Dishin' Dirt on Difference in SCR and CCRA Contract (CL-100, Contingencies & Earnest Money) with Gary Pickren

This week we examine the differences in the South Carolina REALTORS contract and the Central Carolina REALTORs Contract as it pertains to the CL-100, sale and close contingencies and earnest money.  Becki Ashby, Byron King and Austin Smallwood and I discuss how each provision is handled in the respective contracts and how it differs from the  other contract.

Also, I unveil where you can get your FREE copy of my E-BOOK on Seller Disclosure.

And of course, another segment of The End of the World as We Know It and Gary's Good News Only. 

Gary

Gary serves on the South Carolina Real Estate Commission as a Commissioner. The opinions expressed herein are his opinions and are not necessarily the opinions of the SC Real Estate Commission.  This podcast is not to be considered legal advice. Please consult an attorney in your jurisdiction for applicable legal advice germane to your issue.

Transcript

Unknown: 0:01

Greetings and welcome back to yet another episode of deshon. Dirt The only podcast about the real estate agent craft because quite frankly, only real estate agents would even care to listen to a podcast about real estate. Anyway, I'm your offering irreverent and opinionated, but rarely wrong host Gary Pickering. And I am coming from deep inside Blair Cato Pickering castrillon in beautiful downtown Columbia South caught? Well, it's almost official. So let me be the first to welcome you to summertime. It is June outside. And of course this is the month that real estate traditionally takes off. I'm not quite sure how it could take off anymore. It is blistering out there. But of course the administration wants to give first time homebuyers cash to buy. But here's the newsflash, we don't need no more buyers, we need more sellers. So how about an incentive to sell your house? I'm not sure why selling your house for an all time high isn't good enough. But hey, maybe we need something to push sellers over the edge to get them to list a house because we sure couldn't handle any more buyers in this market. But who knows? Oh, well. This week's show is a continuation of the topic that we did start last week and may continue for another week or so it is the differences in the South Carolina realtors Association and the Central Carolina road Association contract. Now while most of you only use one contract, you do need to know the major differences in each contract in case you are presented a contract from a different marketplace. And as we've stated, our know for the umpteenth time, you have to submit all offers received regardless of the contract form in which they come in from so you cannot put into MLS we will only present offers that are on this particular contract or that particular contract you have to submit offers. So you need to know what's in those offers before you can even submit it. Secondly, what happens if your clients moving in from a marketplace other than the marketplace in which you are and that uses a different contract? Don't you want to be able to answer those questions and not look like a complete moron when your client says Well, what's the difference between this contract and the one that I use to sell my house, you need to understand so when your client looks to you for this advice you can give them remember your clients coming to you for your advice, your knowledge or expertise. And when you give them a reason to doubt that that's not really a good thing. So make sure that you understand these contracts. But first, let me tell you about an exciting resource that you can use it is free. And I don't know if I've mentioned that, but it is free as in free, free, free free. It is the complete guide to the south carolina residential property condition disclosure statement. And that book, which is brilliantly written, of course is written by I don't know this author named Gary Picard, which would be me. So I wrote this really cool book. As most of you know, I did serve on the committee that wrote the most recent disclosure form that we use. And it's brilliantly written. So I decided to write a brilliantly written book about it. And it is 59 pages of brilliant at but it does come with a rather robust index. So it'll make finding your issue a lot easier. So what you need to do is go to Blair cato.com, go to our resource page, which is right there on the toolbar. And under the resources for realtors, you can scroll down that page on many different types of resources. But the resource at the bottom of the page will be this book. And you can download it as a PDF and save it to your desktop. Or you can go to your iBooks and download as well. But it answers every single question you have about seller disclosure, who is exempt? Who's not? How do you answer questions when you don't have to answer questions when you have to update questions or stigmas ghost are those required to be disclosed all kinds of crazy stuff that you might not have even thought of. So anything you ever need about self disclosure is right there. And as I mentioned earlier, in case you were not paying attention, it's free, as in free, free, free, free, free, free, it's 100% free. So download it, save it, got questions, use it as your resource. And you can also share it with your seller. So when your sellers are telling you, they don't think they have to do it or they're exempt, or they're they don't have to update their disclosure, simply provide them a copy of the book in terms of look at paid so and so because I was on the committee that actually wrote this for the form that we use. So hopefully this will be a wonderful resource. And as I mentioned, again, it's free. So please download it, love you have it free, tell your other real estate agents about it, tell your broker about it, tell them to share it with everybody in your office, I don't get paid for it. I just want to get this information out there because it's free information. And it will certainly make everything a lot easier for everybody. So also in this episode, we're going to have another example of the end of the world as we know it. And this one's more if if you like the Waffle House, you need to tend to tune into this one because what happened to me this weekend related to the Waffle House is a complete example of either the end of the world as we know it or maybe it's