Contingencies, Multiple Offers, Deadlines, and More
In many markets right now, there’s a limited amount of inventory and a surging demand for property. In this “hot seller’s market” with fast-moving properties, real estate professionals face increased risks.
In this webinar, attorney Jim Meseck, from White and Steele, and Dave Miller, who manages the CRES Advantage Home Warranty Program, discuss how real estate professionals can prevent claims in the current market.
This comprehensive and informative webinar covers:
How agents can help sellers to avoid accepting multiple offers by mistake
Fair Housing claims and how to avoid them
Appraisal gaps and how they can lead to doubt and uncertainty
Why agents should advise buyers to still go ahead with inspections, even in a competitive market
The importance of monitoring deadlines, and being cautious when terminating or extending contracts
Why agents need to remind sellers about their duties and disclosure responsibilities
How agents and brokers can manage client expectations
Issues when agents change brokerages
How the CRES Advantage Plan can protect sellers and add value to your listings
The key to success for brokers in a hot seller’s market is to get listings, close deals and keep clients happy. Risk management is also essential to prevent claims and protect your real estate business.
Watch the full webinar below to find out more:
Thank you for joining us today for a very timely and relevant webinar, “Preventing Claims in this Hot Seller’s Market.” I’m Laura Prouse, with CRES Insurance Services. Today, we welcome attorney, Jim Meseck from White and Steele. Jim’s practice focuses on litigation, and he’s been defending real estate professionals for 20 years. He’s also appointed to the Colorado Bar Association Real Estate Section Council, and Jim has worked with CRES for over 10 years as a member of our legal panel.
Along with Jim, we have Dave Miller, Regional Vice President with Fidelity National Home Warranty. Dave manages the CRES Advantage Home Warranty Plan. For CRES E&O Insurance members, you can reduce your out-of-pocket claims cost when you purchase a home warranty for your seller.
Thanks so much, Laura, for having us today. This seminar is going to be great not only for the CRES E&O members in Colorado, but also for real estate professionals in general.
The CRES Advantage Home Warranty gives CRES E&O members a little extra protection through Fidelity National Home Warranty:
Number one, if the agent or broker is named in a lawsuit on a transaction where the agent/broker provided the CRES Advantage Home Warranty, the agent/broker gets a reduction up to $5,000 in “retention” (out-of-pocket claims costs) in Colorado. In many cases, that’s going to give you zero out-of-pocket claims costs, which is a great value. (Check the Home Warranty page on cresinsurance.com for the CRES Advantage Home Warranty available in your state.)
Number two, when you purchase a CRES Advantage Home Warranty for your seller, the sellers are automatically enrolled in Seller’s Protection Plan for $50,000 in E&O coverage.
In this competitive market, when you’re trying to figure out how to deliver more value than the real estate office or the agent down the street – or how do I get this listing – Seller’s E&O can be a great competitive advantage.
Many agents will tell potential sellers they’re going to do a great job listing their property. They might do a little staging, they’re going to bring in their own photographer. But CRES E&O members can say that when you list your property with me, I’ll give you a CRES Advantage Home Warranty to help your property sell faster and for more money. And that Home Warranty will also give you $50,000 in E&O coverage (for damages and legal fees) in the event you have a disgruntled buyer after closing.
About 95% of the real estate lawsuits are buyers suing sellers. Using the CRES Advantage Home Warranty gives you added value as a listing agent, and also protects your sellers down the road.
Number three, the Warranty includes 13 months of protection versus 12. Who doesn’t want an extra month of protection? Keeping those buyers happy with that coverage for their plumbing, their electrical, their dishwasher, their range, their oven, their microwave, all those items, has tremendous value.
Jim, let’s bring you in. You can’t turn the channel without seeing how crazy the real estate market across the entire country is right now. We’re going to focus on Colorado as just one example. What’s causing this unprecedented market?
Here in Denver in the metro area and across Colorado (although some places more than others), the real estate market demand has hit a new level of insanity with just the limited amount of inventory. Obviously, we’ve got the effects of the pandemic, and we’ve got investors coming in who want a safe place for their money, to guard against inflation. We just have this convergence. In the meantime, there’s been a lack of development to meet the demand, on top of affordable housing requirements. So, it’s like this perfect storm.
