May/June 2012 - Greater Capital Association of REALTORS

Caring • Committed • Community-Minded
Official Publication of the Greater Capital Association of REALTORS®
Volume 23, Number 3 May/june 2012
Use of the REALTOR®
Trademark/Logo
On The Internet
GCAR Health
Insurance Plans
Open Enrollment June 1-20, 2012
GCAR’s health insurance plans available to members and employees
of members at an open enrollment during June 1 through 20, 2012
for an effective date of July 1, 2012. Refer below for plan details. Call
464-0191 (x14) for an application.
CDPHP PLANS
2012 Rates (Quarterly)
Sole Proprietor
HMO
HA6S12Individual: $1391.64
$1584.36
$3153.69
2 Person: $2768.22
Family: $3663.06
$4173.78
EPO
High DeductibleIndividual: $687.60
$781.77
QEPOS2112
$1522.92
2 Person: $1337.76
Family: $1767.63
$2013.00
EPO w/deductibles
EH3S12Individual: $1212.27
$1379.88
$2744.76
2 Person: $2409.52
Family: $3187.77
$3631.95
EPO
EPO w/deductibleIndividual $1190.94
$1355.58
ED9S12
$2696.13
2 Person: $2366.88
Family: $3131.28
$3567.54
Blue Shield is not available in mid-year.
When surfing the Web for real estate
homepages, it's quite common to come
across sites belonging to REALTORS®.
If you are looking to add your own
electronic presence on the Internet, it
is easy to get caught up in designing
your own web page and choosing a
domain name which will capture the
attention of surfers and make you
easily identifiable. Whether it is the
domain name of your home page or
other domain names you use to point
to your home page, REALTORS® often
want to use the REALTOR® marks as
part of a domain name or address
to distinguish themselves, but they
must keep in mind that there are rules
governing proper use of the REALTOR®
marks that must be adhered to at all
times regardless of the media used.
These rules are found in the National
Association's Membership Marks
Manual, a reference manual available
on-line at REALTOR.org, explaining
proper use of the REALTOR® marks
including examples of correct and
incorrect uses. Here is a brief list of
the principal rules affecting use of the
REALTOR® marks in domain names:
1. The term REALTOR®, whether used
as part of a domain name or in
some other fashion must refer to a
member or a member's firm.
2. The term REALTOR® may not
be used with descriptive
words or phrases. For example,
Number1realtor.com, numberonerealtor.com, chicagorealtors.org
or realtorproperties.com are all
incorrect.
3. The term REALTOR® should
never be used to denote an
occupation or business. Do not
combine words like “your,” “my,”
“our” or any descriptive words
or phrases between your name
and the membership mark.
JaneDoeMyRealtor.com and
YourChicagoRealtorJohnDoe.com
are all examples of improper use.
4. For use as a domain name or
e-mail address on the Internet the
term REALTOR® does not need to
be separated from the member's
name or firm name with punctuation. For example, both johndoerealtor.com and johndoerealtor.
com would be correct uses of the
term as a part of domain names
and jdoe*[email protected] and jdoerealtors@
webnetservices.com are both correct uses of the term as part of an
e-mail address.
5. The REALTOR® block R logo should
not be used as hypertext links at a
web site as such uses can suggest
an endorsement or recommendation of the linked site by your
Association. The only exception
would be to establish a link to the
National Association's web site,
REALTOR.org, or its official property listing site, REALTOR.com.
The public has adopted the use of
all lower case letters when writing
domain names, even those containing
trademarks. Therefore, for purposes of
domain names and internet addresses
only, there is an exception to the rule
on capitalization of the term REALTOR®
and it may appear in lower case letters.
Whether you use traditional print
media or the Internet, it is essential to
use the REALTOR® marks in accordance
with the rules and guidelines of the
National Association. The REALTOR®
marks should only be used to denote
membership in the NATIONAL
ASSOCIATION OF REALTORS®.
In This Issue
Despite Court Ruling
Agents Should Abide By
‘Megan’s Law’ Requirements
page 3
With The President.............................................................................page 2
CIREB Corner........................................................................................page 5
Welcome New Members ..................................................................page 6
DATED MATERIAL
Permit No. #164
Albany, NY
Greater Capital Association of REALTORS®
451 New Karner Road
Albany, New York 12205
PAID
PRSRT STD
U.S. Postage
2
Across the Association
may/june 2012
Fair
Housing
Award
With The President
the law of the land. But we also recognize
that until that law of the land becomes
the practice in every community that neither Schenectady, the Capital Region nor
the country will be able to say that we’ve
fulfilled the promise of equal housing
opportunity which has been made to all
our citizens.
