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Dear George: Recently we signed a contract with a REALTOR® to sell or lease our home. The home leased and the REALTOR® was paid in full. Our tenant would now like to purchase the home. Are we obligated to compensate the REALTOR® should we sell by owner to our tenant?
Answer: If the REALTOR® with whom you listed your property for lease had you sign a Residential Real Estate Listing Agreement, Exclusive Right To Lease (the REALTOR® should have had you sign this agreement plus the Residential Real Estate Listing Agreement, Exclusive Right To Sell), the Paragraph 5D(2), Fee for a Sale, should contain a provision that will answer your question. Some REALTORS® leave this area of the lease listing blank, and in that case you would not owe the REALTOR® a commission. It just depends upon how paragraph 5D(2) is completed, because that is what you agreed to if your tenant purchased the property during the term of the lease or within the specified number of days after the termination of the lease or rental of the property.
Dear George: My husband and I purchased our new-construction home from the builder a little over a year ago and are now moving to a larger home. Can we request the buyer’s lender accept the title policy we purchased at the time we closed a year ago? It just seems silly to have to purchase another title policy in such a short time, especially when nothing has been done to alter the land on which our home sits!
Answer: When the title is insured, title is searched from the “sovereignty of the soil” forward. A new title company can, and sometimes does, find mistakes from the previous search. A new risk is involved every time, so the new search and new premium have to be paid each time. This is true even when you go to the same title company.
Dear George: I recently learned that the house that I purchased in January was previously used as a "grow" house for marijuana. I learned from a neighbor that the tenants of the property were arrested and the equipment was seized as part of a long-term investigation.
The seller was informed of this, and I believe the seller's agent was also the property manager. If I am able to verify that this is true, were the seller and seller's agent obligated to disclose what they new of the drug activity?
Answer: Most sellers of residential properties are required to complete the Seller’s Disclosure Notice (TAR-1406) 7-02-07, or the Texas Real Estate Commission’s form Seller’s Disclosure of Property Condition, TREC No. OP-H. Neither of these forms, nor the earlier versions of these forms, requires a seller to disclose if a residence had been used as a marijuana “grow-lab.” Known previous use of the premises, however, in the manufacture of methamphetamines does require disclosure because of the serious health consequences that can affect subsequent occupants.
However, we recommend contacting your local Police Department or the appropriate County Sheriff’s Department to find out if there may be any local requirements to disclose the previous use of a residence as a marijuana growth lab.
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| Dear George: My husband and I signed a listing agreement with a broker almost two months ago to sell our current home. Six weeks into the listing, we hadn't had a single visitor, and we inquired about our broker conducting an open house. They told us if we wanted to host one, we were on our own because they didn't "do" them.
Is failing to host open houses of our property a failure to "use reasonable efforts and act diligently to market ... procure a buyer ... etc.," as required by our listing agreement? Can we make them conduct open houses? Or, if they still refuse, ask to be let out of our agreement so that we may find a broker who will do more than just list on MLS?
Answer: We are going to assume the broker was a member of the Texas Association of REALTORS® and, as a member, had you sign the Residential Real Estate Listing Agreement, Exclusive Right To Sell. There is no pre-printed mention of open houses in that agreement. So, unless you or the broker inserted wording in Paragraph 15, Special Provisions, dealing with the broker’s agreement to do open houses, the number of open houses, and whether they are broker open houses and/or public open houses, the broker is not contractually obligated to hold any open houses.
The one possible exception to this might be if the broker made a statement to you that he or she would hold your house open, but that would be a very difficult statement to prove.
One cannot make a REALTOR® hold open houses. If open houses were so important to you, why on earth did you not inquire about them before you signed the listing agreement?
You can request that the brokerage release you from your listing agreement based upon your argument that the broker did not “... use reasonable efforts and act diligently to market the Property for lease, procure a tenant, and negotiate the lease of the Property,” as required by Paragraph 11 of the listing agreement.
If that does not produce the result you want, you can also call the Texas Association of REALTORS® at 800/873-9155 and ask to speak with someone regarding the association's Ombudsman Program. A member of the Professional Standards Department will explain the details of this free program, which is designed to handle situations such as yours. I'm told this program has met with great success.
We cannot over-emphasize the importance of READING an agreement before you sign it, and getting your own attorney to answer any questions you might have that the REALTOR® did not answer to your satisfaction. The very last provision of the listing agreement, just above your signature line, states:
G. broker cannot give legal advice. READ THIS LISTING CAREFULLY. If you do not understand the effect of this Listing, consult an attorney BEFORE signing.
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