REAL ESTATE LAW - RESIDENTIAL Tips of the Week
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Q&A on RESPA, cont...
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained w...
Q & A on RESPA
The Department of Housing and Urban Development (HUD) has released several revisions of the RESPA Frequently Asked Questions. The latest is dated January 28, 2010. Following is information contained w...
Q&A on RESPA
The Department of housing and Urban Development (HUD) has released a 16 page frequently asked questions report on August 13. Following is information contained within that report. <B>Q; What...
Is a commission due to the real estate agent if the owner does not accept the contract?
In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to...
A Zoning for Agricultural Use may be difficult to change
Municipalities are precluded from rezoning land that was used for agricultural purposes as of May 10, 1998 and continues to be used for agricultural purposes. See T.C.A. 6-54-126 for more information ...
Fannie Mae has implemented Anti- Flip Language
Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language may vary but will be included. ...
Fannie Mae has implemented Anti- Flip Language
Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language that will be included is as...
Protecting Tenants at Foreclosure Act
Under this Act, a tenant’s lease survives foreclosure and the tenant is allowed to remain on the property for the remainder of the lease. There, however is one big exception… If the immediate succe...
Protecting Tenants at Foreclosure Act
Under this Act, a tenant’s lease survives foreclosure and the tenant is allowed to remain on the property for the remainder of the lease. There are also other stipulations in addition to the immediate...
What Amount do I have to pay in order to redeem my property after a tax sale?
In Home Funds Direct v. Garrett, 34 TAM 24-4 (Tenn. App., May 5, 2009), the Court of Appeals held that the Owner (delinquent tax payer) only had to deposit the amount of the bid at the tax sale, plus ...
What Amount do I have to pay in order to redeem my property after a tax sale?
In Home Funds Direct v. Garrett, 34 TAM 24-4 (Tenn. App., May 5, 2009), the Court of Appeals held that the Owner (delinquent tax payer) only had to deposit the amount of the bid at the tax sale, plus ...
Fannie Mae Has Implemented Anti- Flip Language
Fannie Mae has begun requiring agents who market its REO to include provisions in sales contract that certain anti-flip language will be included in deeds. The language may vary but will be included. ...
Is a commission due to the real estate agent if the owner does not accept the contract?
In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to...
Is a commission due to the real estate agent if the owner does not accept the contract?
In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the property owners even though he brought an offer to...
Is a commission due to the real estate agent if the owner does not accept the contract?
It depends on how the listing agreement reads. In Trezevant Realty Corporation v. Threlkeld, (Tenn. App., 2008) the Court did not allow a listing real estate agent to recover a commission from the pro...
I just found out that a house that I am doing a lease/purchase on is about to be in foreclosure. ...
This situation is a very real risk involved in doing a Lease/Purchase transaction. Contractually, if your landlord is in default of the contract, you are entitled to a refund of your deposit (unless y...
I am doing a lease/purchase and I am the buyer. ...
If the contract reads that the deposit given under the Lease/Purchase was NON-REFUNDABLE in any event, then the Buyer would not be entitled to their deposit back. This is a very common provision in Le...
I am doing a lease/purchase and I am the buyer. ...
This depends on how the contract reads. If there is a contingency in the contract for the property to appraise at or above the sales price and the property does not appraise at that value, you could b...
My landlord that I am doing a lease/purchase with is being sued for injuries from an automobile ...
This is a potential issue with lease/purchases transactions. If the seller/landlord has a judgment placed against him... this judgment is recorded as a lien against any real property that he owns. So,...
What if my LANDLORD files bankruptcy during the lease period?
If your landlord files for bankruptcy protection during the lease period or even during the purchase period... this is an issue. When someone files for bankruptcy protection, there is somewhat of a f...
What if my tenants damage my property while they are under the Lease?
First, you need to go back to the contents of the lease agreement and see what the lease states. Most leases state that the tenants will be responsible for any damage that is done to the property whi...
How do the agents get paid with a Lease/Purchase?
There are several ways that the agents can be paid when doing a Lease/Purchase. One way that the agents can be paid is at the beginning of the deal. In this case, the agent would be paid their commiss...
How Can I Minimize My Risks Associated with a Lease/Purchase?
Lease/Purchase transactions definitely have risks. However, these risks can be minimized by being fully informed by a lawyer and by having a lawyer draw up the documents associated with the Lease/Purc...
ARE THERE RISKS INVOLVED IN DOING A LEASE/PURCHASE?
Yes Yes and Yes. There are risks. However, they can become calculated risks when entering these agreements with the correct information. Some risks that the Seller could encounter are as follows...
EDUCATION, EDUCATION, EDUCATION
As a real estate licensee, the more educated you are, the better level of service you can provide to consumers. You should not limit your education to "continuing education" classes. Here are sever...
When Must a Tennessee Residential Property Condition Disclosure or Disclaimer be Delivered to a ...
According to Section 66-5-203 of the Tennessee Residential Property Condition Disclosure Act, a Disclosure or Disclaimer must be delivered to the buyer prior to the "acceptance" of a purchase and sale...
How should real estate licensees handle clients' or customers' requests for ...
When your clients or customers ask you for a referral for a service provider such as a home inspector or a mortgage broker, be sure to recommend more than one person or business. You should refrain f...
Three Reasons for Not Quitclaiming Your Property:
1. Medicaid Lockout: For persons that may have to apply for Medicaid benefits to cover the cost of nursing home care, whether in the near future or a few years down the road, it is never a good idea ...