2012
GCAR President
Nina Amadon
At its April 13th Fair Housing Month luncheon the Greater Capital Association of
REALTORS® was presented with an award
recognizing GCAR’s ongoing and longtime support of the City of Schenectady’s
efforts to ensure equal housing opportunity for everyone. On behalf of the Greater
Capital Association of REALTORS® and
its 2,600 members I would like to thank
Schenectady for this recognition.
GCAR is happy to support, and we are
proud to be recognized as a longtime
supporter of, the good work of the City of
Schenectady and its Fair Housing Office.
GCAR recognizes that Fair Housing is
That is why GCAR appreciates and
applauds the good work which is being
done and has been done by the City of
Schenectady, by Mayor McCarthy and the
mayors who preceded him, and by the
City’s Fair Housing Office and its director
Ahmad Yusufi.
At that same luncheon two GCAR
members, Jason Christiana and Mary
D’Alessandro-Gilmore, were recognized
for their parts in helping design the City’s
new “Key To The City” program. Our thanks
go to both REALTORS® for representing
real estate in this effort.
Last month GCAR and CIREB joined
forces for our first official GCAR/CIREB networking session. Over fifty of us met for
hors d’oeuvres and beverages at 74 State
(l-r) Schenectady Mayor
Gary McCarthy and U.S.
Congressman Paul Tonko
present an award to GCAR
CEO James Ader recognizing
GCAR’s long time commitment
to the efforts of Schenectady
to ensure equal housing
opportunity for everyone.
Street in its beautiful 2nd floor bar. It was
a wonderful event which featured door
prizes, great sponsors and some good
networking. I expect we’ll be seeing more
of these joint sessions.
And in March we had the opportunity to
get together with past presidents of GCAR
as well as those from the former Albany,
Rensselaer, Saratoga and Schenectady
boards who are GCAR members. It was
a terrific event and provided GCAR’s
Executive Committee with some new
ideas for programs and services as GCAR
moves forward. We intend to continually
draw on the experience of our past leadership to help us become the best association possible serving our membership.
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Across the Association
public‘s right to own, use and transfer real property.”
The voice for Real Estate in
New York‘s Capital Region.
Caring • Committed • Community-minded
Let’s stay the course and continue to
provide the public with the positive side
of the housing market.
Officers
The newspaper of the Greater Capital Association of REALTORS®, INC.
“The Greater Capital Association of REALTORS® is a professional
trade association which provides its members with programs
and services which enhance the members‘ ability to successfully
conduct their businesses in a competent and ethical manner,
promotes cooperation among its members, and promotes the
As we review and publish our monthly
sales statistics we see that 2012 is continually outperforming 2011. Pending sales
are up, closed sales are up, and home
owner equity has started to increase as
prices are appreciating. Certainly the market does not rival our markets in 2004
– 2007 but improvement is a good thing.
This improvement demonstrates that your
efforts in reminding people of the benefits
of home ownership, that your efforts in
reminding people that this is perhaps the
best time ever to be in the market for a
new home, and your continued optimism
is beginning to show results.
I would be remiss if I didn’t mention the
REALTORS® Political Action Committee,
RPAC. You hear this all the time but what
you hear continues to be true. RPAC is an
important part of our efforts to protect
the rights of private property owners.
Contribute as you are able. And, at the
very least, include RPAC in your semiannual dues payment. I expect we all
have different opinions of the role politics
plays in our lives. But we all will agree
that politics is important to ourselves and
homeowners, buyers and sellers. We need
to be involved.
Sunmark Offers:
451 New Karner Road
Albany, New York 12205
(518) 464-0191 • Fax: (518) 464-0196
GCAR has just completed a unique program which was spearheaded by Elaine
Freedman along with Kirsten Blanchard
and the members of the Community
Relations Committee. We collected prom
clothing which was then distributed to
SALT (Schoharie Long Term Recovery) for
distribution to kids looking to attend their
high school proms. We know the struggles
faced by residents in Schoharie County
and were glad to help make the high
school prom a reality for some young
people. I want to thank Elaine and the
Community Relations Committee.
World Wide Web page: www.gcar.com
E-mail: [email protected]
Production & Printing:
Foley Publications, Inc. • (800) 628-6983
Graphic Designer:
Jake Fletcher, Foley Publications, Inc.
Advertising Information:
Foley Publications, Inc. • (800) 628-6983
The Greater Capital Association of REALTORS® makes no
warranties and assumes no responsibility for the accuracy on the information contained herein. The opinions
expressed in articles are not necessarily the opinions of
the Greater Capital Association of REALTORS®.
The Greater Capital Association of REALTORS® does not
necessarily endorse the companies products or services
advertised in the newsletter unless specifically stated.
