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86 Cards in this Set

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Writing Listing contracts
This section discusses the relationships that come into existence when a real estate company obtains listings and the duties and responsibilities that result from those relationships. The comments on participant's responsibilities are general and cannot cover every specific situation.

Whenever there is doubt as to duties in specific circumstances, always consult your broker. In this section, the exclusive right-to-sell listing will be discussed in depth, in order to gain a clearer understanding of its meaning. The exclusive right to sell is the contract that best protects the broker's interests.
Seller (Client) - Also Known As A Principal
The seller (principal) in a listing contract is the person who "retains the broker's professional services for a period of time," or perhaps a better introduction would be the person who "writes the broker's paycheck." This definition is easily understood in that the seller hires a broker to find a purchaser for the listed property, and it is the seller who has the commission deducted from the proceeds of the sale. All owners on the title sign as "seller".
Broker (agent)
This individual or entity is the party who enters into a contract with the seller and is to be paid a fee if a purchaser is found for the seller's property. According to the License Law, the only licensee who has the authority to enter into such contracts is a real estate broker. So, even though a salesperson may obtain the listing, remember that the listing is a contract between the seller and broker, (the "agent") in the listing.

If the primary parties to a listing are the seller and the broker, where do the real estate salesperson and the prospective purchaser fit into the "Who's Who"?
Salesperson (Agent for the Broker)
The salesperson is the person who works on behalf of a broker and helps to complete everything the broker has promised to do in the listing contract with the seller. In other words, the salesperson is the agent for the broker.

Another way of looking at this idea is to say that a broker hires salespeople and gives them authority to act on his/her behalf (general agent). Whenever a broker lists a seller's property, the law requires the broker to protect the client's best interest.

As an agent for the broker, the salesperson has the same duty to protect the client's interest. The legal obligation of a salesperson or associate broker is to both the broker and the broker's client.
Purchaser
The purchaser may be considered a "client," if the purchaser is working with the broker under a properly executed buyer brokerage agreement.

If there is no buyer brokerage agreement, the purchaser would be classified as a customer. The broker's only duty to a purchaser/customer is to treat the purchaser/customer "honestly." Failure to do so may subject the salesperson, broker and seller to civil liability and sanctions against the licensees may be imposed by the Commission.
Purchaser cont. 1
It is important to remember that when a broker chooses to represent both the purchaser and the seller in the same transaction (dual agency), proper written disclosure must be made by the broker to all parties in the transaction as soon as it is practicably possible.
Failure of the broker to properly disclose the dual agency relationship will subject the license of the broker and the responsible affiliated licensee to sanctions by the Commission.
The Broker (Principal) and Salesperson (Agent) Relationship
A real estate salesperson working as an agent for the listing broker owes the same duties and obligations to the seller as does the broker. Therefore, when a listing is obtained in a typical real estate transaction involving a broker and the broker's salespeople, there are two agency relationships; one between the broker and seller, and one between the broker and his/her salesperson(s).

The relationship between the salesperson and broker may be employer and employee, or employer and independent contractor.
The greatest protection for the broker's position is afforded in a(n) ______________ listing contract.
It is the exclusive right to sell contract that guarantees that the broker will receive the commission if the property is sold, no matter who sells it.
Authorization to Sign the Listing on Behalf of the Broker

Example
As previously discussed, the salesperson is an agent for his/her employing broker. Therefore, what happens in the following situation?

EXAMPLE: A salesperson is listing a home for sale on behalf of his/her broker and has completed all the necessary information on the contract. The seller has signed the contract and has given it back to the salesperson for his/her signature as the agent. Can the salesperson sign the listing, knowing that the broker is the agent?
Authorization to Sign the Listing on Behalf of the Broker

Example cont. 1
The answer is NO, unless the salesperson has been given specific written authority to do so by his/her employing broker.

