Dishin' Dirt with Gary Pickren

Dishin' Dish with Gary Pickren on Differences in the CCRA and SCR Contract (Due Diligence and Repairs)

May 27, 2021 Gary Pickren Season 2 Episode 30
Dishin' Dirt with Gary Pickren
Dishin' Dish with Gary Pickren on Differences in the CCRA and SCR Contract (Due Diligence and Repairs)
Show Notes Transcript

As the market remains hot, the chance that you will be presented with an out of market contract form increases. It is imperative that you understand the differences in contracts so you don't miss deadlines and so you can explain the contract to your client. You can't simply refuse to accept out of market contracts.

In this podcast I begin a series that will examine the difference in the State and Central Carolina REALTORs contracts. This week I examine the due diligence and repair provisions of each contract.

Also, a special episode of As Gary Sees It and Gary's Good News Only!

Enjoy
Gary

Unknown:

Addition dirt with Gary Pickens, South Carolina's only podcast dedicated to the real estate agents craft. And Greetings, everyone. Welcome back to another episode of our extremely low budget production edition dirt. I am you're often irreverent and very opinionated, but rarely wrong host Gary Pickering, and I'm coming to you deep inside Blair Cato in the famously hot downtown Columbia South con, you know, the last of may here, but it might as well read July on our calendar as the heat indexes are as hot as one owner Rogers clothes from Saks Fifth Avenue. Nevertheless, before we get into our topics, I do have some exciting news. Last week, I was elected to the south carolina real estate commission to serve as an at large member seat that was left vacant by the untimely and unfortunate death of Wayne poplin, who will absolutely be greatly missed. I'm very excited about this challenge. And I'm hoping to bring a lot of value to the industry. And you may notice some small changes in the future on this podcast. Once I'm sworn in. Basically, there'll be a disclaimer, this simply says a podcast is not necessarily the opinions of the real estate commission, even though they probably should be because you know, they're my opinions. But other than that, I may tone it down something some bit with my irreverence. But I doubt it because I always like just calling things like I see it anyway. So a few weeks ago, Becky Ashby and I examined the difference in the state contract in the Central Carolina realtors contract in a webinar that we did for ccra. Becky is on the contract committee she is the head of our contract committee has been so for a couple years now. So we had several 100 people attend that webinar, which Byron King and Austin Smallwood from the state association presented issues with the state contract. And then we compared how that may differ from the Central Carolina realtors Association contract. Most of you are now getting contracts from multiple sources, from agents from outside your normal MLS. So whether you're in the Upstate, you're in Florence or in the Midlands, and low country, whatever, whatever market contract you use, you need to also be familiar with the differences in the other contracts that also might be presented to you and your client. So over the next few podcasts, what I'm going to do is we're going to play sections of the that webinar that discusses the main differences. And of course, these are not the only differences in that contract. But these are typically the most relevant for what you do and what you're going to run across, such as due diligence, repair dentist and things of that nature. But before we start, I do want to thank you, we have now passed 10,000 downloads of our podcast edition, darn this started about eight months ago, kind of on a whim, didn't know what to really expect and just been amazed by the support that we're getting from our listeners. So I just really want to thank you guys, for helping make this podcast. a reality. We are now in our 30th episode. This is episode number 30. And when we started we were going to do one a month. And because the demand was so high, we decided to do one a week. And we've been doing one a week. Now, as I said, this is our 30th episode. So on average, I'm averaging now about 2000 downloads a month and about four or 500 downloads every week. So if you like us and want to see us continue to grow, please don't forget to follow me on Instagram and YouTube. But also don't forget to follow in like and share this podcast. And if you could go out there and click on that little button particularly on Apple and give us either a thumbs up or a forced five star rating or whatever rating you can give us that would help my fragile ego. So please do that I would greatly appreciate. Now before I start this section on contract differences, I must reiterate a few things about contracts. Number one in South Carolina you are required to present all offers you receive. And this is regardless of which contract or what type of form it is presented to you. It doesn't matter if it's a state contract the ccra contract the Hilton Head contract or a contract drafted by a member of the South Kona bar, you have to present all contracts to your seller and you must do that within a reasonable timeframe. In fact, somebody submits you a contract offer on a napkin you they'll joke is you still have to present that do not write in the Multiple Listing services that you will only accept a contract. For my particular service. We only accept a certain type of contract I'm seeing this more and more where people will say we're only accepting state contracts that violate state licensing law and your duty to present any offer