Yesterday we heard from Gov Hutchinson, the assistant general counsel for the California Association of Realtors. He travels around the state to inform realtors of the basic changes to forms, and helps define other aspects of the business – here’s a summary of what we heard:
Transfer Disclosure Statement – The buyer has a five-day rescission period after receiving the completed TDS from the seller (the form where the sellers disclose pertinent facts about the property). If the form is delivered to the buyer’s agent late, incomplete, or unsigned, the buyer can still cancel the transaction even if they have already released their other contingencies.
The CA Department of Real Estate is unhappy with compliance to the rule that realtors need to have their license number on every flyer, business card, sign, social-media account, etc. They have hired additional personnel to chase us around.
It’s acceptable for landlords to say ‘no pets’, but they must accept tenants with service animal (seeing-eye dog) or emotional-support animal with a note from a licensed caregiver – as long as it is reasonable. If the animal affects the landlord’s insurance, or is a threat, the landlord can say no. The law supersedes HOA, C,C,&Rs, and city codes, and the landlord cannot require a pet deposit or higher rent for these animals.
A landlord cannot require tenant insurance.
A landlord cannot be compelled to take a Section 8 tenant.
Low-flow plumbing is required in all homes throughout the state. Sellers don’t have to fix/update if the buyers will accept as-is.
If a house for sale has hidden cameras, there should be a sign near the front door to alert buyers and agents who are showing the property that the house is under surveillance.
No laws, rules, or guidance on Coming Soons – it is a local MLS issue.
I think we can say that the Coming Soon dilemma has been decided – nobody wants to address it globally, so it will be left up to the agents.
Realtors love the Coming Soons, and are now pitching them as a vital part of the marketing program. But with no rules or guidelines, what happens when a buyer wants to see the home? Do you show it during the Coming Soon period? Do you field offers? If you do get an offer, do you throw the listing on the MLS to give everyone a chance too? Or do you just make the deal and hurry off to the next one? How do you know if you got full value? (you don’t know)
Virtually every listing will go this route in 2019, and then most will be uploaded to the MLS with diminished urgency because the motivated buyers already saw the sign two weeks ago, and forgot about it.
Instead of relying on instant market data from the internet, we’ll need drivers to patrol for new Coming-Soon signs, and rely on word-of-mouth between agents to make these off-market deals we now crave for some reason.
Things that blow out deals are usually avoidable, and are easy to identify in hindsight. In this case, the agent let the buyers pick a roofer out of the book, which is a terrible way to do business. He gets paid the same whether he blows the deal or not, so of course he tells the buyers the house will fall down some day. No wonder he has great reviews – think of all the homebuyers he saved from buying a regular house, and are still renting!
But the most important lesson is how the agent handled the situation once a concern has been identified. Buyers are counting on their agent for expert guidance, which should include pointing out that there are no perfect homes out there, and let’s find a way to deal with the imperfections – because in this case, the house had far more positives than negatives.
But instead, the agent – who had been telling me that everything was fine – just sends over the cancellation form in the dead of night. She didn’t give me any more opportunity to address the concern (even though I has already provided ample evidence), or try to fix it herself. Instead, once her buyers objected, she just cancelled.
This is where we will see the last nine years of a bull market come back to haunt us. There are plenty of agents who got into the business since 2009 that not only consider themselves one-percenters, but have built teams and are riding a high horse. But they have never had to handle buyer objections.
Expect a long, stagnant, bumpy market ahead.
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What did I do? I went back to the second-place finisher and sold it to them.
The State of California doesn’t have a Code of Ethics…..
This article is Part Two of a series arguing for the reinstatement of the Department of Real Estate (DRE)’s code of ethics. If you haven’t already, take a look at Part One, which provides context for the current vacuum in California ethical standards.
Why a code of ethics?
Every public-facing industry, especially one as complex as the real estate industry, is in need of common standards of practice. Presently, the code providing those standards for California real estate agents is far from an ideal set of rules governing an agent’s conduct in service of the public.