New FACT Act Rules and Regulations - Part 2 of a 2 Part Series
New rules and regulations under the Fair and Accurate Credit Transactions Act of 2003 will go into effect this Fall. The Identity Theft Red Flags and Address Discrepancy Rules go into effect on Nov...
New FACT Act Rules and Regulations - Part 1 of a 2 Part Series
New rules and regulations under the Fair and Accurate Credit Transactions Act of 2003 will go into effect this Fall. The Affiliate Marketing Regulations go into effect on October 1, 2008. These reg...
ERRORS AND OMISSIONS INSURANCE - PART 3 OF A 4 PART SERIES
What are the limits of liability for your errors and omissions insurance policy have limits of liability? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered...
ERRORS AND OMISSIONS INSURANCE - PART 2 OF A 4 PART SERIES
What is not covered by your policy? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and administered by Rice Insurance...
ERRORS AND OMISSIONS INSURANCE - PART 1 OF A 4 PART SERIES
What does your policy cover? For those real estate licensees who carry the Errors and Omissions Insurance Policy offered through Continental Casualty Company and administered by Rice Insurance Servic...
MANAGING BROKER'S SERIES - BUSINESS ADDRESS
TREC Rule 1260-2-.05 prohibits the use of a P.O. Box as the sole business address for a real estate brokerage firm. A physical address must be used instead. You may, however, include a P.O. Box in a...
MANAGING BROKER'S SERIES - TELEPHONE ANSWERING SERVICES
TREC RULE 1260-2-.04 permits "reasonable use" of a telephone answering service by a real estate broker. Posting a license at a telephone answering service or conducting the major part of one's real e...
Legal Duties of Managing Brokers Series: ADVERTISING Part 2
SECTION 62-13-310(b) of the Brokers' Act requires that signs posted on a property by a licensee must contain the firm's name and that the firm's name must be the same size or larger than the name of t...
Legal Duties of Managing Brokers Series: ADVERTISING Part 1
All advertising, regardless of the medium used, must comply with TREC Rule 1260-2-.12. Section (2)(b) of this rule provides as follows: all licensees shall advertise under the firm name offers to pu...
MANAGING BROKER'S SERIES - BUSINESS LOCATIONS
Section 62-13-309 of the Brokers' Act requires each real estate office to have a real estate firm license, a principal broker, and a "fixed location" for affiliate brokers. Branch locations must mee...
Legal Duties of Managing Brokers Series: Termination of Affiliation
When the relationship between a principal broker and an affiliate broker is terminated, regardless of the reason, Section 62-13-310 of the Brokers' Act requires the principal broker to sign and date t...
Legal Duties of Managing Brokers Series
Section 62-13-112 of the Real Estate Brokers' Act requires all principal and affiliate brokers to maintain errors and omissions insurance coverage. If a licensee fails to maintain the required insura...
Legal Duties of Managing Brokers Series
TREC Rule 1260-2-.01 (Supervision of Affiliate Brokers) states that a licensee may be affiliated only with a principal broker who is involved primarily in the real estate business and accessible durin...
Legal Duties of Managing Brokers Series
TREC Rule 1260-1-.04(1) provides that "No principal broker shall permit an affiliate broker (or broker) under his supervision to engage in the real estate business unless the affiliate broker (or brok...
Legal Duties of Managing Brokers: Escrow Accounts -- Part 3
Pursuant to TREC Rule 1260-2-.09(5), a broker may disburse funds from an escrow or trustee account upon: (1) a reasonable interpretation of the contract pursuant to which the broker is holding said f...
Legal Duties of Managing Brokers: Escrow Accounts -- Part 2
TREC Rule 1260-2-.09 When must earnest money or other such funds be deposited into an escrow account? TREC Rule 1260-2-.09(8) provides that earnest money must be deposited "promptly upon acceptanc...
Legal Duties of Managing Brokers: Escrow Accounts -- Part 1
Section 62-12-321 of the Tennessee Real Estate Brokers' Act requires every broker to keep an escrow or trustee account of funds deposited with the broker that are related to real estate transactions. ...
LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING
Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded. Because the stat...
LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING
Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded. Because the stat...
LEGAL DUTIES OF MANAGING BROKERS: RECORD KEEPING
Section 62-13-312(6) of the TN Real Estate Brokers' Act requires firms to keep records relating to any real estate transaction for three (3) years after the transaction is concluded. Because the stat...
Hot Topic - A Real Estate Broker's Duty to Adequately Supervise Licensees-Part I
This series will be a "must read" for Principal Brokers and will probably be our longest series of tips ever. This also gives us an opportunity to introduce you to the latest attorney to join our...
Change in the Law regarding Restrictions on Mobile Homes/Modular Homes Continued
In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Supreme Court held that unlike...
Change in the Law regarding Restrictions on Mobile Homes/Modular Homes Continued
In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Supreme Court ruled that unlik...
Change in the Law regarding Restrictions on Mobile Homes/Modular Homes
In Williams v. Fox, (Tenn., March 15, 2007), the Supreme Court held that a modular house was not prohibited by a restrictive covenant banning mobile homes. The Tennessee Court of Appeals had decided t...
Repairs made within the 1 year redemption period on a tax sale property may not be reimbursed
The Tennessee Court of Appeals held in State of Tennessee v. Delinquent Taxpayers (Tenn. App., Nov. 2, 2006) that the purchaser at a tax sale is not automatically entitled to be reimbursed for repairs...