President – Nina Amadon
President Elect – Miguel Berger
Secretary/Treasurer – Albert Picchi
Chief Executive Officer – James Ader
Dir. Of Association Svcs. – Laura Burns
Directors
Joseph Farry
Kelly Gardner
Anthony Garufi
Cathy Griffin
Brooke Hackler-Medick
Joel Koval
Mark Phoenix
Cynthia Quade
Judy Rosen
Lorraine Schindler
Paul Semanek
Janna Shillinglaw
Peter Staniels
CRMLS Directors
Jason Christiana
Paula Gaies
Zenie Gladieux
Rory O’Connor
Liz Schultheiss
Barbara Walton
Across the Association
may/june 2012
3
Despite Court Ruling
Agents Should Abide By ‘Megan’s Law’ Requirements
New York State Supreme Court Justice
Alpert has ruled in a Nassau County court
that real estate agents are not required
to inform prospective homebuyers about
the backgrounds of their neighbors, even
if one of their neighbors is a pedophile.
In his ruling, the judge indicated that the
law imposes no duty upon the vendor to
disclose any information concerning the
premises, unless there is some conduct
on the part of the seller, which constitutes
active concealment.
The ruling, of course, has brought about
a flurry of comments and questions since
Megan's Law does exist in the state of
New York and real estate licensees have
an obligation under that particular statute. In order to better acquaint everyone
with this particular decision and what it
means, we have asked NYSAR counsel
Mike Wallender to review the matter and
to provide us with his commentary.
The following is his commentary regarding the case of Glazer v. Lopreste:
In Glazer v. Lopreste, New York State
Supreme Court Justice Alpert dismissed
a complaint against the sellers of real
property (the Loprestes) and three individual sales associates (Mazzitelli, LeBoyer
and Skvirsky) affiliated with the listing
broker (Century 21 Marlene Goodman,
R.E.), regarding claims of "fraudulent concealment" and "factual misrepresentation"
based on the allegation that they knew or
should have known that a convicted child
molester resided across the street from
the listed premises. The action against
the listing brokerage firm (Century 21
Marlene Goodman, R.E.) was severed and
continued. Evidently, the listing firm did
not make a comparable motion to dismiss
and/or for summary judgment.
The grant of the motions by the sellers
and individual real estate licensees was
based upon the Appellate Division decision in Stambovsky v. Ackley (169 A.D.2d
254, 259 [1st Dept.]), which states:
"[N]ew York adheres to the doctrine
of caveat emptor and imposes no duty
upon the vendor to disclose any information concerning the premises (London
v. Courduff, 141 AD2d 803) unless there
is a confidential or fiduciary relationship
between the parties (Moser v. Spizzirro,
31 AD 537, affd 25 NY2d 941; IBM Credit
Fin. Corp. v. Mazda Mfg. [USA] Corp., 152
A.D.2d 451) or some conduct on the part
of the seller which constitutes "active concealment" (see, 17 E. 80th Realty Corp.
v. 68th Assocs., __ AD2d __ [1st Dept.,
May 9, 1991] [dummy ventilation system constructed by seller]; Haberman v.
Greenspan, 82 Misc2d 263 [foundation
cracks covered by seller]). No such circumstances exist here."
The Court ruled that the offender's status was not particularly within the defendant's knowledge and applied the law
as restated in Bando v. Achendaum (234
A.D.2d 242, 243, lv. den. 90 N.Y.2d 20):
"[i]f the facts presented are not matters
peculiarly within the party's knowledge
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and the other party has means available
to him of knowing, by the exercise of
ordinary intelligence, the truth or the real
quality of the subject of the representation, he must make use of those means, or
he will not be heard to complain that he
was induced to enter into the transaction
by misrepresentations."
It appears that this decision is an application of existing New York case law to
both the seller and individual real estate
licensees affiliated with the listing broker.
The decision does not indicate why a
comparable motion was not presented
by the listing firm (with which the individual licensee defendants were affiliated).
Presumably, the same principles would
apply to the listing firm.
It should be noted that this case
arises in its particular factual context
and that variations in the facts could
affect the outcome. Apparently,
there was no specific inquiry made
by the purchasers regarding the
factual matter about which they
now complain. In the event of
such inquiry, the duty of the listing broker and licensees affiliated
therewith would be to accurately respond to the
question or indicate
that if that matter
is of concern to
the purchaser,
the purchaser
should obtain
the information it deems pertinent from
local law enforcement officials (pursuant
to New York's version of "Megan's Law,"
Corrections Law ?168 et. seq.).
It should be noted that a different
result would likely obtain in the event
comparable claims were made against a
buyer's broker or its affiliated licensees.
They would have the requisite fiduciary
relationship which imposes a duty of disclosure to their buyer client as to material
information regarding the transaction in
which they were involved.
