8-8-16 — Vol.: 2016 Iss.: 29 • Randy Durham, 2016 President • Phil Newman, TAR Digest Editor
TAR TAKEAWAYS
Update: The Advertising rule does apply to Twitter
How best to handle earnest/trust money
Securing a copy of the closing disclosure is about to get easier
Tips for rocking the road on your mobile device
CONTENTS
In the News
1. Closing Disclosure: A Helpful Change
2. *Twitter and the TN Advertising Rule*
3. Mark Cuban & Coolio: ‘Just Show Up’
Member Services
4. Stroke Screening Across TN 8/26
5. Free RETI Webinar: Mobile Road Warrior
Vote. Act. Invest.
6. Housing-Affordability Event Highlights
Professional Development
7. RCS-D Course at TAR 8/15-16
Legal & Ethics Hot Line
Disbursement of Earnest/Trust Money
8. Unexecuted Contract?
9. Broker Interpretation of the Contract?
10. Interpleader?
Key Links & Resources
**Register for Fall Convention!**

 

1. Closing Disclosure: A Helpful Change
If gaining access to the closing disclosure has been more difficult for you since last fall, take heart: Real estate pros experiencing trouble receiving copies of the disclosure under federal rules for residential transactions should see relief under proposed changes and clarifications released at the end of July. The Consumer Financial Protection Bureau, which had revised longstanding closing procedures in October 2015 under its Know Before You Owe initiative, now says it understands that “it’s customary for real estate sales associates, brokers, and other third-party service providers to receive copies of the closing disclosure that goes to the customers during the transaction.” The closing disclosure replaced the HUD-1 Settlement Form when the new procedures took effect. At the time some lenders and settlement agents cited privacy concerns and refused to share the disclosure with real estate professionals, making it hard for them to advise their clients. The CFPB has clarified “that it is appropriate and accepted for creditors and settlement agents to share the closing disclosure with consumers, sellers, and their agents,” said NAR President Tom Salomone. “That’s a significant victory that will help REALTORS® continue to provide the expert service their clients have come to expect.” The agency will take comments on the proposal until Oct. 18. See the full article HERE. View the actual proposal HERE.

2. *Twitter and the Advertising Rule*
Last week’s hotline Q&As on social media and the Advertising Rule prompted several questions about Twitter. Like all social media, Twitter does fall under the requirements, so that by rule, each tweet is required to contain the firm name (or d/b/a) and phone # as licensed with TREC. In light of Twitter’s 140-character limit, this may be a challenge, but there are creative ways to work within it. Example: Keep the tweet brief—“New listing…”, “Must-see property…” or “Coming soon…”—add the required name/phone #, and include (or link to) an image or video containing all of the details. Note: Twitter is preparing to remove images from the character count, making it easier to say more in 140 characters; read about that HERE.
 
For context, here is the pertinent portion of the rule, with emphasis added in bold:
 
1260-02-12(1) All advertising, regardless of its nature and the medium in which it appears, which promotes either a licensee or the sale or lease of real property, shall conform to the requirements of this rule. The term “advertising,” for purposes of this rule, in addition to traditional print, radio, and television advertising, also includes, but is not limited to, sources of communication available to the public such as signs, flyers, letterheads, e-mail signatures, websites, social media communications, and video or audio recordings transmitted through internet or broadcast streaming. Advertising does not include promotional materials that advertise a licensee such as hats, pens, notepads, t-shirts, name tags, business cards, and the sponsorship of charitable and community events.

Please refer to last week’s hotline section HERE for our bullets on the rule’s specific requirements.
 

3. Mark Cuban & Coolio: ‘Just Show Up’
James Altucher, an author, entrepreneur, angel investor and former hedge-fund manger, has identified a common trait shared by all of the successful people he has interviewed, from Mark Cuban to Coolio: They all show up, every day, with persistence and patience, and keep working hard even when the results come slowly. Altucher’s 95-second answer on the subject HERE is worth a quick look.
 