I am not required to present you an offer on any particular type of format. I can present you whatever offer a wall and you must present that offer to your seller no if ands or buts about it. You can put in there your client prefers or the seller prefers to receive offers on the state contract or the ccra contract but do not put in there that you will only accept certain types of contracts that is a guaranteed way to get you in trouble with licensing law. Secondly, I would offer that you should be using the contract that's most prevalent in your particular market. While I say this is because attorneys lenders, appraisers, inspectors, they're all familiar with the market contract that you have. And so why would we want to go into say Greenville which uses the state contract and present a Central Carolina realtor contract the other realtor will not understand all those terms unless they spent I'm looking at, the lenders aren't going to know and the closing attorneys up there won't be as familiar with them, the appraisers, inspectors, why would you introduce a contract into a market that doesn't use that market use that markets contract because that's what the market is familiar with. That's what we're going to know. And that guarantees less problems and less likely the deadlines and things are going to be missed. Conversely, it makes no sense to come in the Central Carolina realtor market and present a state contract because that is not the contract that the agents are using. So I would highly recommend that if you are submitting offers to submit what is most prevalent in that marketplace. Now, if you get a contract that's not typically used in your market, remember, you do have to present it you have no options. But what you not must do as a real estate agent is to present the differences in that contract to your seller, your seller may like that offer so much that they do not want to risk a counteroffer and want to go ahead and accept that contract, you must allow your client to do that. And then you better spend some time making sure you truly understand what's in that contract and make sure that you're not going to miss any deadlines, or anything of that nature, which makes this podcast very important to you. Also, your client may look at that contract. And so they want to counter and then you can advise your cat your client as to whether they want to counter on the same format, or do they want to counter using your marketplace contract. Now I've had a lot of agents that say they will get state contracts in the Central Carolina realtors Association market, and their seller would prefer to counter on this ccra contract versus a state because they feel more comfortable with ccra because they bought a house for us in that contract before maybe they sold another house using that contract. And they recognize that their agents probably more familiar with that contract. But remember, the main thing here you have to understand is it is your clients decision, not yours. That was the very first legal tip I ever sent out many years ago when I was legal counsel for Russell Jeff code is remember, your client makes a decision not you. And the more times you try to make decisions for your client is the more often you're going to find yourself facing liability fight based on lawsuit facing grievances and so forth. You're not your clients, Mama, you're not your clients, Daddy, if they make stupid decision, survey it Your job is to advise him and advocate and counsel for them not to make decisions for them. When you make those decisions. And those decisions turn out bad, guess what you're getting sued, you're gonna get a grievance filed against you. So now let's move over into the actual webinar. So here's a segment we did on inspections and due diligence. And of course, we're talking about paragraph number eight under the state contract, as well as paragraph nine and 10 under ccra contract. So this is Becky and my discussion along with Byron and Austin. Let's talk about our inspections and due diligence. Ours, as you all know is quite different. In the state contract, you have the repair procedure of the due diligence and the as is and the ccra contract, we basically have a due diligence procedure which allows for a request for repairs. And then we have an as is procedure. And so I want to start with the as is we actually break down the ccra contract the as is into two separate types of as as you have 10 A and 10 B and 10. b is as is with no due diligence. Now I know the state does allow due diligence, but like our 10 B, you cannot get out because of inspection. So when are 10 b if you do a 10 B as is no due diligence, you're saying I'm buying this house, regardless, I'm not even going to look at it, I just want to buy it we tell people this is typically when maybe there's a structure like a lake Murray house that you're planning on tearing down and putting a new structure or it could be you're buying a brand new executive constructed the seller selling executive construction house they've been in for three months, they got relocated, so you don't need or don't worry about doing inspections, you know what the new house is still under a builder warranty. So you're willing to move forward and buy that house with no due diligence. Our second due diligence or second as as we have is an as is with a 10 day business day due diligence, just like we have under non but the difference here on this one is you can do any inspections you want, you can terminate because you don't like the inspections for any reason whatsoever, basically, but the seller has no obligation to make any repairs. In fact, they're not even