If the employing broker desires the salesperson to sign the listing, the salesperson's written employment contract should grant such authority.
salesperson who lists a property may sign the listing contract on behalf of his/her company:
The permission to sign must be in writing, and is often included in the contract that is negotiated when the salesperson affiliates with the company.
Authorization to Sign the Listing on Behalf of the Broker

Example cont. 2
As agent for the seller, the broker acts in a position of extreme trust and confidence. Thus, the broker is bound to disclose to the seller every step taken to sell the property. This disclosure includes periodic reports to the seller as to what efforts are being made in the marketing of the property.
The majority of activities in regard to marketing the seller's property will be conducted by the salesperson. However, the broker should be available in the event decisions need to be made to protect the interests of the seller.

Examples are: reviewing offers to purchase; arranging sub-agency agreements with fellow brokers; advertisements; multiple-listing participation; etc.
Authorization to Sign the Listing on Behalf of the Broker

Example cont. 3
While the broker may act through the salesperson in regard to servicing the listing, the broker always remains responsible for the acts of the salesperson.
For this reason, one of the broker's responsibilities is to provide direction, advice, and training for the firm's sales associates. In this way, the broker can be somewhat assured the salesperson is knowledgeable and the best interest of the seller will be protected, even if the seller is not represented by the broker in person.
The Salesperson's Responsibilities Under a Listing Contract
As agent for his/her employing broker, the salesperson has dual responsibilities; those to the employing broker and those to the broker's employer, the seller. Therefore, the salesperson's duties include disclosure and discretion.
Disclosure

A salesperson has the responsibility of disclosing to both the employing broker and the seller every step taken in the transaction by the salesperson. Disclosure should be in writing and may include:
1. Registration of prospects who have been shown the property during the listing period;
2. Newspaper advertising; and
3. Estimates of market price.
Discretion
Salespeople are often given the responsibility of marketing the properties they have listed for sale. This responsibility may include preparing advertising copy, showing the property, or negotiating with prospective purchasers.

In each case, the salesperson places himself/herself, the employing broker, and the seller in a position of being held liable.

Thus, it is essential to use discretion, and remember that everyone is entitled to honest business practices.
Exclusive listing agreement
Practically every real estate company makes use of some preprinted form of exclusive listing agreement. This type of listing provides that a seller will be directly represented by only the one agent with whom the seller has contracted. In other words, it provides for a "one principal/one agent relationship."

Variations in the exclusive listing are based on the conditions for earning a commission by the agent (broker) and the authority granted to the agent (broker).
Exclusive right to sell listing
To earn a commission under this type of listing, the only requirement is for the broker to produce a purchaser ready, willing, and able to purchase the property under the terms of the listing.

Regardless of who sells the property under the exclusive right-to-sell listing, the listing broker is entitled to the commission.
Note----
The courts have stated the purchaser must actually offer to purchase the property to be considered a ready, willing, and able purchaser.
Exclusive agency listing
This listing is the same as the exclusive right-to-sell listing; except when the owner sells the property personally, no commission is due the listing broker (agent).

However, if anyone sells the property other than the owner, the listing broker (agent) is due a commission.
Authority Granted in the Exclusive Listing Contract
Sometimes an agent's listing contract will authorize the agent to expose the listing to an organization made up of other real estate companies working together in marketing the properties each have listed for sale. Such an organization is known as a Multiple Listing Service.

Most of the listings submitted are Exclusive Right-To-Sell listings. The rules of a particular system specify what types of listings can be entered and what fees are charged. The listing broker retains the primary responsibility to the seller. Co-operating agents who choose to show the property might be working as sub-agents of the seller if offered that role, or as agents of the buyer, or might possibly be neither. In any case, there is an express or implied agreement to share any commission earned by co-operating efforts.
payment of commision
Authority Granted in the Exclusive Listing Contract
commission cont. 1
The listing contract will generally contain such information as the listed price, the terms of sale, and other important information the broker and seller believe is necessary to clarify how the property is to be marketed.
In order to establish performance according to the agreement, the broker must meet all provisions of the contract exactly. For instance, the broker cannot list a home for $50,000, obtain an offer for $48,000, and declare performance according to the listing.

Since the listing expresses the seller's terms for selling the property, performance must be based on those terms and not simply on the terms of the prospective purchaser in the offer to purchase.