4. Stroke Screening Across TN 8/26
As a follow up to last week’s life-saving testimonial (see that powerful message HERE), Life Line Screening, a TAR partner, is offering Tennessee REALTORS® and their family members a community-health screening statewide on Friday, Aug. 26. Through ultrasound, screeners will evaluate carotid arteries for the build-up of fatty plaque, the leading cause of stroke. Register for the Stroke, Vascular & Heart Rhythm package—which includes carotid artery, abdominal aortic aneurysm, peripheral arterial disease and atrial fibrillation—for the reduced rate of $135. Call (888) 653-6190 or visit HERE to find locations and schedule your appointment. 
 
If you or someone you know experiences any of these signs of stroke, call 911 right away:

  • Sudden Numbness
  • Difficulty Speaking
  • Severe Dizziness
  • Loss of Coordination
  • Sudden Loss of Vision
  • Sudden Intense Headache
  • Brief Loss of Consciousness

To learn more about our member benefits through Life Line Screening, visit HERE.

5. Free RETI Webinar: Mobile Road Warrior
The Real Estate Technology Institute (RETI), a TAR partner, will offer a FREE webinar at 3 p.m. EDT/2 p.m.CDT this Wednesday, Aug. 10. “Become a Mobile Road Warrior—Increase Productivity with Mobile Devices,” led by Craig Grant, will show you the tools to be as efficient in the field as you are in the office. Register HERE.

6. Housing-Affordability Event Highlights
In case you missed it, at a recent symposium hosted by NAR in Washington, D.C., leaders in the affordable-housing community tackled homelessness and housing affordability. The attendees discussed effective solutions; shared innovative ideas, partnerships and experiences; and formulated plans of action for their communities. The event built on NAR’s policy that urges state and local REALTOR® associations to work with community stakeholders to develop innovative and proactive strategies to aid citizens experiencing homelessness or facing housing insecurity. To read about or watch sessions from Housing for All, click HERE.

7. RCS-D Course Covers Divorce, Elder Care at TAR 8/15-16
TAR is hosting another RCS-D designation course (Real Estate Collaboration Specialist–Divorce), Mon.,Aug. 15, and Tues., Aug. 16. Taught by Kelly Murray, J.D.—a Vanderbilt law professor, licensed REALTOR® and instructor—the 12-hour (CE) course will equip you to work with divorce and elder-care clients, and their attorneys, throughout the property buying/selling process. It’s a perfect opportunity to help clients navigate these challenging seasons of life. GoHEREfor more details and to register. (Login required.)

Legal & Ethics Hot Line Source: TAR Legal & Ethics Hot Line Counsel

Correction: Last week’s Advertising Rule article contained a typo. To clarify, a firm’s name or d/b/a must be registered with TREC, not with any other commission.

Disbursement of Earnest/Trust Money
The Tennessee Code Annotated, along with the Rules of the Tennessee Real Estate Commission (TREC), tasks brokers with the responsibility of maintaining an escrow account to hold earnest money/trust money. One of the biggest responsibilities that comes with maintaining an escrow account is disbursing the money if a deal does not close. Below are some hotline responses to help you properly disburse the funds entrusted to you.

8. Unexecuted Contract?

QUESTION: If a buyer deposits earnest/trust money with their broker at initial offer on a property, but the offer never becomes a binding agreement, is there any requirement for an earnest/trust money release form?
 
ANSWER: No. The Earnest Money/Trust Money Disbursement and Release form should be used only when a contract has been created. If the offer was not accepted, then the earnest money can simply be returned to the buyer. For your protection, it is advisable to draft a letter outlining this and/or issuing a receipt for the return of the money.

9. Broker Interpretation of the Contract?

QUESTION: I am holding earnest money for a contract that fell through. The seller will not sign the disbursement and release form. Can I disburse the earnest money based on my interpretation of the contract?
 
ANSWER: Yes, according to TREC rules you may make a reasonable interpretation of the contract and disburse the earnest money.
 
The principal broker has several options available to remit the funds in the event that the deal does not close. TREC Rule 1260-2-.09(7) outlines how a broker may distribute earnest money funds. It states: “A broker may properly disburse funds from an escrow or trustee account: (a) upon a reasonable interpretation of the contract which authorizes him to hold such funds; (b) upon securing a written agreement which is signed by all parties having an interest in such funds, and is separate from the contract which authorizes him to hold such funds; (c) at the closing of the transaction; (d) upon the rejection of an offer to purchase, sell, rent, lease, exchange, or option real estate; (e) upon the withdrawal of an offer not yet accepted to purchase, sell, rent, lease, exchange, or option real estate; (f) upon an interpleader action in a court of competent jurisdiction; or (g) upon the order of a court of competent jurisdiction.” Bear in mind that according to TREC Rule 1260-2-.09(9), this should be done within 21 days from the date it is first requested in writing.
 
