3 New Brochure—(GAR Form B5) “What to Consider when Buying a Home in a Community with a Homeowners Association (HOA)” The GAR Forms Committee has also released a new
brochure entitled “What to Consider when Buying a Home in a Community with a HomeownersAssociation (“HOA”)”. This brochure was written to help consumers better un- derstand the working of homeowners associations. Some of the issues addressed in the brochure include: 1)how can a buyer evaluate whether a homeowners association is well run; 2) are there special costs or fees typically paid by buyers of homes in anHOA; 3) what kindsof use restric- tions typically exist in a community with a HOA; 4) how does a buyer tell if a property is part of a HOA that can be expanded; and 5) how does a buyer tell whether a com- munity is a HOA or a condominium?
4 GAR Form F1, Exclusive Seller Listing Agreement
(A) SPECIAL CIRCUMSTANCES IN LISTING AGREEMENT
A new section has been added to the Exclusive Seller
Listing Agreement in which sellers are to disclose whether there are any special circumstances affecting the listing. In this way, listing agents can better plan for delays that could affect the closing of the transaction and disclose the same to the selling agent. There are two categories of special circumstances in the listing agreements. The first are situationswhere the seller needs to get permis- sion of a third party to list the property for sale. So, for example, if a seller has filed for a divorce or for bank- ruptcy, the seller cannot list the property for sale without first getting the permission of a court. The second cate- gory of special circumstances are situations where a third party must approve the actual purchase and sale con- tract affecting the property. So, for example, if the seller has filed for a short sale, bankruptcy or divorce, a third party must approve the actual purchase and sale agree- ment. Hopefully, the disclosure by the seller of these spe- cial circumstanceswill help avoid unwelcome delays that can derail real estate transactions that would have closed absent a delay.
(B) DISCLOSURE BY THE
SELLER OF HAZARDOUS CONDITIONS ON THE LISTED PROPERTY.
A new section has also been added to the Exclusive
Seller Listing Agreementwhere the seller acknowledges that he or she owes a duty to warn buyers and other invi- tees of dangerous conditions on the property and agrees to indemnify and hold the broker harmless against claims
16 IGEORGIA REALTOR® Conclusion The changes made in the 2015 Forms will, hopefully,
continue the process of improving our Forms. SETH G. WEISSMAN IS GAR’S GENERAL COUNSEL,
AN ATTORNEY AT WEISSMAN, NOWACK, CURRY & WILCO, P.C., AND A PROFESSOR OF THE PRACTICE OF CITY PLANNING IN THE COLLEGE OF ARCHITECTURE AT GEORGIA TECH.
arising out of a buyer or other invitee being injured or harmed while on the seller’s property. It is increasingly common for listing brokers to be sued if a buyer is injured on the seller’s property as a result of a dangerous condi- tion existing on the property. This new section is designed to shift the risk of these claims away from the listing bro- ker and to the seller.
(C) FAIR HOUSING DISCLOSURE. The fair housing disclosure has been modified in all
GAR Forms to comply with the NAR code of Ethics. The new disclosure states that the parties and their brokers are committed not to discriminate in the sale or lease of property based on the seven (7) categories provided for under federal law (race, color, sex, religion, national origin, familial status and disability) plus discrimination based on sexual orientation and gender identity both of which are now prohibited under the NAR Code of Ethics.
5 New Form F38, Co-op Commission Agreement When property is listed in a multiple listing service
(“MLS”) the listing broker agrees to share his or her com- mission with any selling broker who is a member of the MLS to the extend set forthin the MLS. However, if the sell- ing broker is not a member of the MLS, there is not any obligation for the listing broker to share his or her com- mission with the selling broker. Instead, for the selling bro- ker’s commission to be protected, the selling broker should enter into an agreement with the listing broker setting forth the terms of the listing broker’s compensation. For 2015, GAR has created a new Form F38in which the terms of the cooperation brokerage engagement between bro- kers who are not in the same MLS can be memorialized.
6 Modification to F23,
New Construction Purchase and Sale Agreement
A very minor change wasmade to the New Construction
Purchase and Sale Agreement. Specifically, the contract was modified to clarify that the entire construction de- posit paid by the buyer toward the construction of a new construction home shall be credited toward the purchase price at closing.
JANUARY I FEBRUARY 2015
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