For internal use

Make Every Deal a

Win-Win

Pro  Tips  &  Winning  Strategies

At REILLY, REALTORS®, our goal is to provide the best possible service while protecting the best interests of our clients, agents,

and our firm. We’ve put together this guide to help our REALTORS®

avoid common real estate pitfalls so every deal is a win-win.

INSIDE THIS GUIDE

1    Be Professional!

2    Don't Play Attorney!

3    Disclose, Disclose, Disclose!

4    Document Important Communications

5    Understand the Contract & Process Terminology

6    Don't Make Verbal Agreements!

7    Use this Language when Negotiating for Your Seller

8    Get it Inspected!

9    Understand the Lead Based Paint Addendum

10  Handle Potential Appraisal Issues the Right Way

11  Understand the Intermediary Relationship

12  Use docs@reillyrealtors.com and Avoid Common Mistakes

13  Market it Right!

14  Understand Fair Housing

15  Adopt the 7 Habits of Highly Successful REALTORS®

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The number one tip to staying out of trouble in real estate is to be professional! That means you work hard to provide the highest level of service to your clients. It means you are kind, fair, honorable, and honest in all your dealings. And it means you strive to increase your knowledge of the market and industry to better serve your clients. 

Take the high road and show respect to all parties in everything you do! 

 

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Be Professional

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Pro Tips

Even if the other side is behaving poorly, don't follow suit!  A calm demeanor can help your side win, especially if things get difficult.

Keep Social Media Clean!

Kindness Wins!

Everyone looks at everyone online - make sure your presence is professional! Would someone want to work with you after reviewing your Facebook or Twitter account?  

Watch your Words!

Carefully consider everything you communicate - especially text, email, and social media communication - it reflects on you and how you do business. If issues come up, your written words also provide a record that can be used in court.

Assume You're on Camera!

Run from Bad Clients!

If you suspect your client is litigious, irrational, or even crazy - or if your client is just plain mean or argumentative - stay away! You don't need the stress (or future lawsuit)!

Video cameras are everywhere! Warn your clients and be careful during every showing!

Never engage in the unauthorized practice of law! It's easy to accidentally slip into a lawyer role - so avoid the common ways REALTORS® do it!

 

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Never interpret documents for your clients such as Title Commitments, HOA Docs, Easements, Tax Certificates, and Surveys. 

 

Do not state a property may be used for a specific use (e.g. commercial) without legal documentation from the seller. Always include a disclaimer that buyer should independently verify use with an attorney and conduct a feasibility study.

 

Use Special Provisions correctly. Never include language in Special Provisions that is covered by a TREC form or is not a fact. If/then statements in this section would likely be deemed as the unauthorized practice of law. When in doubt,

check with Michael Reilly or the TAR legal hotline before you write

or accept anything written into special provisions.

Don't play attorney!

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Did you know the #1 cause of home sale lawsuits is related to mistakes on the Seller’s Disclosure? Failure to disclose known defects exposes your client, you, and REILLY, REALTORS®  to legal liability, so remember this rule of thumb: Disclose, Disclose, Disclose!

 

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Instruct your seller to complete their Seller's Disclosure to the best of their knowledge and belief. 

 

NEVER complete or help your seller complete their Seller’s Disclosure.

 

Read the Texas Association's article 12 Things You Should Know About the Seller's Disclosure and then encourage your seller to purchase Seller's Shield, a helpful resource that also provides your seller with litigation insurance.

Disclose, disclose, disclose!

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If your seller has prior inspection reports, whether from a buyer that terminated or from a report your seller purchased, you absolutely must share the report in its entirety with the next buyer. Whether you read the report or not, once you have it you are "charged with knowledge of the information in the report even if [you do] not open the report." (per TAR) As a listing agent, the best practice is to request the inspection report so you have the same information as the buyer, and so any defects found are shared with future buyers before they buy.

 If you or your seller learn something new about the condition of the property after completing the Seller's Disclosure, you must update the the disclosure. Also, if you receive a repair amendment and the deal falls apart, the details in the amendment must be shared with the next buyer.

If repairs are made, feel free to document that on the inspection report.