If you cannot get an agreement by the parties, you, as holder of the funds, will need to review the contract to determine if you can make a reasonable interpretation. The party who does not receive the funds could file suit against you and the party receiving the funds. However, there is language in the PSA that provides some protection should that occur. Lines 159-161 state, “No party shall seek damages from Holder (nor shall Holder be liable for the same) for any matter arising out of or related to the performance of Holder’s duties under this Earnest Money paragraph.” If you are not comfortable with this option, then you can interplead the funds. An interpleader is a safer option than making an interpretation of the contract, as the judge will then determine who receives the funds. (See item 10 below.)

10. Interpleader?

QUESTION: I have a transaction where I represent the seller, and the buyer backed out. The buyer feels like they should receive the earnest money, but so does the seller. How do I go about doing an interpleader?
 
ANSWER: If you have to interplead the funds, you will likely need to file a petition to Interplead Funds in the General Sessions Court of the county where the property is located. You may obtain a copy of the petition by logging onto the TAR website HERE and downloading or printing TAR Form RF 706. (Login required.) Typically, once the petition is filed, copies will be served on the parties to the contract, and a hearing date will be set. On the hearing date, you will appear before the judge and explain why the brokerage is seeking to interplead funds with the court. After the petition is granted, the judge will determine, either that day or at a later hearing, which party (i.e. the buyer or seller) is entitled to the funds. The parties will have the opportunity to present their arguments to the judge during that hearing.
 
The procedure for interpleader actions differs from county to county and from general sessions court to chancery court. An interpleader action should be filed in general sessions court if the amount of earnest money is less than $25,000. If the amount is $25,000 or greater, the action should be filed in either circuit or chancery court.
 
If you have to interplead the funds, the buyer and seller will be named as defendants on the interpleader form. This sometimes upsets the parties to think that they are being sued. However, keep in mind that you are not suing them—you are simply turning the funds over to the court and asking the court to decide who is entitled to the funds.
 
Which party is responsible for court costs in an interpleader depends on the earnest-money agreement and/or contract. Generally speaking, the losing party typically is responsible for paying court costs.
 
One more note: The firm will be listed as the plaintiff. Bear in mind that if the firm is incorporated, an LLC, or certain types of partnerships, it must be represented by an attorney. An individual cannot represent the interests of an incorporated entity without a law license. With regard to your attorney’s fees and costs, you should include them in a specific request.

 

KEY LINKS & RESOURCES
To check your CE hours: verify.tn.gov/default.aspx
For CE and other courses around TN: tarnet.com/education/
For online CE courses:tarnet.com/education/?target=online-CE-courses/
To ask a TAR Legal and Ethics Hot Line question:tarnet.com/technology-support/legal-ethics-hotline/
TRECtn.gov/commerce/section/real-estate-commission
TAR websitetarnet.com
TAR on Twitter:twitter.com/tnaor
TAR on LinkedIn:linkedin.com/groups?gid=852077&trk=hb_side_g
TAR on Facebook:facebook.com/pages/Nashville-TN/Tennessee-Association-of-RealtorsR/15041383689

2016 TAR Fall Convention 
Sept. 14, 15 and 16

 Watch the PREVIEW VIDEO

REGISTER HERE

#GreatBlue

Follow TAR on Twitter or Like our page on Facebook.