I was looking at some statistics from the Denver Metro Area Brokers going back to 2008, and we seem to have crossed this twilight zone with respect to inventory versus demand. In July of 2020, for the first time ever, according to the DMAR stats, the monthly and active listings dipped below the month end closings. We are seeing more closings per month than active listings per month. It’s just, like I say, the Twilight Zone.
And this market is creating all new sorts of E&O claims we never imagined we’d ever see.
Home warranties, Seller’s Protection Plan, and “as is” sales
Can you speak to home warranties in general? I’m guessing they’re only on about maybe 25% of the transactions in Colorado — and in this market, maybe even less. But what value do they have on transactions?
Dave, they bring a tremendous value, not only for the professional real estate brokers, but also for their clients. That includes whether they’re the seller’s agent or the buyer’s agent. This is a product that benefits buyers, obviously, if something goes wrong with an appliance, let’s say, or they discover something that may have or should have been disclosed. And a warranty also protects the seller, or potentially protects the seller, depending on what the claim is.
I just think a home warranty is a great resource for sellers to have, especially in this market, where buyers are paying a premium, and sellers aren’t willing to do repairs, they want to sell it as is. Well, selling “as is” isn’t going to protect the seller necessarily when a claim arises. In my entire career of defending these claims, for failure to disclose where they bring claims against the seller, I’ve never seen a homeowner’s policy step up and protect the seller, ever. Those claims are just routinely denied.
Sellers don’t even fight them anymore here in Colorado. I’ve never seen a successful action for coverage by sellers under their homeowner’s policy. The CRES Advantage Home Warranty with Seller’s E&O Protection Plan is the only product that I’m aware of for sellers to use for a limited benefit or any type of benefit to get these claims resolved.
Another weird statistic, not only have we entered the Twilight Zone, but now we’ve entered an even more bizarre dimension than that. In the Denver Metro area, there are more million dollar homes sold every month than there are homes of $400,000 or less. That just amazes me. For this past month of March, there were 429 closings of $1 million and over in real estate.
To compare that, there were 241 homes that closed in the $300,000 range, 29 in the $200,000 range, and there were three for less than $200,000. We’re seeing very expensive homes moving. Those homes have very expensive appliances. If those appliances break down, this (home warranty) is the product that those buyers, sellers and even real estate brokers can benefit from.
Multiple offer problems with electronic signatures
In this seller’s market, we’re seeing multiple offers on pretty much every house. What are some of the issues you see with multiple offers?
One of the more common claims that I never thought I’d see is where a seller accepts multiple offers. Here in Colorado, there are software programs that real estate brokers use, in which it’s very convenient to just forward offers as they come in to the seller.
Unfortunately, a lot of sellers don’t appreciate or understand what they’re getting. Sometimes they think, oh, I need to acknowledge an offer. Then they’ll start clicking and placing their electronic signature on these contracts. Then they hit send, and it goes out, and what they’ve done is they’ve accepted multiple offers to sell the same home. Of course, who do they blame? Frequently, they blame their real estate broker for not explaining exactly what they’re getting — and instructing them not to sign anything.
What I’ve seen brokers doing is that, instead of forwarding these contracts, they will now put together a spreadsheet and summarize the contracts.
“Love letters” and Fair Housing issues
Another issue we’re seeing is with brokers who really want to go the extra mile and help out their clients. So, they’ll work with buyers to write “love letters,” to try and convince the seller to sell to this particular buyer. That’s problematic, because you get into fair housing issues.
If a young couple writes, “oh, we can imagine our children running down the hallways to celebrate Christmas.” Right there, you’ve got potential Fair Housing issues with age and religion.
It just creates all sorts of problems. Brokers have to be very careful when representing buyers, as to what they can do, how they can advocate for their clients. And they have to be careful when representing sellers with the information received, because you don’t want to set yourself up for a Fair Housing claim. (Learn more about the Pitfalls of Love Letters.)
Appraisals and financing with offers over asking price
Wow, that’s crazy. The love letters were so popular for so many years and got so many families homes, and now they’re a detriment. That’s very interesting. Let’s talk about the buyers for a second, they’re obviously willing to pay asking price, and we’re seeing sales over asking price. What are the challenges with appraisals and financing when they go above and beyond the list price?
