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How Do I Love Thee . . . Send the Love Letters to A Sweetheart, Not A Seller

Today’s market is HOT!  Really HOT.  Like a cheap romance novel HOT.  Sellers are receiving an enormous amount of attention, with multiple buyers wooing them for their homes by offering prices well over list, large due diligence fees, and yes, love letters.

Who is encouraging these love letters designed to pull at the heartstrings of the seller and lull them into accepting a particular buyer’s offer over others?  Usually the buyer agent.  Maybe the buyer has heard the letter is needed from family or friends trying to help out.  The bottom line is such letters can create a problem and are best avoided by all.

The purpose of a “love letter” is simple enough – a buyer wants to be the chosen one, and it seems reasonable enough to attempt to win their dream home by pouring out their hearts to the sellers.  However, these letters can pose serious fair housing risks as they usually contain personal information about the buyers which may result in conscious or unconscious bias in selection by the sellers. 

What does that mean?  Let’s say the buyers include a photograph or two of themselves.  Now the seller is looking at the buyers and can see their race, whether or not they have children (familial status), or whether or not they are heterosexual.    The buyers may refer to how they can’t wait to put up a Christmas tree by the fireplace – an indication of their religious beliefs.  All of these things about the buyers may form the basis of selection by the sellers.  These factors go beyond the price and terms of an offer.  The sellers may make their choice – consciously or unconsciously – based on facts about the buyers’ race, familial status or religion, all of which are protected categories under fair housing laws. 

If you are the listing agent, you should educate your sellers about the pitfalls of love letters – this type of letter opens them up to criticism and possibly to civil liability and they should not look at such letters even if they are sent directly to the sellers from the buyers.  Sellers should only be considering offers based on objective criteria – price and terms.  Your firm may have a policy against the use of such letters – if so, let your clients know that if you receive such a letter with an offer you will not be passing it on to them.   NAR recommends that no such letters be accepted as part of an MLS listing.  Document the reasons your client chose or rejected each offer.

If you are a buyer agent, your firm may also have a policy against the use of such letters.  Never recommend that a buyer prepare a love letter for the seller or tell the buyer to send such a letter directly to the sellers.  Let your buyers know the market is hot, and they should make their highest and best offer if they want to be successful.  Prepare them for the fact that, in an extremely competitive market, they will likely lose a number of properties before they find the home that was meant to be theirs. 

The key here is to protect your clients from possible harm by removing the temptation to go with a contract simply because photographs or letters tug at their hearts and instead have them choose the best offer on the table.  Love may be blind, but unconscious bias is real and sees clearly.  Keep your clients and yourself safe from any potential fair housing issues.

NEW Working With Real Estate Agents Disclosure Is Available

In January 2020, the Consumer Federation of America (“CFA”) published a report entitled, “Why Required Real Estate Agent Disclosures about Representation Fail and How They Can Be Improved.” The report contains a list of recommendations for improving agency disclosure forms.

The Commission’s Working With Real Estate Agents brochure has been used for approximately 25 years. Although it contains good information, changes in technology, communication methods, and the faster pace of real estate transactions have made its format less user friendly.

The Commission has created a new disclosure form (“Working With Real Estate Agents Disclosure”) which will make agency disclosure quicker and easier for brokers and more understandable for buyers and sellers. The form is just two pages in length, with one page dedicated to sellers and one page dedicated to buyers. A broker explaining agency to a seller need only review the seller side of the form; likewise, a broker disclosing agency relationships to a buyer need only review the buyer side.

The new form replaces the old Working With Real Estate Agents brochure as the form that brokers must review with prospective buyers and sellers at first substantial contact. The new disclosure form is now available on the Commission’s website (ncrec.gov) under the “PUBLICATIONS” tab.

The Commission encourages brokers to begin using the form immediately. Effective 7/1/21, brokers will be required to use this form in all commercial and residential sales transactions.

On 4/26/21, the Commission hosted a 60-minute webinar introducing this new form. A recording of the webinar is available for viewing on the Commission’s website.