As in the example above, obtaining an offer for $48,000 when the listing specifies a sale price of $50,000, indicates performance under the purchaser's terms, not the seller's.
The purchaser was indeed ready, willing, and able to buy at $48,000, but that was not performance according to the listing contract.
commission cont. 2
As previously stated, all written listing contracts must contain a definite date of expiration. Therefore, the broker must find the purchaser ready, willing, and able to buy under the seller's terms during the time specified in the listing.
What happens if a home is listed for $50,000, an offer is obtained for $48,000, and the seller agrees to accept the $48,000 offer? Where the seller accepts terms different from those stated in the listing, but acceptable to the seller, the broker has performed and, thus, earned a commission.
commission cont. 3
In addition to commission rights earned under a listing contract, it is possible to earn a commission through a negotiated sales contract.
EXAMPLE: A salesperson showing a home she has listed on behalf of her broker, notices the next-door-neighbor has their home "For Sale By Owner." It turns out that the prospective purchaser does not like the home listed for sale, so the salesperson asks the neighbor if she can show their home even though it was listed "For Sale By Owner". The home is shown to the prospective purchaser who makes an offer. The offer to purchase states that the salesperson's broker is to receive a commission, and the seller accepts the offer. Is the broker entitled to a commission? Yes. The reason is the agreement to pay a commission is contained in the sales contract.
Recovering Your Commission when the Seller Refuses to Pay Your Broker
Occasionally it is necessary to go to court to enforce commission rights. When such a decision is made, it must be made by the broker, not the salesperson.
Enforcing commission rights:

In order to enforce a commission claim in court, the broker must allege and prove:
1. The broker held a license in good standing at the time the commission was earned, as well as did any other licensee who negotiated the transaction on behalf of the broker;

2. The broker has the authority to negotiate the sale as an agent and the seller promised to pay a commission if the broker performed. For this reason, brokers make use of written listing contracts in which the seller appoints the broker as agent and agrees to pay a commission upon performance. Written evidence of this form is invaluable in court. A verbal contract is not enforceable because of the Statute of Frauds.
Enforcing commission rights:

In order to enforce a commission claim in court, the broker must allege and prove: cont. 1
3. The broker was the efficient and procuring cause of sale. This requirement means that the broker produced a purchaser ready, willing, and able to buy under the seller's terms, or the broker was the proximate cause of sale.

To be the proximate cause of sale means the broker did something (advertised the property, showed the property, placed a "For Sale" sign on the property, etc.) which set into motion a series of events that resulted in the property being sold.
A seller has verbally agreed to pay salesperson Jessica a 3% commission if she produces a buyer for his property. She does find a buyer and the offer is accepted but the seller then refuses to pay commission. Which is true?
The contract was not in writing so is unenforceable because of the Statute of Frauds.
Forms needed to better service a listing:
Once the listing is obtained, the salesperson's attention should be directed to marketing the property.

The salesperson should then do everything possible to put together as much information relative to the property as possible. Obtaining the needed information will result in a higher level of professional service to the seller.

Three of the most important forms are the Seller's Property Disclosure Statement, the Loan Information Request Form, and the Property Description/Profile Form

You should advise the seller of the duty to disclose any defects in the property. The seller should complete a property disclosure statement.

The use of this form should afford needed protection to the broker, the seller, and associated agents from lawsuits concerning disclosure of facts surrounding the property.
Forms needed to better service a listing: cont. 1
Occasionally, a seller will be encountered who wishes to sell a property in "as-is" condition, which means the seller desires to convey the property with no guarantee or warranty. In no way does selling "as-is" relieve the seller of the duty to disclose known material defects.
The salesperson must disclose to any prospective purchaser ALL material facts regarding the property given him/her by the seller which could influence the purchaser's decision to buy the property.
Loan Information Form
In practically every real estate transaction, financing is a vitally important factor. Generally, a purchaser must secure a new loan or assume the existing loan on the property.

Likewise, the seller's proceeds from the sale of the property will be greatly affected by the outstanding loan on the property at the time of sale. Therefore, the salesperson should learn everything possible about the loan on the property being listed for sale. One of the easiest ways of doing this is with a "Request for Loan Information" form.