Our easy-to-use SMART Seller Tools PREVENT sellers from making critical mistakes disclosing the condition of their home, stopping lawsuits before they happen. Our Interactive Sellers Disclosure Notice allows you to easily fill out your form online as our LEGAL WIZARD seamlessly educates and guides you through each question. We keep sellers out of trouble, but if a lawsuit occurs, WE HANDLE IT offering the SECURITY of our $20,000 Promise.                   - Seller's Shield

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Pro Tips

Email provides an important documentation trail you may need down the road, so be sure to deliver any contracts, addendums, important documents, or important advice to relevant parties via your REILLY, REALTORS® email account, even if you are also providing the information in person. For example, if you had a great verbal conversation with another agent or your client about expectations, document it in an email like this:

 

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Be extremely careful about offering your opinion on matters where you are not a subject matter expert to avoid exposing yourself and REILLY, REALTORS® to unnecessary risk. If a client has a question about a subject that you are not 100% sure and qualified to answer, you should always put in writing that the client needs to seek the advice of an expert.

Be Careful with Opinions!

Document important communications

“Sally, it was great talking to you today! As we discussed, ....”

This way, if there is ever a question related to that conversation, you have it documented.

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At the first substantial conversation or written communication you have with a buyer, seller, or even a renter, you MUST provide them with the Information About Brokerage Services (IABS) Form and have them sign it. Simply including a link to the form on your website or in your email

signature is insufficient.


For buyers, you MUST have the buyer sign

the General Information and Notice to a

Buyer form BEFORE you

execute a contract. 

 

Write as if Your Email/Text Will be Read in Front of a Jury

Always write your emails as if they will be read by a judge in front of jury to avoid your written communication coming back to haunt you! Be courteous, professional, explain facts, and demonstrate a desire to be helpful. Additionally, restate a bad client decision to protect yourself ("I understand you don't want to have an inspection done..."). 

"

Provide your clients with all signed documents via email -

even if you meet in person to sign or deliver it to them!

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As a REALTOR®, you are expected to be an expert in the process of buying and selling real estate, so you should be an expert on the process and use the correct terminology! Be careful to use the correct terms to avoid confusion. For example, don't say we have a contract or deal if you don't have signatures - at that point, you are still in the offer stage. Another common misunderstanding is thinking Title has to have the contract for it to be enforceable. Once all parties have signed during the Acceptance/Delivery stage and everyone is notified, you have a contract!

 

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Executed Date Noted & Effective Date Established

All Parties Notified - You have a contract!

Your listing? Mark it as Pending in the MLS!

Executed Date Noted & Effective Date Established

All Parties Notified - You have a contract!

Your listing? Mark it as Pending in the MLS!

A counteroffer negates the original offer or counter, so be careful in a tight market! Learn how best to negotiate for your seller.

Understand the contract process & terminology

Title Co Receives

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From the Texas Association of REALTORS® website:

While verbal negotiations of contracts can be a quicker way to reach an agreement, verbal agreements are not enforceable for the sale of real property.

 

Only written agreements, signed by the buyer and the seller, are valid. The best practice is to put it in writing!

Remind your buyer:

Only signed contracts/amendments are enforceable.
Time is of the essence when negotiating. If documentation is not signed by both parties, there is nothing to enforce.
If your buyer submits a counteroffer, the original offer is null and void and without the seller’s signature,  there isn’t 

contract to uphold. 

 

 

 

 

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Don't make VERBAL AGREEMENTS! 

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Pro Tips

Never make promises on behalf

of your client(s). 

 

Always write agreements on a contract or amendment! If you are negotiating verbally or via text or email, until you have a signed contract, you should use a disclaimer such as: “E-mails or texts sent or received shall neither constitute acceptance of conducting transactions via electronic means nor create a binding contract until and unless a written contract is signed by the parties.”  

 

What does we have a deal mean, anyway? The better thing to say is "we have a contract!” And of course, you can only say that once all signatures are in order. Let the signed contract or amendment speak for itself!

 

 

Never say "we have a deal!"

"

Do not commit your seller to anything! 
Put the onus on the buyer to submit a new offer.

Whenever you are negotiating on behalf of your seller, convey what your seller wants from the buyer without making a formal counteroffer to the buyer. The best way to do this is to use the "Seller's Invitation to Buyer to Submit a New Offer" (TAR-1926 Form). The form makes it clear that your communication is NOT a counter offer, but rather a list of items the seller would like to see on a new offer.