That creates a lot of problems. One of the issues that I commonly see are “appraisal gap” terms that they will put into the offers. It just creates a lot of uncertainty, if the wording is not done precisely to clearly articulate what exactly is being offered. A lot of people think, “well, I’ll just put in $1 amount above the appraisal and cover that.”
But it doesn’t always happen as imagined or expected. Sometimes the appraisals can change, and then, there’s still that gap, what’s covered? How much of that gap? Buyers see things from their perspective, and sellers are thinking, “oh, well, this is going to work out the way I imagine it.” Sometimes it doesn’t work out either way.
The problems I’m seeing, in terms of appraisal gaps, is that the language brokers will try and type in to cover any additional provisions creates a lot of uncertainty, creates a lot of doubt. If there’s any chance of things going off the rails, the best advice is to have an attorney work with you in preparing that contract language, and just managing expectations.
You’ve got to talk to your buyers, to determine if they’re willing to cover the appraisal gap, by how much, and where are those funds going to come from. If this offer gets selected, then you’re going to have to perform, or you’re going to potentially lose your earnest money.
Well, of course, in this frenzy, there are probably delays in getting inspections and appraisals. What kind of issues are you seeing, and how do brokers keep the transaction on schedule without it just going completely off the rails with these delays?
Obviously, appraisers are in high demand at this time, and home inspectors are also in demand. The sellers are expecting a quick turnaround time — they want to get to closing, the sooner, the better. Right now, from the April statistics, the average days on market here in the Denver Metro area is 13 days, and that’s the lowest amount of time I’ve ever seen days on market since I’ve been practicing.
Sellers have these expectations that things are going to happen quickly. They’re like, “look, I listed my property, first weekend, I got 20 offers, 12 were for cash. So, let’s go, let’s move it, let’s get to the closing.”
They don’t want to do the amend extends to drag things out. The buyer’s agent is really going to have to make sure the deadlines are met, and the objections are filed in time. If the buyers do want to terminate, then they have to notify the seller to meet that deadline, and they got to give accurate, honest reasons for terminating it.
You don’t want to set your buyer up for a bad faith claim or failure to act, and risk losing their earnest money. Because we’re seeing sellers who are super aggressive and saying, “You missed a deadline,” or “You gave a false reason for wanting to terminate. I lost so many opportunities, so I’m going to take at least part of the earnest money.”
Buyer’s agents really have a lot of work to do.
Inspections, repairs, and “as is” sales
Sellers are really calling the shots in this market. When you have an inspection where there are repairs to be made, a lot of sellers are saying, “as is,” and if you don’t like it, we’ll go to the next seven offers. What can buyer’s agents do to protect their buyers and themselves, if the sellers waive repairs, or even waive an inspection?
What we’re seeing is that in order to make these offers more attractive to the seller, buyers are agreeing to waive inspections or objections, including health safety issues. But the buyer’s agent has to advise the client, “look, I know you really want this home. I know it’s competitive. I know this is your 10th offer and the previous nine have been rejected. I know you have a deadline and need a place to live because your kids need to go to school and all that.”
“But you have to go into this with your eyes open and know what you’re buying. You still need to get that inspection, you still need to figure out if there are foundation are structural problems, because you might be buying a bigger headache than not having a home for the time being.”
Buyers still need to be advised and recommended by the buyer’s agent to get inspections done.
Similarly, the sellers, even though they’re thinking they’re selling the home “as is,” need to know that they still have a duty to disclose latent defects or any adverse material conditions they have actual knowledge of.
The seller’s agent still has to counsel the sellers, as to their duties and disclosures to avoid lawsuits.
Brokers are working hard and deals are falling apart. Is it common that brokers become the target of a disgruntled buyer or seller if the deal falls apart? What can brokers do to protect themselves when and if it falls apart?
Yes, commonly, brokers are the target, because they have E&O insurance. Sellers are also a target, because buyers think “I paid a premium, they’ve made a lot of extra money, they have equity, they should compensate me.”