just the end of America as we know it. And then we're going to finish up all as we always do with Gary's good news zone. Before I get started, don't forget to like share and subscribe. I need you to please help me push this podcast out to as many realtors as possible. We are up to about 500 downloads every week and I want to continue to grow that so if you have friends down in the low country, particularly in Hilton Head Charleston Myrtle Beach says please help me push the message out. So we're going to go ahead and start with the differences between the CC Ira and the SCR contract. And we're going to start off where we left last weekend. In this first segment, Becky Ashby, who was on the contract committee with me, Myron King, and also Smallwood from the State Association of Realtors, we're going to talk about the CL 100, also known as the termite letter. So the wood infestation, inspections deal 100 in our ccre contract, that's part of the due diligence period, it doesn't matter if a letter expires, you know, it's more than 30 days old, there is the buyer has the responsibility to have all inspections done during their due diligence period. Now, there are companies who will either come back in the third last 30 days at no charge. I think the Clarks they'll do a $25 upfront inspection. It's not the it's not the official CEO 100. And they'll do that in the inspection period. And then in those last 30 days, they would come back and do the perform the actual seal 100 for the other rest of the team that would be do them. So but in the SCR contract, the wood infestation is completely a separate section, I guess what is that paragraph? 111? Yeah, so we're, we're for paragraph nine or paragraph 11 there. So this is something that they do separately. And I guess if there is something that is discovered in this that last 30 days, then there's a new, totally separate procedure for that. But the buyer has the option of saying whether or not the contract is contingent on this report, and who's going to pay for it, and so on. So the terms are up in the air and can be negotiated out. I don't know how most people are using this, I think most buyers want to have, you know, a clear seal 100. But I do know it doesn't say that there will be a clear seal 100 just that there will be one done, but it's not a guarantee by the seller that, hey, whatever. If it's not clear, we will fix it. So you've made the sale, if it does come back, the seller does the seller is required to give you a clean seal 100. By by closing, they have to remediate those issues. We do see, you know the reason we add our wood infestation is separate because essentially it's more than 30 days out is not valid to meet this report due to Clemson Clemson Extension. But especially if you have a buyer who's not from the south and is unfamiliar with wood destroying organisms, there was a case like this at the real estate commission a few years ago, you can always do an like a termite inspection during your due diligence period. And then do sort of an because that would allow you to say you have a buyer who says I don't care if the seller fixes the issue. If there's ever been a termite in this house, I don't want to buy it, they can do a termite inspection during the due diligence period. And if that comes back, negative, they can walk away where it and then if they want, they can also then do a second one during that 30 day period prior to closing. But in understanding then if the seller, if there found something so great to fix it, the buyer can't walk away. So if the buyer is a completely, you know, I don't want a house with a termite period that is a complete deal breaker for me, then I would recommend doing essentially, possibly two termite inspections, one during the due diligence period, and then one that counts for the sale. 138 was no more than 30 days out from closing. But everybody does need to keep in mind this 30 day calendar date thing that is a Clemson Extension thing. But understand, if I get a termite inspection done today, that does not mean in 30 days, I will not have termites that the house somehow was protected for 30 days things can happen in that 30 day period. It's just your your termite report is no less no older than 30 days. But you know, I've had some situations years ago where people thought that this was somehow like a 30 day warranty that it just guarantee there would be no issues and that nothing would happen is impossible. I mean, termites come and go wherever they want, there's no guarantee there won't be an issue. So us in the second half of the second paragraph. If the seller does not make the repairs and treatment, the buyer shall have the option to accept the property negotiate or terminate. So yes, the seller is agreeing that they'll do it. But see, that's where I'm feeling like it does it sounds like the seller doesn't have to do it, they wouldn't be in default. So, if the seller if the seller is set, you find termites in the celebrates to fix it, the buyer can not walk away without potentially being sued for doing so. If the seller says hey, I lived with the termites. So can you then the buyer has three options. They can accept the house with the termites make sure they're talking to their lender before doing that. They can say Hey, why don't we split the cost of these or they can terminate by delivering those. But yeah, the seller the seller is not obligated to fix it. But if the seller fixes it, the buyer they've essentially blocked the seller from the buyer and walking What do you summarize? I guess the main difference on inspections in general between the state and the in the ccra contract is that the buyer can't just back out they have to Give the seller the opportunity to fix the things and then take it from there as far as the negotiation so but key difference, I guess I boil it, boil it down to one thing. And now in the second segment we're going to discuss and the two contracts, the difference between the sale and close contingency. Let's move over to sell and close contingency. I'm not going to spend a ton of time on this because as Austin mentioned, at the very beginning, this is something they're getting ready to release, I believe tomorrow. So what they have, and I say they you know, it's only because Becky and I are on the contract committee at CCRI. There's really no there as we're all together, we're all part of the