Immediately, after obtaining the listing, the "Request For Loan Information" form should be completed, signed by the seller(s) and submitted to the lender(s) holding any outstanding loan(s) on the property.
Having the loan information available will assist the salesperson in marketing the property on behalf of his/her employing broker. The loan information will enable the listing broker and the affiliated licensees to:
1. Answer questions from prospects and other brokers attempting to sell the listing;
2. Allow more accurate calculations of the seller's estimated net proceeds from the sale;
3. Estimate the amount of money the purchaser will need to close the sale; and
4. Notify the lender that the loan may be paid off in whole or in part. (Failure to notify the lender of a pending pay-off may result in the seller having to pay an interest penalty.)
Property description/profile form
Many brokers provide Property Profiles, to obtain information to assist you in properly marketing the property. and in inserting data into a computer.

These forms communicate important features such as number of bedrooms, number of bathrooms, parking, style, age, etc. Usually this information is shared with other real estate brokers as well as potential purchasers.
Drafting the Exclusive Right to Sell Listing Contract
To acquire an inventory of property to sell, brokers and salespeople must acquire listings. A listing also constitutes the contract of employment between the seller and the broker. The most common form of listing used is an Exclusive Right-to-Sell.
Drafting the Exclusive Right to Sell Listing Contract cont. 1
Every real estate listing involves at least two parties: the seller and the real estate broker. Under the provisions of the License Law, only a broker can act as an agent to list, rent, or sell another person's real estate for a fee.
Although a salesperson may be the party negotiating the listing with the seller, the listing is always in the name of, and the property of, the broker, never the salesperson.

If the company the salesperson chooses to affiliate with is a sole proprietorship, then "the broker" is the individual broker-owner. However, if the salesperson's company is a corporation or partnership, "the broker" is the corporation or partnership, not the individual who serves as its qualifying broker.
Drafting the Exclusive Right to Sell Listing Contract cont. 2
In the Exclusive Right-to-Sell Listing, one broker is appointed as the sole agent of the seller and is given the exclusive right-to-sell the property.
A seller cannot avoid the obligation of payment of the broker's commission if a purchaser is ready, willing, and able to buy on the seller's terms. Regardless of who sells the property, the broker is entitled to receive a commission from the seller.
Various Provisions of the Exclusive Right to Sell Listing Agreement
The following is a list of the various provisions of the Exclusive Right to Sell Listing:
1. date
2. legal description
3, Exclusive right to sell
4. listing term
5. listing price
6. brokers commission
7. price fixing
8. safety clause
date
This date is usually the date the listing begins. However, in many form listing contracts it is the date the listing is written, not necessarily the day the listing begins. Some form listing contracts provide for both dates: the date the listing is taken and the date the listing begins.
legal description
In some instances, courts have accepted a street address as being sufficient to locate and identify the property in a listing contract. However, it is good business practice to include a complete legal description. By obtaining a copy of the seller's warranty deed at the time of listing, an acceptable legal description will be on file for writing sales contracts.
Exclusive right to sell
"For One Dollar ($1.00) and other good and valuable considerations, I hereby grant to you... the exclusive right and privilege to sell or exchange the above described property..."

Although the one dollar may not be paid by the broker for the right-to-sell the property and earn a commission, this statement of nominal consideration in the listing makes the agreement legally binding

If you have to count the days of the listing to determine the last day, start counting with the day the listing begins.
listing term
All listings should specify a definite period of time during which the broker is to be employed. In order to avoid potential problems concerning the listing period, each listing contract should clearly set forth a definite date on which the listing will terminate.
NOTE: At the end of the listing period, the owner should not renew the agreement by simply initialing it. Listing renewals should be handled by having the owner sign a new agreement or by drafting a modification/amendment to the existing listing contract.
listing price
". . . for the sum of $___________ or at such other price or terms to which I may consent."

While it is the responsibility of the broker or salesperson to advise the seller of a reasonable listing price, it is ultimately the seller who must determine the price for which the property is to be sold.