The best way is for brokers to understand their duties and obligations, be there to counsel their clients, provide information on issues that they actually know about, and recommend experts on issues where the brokers don’t have expertise.
If you’re a buyer’s agent: you have to be aware of the deadlines of when to terminate, how to terminate. And you’ve got to be really careful with drafting amendments, extensions.
For example, we had a case earlier this year, where the buyer was having problems meeting the deadline, due to trying to get loan approval. The seller was getting anxious, they wanted to close. One of the brokers wrote an amend extend with this language saying “buyer agrees if contract does not close by February XX, a business day, seller reserves the right to put property back on market and will take backup offers.
There are two very different ways to look at that additional provision:
The seller is thinking, “okay, the contract is terminated if you do not close.”
But the buyers are thinking, “okay, if I don’t close by that day, they can go get backup offers.”
Of course, in this instance, the seller went ahead and accepted a backup offer. Now, the seller is under contract twice for the same property. Buyers are so desperate to hang on to anything they’ve got under contract. Even if they’re missing deadlines, buyers are going to go out and hire a lawyer to sue the seller for specific performance. Of course, the brokers get dragged into that.
You’ve got to be very careful about when a contract can be terminated, when and how it can be extended.
Sellers agents are now getting beaten up by the seller. The seller doesn’t want to pay the commission they agreed to in the listing contract.
I’ve gotten calls, desperate calls from brokers at the closing table saying, we’re closing, and my client, the seller, just told the title agent not to pay my commission, because the seller believes I didn’t work hard enough, or I didn’t do enough to deserve the 2% or 1.8% or 2.2% commission. Again, it’s all about managing expectations, working with your client. Now, we’re trying to figure out how we deal with those commission disputes.
Forms vs. contract drafting
Let me ask you a question about those addendums and extensions. Is that a form that the state has, the real estate board has, or are these forms that brokers are writing themselves?
Yes, the Colorado Real Estate Commission has approved an amendment extension form that is used to modify contracts. There are also forms for notice to terminate. In Colorado, brokers are not allowed to practice law, and drafting contracts is considered practicing law. The Colorado State Commission has developed forms in which brokers are allowed to fill in blanks, provide very basic conditional provisions and under the Conway, Bow case, which was decided back in the ’50s, this was the compromise that was reached.
For transaction issues, it’s always best if brokers refer their clients to an attorney, if it’s more involved in terms of contract drafting, than just a very basic, simple additional provision, or fill in the blank. One of the things we frequently say is that brokers have a duty to advise your clients to talk with an attorney. This is a legal issue, you’re not allowed to practice law, tell your client to go get an attorney.
Should we get calls to the CRES Risk Management Legal Hotline about transaction issues, we can’t really ethically advise buyers or sellers as to what their rights are. We can try and help brokers to manage their risks, but that’s where our focus is.
Thank you for clarifying that. Let’s talk about contingencies. We know they’re important in offers. Can you talk about the different kinds of contingencies you’re seeing and what agents can do to make sure they’re clearly communicated to stay out of trouble?
The types of contingencies we see are the appraisal gap, and the contract to purchase being contingent upon the buyers’ sale of their property. It creates this domino effect of buyers sell their property, buy property from seller, and then seller buys another property. We routinely see those types of setups.
Also, we see contingencies where a cash offer will be made. But the buyer is reserving the right to check out whether they can obtain financing, if they want to go that route. Again, it’s extremely critical that the brokers drafting the contracts, the amend extends, provide clear language. If there’s any chance that things can go off the rails, it’s always advisable to consult with an attorney and have that transaction attorney prepare any complicated additional provisions.
Other contingencies we’re seeing is post-closing occupancy, and we’ll talk about that a little bit later.
But, buyers are getting really creative. They’re changing expectations, and that requires some flexibility. Now, we’re seeing where buyers will team up and jointly buy a property together.
They can’t afford or can’t find or get under contract for a home, but if they combine their resources, they qualify for the million dollar home. We’re seeing these creative things like that. Those expectations have to be worked out, either buyer to buyer, and then also buyer to seller.
It’s so easy to sell, and let’s say I’ve just sold my house, but one of the contingencies may be that I need to find something else. How are those contingencies dragging a deal down, and what advice do you have for that?