This form will be translated into Spanish and will be discussed in the 2021-2022 GENUP and BICUP courses. Aside from the introduction of this new form, there has been no change to the rule which requires agency disclosure (A .0104(c)) and no change in the types of agency relationships that brokers may offer. The only change is in the form that brokers use to explain agency relationships.

Disciplinary Actions

KRISTINE YATES BOURGEOIS (RALEIGH) – By Consent, the Commission reprimanded Ms. Bourgeois effective March 10, 2021. The Commission found that Respondent acted as the buyer’s agent in the purchase of residential real property. After going under contract, the listing agent sent Ms. Bourgeois a text stating “new main water line will be installed due to slow leak somewhere in the main line.” Ms. Bourgeois failed to confirm that the water line was replaced prior to closing. The subject property closed without the water line being replaced. 

JOHN CARL CARMENATE (BURLINGTON) – By Consent, the Commission reprimanded Mr. Carmenate effective March 10, 2021. The Commission found that Mr. Carmenate, acting as the qualifying broker and broker-in-charge of a firm, failed to renew the Firm’s license with the Commission and failed to keep its Certificate of Authority active with the Secretary of State. Following expiration of the Firm’s license, Mr. Carmenate continued to manage properties in North Carolina and failed to respond to Letters of Inquiry and other communications from Commission staff.

STEPHANNIE ANNETH CHESLEY (MOORESVILLE) – By Consent, the Commission reprimanded Ms. Chesley effective March 10, 2021. The Commission found that Ms. Chesley acted as a co-listing agent for residential real property. The first buyer (“Buyer 1”) terminated the contract after having a home inspection performed. This inspection report was given to Ms. Chesley and noted certain material issues throughout the home. She took the home off the market while the sellers had their insurance company fix the leak in the kitchen and make extensive repairs to that area of the home as well as the crawlspace then placed the property back on the market and it went under contract with another buyer (“Buyer 2”). Buyer 2’s home inspection revealed some of the same material issues noted in Buyer 1’s inspection report. Buyer 2 terminated the contract and gave a copy of their inspection report to Ms. Chesley. The sellers addressed some, but not all, of the material issues noted in Buyer 2’s inspection report. Ms. Chesley placed the property back on the market and a few days later, it was under contract with another buyer (“Buyer 3”). Buyer 3 terminated before the end of the due diligence period and did not provide a copy of their inspection report to Ms. Chesley. She then placed the property back on the market and a few weeks later, it was under contract with another buyer (“Buyer 4”) who ultimately purchased it. Ms. Chesley failed to disclose the material issues noted on previous home inspection reports or other inspections performed, not corrected by the sellers, to Buyer 2, Buyer 3, and Buyer 4 or their agents at the time the offers were made. Ms. Chesley failed to advise her seller-clients to update their original answers on the property disclosure form.

MENATALLA EFFAT (CHARLOTTE) – The Commission accepted the voluntary surrender of the broker license of Ms. Effat effective February 17, 2021. The Commission dismissed without prejudice allegations that Ms. Effat violated provisions of the Real Estate License Law and Commission rules. Ms. Effat neither admitted nor denied misconduct.

JENNIFER PEARL GALLAGHER (RALEIGH) – By Consent, the Commission suspended the broker license of Ms. Gallagher for a period of twelve (12) months effective January 31, 2021. The Commission required the first sixty (60) days to be active and stayed the remainder of the suspension effective April 1, 2021, and placed Ms. Gallagher on probation until January 30, 2022. The Commission found that Ms. Gallagher was showing a residential property to her buyer-client and entered the subject property prior to her buyer-client arriving. A camera inside the subject property captured Ms. Gallagher consuming alcohol from some of the property owner’s bottles. Ms. Gallagher later sent a letter of apology to the property owner and has replaced the bottles. The Commission notes that Ms. Gallagher is remorseful for her actions.

STANLEY B MARTIN (HIGH POINT) – By Consent, the Commission reprimanded Mr. Martin effective March 9, 2021. The Commission found that in May 2018, Mr. Martin acting as the qualifying broker and the broker-in-charge for a firm, misrepresented the square footage for a property he listed. Mr. Martin listed the property as having 2,150 square feet. In fact, the property was only 1,590 square feet, a difference of approximately 36%.

