- We have concerns about representations of age of repairs made to homes, such as when an agent indicates that a roof is “new” when in fact it was put on in 1990. A suggestion was made that the words “newer” be used and then in the remarks section, indicate the actual year the repair was done. What can be done?
Too true! There is potential broker liability if a seller discloses that a new roof was installed in 1990, yet the agent classifies it as “new” and omits the 1990, or the “17 years old” part. Buyers agents should also follow up on any general statements indicating condition (“new”, “refinished” “rehabbed”), to determine if factual information is available and if not, make sure clients are advised to seek an assessment by a professional (home inspector, septic inspector etc..) Proper disclosure is the most important legal aspect to this business – Read More about Chapter 93A
- What is the legal description of a bedroom? Is it size? Does it have to have a closet? Does it have to have heat?
Chet Nicora, appraiser and instructor for the Berkshire Board of REALTORS®, said that definition of a bedroom is very subjective based on functional use of the property, what is typical in the area, and the age of the home.
- Basement space can not be considered a bedroom because of window size.
- A “walk-thru” room cannot be considered a bedroom because it lacks privacy.
- An interior room cannot be called a bedroom because it lacks windows entirely.
Regarding closets, if the lack of a closet reflects the era in which the house was built, that is fine, since closets did not become common until post WWII, at which time they were small (2′ x3’). In a new home however, lack of a closet would raise a red flag and rooms would not appraise as a bedroom if it did not have a closet as comparable styles do.
Window size must be large enough for a firefighter in full gear to enter the window, with exceptions for old homes where windows were small. The appraiser will make the final determination.
- Could we get a “3/4 bath” option in our MLS, so that those with just a shower and not a tub can be differentiated when looking at a listing sheet? A “full” bath should be with a tub and shower and a “3/4” bath can be with just a shower stall.
For appraisal purposes there is not a differentiation between a tub and a shower – and both would be considered “full”, although one might have a higher value. Chet Nicora did think that this field addition would be great for our MLS to further clarify the features of the home. We will wait until the vendor selection process is finalized and ask the Fields Task Force (soon to be formed) to include it in our list of ‘wants’.
- Roof material? What should we do when the homeowner doesn’t know whether their roof is asphalt or fiberglass or a combination of both?
Great question – first of all, never guess! When making so many of our MLS fields mandatory, the Board was careful to always leave an ‘unknown’ option available. If the homeowner is not knowledgeable about the roof type (or anything else on the MLS listing sheet), the agent should select unknown. It is a way for us to ensure a completed form, but allow for circumstances like the one mentioned.
- It can be so frustrating to print out a listing sheet and find lines being left completely blank, i.e. Schools, rooms and room dimensions, etc. Help!
The MLS has always walked a fine line between requiring information and allowing agents to market the property at their own discretion. If you would like more fields mandatory, we would be happy to oblige, but will realistically face a backlash from those that will adamantly disagree. Options need to be carefully considered, and as item above indicates, sometimes the information is just not available. This concept will be brought before the Fields Task Force later this year. Among their tasks, they will be examining each field in the database and its attributes as well as looking at new field ideas for better property exposure.
Note: A helpful tool for agents working in the Pittsfield market… Central President Barbara Davis Hassan has dropped off a list of all Pittsfield schools, divided by street name. You can also access it on-line in PDF format at the Pittsfield School System web site. Now there is no excuse to leave those fields blank!
- We request that both a % and a $ amount be made available in the mortgage sections of the Purchase and Sale Agreement.
The last upgrade eliminated the $ and % sign so that the agent could freely enter whichever “amount” they chose (or both). There is space for both a dollar amount and/or a percentage, but the line may wrap due to the length.
- Information from Warren Group regarding assessors information is not up to date or accurate. Also, is there a way to allow the Warren Group search criteria to be based on the address of the home and/or the current owners name?
An Assessors Data Task Force is also being formed later this year to study this problem. We are waiting to determine what MLS system we will be contracting with, in order to avoid wasted efforts. We agree that the data is questionable, and the group will look at this thoroughly. Staff has already discovered that there are other providers of this data out there, and we are looking into all options.
