Escalating Emotions. The case for Notices and Amendments.

No one wants to receive bad news or inconvenient requests. We know the terms “bearer of bad news” and “kill the messenger”.  We know them because the practice of killing the messenger/bearer of bad news is a practice that has only literally ended, not figuratively. We’ve all been slain and we’ve all done the killing. We know both sides.

Real estate licensees, in my opinion, expose themselves to unnecessary stress and liability every day. When it comes to communicating requests, responses, good news, or bad, indifferent or otherwise, we do not have to put ourselves in harms way.  I’ll go a step forward, we are not expected to or advised to.  The contract is an agreement between the Buyer and Seller. Negotiations are between the Buyer and Seller. Only their promises and commitments matter, unless we voluntarily step in and assume some liability.

When things go wrong, as they sometimes do, the real estate law as it applies to licensees provides efficient tools for keeping the parties involved in the discussion between themselves. Those tools  are Offers, Counter Offers, Amendments, Notices, CAMR, and a host of other forms created by the WRA. Our role as licensees is to put the intent of the parties in writing. Our obligation to use proper forms when available tells us to use these forms, not text, phone calls, emails, or faxes. (Delivery by email or fax is a different issue…I’m not talking about delivery.)

When a buyer wants to change the terms of the offer, even something like closing date, an amendment signed  by buyer presented to seller is the prudent method. A phone call between agents is not. People make significant schedule commitments to change closing dates. Implications of misunderstanding are severe.

When a person has a problem, the explanation coming from the party to the contract to the party of the contract keeps the agents out of harms way. Sure we have to prepare the wording, but we do that with direction from the party.

An easy way to articulate the message from your client is to imagine the parties are sitting across from each other. Simply write the facts the party would convey in a conversation. For example:

 

Using an amendment the buyer will simply “say” to the Seller:

(Our) “Buyer’s lender informed (us) Buyer that the final approval of the financing commitment will be issued on Monday July 24th. 

Items 1. Financing Contingency Line 219, change 30 days to 35 days.

Listing agent is obligated to promptly present this amendment. I know agents will sometimes react with “My seller (or buyer) won’t agree to this.”  They really don’t know what the seller will do until the seller does something.  With a document to sign in front of them, they have a chance to sign. With only a phone call, they can’t commit if they wanted to, but they can easily decline.

Does this make sense? If the reason to not use a form is to be expeditious, the prudent practice might be to use a form to avoid liability for the consequences of misunderstanding, forgetfulness, or legal professional finger pointing.

 

 

Author: Tom Meyer Real Estate Broker, Madison, WI

I believe the difference between an accepted or rejected real estate offer to purchase is the drafter's ability to customize the Offer to reflect the Buyer's commitment. Ready, willing, capable, committed, sincere people can out negotiate higher priced offers by moving away from standardized forms. Ask me how.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s