LANE FRANKLIN MCKINNEY (MOORESVILLE) – By Consent, the Commission reprimanded Mr. McKinney effective March 10, 2021. The Commission found that Mr. McKinney acted as a co-listing agent for residential real property. The first buyer (“Buyer 1”) terminated the contract after having a home inspection performed. This inspection report was given to the co-listing agent and noted certain material issues throughout the home. The home was taken off the market while the sellers had their insurance company fix the leak in the kitchen and make extensive repairs to that area of the home as well as the crawlspace then the property was placed back on the market and it went under contract with another buyer (“Buyer 2”). Buyer 2’s home inspection revealed some of the same material issues noted in Buyer 1’s inspection report. Buyer 2 terminated the contract and gave a copy of their inspection report to the co-listing agent. The sellers addressed some, but not all, of the material issues noted in Buyer 2’s inspection report.  The property was placed back on the market and a few days later, it was under contract with another buyer (“Buyer 3”). Buyer 3 terminated before the end of the due diligence period and did not provide a copy of their inspection report to Mr. McKinney. The property was then placed back on the market and a few weeks later, it was under contract with another buyer (“Buyer 4”) who ultimately purchased it. Mr. McKinney failed to disclose the material issues noted on previous home inspection reports or other inspections performed, not corrected by the sellers, to Buyer 2, Buyer 3, and Buyer 4 or their agents at the time the offers were made. Mr. McKinney failed to advise his seller-clients to update their original answers on the property disclosure form.

TIFFANY ADAMS MYERS (FAYETTEVILLE) – The Commission accepted the permanent voluntary surrender of the broker license of Ms. Adams Myers effective February 17, 2021. The Commission dismissed without prejudice allegations that Ms. Adams Myers violated provisions of the Real Estate License Law and Commission rules. Ms. Adams Myers neither admitted nor denied misconduct.

NRT CAROLINAS LLC (CHARLOTTE) – By Consent, the Commission reprimanded NRT Carolinas LLC effective February 17, 2021. The Commission found that the acting broker-in-charge (“BIC”) failed to supervise two provisional brokers (“PB’s”) who acted as co-listing agents where they failed to ensure that their seller-clients had either repaired all material items identified on home inspection reports or updated their answers on the property disclosure form. The PB’s also failed to disclose any remaining material items to buyers at the time offers were made. The Commission notes that Respondent has updated their policy manual to include increased supervision and training of PB’s.

PIEDMONT REALTORS LLC (HIGH POINT) – By Consent, the Commission reprimanded Piedmont Realtors LLC effective March 9, 2021. The Commission found that in and May 2018, the firm misrepresented the square footage for a property it listed. Piedmont Realtors LLC listed the property as having 2,150 square feet. In fact, the property was only 1,590 square feet, a difference of approximately 36%.

RIVER WALK PROPERTIES (HAW RIVER) – The Commission accepted the permanent voluntary surrender of the broker license of River Walk Properties effective February 17, 2021. The Commission dismissed without prejudice allegations that River Walk Properties violated provisions of the Real Estate License Law and Commission rules. River Walk Properties neither admitted nor denied misconduct.

VICKI SMITH STOWE (WILMINGTON) – By Consent, the Commission reprimanded Ms. Stowe effective March 10, 2021. The Commission found that Ms. Stowe acted as the listing agent in a residential transaction where the seller had a home inspection performed prior to listing the property for sale, a copy of which was given to her. This inspection revealed material issues with the property. No repairs were made to the property and the RPOAD was completed by the seller with no issues noted. A few months later, Buyer #1 went under contract to purchase the subject property and had a home inspection performed. Ms. Stowe failed to disclose all material issues to Buyer #1. Similar material issues were noted on Buyer #1’s inspection report as were noted on the pre-listing inspection report and a copy of Buyer #1’s report was given to Ms. Stowe. Buyer #1 later terminated the contract. The seller addressed some, but not all, material issues noted in the previous inspection reports such as issues with the HVAC system and electrical. The next month, Buyer #2 went under contract to purchase the subject property and had a home inspection performed. Ms. Stowe failed to disclose all material issues to Buyer #2. Similar material issues were noted on Buyer #2’s inspection report as were noted on Buyer #1’s inspection report and the pre-listing inspection report. Buyer #2 terminated the contract and a copy of his inspection report was given to Ms. Stowe.  