However, since the seller may not have enough information in which to make an informed decision about a fair market price, the broker or salesperson must be prepared to offer knowledge, information, and expertise in this area.
Brokers commission
"I agree to pay you ________________ as commission, provided said property is sold, exchanged, or leased with option to purchase by you or by anyone else, including myself, during the term of this agreement or any extension thereof, or should you or anyone else produce a person ready, willing, and able to purchase said property at the price and on the terms as outlined herein."
Brokers commission cont. 1
The amount of the broker's commission is a matter of agreement between the broker and the seller. There is no such thing as minimum commission rate, maximum commission rate, or regulated commission rate.
A broker may indicate minimum commission rates he/she will authorize the salesperson or associate broker to accept for the company. If a prospective seller desires to negotiate a rate lower than the employing broker has authorized the salesperson or associate broker to accept, the seller's wishes should be conveyed to the employing broker for a final decision.
A listing contract can best be described as:
In the listing the seller is hiring the broker to perform the service of marketing the property. It is specific or limited agency.
price fixing
occurs when brokers conspire to set commission rates for their services rather than establishing commission rates through competition in the open market. Price fixing is an antitrust violation and the penalties for such violations are severe. People involved in price fixing may face civil and criminal prosecution.
Commissions most often are expressed as a flat fee or a percentage of the sales price. The employing broker should establish guidelines on rates of commission that are to be negotiated for the company.
The law that makes price fixing illegal is the:
It is the federal anti trust statute that makes it illegal for any parties to enter into an agreement to fix prices.
safety clause
The safety clause in a listing contract allows the broker to collect a commission even though the property is sold after the listing has ended. The following language may be used to create a safety clause in a listing:
"Should I contract to sell, exchange, or lease with option to purchase the above described property within ____ days after the above expiration date, or any extension thereof, to a purchaser to whom the above described property was offered during the continuance of this agency by you, by me, or by anyone else, I agree to pay you at the same rate of commission."
safety clause- example
"In this regard, within five (5) days after this agreement or any extension thereof terminates, you shall furnish me with a complete list of the names of all persons to whom the property was offered, and such list shall be conclusive as to any commission rights due for any offerings made by you, or persons authorized by you."

"I understand that in order to be liable for the payment of only one commission, at the time of listing of the property with a subsequent broker, I shall make the subsequent broker aware of the provisions of this agreement, and furnish the subsequent broker with a copy of the aforesaid list of names."
The brokerage firm's listing agreements may have different wording to enforce the safety clause. For example:
1. There must be a certain number of days the broker will be entitled to a commission if one of the people to whom the property was offered during the listing period decides to buy the property after the listing ends. The employing broker should determine how many days should be negotiated for the company, by affiliated licensees; and

2. The seller must be provided with the names, in writing, of those persons to whom the property was offered during the listing period. If the safety clause fails to specify when the prospects' names should be submitted to the seller, the list of names should be submitted before the end of the listing.
The seller should clearly understand that the safety clause can be enforced even if the property is listed exclusively with another broker after the listing ends. To avoid paying a commission to two brokers, the seller must:
1. Make the subsequent broker aware of the safety clause in your listing; and

2, Furnish the subsequent broker with a list of your prospects to whom the property was offered.
Sitiation #1- Safety clause
On May 3rd, you list a home for sale for $143,500. That listing is for 90 days and your listing contract contains the safety clause described above with a 90-day protection period--the time after the listing ends during which the commission may be earned. You show the home to Cathy and Robert Nelson on June 8th and they immediately make an offer to purchase.
Sitiation #1- Safety clause cont. 1
The offer is accepted two days later and the Nelson's make application for a new VA loan. You find out two weeks later than the Nelsons income was not enough to qualify them for the loan. Your listing expired without any other offers having been made. On October 24th, you ride by the home and notice the seller is moving. You stop to inquire about the purchaser and learn that the Nelson's loan had been approved because of an increase in salary. Does the seller owe your broker a commission?
SOLUTION:

No, Nelson's name was not submitted to the seller in writing within five days
A safety clause in a listing contract protects the?
The clause protects the listing broker's right to claim commission for a sale made after the end of the listing, to a prospect who was shown the property before the listing expired.
Special Stipulations (Terms and Conditions)
Loose step on the stairs (2nd stair from top) $40.00

2. Door knob on master bathroom $30.00

4. Power wash the exterior (ESP. Front porch And around garage, back deck) $250.00

5. 2 broken tiles in kitchen $200.00

6. Blinds on windows $200.00

7. Fix Storm door $50.00

8. Loose banner on outside $50.00

9. Service Water Heater/HVAC $200.00

12. There is a hornets nest somewhere around the house that needs to be exterminated. Same cobwebs in windows and looks bad. $55.00

13. If deck pressure washed, must be stained $500.00

14. Deep interior clean $350.00
15.Estimate for replacement carpet. (DO NOT deep clean the carpet, just replace it)
Areas where special stipulations may be needed include:
1. Showing property by appointment only, or not at certain times;
2. Earnest money instructions;
3. Seller's willingness to accept a second mortgage or to permit the present loan to be assumed; and
4. Items including personal property to be included in or excluded from the sale.
Some questions about financing that should be considered when you obtain a listing include:
Are there any outstanding loans against the property?
Can the loan be assumed? Under what terms?

Is there a penalty if the loan is paid off?

Will the interest rate be increased if the loan is assumed?

Will the seller pay a loan discount if the purchaser obtains a new loan?

Is the seller willing to finance part of the purchase price?
How many years? What interest rate?

Will the seller pay any part of the cost of new financing?
Financing
Have the Seller sign a consent form giving permission for the agent to obtain information on outstanding loans against the property, and acquire if possible a copy of the seller's Deed to Secure Debt (Mortgage) and Note in order to review for loan information.

The loan information as outlined earlier should then be requested immediately from the lender.
A seller has indicated a willingness to allow a buyer to assume the existing loan, but before that fact can be advertised, what is the first thing the agent needs to verify:
When the loan was obtained is not relevant but it is important to know whether its is assumable or not and under what terms, as well as the current balance.
Advertising
"You are hereby authorized to advertise the property during this agreement and any extensions thereof, to place your FOR SALE signs, if any, and to photograph said property and use such photographs in promoting the sale."

"For Sale" signs may not be posted on the property without the owner's written consent. If a broker allows licensees to take a verbal open listing, the seller's written consent is still required before posting a "For Sale" sign. Remember, all "For Sale" signs must be removed within ten (10) days after the listing ends.
Advertising cont. 1
Property must never be advertised without written authority from the owner or the owner's agent. The authority to advertise must also contain a specific time frame in which the property can be advertised.

NOTE: Check local ordinances before posting "For Sale" signs. These ordinances may dictate certain sizes and locations where signs may be used. Avoid placing a sign on street or highway rights-of-way or on property owned by someone other than the seller.
Advertising situation #2
In an actual case before the Georgia Real Estate Commission, a seller contacted a broker asking the broker to list his property. The seller told the broker the home was vacant and had been appraised. When the salesperson went to inspect the property, she found only one vacant house on the street where the property was located. The vacant house had a sticker from an appraisal company, indicating the house had been appraised. None of the houses on that street had street or lot numbers.

The salesperson placed a "For Sale" sign in the yard of the vacant house and other licensees began showing the property to prospective purchasers.
Advertising situation #2 cont 1
The listing salesperson obtained an offer the following month from a prospective purchaser. The seller accepted the offer and the purchaser moved in. Soon after moving in, an official of the Veterans Administration informed the purchasers that they were living "next door" to the home they had actually purchased.

As it turned out, the seller's home was not vacant at the time of listing.

Violation:

The salesperson placed a "For Sale" sign on property without the owner's written consent.
Advertising situation #2 cont 2
Commission Decision:

Formal reprimand.

Recommended Solution:

The salesperson should not have relied on the seller's verbal description of the property. She should have had the seller personally show her the property or obtained a legal description from the seller to more clearly identify the property.