A lot of sellers want to take advantage of the market now and sell their home. And they think, “fine, I’m just going to upgrade, I’m going to go to the next level, that next price bracket, cash in on the equity I have and get a bigger and better home.” But from the statistics I showed you, everything is very, very contested, it’s very competitive out there, and it’s not as easy to get into the million dollar home, or the $900,000 home as it had been in the past.
Again, the seller’s agent needs to work with the seller and get them to understand, educate them on market conditions. It may not just be as easy as “sell my home today, I move out on the day of closing, and then I move in and close in on the new home.” This has to be communicated, because we’ve gotten those claims, DORA licensing complaints against sellers’ agents, saying “my agent couldn’t get me out of this contract that I signed, and I’ve got no place to live, no backup plan, and my job is still here in Colorado, and now I have to pay for a hotel that’s twice as expensive.”
Or, during the pandemic, we saw people who were trying to move to another home.
For example, we had a couple that lived in a semi-rural area, and they were going to buy a condo here in downtown Denver. But because of the pandemic, they thought they would be safer in the semi-rural area, so they wanted to back out. Then, you get specific performance-type claims which we’re seeing more and more.
I was talking to a real estate attorney who had never seen a buyer sue to force the seller to sell the home. When I talked to her, she had five of those claims in the past month. It’s just really weird claims we’re seeing now.
When agents/brokers change brokerages
What about real estate professionals that change brokerages? What are some important things for brokers to remember, especially if they’re in the middle of a transaction that could be a couple of weeks long? (In Colorado, all “agents” are called brokers.)
Not only are sellers taking advantage of this market, but the successful brokers who are able to get listings, get deals done and keep clients happy. Find those investors who are willing to invest the cash in real estate here in Colorado. Those brokers are having a tremendous amount of job options right now. We’re seeing brokers moving from one brokerage to another or some brokers are just starting their own brokerages.
There’s a lot of thought that has to go into it, and you have to anticipate and manage your risk. We’re seeing conflicts between brokerages, when one broker leaves to go to another brokerage. Sometimes, it’s not always clear in the broker’s independent contractor agreement as to whether a listing goes with the broker.
Who has duties to supervise as the employing broker, that contract, including providing contract review, providing closing support? And where does that commission go, and how is that commission split out? We’re seeing those fights between old brokerage and new brokerage. And then there are expectations from the new brokerage that the broker is going to bring his/her book of business to the new brokerage.
The broker has to read the independent contractor agreement, read the office policy manual, and understand the expectations of the brokerage they’re going from to the brokerage they’re going to.
The other issue I see is where brokers find themselves in no man’s land of coverage under their errors and omissions insurance. If there was a closing at the old brokerage, and the broker was under a group policy, and then goes to a new brokerage, and then after the transition, a claim arises, there may not be coverage under the old insurance if there’s a gap in coverage.
Brokers have to do their homework. They need to be talking to the people at CRES before they make the move to determine how they can be covered under a policy for a future claim.
Or, if there’s a potential claim, that hasn’t been made that I’m aware of, what’s going to happen when I make the transition? There are E&O insurance tail policies and also individual policies. (Your CRES E&O Specialist can help you choose the right coverage for your situation.)
A lot of brokers don’t understand when they read these policies. They think, oh, it says completed X somewhere in the policy, and they don’t understand or appreciate what completed X means when they switch brokerages or switch policies.
Brokers should contact CRES to ask these questions BEFORE MOVING, to make sure that they’ll have coverage after the move.
Just because you have coverage to satisfy the Colorado Real Estate Commission, and DORA regulations show that you did have insurance, that doesn’t always mean that E&O insurance covered a particular claim in the past. Brokers need to understand “claims made” type policies.
Can you tell me how Errors and Omissions Insurance plays in a real estate transaction? Obviously, Laura and I are here in California where we’re extremely litigious. Sometimes in a real estate transaction, we hear that the buyers say, “Oh, the other side has E&O insurance. So, they have deep pockets, let’s go after them.” What’s the situation in Colorado?
Yes. There are multiple factors that go into it. We’ve got a lot of transplants coming into Colorado.