[Editor’s note: the advice to accurately
respond to the question or refer or suggest that the purchaser seek information
elsewhere would also apply to
“psychologically impacted” properties such as
those where a murder
or suicide may have
occurred.]
4
Across the Association
may/june
2012
november/december
2011
Payments To Unlicensed Individuals
promotional offer is not an offer to pay for unlicensed real estate
Section 442 of the Real Property
Law provides, in pertinent part, as
follows:
“No real estate broker shall pay any
part of a fee, commission or other
compensation received by the broker to any person for any service,
help or aid rendered, in any place in
which this article is applicable, by
such person to the broker in buying,
selling, exchanging, leasing, renting
or negotiating a loan upon any real
estate including the resale of a condominium unless such person be a
duly licensed real estate salesperson regularly associated with such
broker or a duly licensed real estate
broker or a person regularly engaged
in the real estate brokerage business
in a state outside New York . . .”
“. . . Except when permitted pursuant
to the foregoing provisions of this
section, no real estate broker shall
pay or agree to pay any part of a
fee, commission or other compensation received by the broker, or due
or to become due to the broker, to
any person, firm, corporation, who
or which is or is to be a party to the
transaction in which such fee, commission or other compensation shall
become due to the broker.”
The courts of New York have held
that section 442 was intended to
discourage unlicensed persons from
engaging in activities for which a
real estate license is required; and to
achieve that end, section 442 prohibits a real estate broker from paying
any part of a fee, commission or other
compensation to an unlicensed person if such payment was intended to
compensate the unlicensed person for
providing any service for which a real
estate license is required.
The first paragraph of section 442
was enacted by the Legislature in
1922, and the second paragraph, as
set forth above, was added by the
Legislature in 1941 in response to a
N.Y.S. Court of Appeals decision holding that the first paragraph of section
442 does not prohibit a real estate
broker from splitting the broker’s fee
with a buyer or seller because a buyer
or seller does not have to be licensed
to provide a service, help, or aid in
the negotiating or closing of the real
estate transaction to which they are
a party. Thus, the second quoted
paragraph was added to close the
statutory loophole that permitted a
buyer or seller to demand a split of
a broker’s fee or commission for providing unlicensed real estate services. Taken together, the two quoted
paragraphs now make it clear that
a broker cannot split a fee with any
unlicensed person, including a buyer
or seller, if the payment is for any
service for which a real estate license
promotional offerthe
is payment
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pay for unlicensed
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not violate the
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or customers:
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ommendation
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systems; free moving services; free insurance on major appliances; $500 toward closin
costs; $200 gift certificates and $200 donations for charity.
$200 gift certificates
and
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donations
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to mean payment for unlicensedcosts;
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ed to attract new clients or customers.
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Allows choice ofAllows
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usdoj.gov
donations for charity.
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Across the Association
may/june 2012
5
CIREB Corner
CIREB Partners With GCAR For A Networking Event
Over 50 members from both CIREB and GCAR met
on April 12th at the Bar @ 74 State Street for a few
hours of networking and fun. Pictured are (left) GCAR
president Nina Amadon, RealtyUSA.com and CIREB
president Richard Ferro, Prudential Blake Commercial
as they pick the winners of several door prizes donated by sponsors NBT Bank, Movethatblock.com, the
Condominiums at 17 Chapel, and 74 State. Among
the winners - CIREB member Joe Clark, Clark Realty
winning the $100 gift card to the Apple Store.
CIREB Marketing Sessions
May 3rd session to be hosted by CB Richard Ellis at
400 Jordan Road, North Greenbush. Guest Speaker
will be Carol Lamb-Lafay, Section Chief, DEC Bureau
of Water Permits-General Permits for Stormwater
Discharges.
June 7th session to be hosted by Carrow Real
Estate Services.
Complete details can be found at www.cireb.com
Annual Golf Outing
CIREB is in the planning stages of its Annual Golf
Outing/Fundraiser to be held June 18th at Wolferts
Roost Country Club. This year CIREB will play to
raise money for the Boys & Girls Clubs of Southern
Rensselaer County. Many Sponsorship levels are
available. Please visit our website for more details.
Affiliate Membership
Ballston Spa National Bank – Represented by Tim
Collins & Laura Siracuse
Economic Development Agency
Downtown Schenectady Improvement Corporation
– Represented by Colleen Merays
Appraiser Membership
Gary Snowdon – Snowdon Valuation, Albany
CIREB Welcomes New Members:
Broker Membership
Rob Grundman – Big Blue Realty, Schenectady
Tony Strollo – Anthony R. Strollo, REALTOR®
Associate Membership
Lynn Bass – RealtyUSA, Cooperstown
Brian Conley – Conley Realty Services, Albany
Sherry Sherlock – Keller Williams Saratoga, Saratoga
Springs
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Tel: 518.464.0191
Fax: 518.464.0196
E-mail: [email protected]
your real estate ad for a
discount. It’s available 24/7.