The code in question is a generic product of the National Association of Realtors® (NAR), which NAR’s state-level manifestation, the California Association of Realtors® (CAR), has commandeered as its own.
Real estate practice is rooted in state codes, cases and regulations aimed at protecting residents of that state, and as a result, this national code of ethics is frequently ill-fit to the unique marketplace of California. NAR has next to nothing to do with California, where principals might have little to no personal knowledge of the agent representing them (especially in urban population centers), and have no choice but to operate under a general set of expectations for licensee conduct.
Further, the Department of Real Estate (DRE) has continuously pushed the NAR code as an acceptable standard for those California licensees who also happen to be Realtors®. As we discussed recently, the state nixed the DRE’s code of ethics in 1996, and California has consequently been left without a California code of ethics for the real estate industry — a situation the DRE could rectify.
But before we can argue for the reinstatement of the DRE code of ethics, we need to understand what’s in it. What are we arguing for? And maybe more critically, what are we arguing against?
For an industry that has been stagnant and mostly unaffected by disintermediation/disruption over the last couple of decades, you get the feeling that change might be afoot now.
It’s asking a lot, but what we really need is transparency.
We are at the fork-in-the-road where agents and consumers alike want and need to choose between the traditional model of selling homes, or one of the newfangled disrupter ways.
But the services being offered are blurry. The disrupters call themselves realtors, and say they provide the same full service. Big teams say because they’ve sold so many homes that their way is the best. Individual agents get caught in the middle somewhere.
If every agent described exactly what they do to earn their fee, then at least the consumers might be able to compare apples-to-apples.
Every agent has their 100-point marketing plan, a fabulous support team, and is in the Top 1%. Let’s go beyond those basics.
To make it easier for consumers, let’s boil it down to the most important part of the equation – what is the one critical question to ask an agent?
‘Who and where are you at the point of sale?’
The frenzy has simmered down, and we’re back to the regular hand-to-hand real estate combat in the streets. This is when buyers and sellers need real and effective guidance on when to make the deal.
If you choose a discounter, inexperienced agent, or get stuck with an assistant, you will get a tepid response. Their lack of experience at guiding you to make the right decision when everything is on the line will cause them to be conservative, and not commit. You will be left to your own devices.
When you choose a great agent, he delivers facts and opinions for you to use to make the right decision on the spot – that is real guidance.
This is where consumers need the real help, but the industry fails miserably because when you need us most, we’re not there. We don’t insist on having top-quality help in place at crunchtime.
It hasn’t mattered in the full-blown frenzy – buyers just pay the price or higher, and everyone is happy. You don’t need much help then.
But now that sales are receeding, and more homes are lying around not selling, real help is needed to figure out what to do.
Sellers are always prone to add a little mustard to their price, and without proper guidance on when to accept a lower offer or when to reduce their price, they can miss the selling window and chase the market down. Buyers can pay too much and regret it later, or not enough and miss out on a good match.
The standard knee-jerk response about pocket listings is to insist that some sellers don’t want to be on the open market for personal reasons, and that’s fine. In reality, those should be limited to major Hollywood icons who are unsure of how much their star-power adds to the price of a home, AND those who are flat-out bamboozling the buyer – like these sellers, who just sold this property off-market for $11,000,000. The buyer’s agent has been in the business for two years and this is his only sale ever on his Zillow profile!
Eight months ago, the sellers paid $7,195,000 for it after 1+ years on market:
If the sellers are fully aware that they are engaging in an off-market deal, then fine. But most are being duped into thinking they are on the open market, but then all of a sudden – whiz, bang, boom, whoosh – and there is an offer on the table that is good enough to get them on their way.
It moves so fast that they never realize they weren’t on the open market.
What never gets mentioned is that every realtor has signed an agreement to share their listings with one another. This is how realtors are destroying the industry from within – because we foster the illusion of having a cooperative MLS but are happy to deprive our own sellers of open-market exposure in hopes of making two commissions.