One Must be a Licensed Real Estate Broker in order to receive a commission
The Tennessee Court of Appeals held in Burks v. Elevation Outdoor Advertising, LLC (Tenn. App. July 24, 2006) that unlicensed individuals who were paid a commission in connection with the sale of an o...
Notice Requirements to become a purchaser of property
The Tennessee Court of Appeals held in Williams v. Title Guaranty & Trust Co., 212 S.W. 2d 897, 901 that notice of a prior contract that interest will be effective to charge a subsequent purchaser wi...
Can I buy a property when there is already a contract on that property?
The Tennessee Court of Appeals recently ruled in Aslinger v. Price (Sept. 1, 2006) that a purchaser with "notice" of another contract on the same property must honor the seller's prior contract. The ...
If a Purchaser has notice of the existence of another contract on the same property- Are they ...
Maybe yes... The Tennessee Court of Appeals has ruled in Aslinger v. Price (Tenn. App., Sept. 1, 2006) that a purchaser with notice of another contract on the same property must honor the seller’s ...
NEW LAW PASSED RE: SEPTIC SYSTEMS
The State of Tennessee has passed an amendment that is vital to real estate as we know it. Under TCA 66-5-212 known as Disclosure of known percolation tests or absorption rates, the laws surrounding t...
Murder of a Spouse-What happens to your Real Estate?
What happens to the title to the property when it is vested as tenants by the entirety (husband and wife as an indivisible unit) and one spouse murders the other? Can the surviving spouse sell the fam...
Square Footage- How to Avoid "Intentional Misrepresentation" when dealing ...
The Tennessee Court of Appeals determined that the listing agent "estimated" the square footage in the home. Therefore, the agent did not negligently or intentionally misrepresent the square footage ...
Square Footage- How to Avoid "Negligent Misrepresentation" when dealing with ...
The Tennessee Court of Appeals determined that the listing agent "estimated" the square footage in the home. Therefore, the agent did not negligently misrepresent the square footage of the home. Th...
Square Footage- How Agents Can Avoid Liability
The Tennessee Court of Appeals has ruled in The Cadco, LLC v Barry (2006 Tenn. App. LEXIS 37) that a real estate agent was not responsible for an alleged misrepresentation of the square footage in a l...
Square Footage- How Agents Can Avoid Liability
The Tennessee Court of Appeals has ruled in The Cadco, LLC v Barry (2006 Tenn. App. LEXIS 37) that a real estate agent was not responsible for an alleged misrepresentation of the square footage in a l...
Will Bankruptcy Affect My Real Estate Lease?
Maybe yes... Maybe No.... Real property leases have special treatment under the Bankruptcy Code. A lease that is not expired must be either assumed by the debtor or rejected by the debtor completel...
Why the Court determined that Modular Structures violate Mobile Home restrictions
The Tennessee Court of Appeals has held in Williams v. Fox, (Tenn. App., March 20, 2006) that a restriction against mobile homes also included a restriction against modular housing. There was proof br...
Restrictions against Mobile Homes include Modular Homes
Many subdivisions include restrictions today. One of the most common restrictions may be the restriction against mobile homes. The Tennessee Court of Appeals has held in Williams v. Fox, (Tenn. App., ...
Agreement to Agree to Option Sales Price in a Lease is Not Enforceable
The Tennessee Court of Appeals has ruled in Four Eights, LLC v. Salem (Tenn. App., Nov. 29, 2005) that an option in a lease agreement to purchase the property for its fair market value , as agreed upo...
Agreement to Agree to Option Sales Price in a Lease is Not Enforceable
The Tennessee Court of Appeals has ruled in Four Eights, LLC v. Salem (Tenn. App., Nov. 29, 2005) that an option in a lease agreement to purchase the property for its fair market value , as agreed upo...
Part II: How do the tax assessor and an appraiser measure the square footage in a home?
There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and...
Part II: How do the tax assessor and an appraiser measure the square footage in a home?
There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and...
Gift Tax—The Gift that Keeps on Costing
The gift tax that is recognized in Tennessee may keep costing taxpayers– even after death. The gift tax also plays a big role in inheritance scenarios. All real and personal property which the decede...
Beware of Zoning Changes to the Subject PropertyDuring the Negotiation of a Real Estate Contract
The Tennessee Court of Appeals has ruled in Westchester Co. , LLC v. Metropolitan Government, (Tenn. App. , Dec. 20, 2005) that a landowner did not have a vested right in an existing zoning classific...
Beware of Zoning Changes to the Subject Property During the Negotiation of a Real Estate Contract
The Tennessee Court of Appeals has ruled in Westchester Co. , LLC v. Metropolitan Government, (Tenn. App. , Dec. 20, 2005) that a landowner did not have a vested right in an existing zoning classific...
Mobile Home assessed as Real Property
The Tennessee Court of Appeals looked closely at TCA § 67-5-802 (a) (1) for the decision in this case. The portion of the TCA code that they looked at provided that house trailers, mobile home...
Tax Sale does not include mobile home
The Tennessee Court of Appeals has held in CMH Homes, Inc. v. McEachron, (Tenn. App., Sept. 29, 2005) that the purchaser at a tax sale did not acquire the mobile home that was located on the property ...
Is the Seller responsible for not disclosing item on Property Disclosure if it was apparent to ...