THE KEY GROUP ENTERPRISES INC. (FAYETTEVILLE) – The Commission accepted the permanent voluntary surrender of the broker license of The Key Group Enterprises Inc. effective February 17, 2021. The Commission dismissed without prejudice allegations that The Key Group Enterprises Inc. violated provisions of the Real Estate License Law and Commission rules. The Key Group Enterprises Inc. neither admitted nor denied misconduct.

Temporary Rules 58G .0104 and .0105 will expire on April 11

The Commission initiated temporary rules 58G .0104 and .0105 during 2020. The two rules provided various education-related waivers and extensions, in response to the COVID-19 pandemic. Both rules will expire on April 11, 2021.

As of April 12, 2021, education providers, Prelicensing students, and licensees will be subject to the standard education and licensing requirements set forth in the law and Commission rules, as follows:

Continuing Education (CE) Deadline: The deadline to complete CE courses for the 2020-21 license year* is June 10, 2021. See Commission rules 58A .1702 and 58H. 0404.

*Not sure which CE courses you need to take? Log into your license record on the Commission’s website to check your CE record.

Prelicensing and Postlicensing End-of-Course Examinations: Closed-book, proctored end-of-course examinations are required in all Prelicensing and Postlicensing courses. See Commission rule 58H .0207.

180-day Examination Eligibility Period: An applicant who is subject to the license examination requirement is granted a 180-day Examination Eligibility period, during which the applicant may schedule and take the license examination with Commission’s examination provider, PSI. An applicant who does not pass the examination during the allotted 180-day period must file another complete license application with the Commission and receive a new Notice of Exam Eligibility before being permitted to schedule another examination attempt with PSI. Note that applicants who are subject to the comprehensive examination are required to pass both sections of the exam during the same 180-day period to be eligible for licensure. See Commission rules 58A .0401 and .0403. Also, a detailed explanation of the examination process is provided on pages 13-25 of Real Estate Licensing in North Carolina.

Postlicensing Education deadline: In order to maintain eligibility for active license status, a provisional broker must complete the 90-hour Postlicensing education program within 18 months of the date of initial licensure. See Commission rule 58A .1902.

For more information regarding education and licensing requirements, contact the Education and Licensing Division at LS@ncrec.gov or 919.875.3700.

How to access the digital and print versions of the NC Real Estate Manual

Did you know that the NC Real Estate Manual is available in web-based and print versions?

The web-based version of the Manual was first introduced in 2019, featuring easy navigation and searching, as well as new visual elements such as comic strips and assessments. Since then, functionality has expanded to include highlighting and note-taking features. The web-based version is updated when there are changes in License Law and Commission rules, so it is always current.

Licensees who wish to access the digital version of the Manual must register for a subscription. A one-time $25.00 fee provides two full years of access.  

To access the digital version of the Manual:

  1. go to www.ncrec.gov;
  2. click on Publications;
  3. click on NC Real Estate Manual; and
  4. click Register for Digital Subscription.

Revised in 2020, the print edition of the Manual now includes content that has been added into the digital version during recent years, including comic strips and assessments.

To order a print copy of the 2020 edition of the Manual:

  1. go to www.ncrec.gov;
  2. click on Publications;
  3. click on NC Real Estate Manual; and
  4. click Order Here; and
  5. click NC Real Estate Manual 2020 edition.

For more information about the NC Real Estate Manual, contact the Education and Licensing Division at LS@ncrec.gov or 919.875.3700.