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Chief Executive Officer
James A. Ader (Ext. 16)
E-mail: [email protected]
called EZ Ads. Get started
now by logging on to
ezads.timesunion.com
Director of Association Services
Laura J. Burns (Ext. 15)
E-mail: [email protected]
Assistant to the C.E.O. & Financial Secretary
Huguette Bushey (Ext. 14)
E-mail: [email protected]
Assistant Education & Member Services
Gina Martin (Ext. 10)
E-mail: [email protected]
Finance/Office Admin. Asst.
Nancy Krebs (Ext. 11)
E-mail: [email protected]
choose your package
open house ad
Here’s a sample of the NEW packages you’ll see, that
are only available online through EZ Ads:
CRMLS STAFF
Tel: 518.464.8913
Fax: 518.464.8915
Chief Administrator
James A. Ader (Ext. 16)
E-mail: [email protected]
$20 Open House Package
Saturday and Sunday ad in the Times Union
newspaper and up to 7 days online at timesunion.com
$10 Open House Package
Your listing online at timesunion.com up to 7 days
CRMLS Senior Administrative Assistant
Diane Hazzard (Ext. 19)
E-mail: [email protected]
CRMLS Administrative Assistant
Michele Miaski (Ext. 17)
E-mail: [email protected]
CIREB STAFF
Tel: 518.464.0194
Fax: 518.464.0196
CIREB Executive Director
Kelly Pierce (Ext. 12)
E-mail: [email protected]
select your property
SATURDAY & SUNDAY
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•
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schedule run dates
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purchase your ad
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ezads.timesunion.com
6
Across the Association
may/june 2012
Welcome New GCAR Members
REALTOR® (principal)
Diana Clary,
Albany
Katherine R. Grifferty,
Alchester Group/Realtricity, Latham
Jeffrey Keith,
Exit Elite Realty Group, Latham
Jodi A. Leonard,
Cook Realty, Saratoga Springs
Danielle Ohrin,
Tradewind Appraisals Service, Castleton
Laurie C. Perue,
Ballston Spa
Gary Snowdon,
Snowdon Valuation, Albany
Anthony R. Strollo,
Albany
REALTOR®
(non-principal)
CM Fox Real Estate
Christopher McCabe
Century 21 Purtell Realty
Joseph Durma
Century 21 Rural Eestates
Elene Johnstone Berard
Jean E. Rakoske
Kimberly Kuster-smith
Steven St. Lucia
Lawrence Snagg
Coldwell Banker Prime Properties
Michael Adam Biance
Brandon Motschmann
Nicole Gaudin
Catherine Burbules Sexton
Jake D. Small IV
The Real Estate Lady
Gloria Saunders
RealtyUSA.Com
Margaret Macri
Gary R. Pollard
Kelly A. Quinn
Darby Real Estate of New York
Kristin Kaneg
Kathryn McMullen
Marian Schwager
Janice K. Zeitler
Hart Real Estate
Eric Kaplan
Veronica W. Lynch LLC
Mary Ellen Foley O’Brien
Heartland Home Properties
Stephen J. Bakerian
Jerome Gerke
Weichert, REALTORS®, Northeast Group
Beirong Fu
Keller Williams Capital District
Dylan Remington
Yankee Realty
Diana Germain
McCurdy Real Estate Group
Zachary Snyder
Prudential Manor Homes
Robin E. Bloise
Michael Echt
Vincent Forbes
Lyne Roussy Freestone
Joshua Gregg
NEW YORK S TATE ASSOCIATION OF RE ALTORS ®
NYSAR.com
Your 24/7 Resource.
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CBR: A Buyer Representation
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26,
27,
2012
8:30 a.m. – 5:00 p.m. at the GCAR Training Room
26,
27,
28,
2012
8:30a.m.
a.m. 451
– 5:00
5:00
p.m.
at
the
GCAR
Training
8:30
–
p.m.
atRd.,
the
GCAR
Training
Room
NewJune
Karner
Albany
NY
12205 Room
8:30
a.m.