to ask for repairs. Either I've done my inspections, I'm going to buy it or I just don't want to buy it. It's up to you. Now, under our paragraph nine which is our due diligence and ccra you have 10 business days to do due diligence. You can do any type inspections task assessment you want it is not limited to termite heating and air or any list. It can be anything. You can come into the house after you sign the contract and you're ready to buy and then you can start measuring and our thought process was when people buy houses they don't feel typical or tip Really don't feel comfortable opening up cabinets, doors and things of that nature, because they don't feel like they have that that right yet. But once they're under contract, now they feel a little bit better, they can go in and do more inspections. And so if somebody goes in and finds out, okay, my California king bed actually isn't going to fit in this room that they can get out of the contract. So they can basically do any type inspections, tasks, assessments they want during that 10 business days. And at any time during that 10 business day period, they can terminate for essentially any reason. Our idea was to eliminate buyer remorse as early as possible. And if somebody doesn't want to buy your house, typically they're going to figure out a way to get out of it, we would prefer to have them out in the first 10 business days versus waiting to the very end and trying to come up with some reason to get out at that end, it really hasn't it has very little holds very little water, if they so they first option is to terminate during that 10 days, if they terminate in ccra contract, they are required to provide you copies of any inspection that they did the full copy, even if that wasn't the reason they terminated. So for instance, if I inspect the house and determined that, okay, my furniture isn't going to fit here, or looking at this house further, for whatever reason, I don't want to buy it. Even if I have clear termite letter, I still have to provide that clear termite letter to you. our thought process behind that was you have a duty to update seller disclosure. And what we did not want that to have happen is buyer a backs out of the contract because of a termite issue doesn't tell you buyer B then buys the house doesn't find the termite issue and somehow is learns about it after closing in this size, you didn't update your disclosure. So we try to eliminate that issue right there. Now, if they the other options that the seller the buyer has is after their inspection period perfumey during their due diligence period, they're 10 days, their second option is just accept the property basically, as is a move forward. And at that point, all parties are obligated to move forward. The third option is to ask for repairs. As Austin very correctly said and I have seen this become an issue is in the state contract, you select either due diligence, repair, or as is you don't select due diligence and repairs. I've had a client do that in our Greenville office. And it goes a problem under your contract under the state contract, if I recall correctly, gentlemen, is that whichever one selected farm that one rolls about, there's a statement that says Correct, correct. repair and due diligence is going to be repaired, correct? Correct. Right. All right. Our negotiation period once you complete your your you submit the request for repairs, and your 10 day period expires, then the seller and buyer have five days to negotiate any repairs to any defects that are going to be corrected by seller and sign an addendum. If there's no agreement, they can either extend the negotiation period or the buyer has two days after that period expires to say okay, I'll still buy it as is. So it gives the buyer the final option so that the seller can't just say I'm not gonna make any any repairs, hoping that the buyer will go away and they can take another offer still gives that buyer a little bit control. We didn't want the buyer to be fearful of asking for repairs. you gentlemen, please jump in anytime you want on this. The main differences we're seeing is in the state contract, the buyer and the seller are selecting the timeframes, there are blanks for them to select timeframes and the ccra contract it is a 10 day business due diligence but 10 business day due diligence with the state, you'll actually allow the seller and the buyer to negotiate what link those periods will be. Secondly, under the repair addendum, and the state contract, as Byron said, and Austin is that it is limited to a certain number of items in which they're obligated to fix those six items, that those are the items we're looking at. And a very important distinction under the repaired agenda under the state is that you can't go in and ask for as Byron said, are maybe as often I want the carpet replaced because I don't like the color of the carpet or I want the room repainted. I want this done. So certainly, you can certainly ask for it. But if the seller doesn't do it, you have no recourse to walk away, you can always have been always ask for it. You can always negotiate for it separately. But the communication needs to be that the seller is not going to do that. And if the seller says no, they can walk away they can't the buyer can't walk away in this not without potentially being sued. Correct, right. And the ccra contract, I can come in and one of my repair, we did an addendum request and they replaced the carpet. And if they say no, then the buyer still can walk away. So that's a big difference in the two contracts is the ability to walk away on those particular items. But the other thing