01-09-2017

1-9-17 Vol.: 2017 Iss.: 1 • Brian Copeland, 2017 President • Phil Newman, TAR Digest Editor

 
TAKEAWAYS:
  Register now for Spring Conference! (March 27 & 28)
  *A summary of changes to our 2017 Forms*
  Meet Jennifer Farrar, our new Political Affairs Coordinator
✔  Get practical insights on Closing Disclosures
 
CONTENTS
In the News
1. Register for Spring Conference!
2. Jennifer Farrar Joins Our Staff Team
3. Get Organized with These Great Apps
Member Services
4. **Forms Updates for 2017**
5. Learn the NEW TransactionDesk
6. RETI Webinar: Maximize LinkedIn
Professional Development
7. Meet Beth Z, ‘Your Nerdy Best Friend’
Legal & Ethics Hot Line
Closing Disclosures
8. Agent Purchase Title Ins. for Client?
9. Earnest $ Not on Closing Statement?
10. Get a Copy of Closing Statement?

1. Register for Spring Conference!
Registration is open for our 2017 Spring Conference, March 27 & 28 at Franklin Marriott Cool Springs. Visit HERE to register and to book your hotel room. This year’s event will feature 21 CE sessions in three concurrent tracks taught by nationally renowned speakers. The theme is “Press Play,” and the conference will feature the introduction of our new Tennessee REALTORS® name and brand. Save your spot today!

2. Jennifer Farrar Joins Our Staff Team
We are excited to welcome Jennifer Farrar (her last name sounds like “Fairer”) in the role of Political Affairs Coordinator. In this key position, Jennifer will help to advance our strategic priorities in governmental affairs, legislative advocacy, and member engagement in the important work of protecting the rights of property owners throughout Tennessee. Read more about Jennifer HERE

3. Get Organized
This blog from ‘Your Nerdy Best Friend’, Beth Z., spotlights 10 apps for organizing your life. Topics include Passwords, Contacts, Email, Photos, Medical, Travel, Family Schedules, and Finances. See our profile of Beth in item 7 below.

4. **Forms Updates for 2017**
All of our 2017 forms are available to members online. There are a number of updates to this year’s forms. To get up to speed, WATCH THIS VIDEO featuring Bobbie Noreen, Chair of our Residential Forms Committee, and download THIS PDF summary of the updates to accompany the video. The video also includes a timeline reference for you to skip ahead or back to certain forms (look under the video). In addition, the comprehensive changes file for ALL forms is available and listed on our “Forms on the Fly” page.

5. Learn the NEW TransactionDesk
Phase 2 in this critical transition is under way:
 

Now through MON., FEB. 27: Phase 2 — Users see a splash screen with information on the new system, links to webinars, etc. Users are automatically logged into the new system but can switch back to the old. **Use this time to learn the NEW TransactionDesk.**

 TUES., FEB. 28: Phase 3 — Only the new system will be available; the old system will be turned off!
 
NOTE: All data has been replicated in the new system, so there are no lost data, documents or forms. You don’t have to do anything—except start using the new system!

6. RETI Webinar: Maximize LinkedIn
LinkedIn can help to advance your business success. The Real Estate TechnologyInstitute (RETI), a TAR partner, will offer this FREE webinar at 3 p.m. EDT/2 p.m. CDT Wed., Jan. 11: “LinkedIn: 7 Power Tips for Business”, led by Juanita McDowell. Register HERE.

7. Meet Beth Z., ‘Your Nerdy Best Friend’

This week we begin spotlighting speakers for our Spring Conference, March 27 & 28. First up: Beth Z, ‘Your Nerdy Best Friend’.
 

Beth Z will lead three sessions at our conference: “How Do They Do That? Secret Tech Weapons for REALTORS®”, “A Day in the Life of a Nerdy REALTOR®”, and “Stump the Nerd”
.Although the only real trophy she ever won was for making perfect French fries at McDonald’s in high school, Beth Z has been featured on Best Speaker lists by Meetings & Conventions magazine and MeetingsNet. Since her first Commodore 64 computer, Beth has made a verb out of the word nerd. She helps computer users all over the country filter through thousands of apps, gadgets, widgets and doodads to find the perfect free and bargain technology tools for business and personal use through presentations and her books, including the latest, Nerd Know-How: The 27+ Best Apps for Work and How to use ‘Em, available on Amazon.com.”

Legal & Ethics Hot Line
Source: TAR Legal & Ethics Hot Line Counsel

Closing Disclosures
It is vital to remember that any money changing hands related to a real estate transaction must appear on the closing statement. Otherwise, the lender could raise allegations of misrepresentation and/or fraud. This week’s Q&As cover things to keep in mind for items that appear on closing statements and how REALTORS® can obtain a copy of the closing disclosure. 