Maybe not.... The Tennessee Court of Appeals has held in Daniels v Basch, (Tenn. App., October 27, 2005) that the seller of real property cannot be held liable for failing to disclose an items that i...
Is the Seller responsible for not disclosing item on Property Disclosure if it was apparent to ...
Maybe not.... The Tennessee Court of Appeals has held in Daniels v Basch, (Tenn. App., October 27, 2005) that the seller of real property cannot be held liable for failing to disclose an items that i...
Do I owe the people who pass in front of my home a duty even if they never enter my property?
The Supreme Court of Tennessee ruled in Hale v. Ostrow, 30 TAM 28-1, that a property owner owes a duty of care to a passerby to ensure that brush or foliage on his property do not obstruct the sidewal...
Do I owe the people who pass in front of my home a duty— even if they never enter my property?
Maybe yes. In Hale v. Ostrow, 30 TAM 28-1, the Tennessee Supreme Court held that a property owner owes a duty of care to a passerby to ensure that brush or foliage on his property do not obstruct the ...
Installment Contracts- “Are they enforced?
The Tennessee Court of Appeals ruled that an in favor of the sellers and found that an installment sales contract was enforceable in Kafozi v. Windward Cove, LLC , (Tenn. App., August 26, 2005) The ...
Mortgages
Public Chapter (PC) 16 extends the maximum duration of an open- end credit agreement made pursuant to an open- end mortgage from 20 years to 30 years from date of original execution. Public Chap...
Four Types of Warranties given in a General Warranty Deed
The warranties found in a General Warranty Deed read as follows: TO HAVE AND TO HOLD the said tract or parcel of land, with the appurtenances, estate, title and interest thereto belonging to the sa...
I have been deeded the property– does it really matter what kind of deed was conveyed to me?
Yes, it does matter. There are several types of deeds that convey ownership. This is very important in determining the warranty that was conveyed in the closing. The three types of deeds are as follow...
Quitclaim deeds and gift taxes The gift that keeps on costing? Part I of a multi-part tip
Here’s a common scenario. Mom and Dad decide to start giving away real estate before they die (a little pre- death estate planning so to speak), and they start asking for quitclaim deeds to effect the...
Tennessee Residential Property Disclosure– Seller: “ What if I did not know that the problem ...
The Tennessee Court of Appeals has held in Robinson v. Currey, 29 TAM 33-9 (Tenn. App. June 29, 2004) that sellers cannot be liable under the Tennessee Residential Property Disclosure Act for problems...
Tennessee Residential Property Disclosure– Seller: “ What if I did not know that the problem ...
The Tennessee Court of Appeals has held in Robinson v. Currey, 29 TAM 33-9 (Tenn. App. June 29, 2004) that sellers cannot be liable under the Tennessee Residential Property Disclosure Act for problems...
More 2004 Legislation that could affect You.....Landlord and Tenant
Public Chapter (“PC”) 683 amends the Tennessee Uniform Residential Landlord and Tenant Act to give a landlord ten business days after lease termination(rather than three business days) to inspect the ...
More 2004 Legislation that could affect You.....Loans and Mortgages
Public Chapter (“PC”) 657 requires that deeds of trust securing certain low or zero interest homes from non-profit lenders prominently state that the loan cannot be refinanced without the prior, writt...
During the 2004 session, the Legislature passed several statutes relating to real estate. ...
Recording Public Chapter (“PC”) 497 allows the recording of affidavits relating to title, including affidavits correcting scrivenor’s errors and any other affidavits in furtherance of title. Co...
Could I be liable for negligent misrepresentation?
Negligent misrepresentation is defined as one who, in the course of business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for...
Tip 206 Part IV of a multi-part tip on square footage “It was no big deal... ...
Unfortunately in Tennessee, the answer is NO!! The Tennessee Real Estate Commission will likely refer you to the old saying, “You should have known better.” Tennessee forcefully upholds contracts....
Part III “ Does the square footage advertised have to be exact?”
There may never be an exact square footage measurement. You can have two appraisers measure the same house and come up with two different square footage amounts. This is going to happen. A small marg...
Part II: How do the tax assessor and an appraiser measure the square footage in a home?
There are several ways one can go about arriving at the square footage in his home or a home that he is purchasing. Two of the most common times a house is measured is when it appraised for a loan and...
Part I of a Multi- Part Series regarding legal and ethical issues surrounding representation ...
Our office was presented with the following question regarding making representations in advertising about the square footage of a house for sale: Q: I recently approached TREC with a question tha...
Liens
Public Chapter (PC) 306 provides that judgments and decrees obtained by governmental entities after July 1, 2005, in any court in Davidson County will be a lien upon the debtor’s land from the time a ...
Disclosures
Public Chapter (PC) 171 requires owners of residential property in transfers involving the first sale of a dwelling, to furnish to purchasers a statement disclosing the amount of any impact fees or a...
Residential Closing Funds Distribution Act of 2005
The changes that have been brought about by the Residential Closing Funds Distribution Act of 2005 will apply to the following: (a) This chapter applies to transactions involving loans made by mort...
Residential Closing Funds Distribution Act of 2005
The changes that have been brought about by the Residential Closing Funds Distribution Act of 2005 may have major implications for closing agents and Realtors. The Act states that... (a) No settlement...
Residential Closing Funds Distribution Act of 2005 and How It May Affect Your Closings
Tennessee Code Annotated, Title 47 has been amended and this section affects Residential Real Estate Closings. One of the big changes is the disbursement of funds. T.C.A. defines the disbursement of f...