They bring their culture, their backgrounds, the way they do things from where they come from. They’re also newcomers. The way they do things may be different than the way it was traditionally done here in Colorado, they don’t have the community ties.
We also have a very, very proactive, government regulatory body that oversees licensees. You’ve heard me refer to DORA, it’s the Department of Regulatory Agencies. Within that, there’s the division of real estate, and then within the division of real estate, we’ve got the Colorado Real Estate Commission. We’ve got the Board of Mortgage Loan Originators and the Board of Appraisers who all oversee real estate professional licenses.
If you go to the DORA website, you’ll see that they have their mission right at the top that says, “our mission is consumer protection,” and they take that mission extremely seriously. We’ve seen tremendous ramp up in the number of licensing complaints, starting in 2007-2008, right before the subprime mortgage bubble burst, with lots of fraud going on at that time, unfortunately.
That got cleaned up, but we still have complaints from buyers especially. Oftentimes, it’s broker complaints against another broker, because of competition, envy, those sorts of things that we see. We see a lot of people thinking: ”I don’t have to file a lawsuit right now, I’ll just file the licensing complaint, and let the government bill my case for me. Then once I get the favorable investigation result, and sanctions, then I’ll use that for my lawsuit.”
Even when the brokers don’t do anything wrong, you don’t want to take the risk with your professional license, which is how you make a living, how you support your family. It’s also your personal and professional reputation of how you get clients, you’re standing in the community. We take all those claims very, very seriously, and how can we manage the risk. Yes, the climate here in Colorado is very litigious, highly regulated, and you need to know what those regulations are.
Like we always say, you don’t have to do anything wrong to be sued. The million dollar question here, Jim, how do we get back to a market where it’s great for buyers and sellers, and there’s five months of inventory? What’s going to happen?
Well, several things have to happen. One, we’ve got to get through this pandemic. Then we need to see whether people are going to be working from home, are they going to be commuting back to work, or is it going to be a combination? I expect it’s going to be a hybrid situation based on the individual and the employer. We’re going to have to see how that plays out.
We’ve got to get construction going again, we have to build homes. That’s part of the problem: there’s been a lag in new home construction since the bubble burst in 2012. That’s going to be hard to do in some places. Colorado, we ran up against the mountains, and engineering problems aside, you get forest problems. Forest fires can become urban fires, which we’ve seen in Colorado Springs in the past.
It’s going to take time, it’s going to be a multi-pronged approach, there’s not going to be a silver bullet solution. We’re going to have to look at everything that should be on the table, from auxiliary dwelling units, to multifamily residences, to getting more development going. And that impacts legislation regarding construction defects, reforms. It’s going to be a complicated, drawn out process.
I appreciate your insight today and your feedback in answering the questions for all of the real estate professionals in Colorado.
Well, thank you. I really appreciate this opportunity to work with you and with the wonderful people at CRES. Anything I can do to help the real estate professionals here in Colorado, you know, I’m going to do it, because I see what they’re facing every day. Their job is not easy.
Unfortunately, real estate brokers here in Colorado have a target on their back, and at some point, they are going to see a DORA complaint, or they will be sued or have a claim made. My whole philosophy is I want to get them back to doing what they do best, buying and selling real estate instead of spending time in courtrooms, with lawyers, judges, juries, because there’s an opportunity cost to that.
I can see why Jim is such an asset. He actually lives and breathes CRES’s vision statement as well. We don’t want our clients focusing on litigation and everything that’s going wrong in their lives. We want them to be successful, to get out there and work with their clients and build their business.
I just want to thank you both for today for your time and just being so prepared and great, great dialogue. To everybody who’s watching, thank you for watching, and we do have this webinar on the CRES ClaimPrevent® blog.
This blog/website is made available by CRES Insurance Services for educational purposes to give you general information and understanding of legal risks and insurance options, not to provide specific legal advice. This blog/website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Claims examples are for illustrative purposes only. Read your policy for a complete description of what is covered and excluded.
Real estate brokers: do you really know what your agents are doing? Claims are on the rise due to agents’ “hidden”… https://t.co/VfBklIV9yIGive your sellers a CRES Qualified Home Warranty from First American. This includes 14 SEER compatibility, no cap o… https://t.co/X4pX5u66tZ