8. Agent Purchase Title Insurance for Client?

Q: Can an agent purchase a Title Insurance policy for a client? If no, how does that differ from an agent purchasing a Home Warranty for a client?
 
A:
TREC does not permit agents to pay closing costs. The law states: “A real estate licensee shall not give or pay cash rebates, cash gifts or cash prizes in conjunction with any real estate transaction. As part of the Tennessee Real Estate Commission’s general rulemaking authority the commission may regulate the practices of real estate licensees in regard to gifts, prizes or rebates that are not otherwise prohibited by law.” Tenn. Code Ann. § 62-13-302(b) TREC has interpreted this law as prohibiting agents from paying closing costs for their clients.

So if these items are closing costs that appear on the closing statement, you cannot pay them. Title expenses are considered part of closing costs. (Even if this were permitted, a lender would likely have a problem with a third party paying a portion of the closing costs.)

By contrast, a home warranty is not considered a closing cost. Agents are permitted to purchase a home warranty for a client as a gift, so long as the agent follows the TREC gifts and prizes rule (see 1260-2-.33).

9. Earnest Money Not on Closing Statement?
 
Q: We are holding earnest money on a transaction, which has now closed. The closing attorney did not include the earnest money on the closing statement and now I need to refund it to the buyer. Do I need an Earnest Money Release signed by the parties?
 
A:
The disbursement of earnest money should have been reflected on the closing statement to show how the funds were actually allocated and that you have a confirming paper trail. The earnest money disbursement and mutual release of the Purchase and Sale Agreement (PSA) form will not help in this circumstance, as the form alleviates parties from their responsibilities of the contract as well as disbursing earnest money. You would be wise to contact the closing attorney and ask how they wish for you to proceed, and also talk with the lender involved. Lenders take issue if anything is not included on the closing statement, as that could raise questions of misrepresentation and/or fraud.

10. Get a Copy of Closing Statement?

Q: With regard to privacy policies, can a REALTOR® obtain a copy of the closing statement without written consent from the buyer and seller?

A: Yes. Since the TILA RESPA Integrated Disclosure (TRID) took effect in October 2015, lenders have been refusing to share the closing disclosure with real estate professionals, citing potential privacy violations. However, an exception to Regulation P already allows lenders to distribute the disclosure to third parties, including real estate professionals.
 
The Consumer Financial Protection Bureau (CFPB) recently acknowledged that sharing the closing disclosure with real estate professionals is already permitted under the Gramm-Leach-Biley Act. 12 C.F.R. §1016.14(b)(2)(iii) – exceptions to notice and opt out requirements for processing and servicing transactions. Restrictions on non-disclosure by financial institutions does not apply when the information is shared: “To provide a confirmation, statement, or other record of the transaction, or information on the status or value of the financial service or financial product to the consumer or the consumer’s agent or broker.”
 
According to the CFPB, the Closing Disclosure is a “record of the transaction,” and is informative to both the consumer credit and real estate portions of residential sales transactions. “Based on its understanding of the real estate settlement process, the CFPB understands that it is usual, appropriate, and accepted for creditors and settlement agents to provide the combined or separate closing disclosure as a confirmation, statement, or other record of the transaction, to consumers, sellers, and their agents, or information on the status or value of the financial service or financial product to their customers or their customers’ agents or brokers.” 

KEY LINKS & RESOURCES
To check your CE hoursverify.tn.gov/default.aspx
For CE and other courses around TN: tarnet.com/education/
For online CE coursestarnet.com/education/?target=online-CE-courses/
To ask a TAR Legal and Ethics Hot Line questiontarnet.com/technology-support/legal-ethics-hotline/
TREC: tn.gov/commerce/section/real-estate-commission
TAR website: tarnet.com
TAR on Twittertwitter.com/tnaor
TAR on LinkedInlinkedin.com/groups?gid=852077&trk=hb_side_g
TAR on Facebookfacebook.com/pages/Nashville-TN/Tennessee-Association-of-RealtorsR/15041383689

Follow TAR on Twitter or Like our page on Facebook.