RESIDENTIAL REAL ESTATE TIP OF THE WEEK ERRORS AND OMISSIONS INSURANCE - PART 4 OF A 4 PART SERIES
E & O Reminders: (1) Make sure your policy is renewed timely every year so that there is no gap in coverage; (2) READ your policy so that you know what is and is not covered; (3) Contact the insuran...
Disposal of Consumer Report Information and Records
The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. In part the Act amends the Fair Credit Reporting Act by imposing a new requirement on person...
FHA Eliminates MIP Refunds for Loans Issued on or After Dec 8th, 2004
FHA refunds to borrowers who pay off their federally insured mortgages have been eliminated!! This was an approval by Congress that took place effective in January of 2005. This is a change that will...
Involuntary Liens Part IV: Lien Lis Pendens
A lien lis pendens is a type of lien that is provided for by statute in Tennessee. It attaches to the real estate described in the lien when an abstract of the suit against the property owner is reco...
Limiting Real Estate Licensee liability for property condition matters under the Tennessee ...
Below is a great reference chart for you and your clients. It is a chart explaining Buyer’s and Seller’s rights and obligations under the Tennessee Property Condition Disclosure Act. You may feel fr...
Exclusive Buyer Representation Disclosures Part 1
Irate Buyers, dazed and confused about exclusive buyer representation arrangements, have besieged Tennessee Real Estate Commission with complaints, thus leading to a policy statement by TREC. This ...
Exclusive Buyer Representation Disclosures Part 2
Here is a form for your Buyers under exclusive Buyers Agency agreements to sign to comply with the new TREC policy. Dear Buyer, Thanks for choosing our firm as your Exclusive Buyers Agency. The...
Federal Law Alert: HUD publishes Amended Anti-Flipping Rules
The Department of Housing and Urban Development recently finalized its amended regulations related to the “flipping” of properties financed by FHA mortgage loans. Under the new rules, which became eff...
Tennessee Courts and “Procuring Cause” Part 1 of a Multi-Part Series
What constitutes a “procuring cause” is always a hot topic with realtors. It comes up in the context of Board arbitration and Broker vs. Broker as to who was the procuring cause to be paid split commi...
Why was the Broker in Whitten v. Smith not entitled to a commission?
The Court looked at the language in the listing agreement that stated “If within 12 months after the termination of this agreement I sell or transfer this property to a prospect procured by you prior ...
Anti-Flipping Rules and Real Estate Investors (Forewarned is Forearmed)
Do you “bird dog” property for a real estate investor who is looking to buy distressed property, fix it up and make a quick resale? This used to be the quintessential model of capitalism- buy low/se...
Agent May Accept Service under the URLTA Part I of a multi-part series
The Tennessee Court of Appeals have ruled in Boone v. Gibson (Tenn. App., Feb. 27, 2004) that under the Uniform Residential Landlord Tenant Act, T.C.A. § 66-28-101, et.seq., a tenant may acquire perso...
Why did the Tennessee Court of Appeals hold that a Landlord’s former wife qualified as “ a ...
The Court looked at the authority that she had or purported to have. “Apparent authority of an agent must be determined by the acts of the principal and not those of the agent.” Edmond Bros. Supply Co...
RESPA Continued....Prohibited Practices under RESPA and Enforcement of RESPA: Section 8: ...
Section 8 of RESPA prohibits anyone from giving or accepting a fee, kickback or anything of value in exchange for referrals of settlement service business involving a federally related mortgage loan. ...
RESPA (Real Estate Settlement Procedures Act) Continued....More Information about RESPA
The Real Estate Settlement Procedures Act (RESPA) is a consumer protection statute, first passed in 1974. The purposes of RESPA are: (1) to help consumers become better shoppers for settlement serv...
RESPA and Kickbacks–What You Need to Know Part 1 of a Multi-part Tip of the Week
We have been asked on numerous occasions to address the topic of referral fees, otherwise known (when improperly paid or received) as kickbacks.” What law applies? What if the referral fee is disclos...
Part 2 of a multi part tip of the week on kickbacks and RESPA Questions and Answers Regarding RESPA
The following are excerpts from questions presented to the RESPA enforcement division at the HUD regional office in Atlanta. The answers are straight from the HUD investigator who pursues RESPA compla...
Part I of a multi-part series on Conservation easements
What is a conservation easement and can it benefit my client? A conservation easement is a negotiated agreement between a landowner and certain governmental entities that are qualified to monitor and...
Part II of a multi- part series on Conservation easements
What is a conservation easement and can it benefit my client? How will a conservation easement affect my property? The restrictions in a conservation easement generally prohibit any uses of the land...
Part III of a multi- part series on Conservation easements
Tax consequences of Conservation easements There are several benefits available to a landowner who donates a conservation to a qualified organization. These benefits are: (1) A charitable incom...
Landowners and Tree Liability
Landowners can be liable for damage caused by healthy trees Trees are a great form of adornment for one’s home. However, your neighbor may have a differing opinion about your trees. Healthy trees g...
Home Inspector’s Liability Limitation is not Enforceable
The Tennessee Court of Appeals has ruled in Russell v. Bray (2003) that a provision in a home inspection contract limiting the inspector’s liability to the fee paid is void. The plaintiffs (home buyer...
Contracts limiting liability- Enforceable or not?
As a general rule, Tennessee courts have recognized that parties may contract that one shall not be liable for his negligence to another. However, this is not without exceptions. The Tennessee Supreme...