is that seller disagrees. To make certain repairs, there's a two calendar day chance to for the buyer to go forward. Is that correct? To remember those two calendar days for the buyer to move forward to the south. If you've asked for certain repairs, because I assume and you correct me if I'm wrong, if I believe that the heating and air system needs a new condenser and a new compressor, which is one of the six items, but the seller says no, it doesn't need that. It only needs this If there's a negotiation breakdown, the buyer has two calendar days still to move forward. Correct? Right. So essentially, if the seller, if the seller agrees to make all those repairs, then then that's it. If the seller says, if there's that perfect disagreement of, Hey, I don't think your spec systems operable you do, we know the seller doesn't agree to make the repair by that 6pm deadline here. So now we give two calendar days for the parties to either try to work it out the buyer to say, you know what, I'll buy the house anyway, for determinate. But if you don't after those two calendar days, if nothing's done, then we have an as his contract in regards to repairs. And then ccra contract, you have those two days for the buyer to this I was by the house anyway. But the two days are business days were in the state contract its calendar day. So you need to understand it a huge difference in the state contract. And the ccra contract is the use of calendar days versus business days. And so don't get yourself caught in that situation. Where it's a Saturday in the state contract that would be counted as a calendar day, the Saturday is a calendar day. But in the ccra calendar contract, we do not count that as a business day. Under the due diligence provision. Again, one of the biggest differences is under this ccra contract 10 business days is a set date, where in the state contract, you negotiate the length of that due diligence. And the biggest difference is a termination fee under the second ccra contract, there is no termination fee, you can terminate for any reason you want during that 10 business day due diligence period. And you do not have to pay in order to do that. In the state contract, they have the termination fee. And there's arguments as Byron has said for it, and there's arguments against it both just decided to do different things that doesn't mean one's right or one's wrong. And the as is the differences I mentioned earlier was the buyer may terminate because of inspection results under the 10 a provision of as is with due diligence and the ccra contract. But in this state contract, the buyer cannot terminate solely for the result of the inspections. I have one question for Austin, the language about the type of the nine categories I guess it is that the the buyer can ask in that repair procedure. I noticed it said that the improvements need to be structurally sound. Does that encompass then if there are any foundation repairs that are needed? Yes. Now the next thing we give on those is there those that environmental concerns before an intentionally broad because we listed out every possible thing that could be the contract would need to you need a wheelbarrow to bring it to closing. You know, that's a foundation issues are kind of the obvious ones, you know, floor joists, things of that sort. You know, we've seen, but we get also ones on the hotline about you know what, hey, there's a crack tile in the bathroom, there's a crack fence post. And that's really where parties are gonna have to kind of agree I mean, you know, sort of my, our recommendation, be it, especially when you're doing your initial kind of walkthrough of the house that there's something big structural that you notice. Just do due diligence, and don't get in the semantics argument of Hey, is this structurally sound or not? You know, if you walk around, when you're pulling it off around the house, and you see, you know, foundation crack, or you see some sort of, you know, big structural issue, just go ahead and do due diligence, that sort of the recommendation there. I think I was thinking of the word improvement says the repairs that they have done need to be structurally sound, but the improvements are the more real estate terminology any improvement on the property, which is the house itself, is that right? Yeah. So I mean, I think and embark as early as this year, I think, I mean, the intent is that, you know, obviously everything in the house is structurally sound. And then also, you know, what you're doing is you're not Neo using, you know, chewing gum or, you know, duct tape to fixed up when you're fixing it, you're actually improving it appropriately. Let me ask y'all a question. So basically, if there is a repair that one of the items is let's say it's a heating and air item, but ultimately there's a dispute as to whether that item needs to be repaired or not, because that's something we have a lot in our industry is that they'll be competing inspection. Sellers inspection says there's nothing wrong with that buyer's inspection says there is I assume what the courts looking at is twofold if this duck falls to a DFT. Ultimately courts gonna look is is it one of the required items that a seller would be required to fix first of all? And secondly, if it is, does that item need to be fixed? And if the court ultimately, if the court ultimately decides that yes, this was one of the items in the other list, and we believe that the seller should have fixed because it was an item, the seller should have fixed the sellers wrong in their opinion, then the seller could be held at default versus if the same analysis goes, but the buyer