The practice is so common that I don’t think realtors give a second thought to upholding their fiduciary duty to their own client, the seller:
Pacific Union International, California’s second-largest residential real estate broker by volume, is launching a new service this week that will give the public a peek at its “off-MLS listings,” meaning homes for sale that aren’t on a Multiple Listing Service.
It’s the latest in a growing number of ways home sellers can test the market — and maybe get an offer — before embarking on a full-on marketing campaign.
Putting a home on the MLS is usually the best way to get top dollar because it provides the greatest possible exposure. But in a red-hot market, some sellers figure they can bypass the MLS — and the real estate websites that repost their listings for the whole world to see.
Currently, agents circulate these “off-MLS” or “pocket” listings inside their firm and with other agents through Facebook groups or email lists. Some share them with groups such as Top Agent Network or Marin Platinum, which restrict their membership to high-volume agents.
Instead of holding a public open house — with strangers and neighbors traipsing through — agents arrange private showings.
Pacific Union estimates that 20 percent of its home sales in the Bay Area and 30 percent in Los Angeles last year closed without appearing on the MLS.
Mark McLaughlin, Pacific Union CEO, says Private View will help buyers and sellers by giving greater access to his firm’s off-MLS listings: “We are taking secrets in our filing cabinet and exposing them to the public.” He agreed that the MLS provides “maximum exposure,” but for clients who don’t want that, this is “an incredible” alternative.
“Once we get critical mass, I think more sellers will be part of this,” Segal said.
In a market starved for inventory, that may not be welcome news.
Pocket listings have always been used, mainly by celebrities and people selling extravagant homes that only a few could afford. But their use in California has grown since 2013, as the housing market rebounded and bidding wars broke out.
“As inventory goes down, off-MLS practices go up,” said Jim Harrison, president and CEO of MLSListings, the listing service for Santa Clara, San Mateo, Santa Cruz, Monterey and San Benito counties.
He estimates that 21.6 percent of all homes sold in those counties in the first quarter did not hit the MLS before they closed. That compares with 12.6 percent in the first quarter of 2012. (Many agents enter a sale into the MLS after it has closed to help establish comparable prices for an area).
The California Association of Realtors discourages pocket listings. In a 2013 press release, it said most sellers want the highest possible price from a well-qualified buyer, and the best way to get that, the association said, is to put the home into the MLS.
Most Multiple Listing Services are owned by local Realtors associations. Agents who join an MLS generally must post homes on the MLS within a few days of signing a listing agreement, unless the seller signs a waiver.
Every member of an MLS has access to those listings. They also go out to real estate websites such as Zillow and Redfin.
Pocket listings can lead to ethical, antitrust and fair-housing issues, the state Realtors association said in 2013.
Sellers typically pay a commission to their agent, who shares the commission with the buyer’s agent. In pocket listings, it’s easier for agents to keep the entire commission to themselves, or within their brokerage firm or a small network of outside agents.
Agents say there are many reasons to keep a home off the MLS, at least temporarily.
“My preferred way is to market heavily off-market for a week or two, and then go onto the MLS,” said Cathy Youngling, an agent with Paragon Real Estate Group of San Francisco. That way “I have built a level of excitement and enthusiasm” before the “time on market” clock starts ticking.
Our contracts are ten pages of legalese designed specifically to protect realtors from lawsuits. Would the outcome have been different if the plaintiff sued his own agent too?
From the OCR:
A Coldwell Banker real estate agent at the center of a dispute that went to the California Supreme Court did not breach a fiduciary duty to the buyer of a Malibu mansion, a Superior Court jury ruled Thursday at a retrial of the case.
Nor did the agent intentionally or negligently misrepresent the property, the jury found.
The Supreme Court ruled in November 2016 that a real estate agent owes a fiduciary duty to the buyer – not just the seller – when one brokerage represents both sides of a deal. The case then went back to the trial court.