Non Use of an Express Easement is not Abandonment
The Tennessee Court of Appeals held in Moore v. James Devault, et al (2002) that necessity is not a prerequisite to establishment of an express easement. Therefore, the principle that an easement ceas...
Part III of a multi-part series on Building Permit Basics “Call before you build”–Getting a ...
You cannot get a building permit without first having an address. This is one of the very first steps that you need to take after purchasing a lot to build on. Some lots will already have an address. ...
Family Real Estate Deals...Don’t Find Yourself in a Family Feud
Some real estate deals are tough, but family deals always seem to be tougher. The Courts have a reasonable amount of understanding when a contract to purchase real estate falls through. However, th...
For Your Protection: Get a Home Inspection, Which Now Includes Radon Testing
Most realtors are very familiar with home inspections. For several years, FHA has required that the buyer sign a disclosure form entitled “For Your Protection: Get a Home Inspection.” A home inspect...
Part III of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
You’ve also got to love the last sentence of T.C.A. section 66-5-208 (d)(1). It is poetry to the ears of real estate agents seeking to limit liability for property condition matters. The statute read...
Part IV of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads: Nothing in this subsection s...
Part V of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads: Nothing in this subsection s...
Part VI of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
The second part of the amendment to T.C.A. section 66-5-208 serves as a great review of the other disclosure obligations you have as a real estate licensee, and reads: Nothing in this subsection sh...
Part VII of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
Summary Over the last six tips we examined the new law in Tennessee which limits Real Estate licensee liabilities for property condition matters. Because the statute also states that it does not ...
A Recipe for Success in 2004
The attorneys and staff at Smith.Sholar.Associates wish you and yours a very happy, healthy, and wealthy New Year Here’s a few ideas for New Year’s resolutions. Studying biographies of success...
Meth Lab Busts Impact Real Estate Community
The scourge of “home brewed” methamphetamine is impacting realtors, landlords and property owners, and creating environmental clean up sites, costly remediation, and disclosure issues for real estate...
Part I of a multi-part series on Building Permit Basics
One of the questions Realtors and Real Estate Attorneys are asked frequently is “How do I get a building permit?” The procedure and requirements on obtaining building permits and inspections vary- eac...
Part II of a multi-part series on Building Permit Basics
Once the permit has been obtained, there are several government inspections required during the building process. Using Sumner County, Tennessee inspection requirements as an example, here’s how they ...
Part V of a multi part tip on identity theft and fraud in real estate transactions: Home ...
Here are a few more ways fraudsters get personal information so they can steal your identity: “red flagging” and “dumpster diving.” “Red flagging” refers to the practice of stealing outgoing mail f...
SSA Most Requested Hits
We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a for...
SSA Most Requested Hits
We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a for...
SSA Most Requested Hits
We’ve had a number of requests to republish the forms Todd and Brian developed to help real estate licensees comply with the Tennessee Property Condition Disclosure Act. So this week we give you a for...
SSA Most Requested Hits
Here’s a form that you will want to use. It is a complete list of all of the exemptions under the Tennessee Property Condition Disclosure Report Act. Just have the Seller check the appropriate box and...
New USA Patriot Act Identification Requirements
As of October 1, 2003, The USA Patriot Act requires lenders to collect information from borrowers to confirm their identity. The Patriot Act requires: Borrower’s name(s) Borrower’s date(s) of bi...
Part I of a Multi-part Tip on the New Law Limiting Real Estate Licensee Liability
Rejoice In June of 2003 an amendment to T.C.A. section 66-5-208 became the law of the land and serves to further limit Real Estate licensee (and Broker) liability for property condition matters, but ...
Part III of a multi part tip on identity theft and fraud in real estate transactions: Home ...
Virtually the only way you can protect yourself from identity theft is to annually obtain copies of your credit reports from the three major credit reporting agencies. Then scrutinize the repo...
Part IV of a multi-part tip on identity theft and fraud in real estate transactions: Home ...
Another way to protect yourself and your clients is to do business with mortgage companies and closing attorneys that you know and trust. Beware of transactions that totally take place “by mail,” whe...
Part I of a multi-part series on fixtures: Singlewides and doublewides–When is manufactured ...
In Tennessee, manufactured housing (single and doublewide) is considered personal property and has a “title” document issued by the state which is virtually identical to a car title. Manufactured hou...
Part II of a multi-part series on fixtures. Practical problems and limitations on financing.
Last week we addressed manufactured housing as fixtures and what documents must be filed for the housing to be deemed affixed to the land. Why is this important? Freddie Mac and Fannie Mae (and pro...
Part III of a multi-part series on fixtures: What are “Trade Fixtures”?
We’ve already discussed what classifies property as a “fixture.” So what is a “trade fixture”? Definitions vary, but most agree that a trade fixture is personal property used in a trade or business...
Part I of a Multi-Part Series on HUD Regulations: Addressing “Flipping.”
Do back flips over “flipping” – FHA targets fraudulent multiple transfers. Though “flipping” has been present for quite some time, it has become especially prevalent lately. Essentially, “flippi...
Part II of a Multi-Part Series on HUD Regulations: Addressing “Flipping. ...
Here are the new rules you need to know: 1. If the seller has acquired the property within the past ninety days, it is not eligible for an FHA-insured mortgage. 2. If the current owner has ac...
“Why should I buy title insurance?” - Part I of a Multi-Part Series
Buyers are often confused by the various title insurance policies available to them. The following are a few of the most frequently asked questions. “Why should I even purchase title insurance?”...