is asked for something that clearly didn't need to be repaired. The court may decide. While it was an item that needed to be repaired, it fits into the items of the categories, but it wasn't an item. So then buyer could be held at the fault for not moving forward. Is that essentially what we're looking at in that provision? Correct? Yeah, that's where I kind of mess where I kind of said with repair procedure, once the once you sort of cross the the easy ones or repair procedure, or you go to turn on the AC and nothing comes out, okay, then that's clearly not operable once the air comes out, and but it's not your ideal temperature. Now, we're in sort of a negotiation, so that that point, either the parties come to some mutual agreement of what needs to be fixed, or, you know, the seller just says, Hey, I'm not fixing it, we walk away, and then there may or may not be litigation. But yeah, as Byron put in the chat, you know, our procedure is much more, you know, lawyer intensive, sort of, you know, I kind of, you know, say when you're doing repair procedure, you just what your expectation is, you get a house that works, right? It doesn't have to be boring, you know, like I said, you're entitled to a heating system that is operable, you're not entitled to a sauna, you're entitled to a AC system that works, you're not entitled to it to a blast freezer. You know, under due diligence, you can be much more specific of, hey, you need to fix this, and the AC needs to be blowing out it, you know, whatever. I think the misconception a lot of ccra agents may have because I've ever had this misconception before I really got into this contract is that the seller has to fix anything that hits those categories that the buyer says the inspection report says is wrong. There's no there's no if ands or buts. So that's really not the case. Because if my inspection company is wrong, and you have another inspection company that prove they're wrong, I don't get just say, Well, I'm the buyer, here's my getting an error report, fix everything on it. And there's no argument about it. Great at that point. So if the buyers inspect inspector says, hey, there's a this H vac system is completely put, you need to fix it and the sellers system. So our inspector says no, this is perfectly fine. At that point, the parties either you know, the seller is not as then going to likely say hey, I'm not fixing it, which gives us now to that two calendar days of the parties either magically come to some agreement, or the buyer just walks away. And then we have a separate earnest money dispute. Very good. That's, I think that's today, if nothing else, to me, that clears up that misconception a lot of agents. And now to our segment as Gary sees it. They're gonna miss so many things. This week announcement was made that a tight in our industry is hanging up his hammer and retiring. This gentleman has devoted his entire career to protecting our industry. And we owe him a huge great of great debt of gratitude. I've had the pleasure of working with him for over eight years is that when I served on the board of directors, so of course I'm talking about Earl McLeod, the executive director of the Building Industry Association, Central Carolina, who many of you all remember he was a guest on this show when we discussed the moratorium in Lexington County. Well, Earl has served as the executive director for the Building Industry Association in Central Carolina since 1983. That's right 38 years. Nobody works anywhere for 38 years. It's a testament to his devotion to his craft, and to protecting what we do. Now. We're always inducted in 2001 into the South Carolina housing Hall of Fame has been the president Executive Office Council of the National Association of homebuilders. He served as the vice chairman of Lexington County Planning Commission. He was a member of the affordable housing task force for the city of Columbia, the Board of Trustees for the home builder industry in Washington, DC. He has seen this association through both fat and lean times including saving In my opinion, the association is very existence in the Midlands, during the greatest recession, whether you're in the Midlands, the low country, or the Upstate, it doesn't matter. Earl was always fighting for the industry as a whole throughout the state. What I always admired most about our willingness to listen to others accept ideas and plans that might not have been his or he may not even agree with and he would make those ideas work he would mold these ideas and always make them into workable plans. He was always most interested in what was best for the industry and how to make sure that the builders were protected which thus protected the real estate agents so without a doubt our industry is losing a giant but we absolutely wish Earl and his beautiful wife Judy, our absolute best and hope they enjoy retirement and enjoy those grandkids and now on to Gary's good news only we're gonna talk about Coronavirus, Coronavirus Coronavirus. Now this is from a wonderful website called rational ground. And this is an article that talks about whether COVID is more like the flu or not. Now rational ground is not some crazy nutjob conspiracy theory website. This is a website that was formed by doctors from around the country that wanted to provide clear evidence of what was going on with COVID they want to provide good news and make people truly understand COVID so if you would go in there and read some of these articles, you'll see these people really know what they're talking about. So in this article here, they said to be clear, COVID-19 is not a hoax at all. It's real. It causes real