realtor association of each other. So don't take it that way. But and the state contract, they're getting ready to amend this document. So I'm gonna kind of talk about it in generic sense. And that ccra, we have separated the contingencies for selling clothes into two separate contingencies, we have a closed contingency, which basically says, I have a house, under contract ready to close, I need to close it in order to buy your house, which is what a lot of people have, you know, they live in one neighborhood, they're going to buy your house, but they want to sell, they've got to use the money from the sale of their house to buy yours. That's kind of a common thing. There's also an ccra, a selling clothes contingency, I call this prayer shift. What this says is that I have I have a house, it's not under contract, I want to buy your house. But not only do I have to get my house under contract also have to close it. So no longer are you as a seller praying that somebody will buy your house, you're now praying, somebody will buy your buyers house. And so that way we do it differently as ccra is that with the clothes contingency, if you're under clothes contingency, you are it, your contract cannot be trumped you're in first position, the seller can continue to market the property, but they can only take backup contracts, you cannot be beat on a better contract. And it's very straightforward, very simple. your due diligence period and the ccra contract begins immediately. Under a sell and close under a sale contract sell contingency contract, your due diligence just begins as it normally would. Now on a sell and close contingency, we change that up a little bit. And what under a sell and close contingency. Again, this is I have a house for sale is not under contract, but I have to sell my house to buy yours is that the seller can continue to market their property. And they can continue to accept better contracts. And a better contract is something that is not a sell enclose contingency, even if it's for less money. So if I'm selling clothes contingency to buy Becky's house, and all sudden shows up with a non contingent contract, and it's for $30,000 less than my offer, but Becky wants to go ahead and accept it, she can provide me notice that all since contract is now in first position and I can remain in backup, I can only become a close contingency that is all does it under the one form, you move from selling clothes contingency to clothes contingency by accepting a contract on your house with your due diligence period completed and no other contingencies other than finance that arise Other than that, you stay in selling clothes. So if you're a selling clothes, you want to as quick as possible, get a contract on your house, get through the due diligence period, and notify the seller that, hey, I'm now moving into closing contingency. Because once you move from selling clothes, you go from being able to be bumped as primary to unable to be bumped. And so that is how we separated the two all sudden instead of me going through the differences because I don't know what your new provision is going to entail. Can you talk about how Yours may be different? I know the main difference and the old contract was your did not separate selling clothes from clothes, it was just a contingency. And that a better contract, if received could either be removed, either the buyer you would notify the buyer they could remove the contingency? Or I think there was one other provision I think they could remove it or they could provide evidence that they have a contract that correct. Right. So if you under our contract, pointed this out, one went through it on paragraph two, if you're if you have a buyer who had who's moving from Ohio to Columbia, and they need to sell their Ohio house to buy the house in Colombia, you would make it contingent on for on the sale of the house and check that box and form in paragraph two of the contract and then attach 54504 that form is in the process of being updated. Biggest thing for that is going to be obviously the seller can continue to market their property after you go under contract. If the seller accepts a backup contract, then they will come to you as the buyer. And this is all laid out in paragraph four of our of that form and say, buyer, you need to tell you need to do one or four things within a certain time period that's agreed upon by the parties. You either need to show us that hey, I'm under contract for my house in Ohio, the only thing that is pending is financing. I can or I can show you, hey, I've either got cash on hand that I can buy your house without this contingency and so I can drop it He or I can for two mortgages hear something from my lender, or Hey all swap places, I'll let your biz new backup contract become primary, I'll go to backup, or what, hey, we tried to make this work, well, we're just going to terminate. There's some other provisions in there, we have a buyer self analyze that there's a deadline by which the buyer has to sell their house in Ohio. There's also a deadline for which under that the buyer has to have their house under contract in Ohio. So there's a certain date that you don't have your house under contract by them either party can terminate by delivering, but that's, that's sort of a one page form. And then those choices are actually made by companion document. Those are form number SEO for numbers 504 and 505. Also just put out Friday, some instructional YouTube videos on our YouTube page of this, I think that's the main difference is that ccra separates the clothes and sell and close contingencies into two separate ones. And they have separate obligations under those two forms. And in this final segment, Becky Ashby is going to discuss the differences and how the contract addresses earnest money. Yes, so with the ccra contract, one key difference that our contract has that the str contract does not have is that if the if there is a dispute over earnest money, and a court action is brought, the non prevailing party may be responsible for court costs attorney fees, but also treble damages, which is three times the earnest money amount, so that no one wants to be out that much money for the sake of proving a point. So hopefully, this is intended to hopefully just keep people on track and try to work things out and not let it go that far. Because if you know that the