 

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Use this language when negotiating for your seller

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MULTIPLE OFFER SITUATION

Let's say you have a very popular listing that will get multiple offers. If you make a counteroffer to Buyer #1 and then you get an offer you like better from Buyer #2, you have to formally withdraw any outstanding counteroffers to Buyer #1 before you agree to a contract with Buyer #2.  If you had used the TAR-1926 Form (or the form's language in your email) to communicate your desired goals to Buyer #1 instead of submitting a counteroffer, you would have no obligation to Buyer #1.

Examples

If you say "Thanks for the offer but my seller really wants $310,000!" in response to a formal offer and the buyer's agent writes back saying "ok, we've got a deal!", you may find yourself in a situation where the buyer thinks you have a meeting of minds, even though you haven't formally checked with the seller or negotiated other parts of the contract. A better text would be: "Thanks for the offer!  My sellers would more favorably consider an offer of $310,000 with a close date a week earlier than you proposed. This is not a counteroffer, but a request to your buyer to submit a new offer. We look forward to hearing from you!"

 

 

TEXT OR EMAIL NEGOTIATIONS

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You should always recommend that your buyer has their subject property inspected! Be sure to provide at least three licensed inspector recommendations so your buyer can make their own decision on whom to hire. By giving only one name, you could be put in an awkward position if the inspector misses something.

 

If your buyer opts out of getting an inspection, get it in writing! Use our Buyer Home Inspection Form to document your client's decision to use (or not use!) an inspector.

 

 

 

 

 

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Get it inspected!

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INSPECTION TYPES

A standard home inspection should always be encouraged, but additional inspections may also be needed, depending on the property. If applicable, encourage your buyer to get the following inspections:

  • Pre-sheetrock (new, custom homes)

  • Lead Based Paint (homes built prior to 1978 - read more)

  • Stucco

  • Pool and/or Hot Tub

  • Septic

  • Well

If the subject property is a home built before 1978, a signed Lead-based Paint Addendum is required BEFORE the contract is executed! Additionally:

  1. The seller must sign first because the seller has the obligation to provide information to the buyer regarding any known lead-based paint and/or lead-based paint hazards, including any records or reports the seller has pertaining to lead-based paint/hazards. Your buyer must sign AFTER the seller!

  2. You must provide the EPA’s “Protect Your Family from Lead in Your Home” pamphlet.  Be sure to send the pamphlet via email so you have a record of delivery!

  3. Have the addendum signed before you execute the contract! All sections must be completed (checkboxes in B, C, and D) and signatures from all parties are required (buyer, buyer’s agent, seller and seller’s agent).

 

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understand the Lead-based paint addendum

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If you are working on a deal where the appraisal is a potential issue, rather than include an “appraisal clause” in the contract that obliges the buyer to increase the down payment in the case of an appraisal shortfall, we encourage you to consider alternatives such as:

Handle Potential Appraisal issues The Right Way!

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Increase the down payment on the initial contract up front to handle the anticipated appraisal shortfall. If the appraisal comes in fine, you can always write an amendment to change the down payment back to 20%.  

 

Include a phrase in special provisions that simply states, "Buyer to order appraisal and deliver copy to seller within 10 after days of executed contract date."  While this doesn't necessarily obligate the buyer to put up more, it moves the issue to the beginning of the transaction usually during the option period and keeps it from becoming a last minute issue. 

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SPECIAL PROVISIONS & APPRAISAL CONCERNS

If a seller insists on contract language to obligate the buyer to put up more, please do the following:

1. Write an email that advises your client to review the following language with their attorney. This language was written by our attorneys but TREC has stated that you can not "re-use" attorney approved language and any additions to the contract must be reviewed on a case by case basis. Here's the language:

 

In the event the property appraisal is less than the sales price, the buyer will contribute additional down payment of up to $XXXXX to satisfy the lender's down payment requirement. 

 

The key to this language is that it puts a limit on the amount the buyer is required to put up in the case of an appraisal shortfall.

