SWITCH AGENTSQ:  Agent no longer wants to represent buyer...All parties agree so what should I write in the addendum to transfer this contract over to my name so I can complete the transaction? Thanks for your help!  A: 1) Execute a new Real Estate Agency Disclosure and Election Form, 2) On an addendum say something like "The parties agree that contrary to page 10 of the purchase contract, the agent on behalf of the Buyer shall be XYZ with HomeSmart, not Jane Doe.  See attached Real Estate Agency Disclosure and Election Form.” (Attach the new READE form to the Addendum). Anything along those lines will suffice.  (draft an addendum to clarify that the agent of record has changed to (you), and that contrary to the prior disclosure, you are not related to the buyer).

AGREEMENT FOR SALE:  EQUITABLE INTEREST, PURCHASE MONEY MORTGAGE:  (AGREEMENT FOR SALE:  Does not trigger the due on sale clause.  Keeps deed in the owners name).  Review agreement for conveyance language, possible restrictions or penalities, ie, pre-payment penalty if being held at a high interest rate).

http://homeguides.sfgate.com/difference-between-agreement-sale-purchase-money-mortgage-79916.html            http://www.islandsothebysrealty.com/files/7/Island%20Sothebys_PMM%20vs%20AS.pdf

AGREEMENT NOTICE FOR SHORT SALE:  (SEE ZIPFORMS)  Q: I also have a question regarding one of the Required Documents…Agreement Notice – what is that?  A: As for the Agreement Notice, the short sale agreement notice is used by the seller to notify the buyer that the seller and lender have or have not reached an agreement on the short sale terms.  Take a look at the form, Short Sale Agreement Notice on zipForms.  Also, please review line #'s 22-28 of the Short Sale Addendum to the purchase contract where the Agreement Notice is mentioned prominently several times...the Agreement Notice will determine whether or not escrow is opened, earnest money is deposited and whether or not inspections will be ordered.  JT

AIRPORT NOISE DISCLOSURE REQUIREMENTS FOR LUKE AIR FORCE BASE (+ AIRPORTS):  ARMLS:  HERE    Arizona has strict disclosure requirements for properties that are subject to airport noise.               A.R.S. 28-8461  Also see ADRE, search airport and military maps in the search bar, Surprise Luke Air Force Base notification map HERE                                                                                                                                                                      The Sun City Municipal Code once contained provisions requiring Realtors to carry a copy of the Luke Air Force noise contour map at all times. This is no longer in effect. Updated on 12/5/19.

AIRPORT OR AIRPARK: The only thing I could find is go to Add a field Search at the bottom of the search menu (see below) and add the search field "Community Features" which gives an option for runway accessOtherwise, reach out to ARMLS at 480-921-7777, they might have some additional ideas for you.  Take care, Jeff.  (Attach snippit shot of screen)

ALLOWANCE:  CARPET ALLOWANCE, LANDSCAPING ALLOWANCE, PAINT ALLOWANCE, ETC:  Q: My seller would like to add a "landscape incentive"  or "landscape allowance"  to the listing for $2,000.  Can I put this information in the property description of the listing?  Does the listing paperwork need to be updated?   A: Yes - it can be added.  But if the buyer is getting financing - it will most likely be a problem.  This CREDIT would be subject to lenders approval.  I would suggest reducing the price or offering seller concessions by the amount of the allowance.   TM

AMBIGUOUS IN A SENTENCE:  LANGUAGE FOR XADAMXBAILEY ISSUE:  Please see counter offer #1 (attached).  The language beginning on line #9 of counter offer #1 is not ambiguous:  "Earnest Money to be non refundable unless the buyer and seller can not come to an agreement on the BINSR. If an agreement can not be made on repair requests during the inspection period then the Earnest Money will be refunded to the buyer."  The buyer cancelled on the BINSR which means they clearly did not come to an agreement on the BINSR. (See attached BINSR cancellation).  The buyer is allowed to investigate the condition and suitability of the Premises and the surrounding area (see line #'s216-217 of the pc).  The buyer is within their rights to cancel due to road noise and requests the Earnest Money be refunded to buyer immediately.

AMEND THE BINSR:  SEE FORM IN DOC’S TAB  (ALSO SEE CANCELLATION FOR CASE STUDY)

AMENDED OFFER OR COUNTER OFFER:  SEE COUNTER OFFER, AMENDED FOR DEFINITION

ANNUAL RISK REDUCTION FEE:  SEE RISK REDUCTION FEE