“Why should I buy title insurance?” - Part II of a Multi-Part Series
Buyers may question the likelihood of an incident arising in which they would even need title insurance, but title problems are very real. The buyer has little say in the purchase of lender’s title ...
Part I of a multi part tip on identity theft and fraud in real estate transactions: Home ...
Identity theft is the largest and fastest growing category of crime in America, and the Internet has certainly facilitated this. Now a version of identity theft is impacting real estate loans and sa...
Part II of a multi part tip on identity theft and fraud in real estate transactions: Home ...
A second form of “home equity theft” involves the fraudulent purchase and sale of a victim’s property and works like this: Two “fraudsters” steal the identities of two victims. One con person then p...
Part III of a multi-part series on “As Is” contracts and sales: How to draft a true “As Is” ...
In order to draft a true “As Is” contract where the Seller has no obligation to make repairs, several contract drafting areas must be addressed. Here are three points to consider: 1. You must rem...
Part IV of a multi part series on “As Is” contracts and sales: Using appropriate disclaimers to ...
The Uniform Commercial Code in Tennessee governs the sale of items of personal property in Tennessee and creates two types of implied warranties: implied warranty of fitness for a particular purpose,...
Part VI of a multi-part series on “As Is” contracts and sales: What are the Real Estate ...
Even if a property is being sold “As Is,” a real estate agent has several affirmative duties to disclose known defects. They are found in Tennessee agency laws and the Property Condition Disclosure R...
Limiting Real Estate Licensee liability for property conditions under the Tennessee Property: ...
The Property Condition Disclosure Report statute limits your liability if you live up to your duties under the act. What are they? Here you go In order to eliminate liability for property conditio...
Three new Compliance Forms from Smith.Sholar. ...
The first form is a complete list of all exemptions available to a seller. Under the TREC record retention rules, you should keep this form or a notation of the applicable exemption in your file, ev...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 15B
1260-5-.14 Repetition of Course Content is amended by deleting the text of the rule in its entirety and replacing it with the following language so that as amended the rule shall read: 1260-5.14 Repe...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 15A
1260-5-.01 Purpose is amended by deleting the text of the rule in its entirety and replacing it with the following language so that as amended the rule shall read: 1260-5-.01 PURPOSE. The Tennessee R...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 14 of 15
1260-7-.03 BRANCH OFFICES. (1) A firm will be deemed to maintain a “branch office” if it utilizes an office or business location other than that which is on file with the Commission and: (a) Adver...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 13 of 15
1260 -7.02 Escrow/Trust Accounts. (1) Escrow/trust accounts shall be established and held in a federally insured and properly licensed financial institution within the state of Tennessee. (2) Th...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 12 of 15
1260-6.15 Conduct. It shall be improper dealing within the meaning of T.C.A. 66-32-121(f) for a developer or sales agent to retain the services of an individual or entity required to be registered wi...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 11 of 15
1260-2-.38 Limitations of Liability. It shall be improper conduct for a licensee to enter into or request or require a party represented by said licensee to enter into any agreement which attempts to ...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 7 of 15
1260-2-41 UNLICENSED EMPLOYEES. Utilization of unlicensed employees or independent contractors by a licensee shall be subject to the following guidelines: 1. Unlicensed individuals who are employed ...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 8 of 15
The new advertising regulations contain the newest changes to existing law. Also, they are the most likely of the new regulations to have portions postponed and delayed for implementation, particular...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 9 of 15
The Tennessee Real Estate Commission has added new teeth to existing regulations, adding penalties for licensee violations of Real Estate Commission regulations. Rule 1260-2-.32 CIVIL PENALTIES i...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 10 of 15
This tip contains two of the shortest new regulations. 1260-2-.39 Comparative Market Analysis and Broker Opinions. Where a licensee provides a comparative market analysis or a broker opinion the lice...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 6 of 15
This amended section has to do with the principal broker’s duties as broker. Note that the biggest new requirement is that the broker must provide 10 hours of mandatory new education to new affiliate...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 5 of 15
Note that the big changes in this section have to do with using model homes and modular buildings as offices and whether their use constitutes a branch office that would require a principal broker’s...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 4 of 15
Rule 1260-2.11 Personal Interest is amended by adding a new paragraph (3) which shall read as follows: (3) (a) In any transaction where a licensee provides real estate services and where the license...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 3 of 15
New Rule 1260-2.09 deals with deposits and earnest money. The new rule reads as follows: Rule 1260-2.09 Deposits and Earnest Money is amended by deleting the text of the rule in its entirety and by s...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- part 2 of 15
The proposed regulation changes from the Tennessee Real Estate Commission contain new requirements for record retention. These regulations have not been enacted at this time, but may be coming your ...
Termite Letter Problems
It seems we discover new and unique termite letter problems every day. Recently a closing was briefly put on hold due to the following termite letter notation. The pest control inspector noted that a...
Fair Housing Advertising Requirements
Complying with the Fair Housing Act regarding advertising can be a challenge. For example, is it required that all of your advertising contain the fair housing logo (the house with the = sign)? Ac...
Property Lying in Two Different Counties
Often one parcel of property will be split by a county boundary and thus be in two different jurisdictions. The best practice is to search the title and record the documents in both counties. ...
Unclaimed Property Escheat to the State
In order to enhance revenue to state government, the State of Tennessee Treasury Department Division of Unclaimed Property is becoming more aggressive in seizing unclaimed property. This would include...