2. Upon the client's direction,  add the lawyer reviewed and agreed upon language to the contract in Special Provisions.

 

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Intermediary relationships exist if you have a situation where you or two agents within REILLY, REALTORS® represent both sides of a transaction. An intermediary relationship only occurs when our represented buyer wants to see or buy one of our listings. If an intermediary relationship exists, you must:

1

2

Have both parties complete the TAR Intermediary Relationship Notice, TAR Form 1409.

 

You must also have written consent from both parties which must state who will pay the Broker and, in conspicuous bold or underlined print, set forth the Broker’s obligations as an intermediary.

understand the intermediary relationship

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2,

3

 

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There are four scenarios that impact the intermediary relationship. Let's look at each with two fictional agents at REILLY, REALTORS®, Lucille and Bill. In every intermediary situation below, the TAR 1409 must be signed by both parties.

INTermediary Situations

Lucille is the listing agent, and Billy has a buyer for Lucille's listing. Because both agents work for REILLY, REALTORS®, there is an intermediary relationship. Because each agent had a relationship with their clients prior to Bill's buyer's decision to purchase Lucille's listing, it is an automatic intermediary with appointments relationship, meaning each agent is appointed to represent their clients as usual.

 

Lucille is the listing agent and finds a buyer for her listing. Based on her seller's input, Lucille can either: 

a) act as an intermediary without appointments and not represent either side of the transaction, but just facilitate the transaction, or 

b) appoint another agent within REILLY, REALTORS® to represent the buyer.

The last scenario is one in which Michael Reilly, as the Broker of  REILLY, REALTORS®, represents a seller and Bill brings a buyer. Because Michael Reilly is the supervising broker and his involvement may not be deemed fair and impartial, he must appoint another agent within REILLY, REALTORS® to represent his seller. The same would be true if Michael brought a buyer for Lucille's listing - he would have to appoint an agent to represent his buyer.

Just because there is no Buyer's Agent does not make you an intermediary! If someone calls you directly to see one of our listings and they don't have an agent, they are a customer, NOT a client.

 

In this case, you are legally allowed to assist the customer, but you must disclose that REILLY, REALTORS® represents the seller and we cannot offer advice. Since you are not NOT acting as intermediary, you must have the unrepresented buyer sign the TREC Information About Brokerage Services disclosure and Notice to Unrepresented Buyer and include this disclaimer in all written communication. Please review our our policy and commission considerations.

We created docs@reillyrealtors.com to make it easier for you to keep track of your deals, so please help us make Quickbase as complete and accurate as possible! 

Incomplete documentation or mistakes on contracts, amendments, or other deal files can open you and your client up to unnecessary risk. You can avoid many problems by thoroughly reviewing your documents before finalizing them! While a missed detail may not seem like a big deal, it can make you look unprofessional, nullify a contract, lead to confusion requiring the court's input, or result in disciplinary action with TREC. 

 

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Use Docs@Reillyrealtors.com and avoid common mistakes!

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Blanks on the Contract 

A contract with missing signatures, initials, or details is unforgivable! Paragraphs with checkboxes that have not been selected are not enforceable. Missing contact information (including broker info!) can make it difficult for parties involved in the transaction to communicate important info. Take the time to protect yourself and your client - review the details of all required deal documentation! 

Common Issues

Missing Executed Date

Performance is calculated based on the executed date (aka effective date), so once everything is signed, make sure you or the other side enters the executed date and that you have a copy of the executed contract. No executed date? The brokers or the court may have to decide the date, and your buyer may not be able to terminate the contract! 

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Contract Questions? Contact Michael Reilly or call the TAR Legal Hotline at 1-800-873-9155

Being thorough and professional on every deal will help you in so many ways - you'll win the trust of your clients, be in a better position to negotiate for your clients, and protect yourself and our brokerage.

Misuse of Special Provisions

Do not write language in Special Provisions that is covered by a TREC promulgated form or that is not a fact. If/then statements in this section would likely be deemed the unauthorized practice of law. When in doubt, check with Michael Reilly or the TAR legal hotline before you write or accept anything written into special provisions.

"

Missing Listing Agreements

You MUST have a listing agreement in Quickbase BEFORE your listing goes live in the MLS! If not, you do not have the protection of our E&O insurance, we are not indemnified if accidents or theft occur on the property, and we are liable for commission to the buyer agent with no ability to collect from the seller.  In addition, you will receive an automatic $100 fine!

