One Man’s Opinion – A Conversation with the Readers (Part 2) #403
CATEGORY: Legally Speaking
TAGS: Buyer Agency Contract of Purchase and Sale Land Title
By Gerry Neely
In his final issue as author of Legally Speaking, Gerry continues with his two-part discussion on legal issues in the real estate profession.
When you reflect back on your authorship of Legally Speaking, was there one column that stood out and that you’re particularly proud of?
Yes—column 224 (September 1994). It was written to introduce buyer agency and had two main themes: one for buyers’ agents, outlining their duties to buyers and suggesting to licensees listing their services for a flat fee that the responsibilities they assumed may mean they had sold themselves short; and the other for the importance of maintaining the cooperation and civility required of members of a board to keep the MLS® effective. This was to avoid the experience in California and some other American states where, following the introduction of buyer agency, some brokers adopted an adversarial approach to licensees acting as buyer agents. This column received more favourable comments and requests to print than I’m used to (actually, if I receive two comments, that’s more than I’m used to).
The most entertaining column I wrote was 346 (April 2002), which examined the question of whether a nude beach is a defect and, if it is, whether it’s patent or latent.
Have you noticed any recurring problems over the years?
The most obvious and avoidable is a licensee’s failure to comply with paragraph 9 of the Contract of Purchase and Sale by not listing the encumbrances that are to remain on title. The result is a lost deal for the buyer, a lost commission and possibly an action for negligence against the licensee. Some licensees seem to overlook this or fail to recognize the distinction between private restrictive covenants and rights-of-way and those in favour of utilities and public authorities.
This problem was first discussed in column 28 (November 1982), which contained a recommendation for title searches. While title searches have become the norm, eight other columns between 1990 and 2003 dealt with this issue.(1)
Finally, apart from learning more real estate law than I otherwise would, the advantage of writing Legally Speaking columns over the past 26 years is that I met many fine men and women who have served your profession well.
From my observations of the changes and growth within organized real estate over the last 40 years, licensees are much more professional and knowledgeable in a more complex world. The introduction of continuing education, including the Professional Development Program, is an important step to maintaining high professional standards. The image of the profession, and its contribution to the communities it serves, continues to gain recognition from the public and government.
I’d like to thank those licensees who sent me information about cases I used in the columns, and who responded to surveys asking for their suggestions. Your input certainly made my job a lot easier.
A fitting end is to thank Norma Miller, who weaned me from the lawyer’s habit of using three words where one will do, for her always helpful comments and suggestions.
My very best wishes to each of you for a long, happy and healthy life.
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