–
5:00
p.m.
at
the
GCAR
Training
Room
451
New
Karner
Rd.,
Albany
NY
12205
451Instructor:
New Karner
Rd., Albany
NY ITI,
12205
Jim Pugliese
CBR, NY
ABR,
451 New Karner
Rd., Albany
12205 GRI, CRB
Instructor: Jim
Pugliese
CBR,
ITI, GRI,
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Instructor:
Jim
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Fee: $345.00
Instructor:
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OF CONTINUING
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To register call 518-464-0191 or online at www.gcar.com
EARNEARN
22.5CBR
HOURS
OF
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EDUCATION
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OF
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To register
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at www.gcar.com
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with
oror
endorsed
by NAR
To CBR
register
call
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orIt Itonline
courses
offered
RealNet
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isisnot
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Across the Association
may/june 2012
7
Broker’s Duty Regarding Multiple Offers
Provided by the New York State Association of REALTORS®, Inc.
By Michael T. Wallender, Esq.
The market is showing signs of improvement. Among the signs we see are increasing numbers of transaction where there
are more than one offer on a property.
We have started to see more inquiries
from members on the proper handling
of multiple offers. To this end NYSAR has
provided us with an advisory prepared by
legal counsel. This might be of assistance
to you in your daily, and hopefully busy,
business lives.
A. Overview
Many real estate transactions involve
a listing broker and cooperating brokers. Questions frequently arise regarding the proper course of action where
there are multiple offers for a listed
property. Confusion sometimes arises
regarding rights and obligations of the
brokers and the parties in the transaction, including the proper course of
dealing where an initial offer is "in negotiation" and subsequent offers are submitted.
The proper procedure for handling
multiple offers must be analyzed in the
context of the broker's duties to the seller and the buyer. There are four sources
of law pertaining to the broker-client
and the broker-customer relationships:
1. License Law and Regulation
2. Law of Agency
3. Tort Law - misrepresentation and
negligence
4. Code of Ethics
B. Identification of Broker's Client
The first step in determining a broker's
duties in a particular transaction is the
identification of the broker's principal.
The real estate broker is an agent, that
is a person authorized by another to act
for him; one entrusted with another's
business. The party for whom the broker
is acting as a fiduciary is the broker's
"principal" or "client." In the most typical
situation, this will be the homeowner.
The other party to the transaction, typically the would-be buyer, is identified as
the "customer."
C. Review of the Broker's Duties
Under the Law of Agency the broker
owes three basic fiduciary obligations
to his principal:
1. Good faith and loyalty
2. Reasonable care and diligence
3. Disclosure of pertinent information
The broker's primary obligations to
his principal co-exist with the broker's
obligation to the third parties:
1. Integrity and fair business dealing
2. Proper care of deposits and purchase offer
3. Tort responsibility for verbal and
written statements (fraud and misrepresentation)
In addressing a particular transaction,
the broker must fulfill not only his duties
as an agent, noted above, but also the
requirements of the License Law, the
Tort Law, and the Code of Ethics. Among
other, the following precepts are important:
1. The License Law requires that a
broker must be trustworthy and
competent. Regulation 175.7 provides: "a real estate broker shall
make it clear for which party he is
acting and shall not receive compensation for more than one party
except with the full knowledge and
consent of all parties."
2. The Tort Law imposes on all parties, including brokers, responsibility for misrepresentations. In
addition, the broker's fulfillment of
his obligations to his client can be
analyzed under the rubric of negligence.
3. The Code of Ethics has a series of
provisions pertaining to this matter
including:
Article 1:
"When representing a buyer, seller,
landlord, tenant, or other client as an
agent, REALTORS® pledge themselves
to protect and promote the interests of
their client. This obligation of absolute
fidelity to the client's interests is primary, but it does not relieve REALTORS®
of their obligation to treat all parties
honestly. When serving a buyer, seller,
landlord, tenant or other party in a nonagency capacity, REALTORS® remain
obligated to treat all parties honestly."
D. Analysis of Broker's Duties in
Typical Situations
With the foregoing as a legal framework, the following typical scenarios are
provided for illustrative purposes:
Scenario 1: When several purchase
offers are submitted to a listing office,
what is the proper procedure for the
listing broker to follow?
Answer: The broker's fiduciary obligations require that the principal be
advised of all available opportunities. Accordingly, a listing broker must
promptly arrange for all offers to be presented to the homeowner. The listing
broker should not withhold subsequent
offers while the first one is "in negotiations."
Scenario 2: When presented with several purchase offers, is the listing broker under any obligation to inform the
cooperating brokers or their customers
that theirs is not the only offer?
Answer: In the typical situation, both
the listing broker and the cooperating
broker are agents of the homeowner,
obligated to serve his best interests.
[Editor’s Note: This article was written
several years ago but the principles
remain the same. It is noted that the
“typical situation” today is more likely
one in which each party is represented
by a broker. If there is a buyer’s broker
in the role of cooperating broker that
buyer’s broker is, in fact, the customer
in the transaction.] They thus have no
affirmative duty to advise the customer,
but any comments made thereto must
be honest and accurate. Accordingly,
the customers have no right to require
that the listing broker or the cooperating broker inform them that theirs is not
the only offer. It must be emphasized,
however, that if a customer asks a broker regarding this matter, the answer
provided must be forthright.