Current Stats: Monthly Licensee Count as of March 1, 2021

The NCREC 2021 Virtual Educators Conference

After a hiatus – the result of the 2020 Educators Conference having been a casualty of COVID-19 – the North Carolina Real Estate Commission was excited to welcome real estate instructors and various education provider officials to its 2021 Spring Educators Conference on Tuesday, March 23, 2021.  With mass gatherings still discouraged, this year’s event was conducted via Zoom technology, and highlighted the theme, Back to the Future.

In order to assure a positive experience for attendees and to minimize bandwidth issues, registration for this first ever virtual conference was limited to 150 participants.  However, the entire day’s presentations were recorded and are being fashioned into an asynchronous distance presentation which will be available in early April.  Thus, even those who could not attend the live virtual event will benefit from the information shared.

Sandra O’Connor, Commission Chair, opened the conference at 8:30 with a welcome to all the attendees.  Following the welcome, Ms. O’Connor announced the creation of a new Commission award: The Industry Champion Award, which was presented posthumously to Garth Dunklin. The award was accepted by Helen Dunklin, Garth’s wife, and his children, Macy and Garth Jr., were also in attendance.

After the welcome, the day-long event featured the following presentations by Commission staff members:

The conference culminated with the presentation of the 2021 Larry A. Outlaw Excellence in Education Award to George Bell by Commission Chair O’Connor. The Commission established the Larry A. Outlaw Excellence in Education Award in 2016 to honor the Commission’s late former Director of the Education and Licensing Division. As this year’s recipient of the Larry Outlaw award, Mr. Bell demonstrated ongoing excellence in and outstanding contributions to real estate education in North Carolina.

The conference concluded with a final wrap-up/Q&A session moderated by Ms. Hamlin. The Commission thanks North Carolina’s real estate education community for its continued interest and support, and congratulates George Bell on his award.

Getting Agency Representation Right: Clarifying the Practice of Seller Subagency

The Basics of Representation Agreements

Under North Carolina licensing statutes and rules there is no such thing as a “default” form of representation or acting in a real estate transaction as a broker for neither party. All representation is required to be by express consent of the consumer. The provisions of Rule 58A .0104(a) state that:

Every agreement for brokerage services in a real estate transaction and every agreement for services connected with the management of a property owners association shall be in writing and signed by the parties thereto. Every agreement for brokerage services between a broker and an owner of property to be the subject of a transaction shall be in writing and signed by the parties at the time of its formation. Every agreement for brokerage services between a broker and a buyer or tenant shall be in writing and signed by the parties thereto not later than the time one of the parties makes an offer to purchase, sell, rent, lease, or exchange real estate to another.

NCREC has long made clear the implications regarding listings and sellers. No broker may undertake to provide any brokerage services to a seller without a written listing agreement. A broker who engages in advertising, holding open houses, or acting on behalf of a seller in the absence of a written express agreement with the owner of the property operates in violation of Rule 58A .0104.

Alternately, a broker may begin working with a buyer without a written agreement, but the broker must do three things in order for representation to be properly conducted under the law and Commission rules, as follows:

  1. comply with the mandatory agency disclosure provisions of Rule 58A .0104(c) using the Working With Real Estate Agents (WWREA) publication at first substantial contact;
  2. obtain the express authority of the buyer to act on their behalf under an oral agreement of representation in accordance with Rule 58A .0104(a); and
  3. reduce the oral agreement to writing prior to the presentation of an offer in accordance with Rule 58A .0104(a).

Practicing oral buyer agency still requires express consent of the buyer. Moreover, Rule 58A .0104(a) places limitations on oral buyer agency agreements, as follows:

However, every agreement between a buyer or tenant that seeks to bind the buyer or tenant for a period of time or to restrict the buyer’s or tenant’s right to work with other agents or without an agent shall be in writing and signed by the parties thereto from its formation.

Working with a Buyer Who Refuses to Give Authorization for Representation

Because a broker may not represent a buyer without express authorization, either orally prior to presenting an offer or in writing by the time an offer is presented, when a buyer refuses to consent to representation, the broker’s only option to remain involved in the offering of brokerage services is for the broker to act as seller’s subagent. This is NOT an automatic default position. It is still a form of representation and requires the written consent of both parties.

