QIs there a Latin phrase for "seller beware"? We focus on the buyer because it is assumed that the buyer needs protection, but the same may be true for the seller. I recently was involved in a property transaction as a seller and found many objectionable clauses in the sales contract presented to me.
AI suspect that somewhere in the Latin language there is such a concept, but in my many years as a lawyer, I have heard only "caveat emptor" -- let the buyer beware.
However, some of the clauses you highlighted for me in that contract are questionable. You should have had your lawyer review the entire contract before you signed it.
Let's look at some of these clauses:
* "The real estate commission shall be earned and due and payable, in full, to buyer's agent upon the execution of the contract."
This means that once there is a real estate contract between the buyer and seller, you as seller are obligated to pay a commission to the broker, even though that broker is acting as the buyer's agent.
If you sign a contract that contains this language, you will be obligated to pay the commission, even if the buyer never actually goes to settlement. For example, if there is a financing contingency in the sales contract, and the buyer cannot get the necessary financing, and thus cannot go to closing, you still owe the commission.
My suggestion: Every seller should include language in the listing agreement -- and the sales contract itself -- that says the commission will not be earned until and unless the buyer actually goes to settlement.
* The parties agree to mediate any disputes arising out of the sales contract before they can file a lawsuit.
This is becoming a standard clause in many areas, and I have mixed reactions to it.
Mediation is different from arbitration. Arbitration is generally binding on the parties. Whatever decision the arbitrator makes must be accepted and honored.
Our courts strongly encourage people to try to settle their disputes out of court. It is called "alternative dispute resolution." In fact, in most states, a judge is not legally allowed to overrule the decision of an arbitrator, unless the losing party can show that the arbitrator was capricious or out of line. This is difficult to prove.
Mediation, in contrast, is not binding. It provides an opportunity for parties in a dispute to raise their concerns with a neutral observer and have the benefit of that observer's views. Obviously, much depends on the ability, experience and demeanor of the mediator. My experience is that mediation has been successful in many disputes. As long as it is non-binding and does not preclude anyone from going to court, I do not have any real objections to this concept.
However, the parties to a dispute should be able to decide who the mediator will be. I do object to clauses that specifically mandate who the mediator will be or where mediation will take place.
* "Buyer and seller agree to indemnify and hold real estate broker harmless from all costs, damages, expenses, and attorneys fees incurred by the broker if the broker is brought into any litigation unless the litigation results in a judgment against broker."
This clause is one-sided. If a buyer or seller sues the real estate broker and loses, under this clause, the plaintiff has to pay all the broker's out-of-pocket costs. On the other hand, should the plaintiff be successful, the broker has no obligation to the plaintiff, other than any court judgment that the plaintiff may obtain against that broker.
In this country, we generally follow what is known as the "American rule on legal fees." Basically, each side pays its own attorney and court costs, no matter who wins the case. However, if there is language in a contract or in a statute that provides reasonable attorney fees to the prevailing party, as in many consumer protection laws, then the losing party will pay the winning party's legal fees.
It is interesting to note that in the contract you asked me to review, if there is a lawsuit between buyer and seller, the prevailing party can recover legal fees. However, if a real estate broker is involved, that is not the case.
I should note that you were not presented the standard form contract that is in general use in the Washington metropolitan area, known as the regional sales contract. It can be used in all local jurisdictions. Because the laws vary from area to area, there is also a "jurisdictional addendum" that is added to the standard contract so that it complies with local laws.
My strong suggestion: Whether you are a seller or a buyer, you should make sure that the form contract you are asked to sign is one that is used and approved by the real estate industry. Also, keep in mind that any form contract is only the beginning; you have the right to amend that document and cross out any objectionable items.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed, stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.