With respect to the cooperating
broker's right to know of competition, it must be remembered that a
REALTOR® must treat all parties honestly. Experience indicates that generally
it is in the seller's interest to advise the
cooperating broker and would-be buyer
that there is competition for the property. Typically, however, the amount of
the competing offer is kept confidential.
The listing broker in accordance with his
fiduciary obligations to his client (typically the homeowner) must make the
determination whether to reveal (a) the
fact of competition or (b) the amount.
If there is a reason in the seller's best
interest not to reveal the existence of
multiple offers, then, of course, the listing broker should keep the matter confidential. In making this determination
it is appropriate for the listing broker to
consult with the homeowner. If a cooperating broker feels that he has been
unfairly treated regarding this matter,
his remedy is to initiate a professional
standards charge under various articles
of the Code of Ethics.
Scenario 3: If an initial purchase offer
is being negotiated by the listing broker
and a second or third offer is then submitted to the listing broker, what is the
proper procedure?
Answer: The listing broker's obligations require that the principal be
advised of all pertinent information.
Accordingly, whether or not a prior offer
is "in negotiation," all subsequent offers
should be promptly submitted to the
homeowner.
Scenario 4: If an initial purchase offer
has oral acceptance from the seller and
the listing broker is then presented with
a second or third offer, what is the
proper procedure?
Answer: As in the foregoing scenarios,
the principal is entitled to know all pertinent information. Prompt submission
of all purchase offers is thus required.
Scenario 5: If an initial purchase offer
is orally accepted by the seller, the purchaser is so advised, and then the listing broker presents a subsequent offer
which the seller prefers, may the seller
"back out" of the orally accepted offer
and accept the second offer?
Answer: With respect to the seller's
obligation to sell the property, General
Obligations Law §5-703(2) requires
a written agreement embodying the
essential terms, subscribed by the seller. Accordingly, the seller cannot be
forced to specifically perform an orally
accepted contract. In contrast, the seller
may nevertheless be obligated to pay
a brokerage commission with regard
to the orally accepted deal, depending
upon the type of commission agreement involved in the matter. If the first
agreement provided that the commission is earned when the broker presents
a "ready, willing and able" purchaser,
the broker would be entitled to a commission provided he can prove that the
buyer was in fact ready, willing and
able. Where the commission was to be
earned only "as, when and if title passes
and the initial, orally accepted deal did
not close, no commission would have
been earned.
Scenario 6: If an initial purchase offer
is orally accepted, a written binder or
purchase offer is subsequently signed
by the seller, and then a second offer is
presented, what is the proper role of the
listing broker?
Answer: As with all of the foregoing
situations, a listing broker should disclose all pertinent information to the
seller. Since there is a writing involved
in this scenario, there may be a binding
contract under the Statute of Frauds.
If the homeowner is interested in the
subsequent offer, it would be appropriate for the broker to advise the client
to consult with his attorney regarding
his obligations. This will alert the homeowner to potential difficulties in regard
to breach of contract and help avoid the
broker being subjected to a charge of
inducing a breach of contract in violation of Department of State Regulation
175.9
If the signed binder or purchaser offer
satisfies the requirements of the Statute
of Frauds, there is a contract to which
the seller is bound. The REALTOR® will
have earned his commission if his listing agreement provides a test of "ready,
willing and able," but will have to await
the closing if an "as, when and if title
passes" commission agreement has
been utilized (see Graff v. Billett, 64NY2d
899).
Scenario 7: If an out of state seller
orally accepts an offer, directs the deal
to be taken to his attorney for the preparation of a contract and, thereafter,
a second offer comes in, what is the
proper procedure?
Answer: As with all the foregoing
scenarios, the listing broker should submit all offers. No contract has yet been
entered into satisfying the Statute of
Frauds (General Obligations Law %5-703
[2]). At this juncture the buyer has no
recourse against the seller. Similarly, the
buyer has no recourse against the broker, since the broker is not the agent
of the would-be buyer and has not
misrepresented any material fact to the
buyer, which he has relied upon to his
detriment.
