What Did I Miss? 8-30-11

We saw a great uptick in Clay County shows. Platte County however remained flat.

Get ready for the new SafeMLS!

Have you seen the new FREE offering of DocuSign by NAR?

If you are interested, visit www.docusign.com/nar . The FREE version allows you up to 5 envelopes a month. This doesn’t nessecarily equate to 5 FREE transactions a month. Each time you open an envelope (like an email) for your client it counts as one. If you open an envelope for the contract thats one, counter offer could be two, and a resolution of unacceptable conditions could be three, and so on. It could take more that 5 envelopes for just one transaction.

With that being said, the FREE offer may increase the number of agents using DocuSign. Here is some information so you will know what to expect if you get a contract with an electronic signature:

  • The first time you sign a document, you’ll be asked to create your own signature. You can type in your name and select a font, create one with your mouse, upload a scanned image of your pen-and-paper signature, or use a stylus on your Apple iPad or tablet PC. This signature will be associated with a unique identifier so that every document you sign will be recorded as signed by you and you alone. So the signature may just appear as italic font.
  • As the individual requesting that a document be DocuSigned, you control who signs by providing the signer’s email address and other contact information. The document is routed to the signer’s email with a request to sign. DocuSign records the signer’s IP address and a timestamp of the signing activity. In addition, a signer can opt to provide geolocation information at the time of signing. If you require deeper levels of identity management, DocuSign offers additional authentication options, including: access code, knowledge-based ID check and biometric phone identification, among others.
  • DocuSign gives you complete visibility and control. You can see who’s viewed your document, who’s signed it, and who’s on deck to sign next. You’ll receive email notifications when each person has signed, and a notice when the document is complete.

  • This is an acceptable method by both NAR, MAR and KCRAR. Those who are using electronic signatures say that they are being accepted by all of the real estate companies in the area as well. I was cautioned that some relocation companies will not accept the electronic signature so you may want to avoid DocuSign when submitting a contract on a relocation property.

Here is the list of things included with the FREE version.

Here is a short video if you would like to see the website.   http://www.docusign.com/support/resources/docusign-service-overview

If you would like to use Docusign on all of your transactions, you can for about $15 per month. If you are tired of running around to fax or scan documents to your client, DocuSign may be for you. All your client needs is the ability to access the intranet.

Real Estate Disclosure

Following the technology portion of our meeting, we discussed disclosure. If you put two attorneys in one room and ask them the same question regarding real estate disclosure you will likely get two different answers. I am certainly not an attorney, the following information was provided by two attorneys that are highly respected in our field.

Kansas established BRRETA (The Kansas Brokerage Relationships in Real Estate Transactions Act) that became effective on October 1, 1997. BRRETA says the following:

Fundamentally, REALTORS® in Kansas are required to disclose “all adverse material facts actually known by the real estate licensee” to various parties in the real estate transaction.

Thankfully, Kansas has abandoned the previous test that stated that real estate licensees must disclose all adverse material facts that were “actually known or should have been known” by the licensee. Unfortunately Missouri still uses the “should have known” guideline.

Here is the tough part:

Kansas has no statutes or regulations specifically defining the meaning of the term “material fact.”  As a result, this term is defined under the common law and decided by a jury at trial. ▪ In Griffith v. Byers Construction Co., 212 Kan. 65 (1973), the Kansas Supreme Court defined a “material fact” in a real estate transaction as the following: A matter is material if it is one to which a reasonable man would attach importance in determining his choice of action in the transaction in question. This is an extremely broad definition of the term “material fact.”  Every marginally qualified attorney can make an argument that any item of relative importance is a “material fact.”

PIP properties: Psychologically Impacted Properties – What if there is a rape, murder, suicide in the property? Also sometimes referred to as “stigmatized property”.  There are various definitions.

Common one found in numerous statutes:  Real property which is or was occupied by a person who was infected with a virus or any other disease which has been determined by medical evidence as being highly unlikely to be transmitted through the occupancy of a dwelling place presently or previously occupied by such an infected person; or was the site of a homicide or other felony or a suicide or a death by accidental or natural causes.

 

Missouri has a specific statute (MRS 442.600) that says the fact that property may be, or may be in close proximity to psychologically impacted property, shall not be a material or substantial fact that is required to be disclosed in a sale. The statute bars any cause of action against a real estate agent or broker for failure to disclose such information to a buyer. 

Does that mean that you just ignore any potential PIP if the property is in Missouri?  Probably not.  Although you may have protection under the law, you and your broker are in a public relations business.  If you have a particularly notorious property or an issue that you feel might cause a buyer concern, you may want to require disclosure as a condition to listing the property, to avoid potential negative publicity that might arise if a buyer learns of the situation later.

Kansas has no specific protection for failure to disclose such information. Whether the information would be considered a “material defect” and thus require disclosure would be determined by a court of law.  In Kansas the best approach is to disclose everything you know.  You don’t want to be a test case. 

Generally speaking, if you are inclined to ask whether something should be disclosed, then it should be.  However, you don’t have to waive a banner.  You can let prospective buyers know after they have viewed the property and formed an interest, but before they make an offer.

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