Even though it appeared to be an honest mistake by the salesperson, she was in violation of the law. The seller ultimately had to buy the property the purchasers occupied and deed it to them.
Carl is listing a home in Happy Acres and has written permission to place a sign, but there is a restriction against For Sale signs in the subdivision. Carl should:
It is illegal to place a sign on a public right of way or on any person's property who has not consented. It would be unwise to ignore the subdivision rule and would expose Carl's principal to liability for that infraction.
Seller agrees to assist
"I agree to refer all inquiries concerning the sale of the property to you during the term of this agreement. I further agree to consider your recommendations, to enable you to show this property to its best advantages, to allow you to show it at all reasonable hours, and otherwise cooperate with you."

This wording may vary substantially in preprinted "form" listing contracts. Licensees must review all company contracts carefully prior to their use.
Acknowledge Receipt of Legal Description
"I warrant that I have furnished you a complete and accurate legal description of the property . . ."

The seller's Warranty Deed, Deed to Secure Debt (mortgage) or seller's Title Insurance Policy may be used to obtain a complete legal description of the property.

If the seller does not furnish a complete and accurate legal description, this part of the listing agreement should be crossed out, and initialed by all parties, along with the time and date of initialing.
seller has title
". . . and I further warrant that I have title to the property described herein and/or have full authority to enter into this agreement."

When a copy of the warranty deed is furnished by the seller in order to obtain the legal description, the deed should also be checked to see exactly who owns the property. (The party of the second part, the grantee, named in the deed is the owner.)

If the seller is unable to furnish a copy of the warranty deed, or if the names have changed because of divorce, marriage, etc., the licensee should advise his/her employing broker of these changes
Receipt of a Copy of the Listing Contract
"I hereby acknowledge receipt of a copy of this agreement."

As with any contract, a listing requires an offer and acceptance and communication of that acceptance to the party making the offer. For this reason, all parties signing a listing should receive a copy of that listing at the time they sign. In this way, communication is accomplished, and the contract comes into being. This is the agents first step after the signing.

Failure to furnish a copy of a signed listing to each person signing the agreement can invalidate your broker's right to collect a commission and is also in violation of the License Law. Your broker must maintain a copy of the listing for three (3) years.
signatures
See Example 22 for a sample signature statement.

Note: - The symbol (L.S.) is an abbreviation of Latin words which translate Line Seal. When printed after a signature, this symbol has been held to have the same effect as a seal.

A contract under seal is considered by law as entered into with more solemnity, and consequently of higher dignity, than ordinary simple contracts.
seller
The listing contract should be signed by all parties who own the property (parties whose names appear on the warranty deed).

Husband and wife - when title is held by husband and wife, have both parties sign the listing.

"The sellers are involved in a divorce proceeding and any sale of the property shall be contingent upon the seller obtaining a Final Judgment and Decree authorizing the sale of the property."


Seller involved in a divorce - A pending divorce could create legal issues surrounding the seller's ability to sell or convey title. As always, the broker should be consulted for the protection of all parties. The broker may desire the pending divorce to be indicated as follows:
Seller involved in a divorce - A pending divorce could create legal issues surrounding the seller's ability to sell or convey title. As always, the broker should be consulted for the protection of all parties. The broker may desire the pending divorce to be indicated as follows:
- power of attorney
- corporation
power of attorney
where the seller has authorized someone else to sign the listing, you should obtain the authorization (called power of attorney) in writing, and attach it to the listing, and make it a part of the agreement by reference.
corporation
when property is owned by a corporation, the listing should have the corporate seal affixed when one officer signs the agreement, or the signatures of two authorized officers in the absence of the corporate seal. In either event, a copy of the resolution should be obtained.
builders/partnerships
if a new home is owned personally by the builder (or more than one person), the listing should be signed individually by all owners. If the home is owned by a partnership, one general partner may bind all other partners in the listing. It is important to establish whether the builder is a sole proprietor, partnership, or corporation in order to assure proper signatures.
With regard to a married couple who are selling a home they own jointly, their listing contract should be signed by:
Since both husband and wife are on title they should both sign the listing
Parties Involved In An Exclusive Buyer/Exclusive Tenant Brokerage Engagement Agreements

Buyer/Tenant (Client) - Also known as principal
The buyer or tenant in a exclusive buyer/tenant (principal) brokerage agreement is the person who retains the broker's professional services to find for the buyer or tenant a suitable property to purchase, or to lease.