The dispute began after Hong Kong multimillionaire Hiroshi Horiike bought a Tuscan-style Malibu mansion overlooking the Pacific Ocean for $12.25 million in cash in 2007. The listing agent, Chris Cortazzo, gave him a flier that said the home had 15,000 square feet of living space as well as an MLS listing that did not specify the square footage.
But a building permit indicated there was a total of 11,050 square feet, including a guest house and a garage, while the tax assessor’s records showed it was less than 9,500 square feet.
The square footage question is complicated because Malibu uses a different metric than elsewhere, extending the measurements to garages and other spaces beyond the primary residence.
Horiike, who signed an advisory saying the broker was not responsible for verifying square footage, bought the property without further investigating its size, according to court records.
A couple of years later, seeking a permit to remodel a room, he found out the house wasn’t as large as he thought.
Both Horiike’s agent and Cortazzo worked for Coldwell Banker, so the firm was the dual agent for the buyer and seller. In 2010, Horiike sued Cortazzo and Coldwell Banker, stating they violated their fiduciary duty to him.
The defense argued at the first trial that Cortazzo was the exclusive agent of the seller and didn’t have a fiduciary duty to Horiike. The first judge agreed and dismissed Cortazzo from the case. A jury then ruled in Coldwell Banker’s favor.
The case was appealed, then went to the Supreme Court. While the court ruled there was a fiduciary duty, it did not rule on the merits of the case.
The retrial began on March 19. Horiike sought $4 million in damages plus interest, bringing the total to $7.5 to $8 million. Jurors got the case the afternoon of Wednesday, April 4. The verdict came back roughly a day later.
Cortazzo issued a written statement through Coldwell Banker.
“I am pleased with the court’s decision. I operate with integrity and strive to uphold the highest of ethical standards. As always, I remain completely committed to my clients and bringing them a premier level of service,” he said.
Horiike was not in court for the verdict. Zachary Shorr, his attorney, said Horiike may appeal.
“I wouldn’t hesitate to if I were him,” Shorr said.
If he signed an agreement to represent both parties, he’s got some explaining to do (H/T daytrip):
The owners of a historic Hollywood Hills home have sued “Million Dollar Listing” star agent Josh Altman for fraud and breach of contract for allegedly duping them into a deal to sell the home at a steep discount to one of his friends.
The sale never went through, but the homeowners, Gigi and Paul Shepherd, contend that Altman conspired with his friend, Nicholas Keros, with whom he has worked on previous real estate deals.
Keros filed his own lawsuit against the Shepherds, which the homeowners say has left them “hundreds of thousands of dollars” in debt and forced to declare bankruptcy, according to their suit, filed in LA County Superior Court last month.
Named as defendants are Altman and Douglas Elliman, where he is an agent. Keros is not a named defendant.
The Shepherds inherited the Richard Neutra-designed home on Sunset Plaza Drive from Gigi’s aunt, Josephine, in the mid-2000s. It was was listed for $10.5 million last fall. The property is 1.2 acres and marketed as “a truly unique development opportunity.”
They met with Altman to list the home early last year, and agreed that he would represent both parties if he was able to bring a seller to the table.
A few weeks later, Altman introduced Keros to the Shepherds as a potential buyer, but the suit claims he did not disclose Keros was a close friend.
Shortly after, Altman called the Shepherds and said Keros was a serious buyer, but would walk away if they didn’t meet with him immediately. The Shepherds agreed and met without their lawyers present.
The Shepherds claim that during the meeting Altman “did absolutely no negotiations” on their behalf and instead “forced terms desired by [Keros]” on them. Altman and Keros presented the Shepherds with what they called a “draft” agreement that the couple continually “marked-up and revised” over the course of the meeting. Keros again said he would walk away if they didn’t sign, so they did, the Shepherds claim in the suit.
The couple also claim Altman ignored their requests for copies of the documents and then altered the papers after securing their signatures. At that point, Altman and Keros contend the so-called draft documents were binding.