When looking at other systems and even other data providers, we have discovered much more robust searching of assessors data as well. Our searching right now is rudimentary and you can expect to see changes after February 2008. Again, we have a plan for an Assessors Data Task Force to launch later this year.
- What is the legal definition of a sunroom. Some agents using the word “sunroom” were in fact the room is a “porch” and this is causing confusion and frustration.
A Sunroom is: a room enclosed largely with glass and affording maximum exposure to the sun.
A Porch is: a covered platform, usually having a separate roof, at an entrance to a building or attached to the outside of a building.
A Deck is: an open, unroofed porch or platform extending from a house or other building
A Patio is: a paved, uncovered outdoor area, usually adjoining a house and used for outdoor living. When in the center of a house, it is typically referred to as a ‘courtyard’.
- Some agents are including the basement area in the total square footage where it should be only the “above grade living space” included in the square footage. Correct?
Yes, a basement should not be included in a home’s square footage determination. Only “above-grade” living space should be counted. Trusted appraiser Chet Nicora also commented that raised ranches pose an important problem when determining grade – counting actual “living space” and bedrooms based above grade only. The MLS is also looking into how our feed of assessor’s data treats the two fields (basement sq ft & living sq ft). We have already put out an inquiry and expect to here more shortly.
- Lenders are not counseling Buyers as for affordability and whose responsibility is this?
While the lender is taking the risk and therefore assessing that risk accordingly, the REALTOR®, if working as a buyer’s agent has a fiduciary duty to the buyer. What is fiduciary? One who acts, in a legal role, in the best interests of their client. While your client always controls their own rights, it is imperative that agents understand a few “new” developments in the marketplace, primarily mortgage fraud and specialty or sub-prime mortgage, in order to properly advise them. Without understanding these issues, there is little that can be done to protect and promote your clients best interests in financing matters. The National Association of Realtors is taking steps to address the problem of trapped borrowers with a new series of brochures on predatory lending that you can give to customers warning them to tread carefully. A few resources at your disposal now are on our web site.:
- FAQ’s about fraud released by the MAR attorneys
- Supplement on Specialty mortgages
Rep. Ruben Hinojosa (D-Texas) introduced a strong statement from NAR on the need for predatory lending legislation at a hearing last month on risky mortgage products. The NAR statement also publicized NAR’s consumer guides on understanding risks of different mortgage products. At the hearing, members of the House Subcommittee on Financial Institutions and Consumer Credit questioned why it has taken federal banking agencies so long to issue lending guidelines that stop abusive lending practices. Members also heard from representatives of mortgage and consumer groups.
- There is an alarming trend toward the sale of homes to low-income families who can scarcely afford home ownership. What duties does a buyers agent have and isn’t this a breach of fiduciary responsibility.
This is a very difficult situation and systematic of a larger problem. While arming buyer agents with information on the dangers of alternate mortgages, there are times when a buyer is technically qualified to buy by a lender, and they want to buy, and hire an agent for the sole purpose of helping them buy. Maybe it isn’t wise, but buyers make that decision, but must be making that decision with a lot of factual information from their representative, their buyer’s agent.
We have to treat all parties honestly and buyer’s agents specifically must work to promote the interests of their buyer client. Buyers should be receiving a considerable amount of information and guidance from their agents, whether or not they choose to take it.
In the broader discussion, let’s play the devils-advocate and ask one question: Should Realtors be able to discriminate against buyers if they judge them incapable of financially handling home ownership, even if a lender has agreed to give them the money? Of course not. Buyer’s Agents must counsel, disclose and inform – but have no power to stop or hinder a sale when a person is financially qualified.
- Is there a conflict created by mortgage company, REALTOR® and attorney all under one roof?
Real estate firms have been partners with mortgage companies for more than 20 years, but Realtors have started to open their own mortgage companies as a way of broadening services and diversifying their bottom line. As long as the buyer is free to go elsewhere for such services and mortgage protections are in place, this service is legal. Some feel that although it is legal, it creates a conflict of interest. Other weigh in that the new mortgage laws enacted protect consumers against mortgage fraud. There was a good article about it in the New York Times.
If you find that there is a specific problem in a transaction, ask your broker to call the MAR legal hotline to find out what to do about it. 1-800-370-LEGAL (5342)
Submitted by Sandy Carroll on 05/14/2007