 

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SPECIFIC USE OF PROPERTY

If you have a listing that would be perfect for a specific use (e.g. commercial, rental, addition) make sure you have supporting legal documentation BEFORE you market the property as such! Either way, always suggest that a buyer independently verifies the property is suitable for their intended use.

MARKETING SOMEONE ELSE'S LISTING

Whether you are holding someone else's listing open or looking for a renter for a deal that hasn't closed, you MUST have the listing agent's written permission to market the property. 

PHOTOGRAPHY COPYRIGHT

Guess who owns the rights to the photos you purchase? Your photographer, most likely! Typically, you are granted permission to use photos you purchase for a specified purpose or duration, so make sure you aren't breaking any copyright laws. Likewise, if you are marketing someone else's listing or want to use the previous listing agent's photos for your new listing, be sure you have both the agent's and the photographer's written permission.

Agent Services is ready to help you with all of your marketing needs, but if you are doing things on your own, please remember the following to avoid TREC violations or a lawsuit!

Market it Right!

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TRUE STORIES

MISLEADING SIGN FORCED SELLER TO BUY BACK PROPERTY

We represented a buyer who purchased property that was advertised as no-zoning but in fact, unbeknownst to the seller, the property was annexed by the city and zoned agricultural just prior to close. Our buyer had to have legal representation to force the seller to buy the property back. It would have been difficult for our buyer to know the property was in the process of being annexed, and apparently, the seller wasn't checking her mail. Thankfully we had a photograph of the sign stating no-zoning!

TREC RULES

Make sure you comply with TREC Advertising Rules which requires you to include your title and your sponsoring brokerage in all advertising.

TREC COMPLAINT FOR FB POST

An agent represented the buyer of a rental property and sought a renter for the subject property, that had not yet closed, via Facebook. The deal fell apart, and the seller filed a TREC complaint suggesting the buyer's agent violated advertising rules. Without written permission to advertise another agent's listing, this buyer's agent is in a bad spot.

SUED FOR COPYRIGHT VIOLATION

A brokerage used a photo in a print ad without getting permission from the original photographer. The brokerage had to settle and pay the photographer $20,000 for the copyright violation. 

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As a REALTOR®, you are bound to the NAR Code of Ethics, which includes Article 10 related to discrimination. Please make sure you read it! Please also review the following information from the Equal Opportunity For All brochure on the HUD website.

understand Fair Housing

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FAIR HOUSING RULES

The Fair Housing Act prohibits the following actions in the sale and rental of housing based on race, color, religion, sex, disability, familial status, or national origin:

  • Refuse to rent or sell housing
  • Refuse to negotiate for housing
  • Make housing unavailable
  • Otherwise deny a dwelling
  • Set different terms, conditions or privileges for sale or rental of a dwelling
  • Provide different housing services or facilities
  • For profit, persuade, or try to persuade homeowners to sell or rent dwellings by suggesting that people of a particular race, etc. have moved, or are about to move into the neighborhood (blockbusting) or 
  • Deny any person access to, membership or participation in, any organization, facility or service (such as a multiple listing service) related to the sale or rental of dwellings, or discriminate against any person in the terms or conditions of such access, membership or participation.

Increase your success with these habits!

  1. Acquire leads any way you can! Work to constantly grow your network and ask for referrals!
  2. Stay connected to past clients.
  3. Communicate often with clients, and explain things along the way.
  4. Know everything you can about your neighborhoods.
  5. Always work to earn your clients' trust and act in their best interests.  
  6. Maintain positive relationships with other agents.
  7. Take the high road and show respect to all parties in everything you do!

 

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adopt the 7 habits of highly successful realtors®

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Thanks for your help in making REILLY, REALTORS® a team of top agents by demonstrating love for your work, your clients, your community, our city, and each other. We appreciate your efforts to take the high road and show respect to all parties in everything you do!

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Thanks for reviewing this guide!

 

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Copyright © 2017 REILLY, REALTORS® - All Rights Reserved.  

This document contains information confidential and proprietary to REILLY, REALTORS® and may not be used, disclosed or reproduced without the prior written authorization of REILLY, REALTORS®. Only real estate agents sponsored by REILLY, REALTORS® and employees of REILLY, REALTORS® may view this document.

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512.600.1800 | OPS@REILLYREALTORS.COM