Like the exclusive agency agreements with the seller, exclusive buyer/tenant brokerage agreements are required under the Georgia law to be in writing, with a definite date of termination.
Broker (agent)
This individual or legal entity is the party who enters into a contract with a buyer or tenant and who is to be paid a fee upon finding the suitable property for the client - (buyer/tenant).

The broker is responsible for seeing that all terms and conditions of the exclusive buyer/tenant brokerage engagement agreement are carried out. Additionally, the broker is responsible for disclosing to the client (buyer/tenant) the agency policies of the company, i.e., single agency or disclosed dual agency.
sales person (agent for the broker)
The salesperson is the person who works on behalf of the broker and assists the broker in fulfilling the broker's agency responsibilities and promises as set forth in the buyer/tenant brokerage engagement agreement.

The salesperson is the agent for the broker, and the broker is the agent for the buyer/tenant. The salesperson, unless given specific authority in his/her employment contract, has no authority to sign an exclusive buyer/tenant brokerage engagement on behalf of his/her broker.
Broker Commission
The amount of commission that is to be paid under an exclusive buyer/tenant brokerage engagement agreement is an item of negotiation between the broker and buyer/tenant. Like the listing commission, there is no minimum, maximum, standard or regulated commission rate for the buyer/tenant brokerage engagement agreement.

The broker has the right to establish the minimum commission or rates that are allowed for the salesperson to accept on behalf of the company, but those rates do not apply to other companies.
Broker commission cont. 1
It is also important to note that some brokers may require a retainer fee to be paid by the buyer/tenant at the time of entering into the buyer/tenant brokerage agreement. This retainer fee may be nonrefundable if a suitable property is not found within the time limit of the agreement; applied as part payment of the total commission when a suitable property is found; or paid in addition to the negotiated commission.

The requirement of a retainer fee is a matter of policy set by the broker. Salespeople should consult the broker concerning the collecting of retainers.
broker commission cont. 2
Another interesting aspect of the payment of the commission in an exclusive buyer/tenant brokerage engagement is that a seller or landlord may also pay the buyer/tenant broker's commission.

It is important to remember that payment of commission does not establish an agency relationship. An agency relationship is created when one party authorizes another to act on one's behalf.
Broker commission EXAMPLE
Broker Shelly entered into an exclusive tenant agency relationship on May 1st, to find warehouse space for Prospective Tenant Brenda. Prospective Tenant Brenda agreed to pay Broker Shelly a nonrefundable, $1,000 retainer fee and ten percent (10%) of the annual rental, provided she found adequate warehouse space within a ten mile radius of downtown Atlanta, on or before July 30th.
Broker commission EXAMPLE cont. 1
Prospective Tenant Brenda and Broker Shelly also agreed that Broker Shelly would attempt to find warehouse space where the owner/landlord would pay the ten percent (10%) commission. On July 1st, Broker Shelly showed Prospective Tenant Brenda a warehouse property listed by Broker Megan that fit the needs of Prospective Tenant Brenda. The lease was drafted requiring the owner/landlord to pay the ten percent (10%) commission, and that Broker Shelly and Broker Megan would split the commission on a 50%-50% basis. The Owner/landlord accepted the lease terms.

In this example, the commission for tenant agent, Broker Shelly, was paid by the owner/landlord and not by the prospective tenant who entered into the exclusive tenant brokerage engagement agreement.
The Exclusive Buyer Exclusive Tenant Brokerage Engagement Agreement
The broker will establish the agency policies for the brokerage firm. Salespeople must work within the policy guidelines established and use forms for agency disclosures and brokerage engagements provided by the broker.

The broker, or salesperson on behalf of his/her broker, should determine if the prospective buyer/tenant is currently obligated under any other exclusive buyer/tenant brokerage engagement agreement prior to entering into the new brokerage engagement agreement.