A broker’s status as a seller subagent must be disclosed to the buyer on the WWREA disclosure form at first substantial contact.  Brokers should confirm that the seller has authorized the cooperation with subagents in the listing agreement, or that such consent is obtained in a separate writing, because Rule 58A .0104(a) requires all agency agreements with an owner of a property to be in writing.

It is important to remember that if a broker with written consent of both parties is truly acting as a subagent of the seller, then the broker owes all fiduciary duties to the seller and must communicate to the seller or the listing agent confidential, financial, or motivational information provided by the buyer.

Many brokers showing properties listed outside of their brokerage to buyers may incorrectly believe they are automatically practicing subagency. Brokers cannot properly practice subagency without adhering to the above rules. If brokers are not in compliance with these provisions and they have not obtained at least a buyer’s oral consent to representation, they cannot provide brokerage services to the parties in the transaction.

Using Brokers from Another Firm to Hold an Open House for the Owner

When a seller signs a written listing agreement, the seller authorizes the firm and all of its affiliated brokers (subagents of the firm) to act on its behalf.

When a broker affiliated with a different brokerage company wants to host or participate in the holding of an open house on behalf of the seller, the only agency option for the broker who is affiliated with the other company is to act as a subagent of the seller.

As discussed above, such a practice requires compliance with the rules of subagency.  Here are relevant questions to consider:

For all of these reasons, Brokers-in-Charge should carefully review office policies and procedures on allowing brokers who are not members of the brokerage with whom the listing agreement is signed to hold open houses for the seller. Rule 58A .0110(g)(7) obligates a designated BIC to:

(7) supervise all brokers employed at the office with respect to adherence to agency agreement and disclosure requirements.

When crafting office policies and procedures for such a practice, Brokers-in-Charge should confirm compliance with License law and Commission rules. Brokers-in-Charge should also explore whether involvement by a subagent from another firm is covered under any existing errors and omissions policy. Such policies often limit E&O coverage only to those brokers who are affiliated with the company.

-Len Elder, Education & Development Officer

Do you have questions about agency practice? Contact Regulatory Affairs at regulatoryaffairs@ncrec.gov or 919-719-9180.

Introducing a *NEW* WWREA Disclosure Form – Updated

The Commission is pleased to introduce a new version of the Working with Real Estate Agents (WWREA) disclosure form. 

The new disclosure form is one page, double-sided, with one side for sellers and one side for buyers.  The Commission believes the new form will be quicker and simpler for brokers to use and easier for buyers and sellers to understand than the current brochure.

The criteria set forth in Rule 58A .0104(c) is not changing.  Per that rule, brokers are required to

The new disclosure form is now posted on the Commission’s website (see link above), and brokers may begin using it immediately.  All brokers must begin using the new form on July 1, 2021.

 The current brochure has been converted into a Q&A brochure, with expanded content and visual aids. The Commission recommends that brokers continue to provide consumers with a copy of the Q&A brochure along with a copy of the new disclosure form.

Commission staff members will provide a Zoom webinar regarding the new form on Monday, April 26, from 2:00 – 3:30 pm. Connection instructions will be posted on the Commission’s homepage prior to the webinar on the 26th. That webinar will be recorded and subsequently posted on the Commission’s website. Also, a detailed explanation of the new form and a review of Commission rule 58A .0104(c) will be included in the 2021-22 Update course.

Questions about the new form should be directed to Regulatory Affairs at regulatoryaffairs@ncrec.gov or 919-719-9180.

Appearances

Peter Myers, Information Officer, spoke at NC Best Practices Meeting on March 10.

Danielle Alston, Consumer Protection Officer, spoke at FM Realty Sales Meeting on March 16.

Fred Moreno, Chief Deputy Legal Counsel, spoke at the Materiality of Nearby Concentrated Animal Feeding Operations discussion on March 19.

Dee Bigelow, Consumer Protection Officer, spoke at the URE-QC Presents – Straight Talk with the NCREC on March 30.