No Contract? No Commission
A recent Tennessee Court of Appeals decision affirmed prior Tennessee case law and ruled that without an express agreement, buyers are not liable to real estate brokers for a real estate commission, ...
Fraud and Property Condition Matters: Part II of III
In Anderson v. Warren ( Tenn. App. Dec 12, 2001) a trial court found liability for fraud for misrepresentation of the property’s condition by the sellers and the real estate agent, and held that cont...
Fraud and Property Condition Matters: Part III of III
The past two tips of the week examined Anderson v. Warren ( Tenn. App. Dec. 12, 2001). This case deals with seller liability for fraudulent misrepresentations and with property condition issues. As...
Fraud and Property Condition Matters: Part I of III
A recent Tennessee Court of Appeals decision sheds light on the interaction of fraud, the Tennessee Property Condition Disclosure Report laws, contract condition disclaimers and property acceptance fo...
The VA Loan
This continues a series on basic types of loan financing. We will address conventional loans, FHA loans, FHA/THDA loans, and VA loans, and their ability to meet your clients' unique financial needs. ...
A multi-tip review of the Proposed Tennessee Real Estate Commission Regulations- Part 1 of 15
The Tennessee Real Estate Commission has adopted 23 pages of new and amended administrative regulations that highly impact real estate brokers and licensees and affect exactly how they conduct busine...
Statute of Frauds
Contracts for the sale of real estate must be in writing and signed by all parties to be enforceable in the state of Tennessee. This is due to the “statute of frauds,” which in Tennessee holds that, ...
Payoffs are a key element in determining a listing price– Especially if the property is in ...
There are many factors that an agent takes into consideration when determining a listing price. One of those factors is the payoff. Typically, the owner gives you a ballpark figure for the payoff and ...
FHA MIP Refunds – “ Do I get any money back?- How?”
Q: I had an FHA mortgage, and I think that I may be due a refund of my mortgage premium. How can I find out? A: A homeowner can check the website for the U.S. Department of Housing and Urban Develo...
Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your ...
There are many different exemptions to the Interstate Land Sales Act. The below exceptions would exempt a developer from being under ANY of the rules and regulations of the Act. (1) The sale or ...
Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your ...
The Interstate Land Sales program protects consumers from fraud and abuse in the sale or lease of land. Following is a continuation of questions and answers in purchasing land: Q: Can HUD take...
Interstate Land Sales-Guidelines for Developers How to Be Informed and How to Protect your ...
The Interstate Land Sales program protects consumers from fraud and abuse in the sale or lease of land. In 1968 Congress enacted the Interstate Land Sales Full Disclosure Act, which is patterned after...
Landlords– “Self Help” evictions are costly– Obtain a court order first!!
The Tennessee Court of Appeals has ruled in 94th Aero Squadron v. Memphis-Shelby Co. Airport Authority (Tenn. App., Nov. 2, 2004) that a lessor may not reclaim leased premises without complying with T...
Quitclaim Deeds, Special Warranty Deeds and General warranty Deeds–All Deeds are not created equal!!
There are several types of deeds that convey ownership. The difference between them are the contractual warranties of title given by the seller. The three types of deeds are as follows: (1) Quitcla...
Exclusive Buyer Representation Disclosures: Part 2
Here is a form for your Buyers under exclusive Buyers Agency agreements to sign to comply with the new TREC policy. Dear Buyer, Thanks for choosing our firm as your Exclusive Buyers Agency. The...
Exclusive Buyer Representation Disclosures: Part 1
Irate Buyers, dazed and confused about exclusive buyer representation arrangements, have besieged Tennessee Real Estate Commission with complaints, thus leading to a policy statement by TREC. This ...
Why did the Tennessee Court of Appeals hold that a Landlord’s former wife qualified as “ a ...
The Court looked at the authority that she had or purported to have. “Apparent authority of an agent must be determined by the acts of the principal and not those of the agent.” Edmond Bros. Supply Co...
Agent May Accept Service under the URLTAAgent May Accept Service under the URLTA: Part I of a ...
The Tennessee Court of Appeals have ruled in Boone v. Gibson (Tenn. App., Feb. 27, 2004) that under the Uniform Residential Landlord Tenant Act, T.C.A. 66-28-101, et.seq., a tenant may acquire perso...
Tennessee Courts and “Procuring Cause” : Part 1 of a Multi-Part Series
What constitutes a “procuring cause” is always a hot topic with realtors. It comes up in the context of Board arbitration and Broker vs. Broker as to who was the procuring cause to be paid split commi...
Part III of a multi-part series on Building Permit Basics
“Call before you build”–Getting a Property Address You cannot get a building permit without first having an address. This is one of the very first steps that you need to take after purchasing a lo...
Part I of a multi-part series on “fixtures.” What is a fixture?
This is the first in a series of tips dealing with real estate fixtures. Oftentimes, confusion arises regarding exactly what qualifies as a “fixture.” Definitions vary and abound, but the Encyclo...
"AS IS" Contracts and Sales
Part II of a multi part series on "As Is" contracts and sales - How to protect a Buyer in an "As Is" sale. Some Agents and Buyers are skeptical about properties being sold "as is," fearing t...
The Conventional Loan
Conventional loans are defined as any loan made by a lender aside from an FHA or VA loan. Most mortgage loans are designed to comply with Federal National Mortgage Association requirements so that t...