E. Summary
in summary, the broker's fiduciary
obligations to his principal require that
all offers be transmitted to the seller, no
matter how low or how late. Throughout
the term of the broker's listing agreement the broker's fiduciary obligations
abide. In the typical arrangement, the
broker continues to be the agent of the
seller until the purpose of his agency
has been accomplished: the property
has been sold. This being the case, even
where there is a signed contract for the
property, the broker continues to be the
fiduciary of the seller and, thus, continues to have the duty to advise the seller
of all opportunities in the purchase of
his premises. In order to help protect
the broker against a charge of inducing
a breach of contract, it is recommended
that once an offer has been accepted in
writing, the broker should advise the client in writing of the fact that the subsequent offer is being presented in order
to apprise the client of all pertinent
information but with the understanding that there may be contract rights
involved in the matter. It is appropriate
for the broker to recommend that the
seller in such a situation consult an
attorney regarding his obligations.
8
Across the Association
may/june 2012
Member Update
Congratulations to the Greater
Capital Association of REALTORS®
which was awarded the Ongoing
Supporter Award by the City of
Schenectady and its Fair Housing
Office for supporting the principles of
equal housing opportunity within the
City for a long period of time.
The award was received at a Fair
Housing Month luncheon where
REALTORS®
Jason
Christiana
and Mary D’Alessandro-Gilmore,
Prudential Manor Homes received the
Key To The City Team Award.
Congratulations to GCAR’s newest
designees as Graduate, REALTORS
Institute (GRI):
REALTOR®
Victoria
Aldrich,
Weichert, REALTORS®, Northeast
Group; REALTOR® Gail Evans,
RealtyUSA.com; REALTOR® David
Fyfe, Bird Realty; REALTOR® Maria
Lenseth, Coldwell Banker Prime
Properties.
Congratulations to REALTORS®
Barbara Bachmann, Yankee Realty,
and Carlton Troeger, Community
Realty, as both have received the
Accredited Buyer’s Representative
(ABR®) designation from the Real
Estate Buyer’s Agent Council of the
National Association of REALTORS®.
Thank you to 2012 RPAC major
donors as follows:
Presidents Club ($500): REALTOR®
Nina Amadon, RealtyUSA.com
Congratulations to REALTOR®
Shane Cahill, RealtyUSA.com and his
wife on the birth earlier this year of
their son Mason.
Capitol Club ($250): James Ader,
GCAR; REALTOR® Marie Bettini, Albany
Realty Group; REALTOR® Robert
Blackman, RealtyUSA.com; REALTOR®
Anthony Garufi, Fraida Varah Real
Estate Group; REALTOR® Kathleen
Hedrick, Prudential Manor Homes;
REALTOR® Fraida Varah, Fraida Varah
Real Estate Group; and REALTOR® Paul
Semanek, RealtyUSA.com
Sympathies are extended to:
The family of REALTOR® Charles
Geragosian, Weichert, REALTORS®,
Northeast Group on Charles’s death.
99 Club ($99): REALTOR® Carol
Asiello, RealtyUSA.com; REALTOR®
Miguel Berger, BHG TechValley;
REALTOR® Janet Besheer, Keller
Williams Saratoga Springs; Laura
Burns, GCAR; REALTOR® Jason
Christiana, Prudential Manor Homes;
REALTOR® Kevin Clancy, Clancy Real
Estate; REALTOR® Robert Freedman,
RLF Realty; REALTOR® Victoria
Gettings, RealtyUSA.com; REALTOR®
Marilyn Gibbons, RealtyUSA.com;
REALTOR® Joel Koval; RealtyUSA.
com; REALTOR® Sandra Nardoci,
Prudential Manor Homes; REALTOR®
Judy Rosen, Judy Rosen Real Estate;
REALTOR® Lorraine Schindler, Lori
Schindler Realty and REALTOR® Janna
Shillinglaw, Albany Realty Group.
GCAR’S
Summer
Lobster Bake!
REALTOR® Marsha Thomas Lamere,
RE/MAX Park Place, on the death of her
husband Ray.
REALTOR® Lynn Lindskoog, Pioneer
Savings Bank, and her family on the
death of her father Gus Lindskoog.
REALTOR® Rosemarie Mosmen,
RealtyUSA.com, and her family on
the death of her mother-in-law Kay
Mosmen.
REALTOR® Melissa Petalas, Miranda
Real Estate Group, and her family on
the death of her mother-in-law Norma
Jean Petalas.
Sustaining member Gil Roy on the
death of his mother Marthe Roy.
The family of REALTOR® Marcia
Bates Smith, Marica Bates Smith
Realty, on Martha’s death.
Krauses Grove
2 Beach Rd | Halfmoon, NY
Friday, July 27, 2012
Starts at NoonLasts All Day
Live Music
Raw Clam Bar
Hamburgers/Hotdogs
Choice of Lobster, Steak or
Chicken Dinner
Fun for the Whole
Family
REALTOR® Merna Zinnershine,
BHG Tech Valley, and her family on
the death of her daughter-in-law
Jacqueline Zinnershine.
Softball
Horseshoes
Dancing
Volley Ball
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