The Shepherds also signed a “contingency” document with Keros regarding an easement dispute the couple had with their neighbor. The couple say that Altman and Keros misrepresented that document, which Keros later used to sue them.
Altman did not return a request for comment. A spokesperson for Elliman said that the firm does not comment on pending litigation.
Representatives for the Shepherds could not be reached for comment.
Another reason for the industry to commit to full transparency and the auction method of selling homes – our Code of Ethics doesn’t help much:
Q: I submitted an offer for a buyer client that was near the full listing price and asked the listing broker if any other offers existed. The listing broker said no. The next day the broker called me and told me the property sold to a different buyer. Shouldn’t the broker have told us that there were multiple offers when the other offer came in and given my client the opportunity to modify the offer?
A: This is one of many misconceptions about handling multiple offers. The primary provision in the Code of Ethics related to multiple offers is Standard of Practice 1-15, which says “REALTORS®, in response to inquiries from buyers or cooperating brokers, shall, with the sellers’ approval, disclose the existence of offers on the property.” You asked if there were any existing offers at the time you submitted and the answer was, apparently, no. Nothing in Standard of Practice 1-15 or any other part of the Code requires the listing broker to go back to any or all other buyers who made an offer should one or more additional offers come in after your offer was submitted.
While it might seem that listing brokers should be required to go back to all those other buyers if other offers come in, a seller may choose not to take that action and may choose another direction to negotiate a sale. It may also seem that going back to previous offers would always be in the best interest of a seller. But, from the seller’s perspective, there might be both price and non-price terms of the other offers that are more attractive. The seller might not want to risk that the later, better offer may be withdrawn in the time it could take to reinform the other buyers and allow them to change their offers.
One tip for cooperating brokers in multiple-offer situations is to ask the listing broker about other offers on more than one occasion during the negotiations. It’s no guarantee that you will hit the right time, but it might give you more information for your buyer client in the negotiation on high-demand properties.
Our San Diego MLS quietly removed our complaint button recently. I’m sure they had heavy volume, but they aren’t the realtor police – nobody is. Hat tip to SM for sending this in:
VANCOUVER – The province is hoping to make it easier for you to report suspected misconduct in the local real estate market by launching a new tool.
A new anonymous tipline has been launched by the Real Estate Council of BC, as part of, what it describes, a way to protect potential homeowners.
“This is a way for people who have information about potential misconduct of real estate agents, that perhaps they’re uncomfortable identifying themselves, they have this as a tool to report information to the council anonymously,” explains Executive Officer Erin Seeley.
The tipline is one of the recommendations made by an Independent Advisory Group two years ago. “The council set up this group as a way to report on the improvements the Real Estate Council can make in overseeing licensees and in protecting the public.”
This new tool allows people to report things like a conflict of interest, failure to disclose information, or even the mishandling of money.
There is a complaints process already in place and Seeley adds the new tool is part of the process currently available to the public.
“It’s anonymous, it’s more accessible with the 1-800 number, and it’s a secure forum,” she says. “And it allows people, regardless of whether they’re a real estate licensee or a consumer, they can use this to report misconduct and not have a fear of reprisal.”
Seeley says just like the current process, all complaints are investigated and reviewed to determine whether a full investigation is required. “If there [are] grounds for misconduct and evidence, we’ll take action as appropriate through the channels of investigating. We have administrative fairness and natural justice as key parts of our process.”
Processes to resolve complaints are available, and if a case warrants it, Seeley says hearings can be held by a tribunal.
“We have financial penalties, significant penalties up to $250,000 for licensees per infraction under the Real Estate Services Act.”
According to Seeley, the council receives a number of complaints and has investigated claims of significant misconduct in the past.
The only recourse around here is to file a complaint with the Association of Realtors, and have the Ethics panel hear your case.
I did file a complaint recently, which meant I had to compile and submit six copies of the evidence. The agent was found guilty, and received the maximum penalty for a first-time offender – a letter in their file for 12 months.
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