world damage, real world heartbreak, but it is not the killer that's been made out to be the first thing they make it a point they make in this article, which I think is great. And I'll just read as part is Conversely, the public health response to COVID-19 has been abysmal failure at every turn the effects and danger of COVID-19 have been exaggerated and the collateral damage of government mandates and government and media induced panic have been swept under the rug official after officials turned a blind eye to once accepted science standards, only to follow the virtue signaling having to do something crowd. The worst example of this tendency was last summer when public health officials condone mass protests as public health events. So how do we do it? How do we turn it as easy as equivalent to a bad flu into a world disaster we overact we changed the way we did detect viruses. We changed the way we record das, we tried to control the uncontrollable, we use COVID-19 as a political tool we destroyed literally and metaphorically 10s of 1000s of lives and panic, lock downs and restrictions, and we set in motion events that ensured the devastation will continue for years. These are bold statements flying against the prevailing narrative. He says, In perhaps the most significant panic fueled move, the CDC changed how mortality statistics are gathered, and COVID-19 labelled data became ubiquitous. Previous to the change COVID-19 needed to be an underlying condition in a chain of events that led directly to the immediate cause of death for the death to be considered COVID-19 death but under the new guidelines, instead of having to be an underlying underlying cause of death. If COVID-19 was merely a contributing factor, the death would be labeled a COVID-19 death. Thus an Alzheimer patients on death's door, who was pushed that last step through the door though COVID-19 was now a full blown COVID-19 labeled death. Nevermind the flu was never treated this way. In such a change made COVID-19 labeled deaths in comparable to any other mode of death. These deaths are now COVID-19 deaths. This rapid change in record keeping became a fuel to power long term panic, and was as we became more efficient in finding COVID-19 We also became more willing to put COVID-19 on a death certificate regardless of his level of contribution to the death. I have been preaching that for nine months, these death numbers are completely inflated and a lot of ways are just complete BS. This is more evidence read this article. It basically spells it out in scientific and mathematical terms exactly what we're looking at. Now NPR is even even gotten to this game. Now. The COVID versus the flu. This is a kid's version. hospitalizations. numbers look worse for COVID-19. But those numbers are inflated as a result of CD C's reporting rules the CDC requires every child admitted to a hospital to be tested for Coronavirus, Dr. Roshini Matthew, a pediatric infectious disease specialist at Stanford University. You know your typical little neighborhood school Stanford University School of Medicine says she says experience at her hospital found that 45% of the time a child who tested positive for the Coronavirus was not actually sick with Corona 19. The findings have been published online in the journal hospital hospital pediatrics. In those cases, hospitalization was due to a completely unrelated diagnosis like appendicitis femur fracture or something else. For children in particular, the risk of serious consequences for COVID-19 is the same magnitude as the risks they face from the flu. So even NPR is finally recognizing this complete panic porn set. The third piece of good news I saw was antibodies month after recovering from mild cases of COVID-19 people are still having immune cells in their body pumping out antibodies against the virus that causes covid 19, according to the study from the researchers at Washington State University School of Medicine in St. Louis, which is also another great university. Such sales could persist for a lifetime churning out antibodies all the while. So basically, if you've had COVID, you could be immune forever. But according to an article on Yuriko lart.org this is what they said last all these reports of antibodies weighing quickly after infection with the virus that causes covid 19. And of course, the mainstream media interpreted that to mean that immunity was not long lived, said senior author Ali Al Abadi, PhD and Associate Professor of pathology and Immunology of medicine and macular muck locally or microbiology it's so difficult to gain pronounce it, but that's a misinterpretation. The data it is normal for antibody levels to go down after acute infection, but they don't go down to zero they plateau. Here we found antibody producing cells and people 11 months after the first symptoms, these cells will live and produce antibodies for the rest of the people's lives that strong evidence of long lasting immunity. Again, panic porn media did not want you to know that our seven day tracker the current seven day moving average daily cases down 19.5% over the highest peak is down 90% is gone. God has done seven day average for hospitalizations down 15.1% of the current deaths, new deaths decreased 10.5% from the previous seven days. So there you have it, Gary is good news. And that's our show for this week. I hope you enjoyed learning the differences in the contracts. We will continue to do this for the next couple of weeks until we finished this entire topic. Okay, everybody likes it if you will, please LIKE US shares and subscribe to us. We would greatly appreciate it Everyone has a wonderful weekend.