other part of the contract, it's very clear that the other party should be entitled to their earnest money, then you might want to think twice before dragging it out and then subjecting yourself as the seller or the buyer to losing more money. So one thing is very important understanding earnest money also mentioned that earnest money is only mentioned in paragraph five of the contract site contract, and that's the only place earnest money is mentioned multiple times throughout the ccra contract. And several times when an event occurs in ccra. It says and thus earnest money shall be released to blank whether it's buyer or seller. So if my financing falls through and is contingent on financing, it says contract is hereby terminated and earnest money can be released back to the buyer. Understand that while that is a direction, that does not mean that a broker can just decide broker jars can just thought okay, well, the contract says and artists may be released for the seller, so I'm going to release it themselves. Personally, I believe that's what the statute allows. But the real estate commission disagreed in the case of I tried there. So what they have basically said is, as Byron has said, in his Austin said, basically, it's a sign release, or it's a court order. So essentially what that direction is in there for for the earnest money is to provide direction to the court as to who is entitled to the money. So if it says an earnest money to be released to the seller, and the buyer refuses when they go to court and argue over who's entitled earnest money, it should be a fairly easy case for the judge to look at and say, well, right here it says an earnest money to be released to the seller, which also brings in the treble damages for the seller that point, then they can say, Well, Your Honor, it is so clear cut as to who was supposed to get the money, it was unreasonable. For the other side to refuse, we would like to ask for treble damages, treble damages being three times your damages. Keep in mind, the magistrate court has a jurisdictional limit of 70 $500. And that includes up to your treble damages. So if your earnest money is 5000, and you file a lawsuit and magistrate court, your maximum recovery would be 7500. If you're asking for the 15, you're gonna be bumped up to circuit court, and that's a lot more expensive, a lot more time consuming. So in 111 recommendation we make them a hotline is agreement of mutual Green Parties or court order is based on license law, which pertains to real estate brokers. So if you have a law firm hold it, then that's going to be based on whatever the law firms policy is. So the law firm is not going to be necessarily as guided by those beacons of mutual Green Parties or court order. But very important also nails that 14 dash 57 is a South Conoco that governs real estate licensee salesmen and brokers. It does not govern the actions of any licensed attorney, licensed attorney are governed by State Bar rules and state Supreme Court rules. And what our court rule basically says is that we may not release money we are holding in trust that we know to be in dispute. So as a closing attorney, how do I know the money is not in dispute? A signed release or a court order. So our firm takes the position we will not release money without a signed release or a court order. We will not we will not have you a document or hand you a document says that the closing attorney will get to decide who gets the earnest money. Because even if the consumer says yeah, whatever I don't care, I don't really mind. They mine until they file a lawsuit and say hey, this money was always in disputing the attorney released. So we take the position, which is essentially the same as the association as to the real estate agent is that a signed release without a court order, no release a lot of money. Here, we do have an agreement that you'll have the buyer and seller sign when you'll take possession of originally we did when this court case came out that told the commission this was what was going to happen. We're gonna have a mass exodus of real estate agencies holding money, and it was going to go over quickly to the attorneys. So I drafted a four paragraph form with a lot of other attorneys are using, the problem we had was most sellers wouldn't sign it. Real estate agents were calling us going, can we change this out in the other. So we took the position, it was no longer necessary to get it signed, because the court was essentially clear as to what our obligations were, we would hold the money in trust and obligations are we cannot release that money without a signed release, or a court order. And so that's why we moved away from that document. I will say that the contract committee which is led by Becky, we have been working very hard over the last couple of weeks to modify our paragraph four in the new contract version, because our current paragraph four and ccra no longer really addresses the issue, which is what happens is somebody who is not a real estate agent or broker holds the money, which you love while it was happening most. So we're going to have to rewrite that whole paragraph, our hope mat perils hope, my hope. Becky's hope is that we can get this to such a such a situation where it's written well enough that it covers what the lawyers have, in most of their agreements, they'll just find it redundant. And they won't be doing to ask them to be signed. So and that's an earnest money disclosure form that when I mentioned 620, which says, here's what happened to the visit a brokerage firm then also says, Hey, if you're having a wall firm, at least inquire whether the law firm has something signed by the buyer or seller, and then is a broker, get that for your file. That way you can say hey, this is what guys NFL or knocks on your door and says, Hey, worth the earnest money for this transaction go, Hey, it's with this law firm. Here's the escrow agreement for and that's what we're going to probably break it down in paragraph four is if broker is holding money, if attorney or other is holding money, then these are the rule. So if broker's holding it is pursuant to the south carolina code, if the attorney is holding it is pursuant to South Carolina State Bar rules or court rules or other and I'm hoping it will eliminate that it does concern me that there are lawyers out there who do believe that they have the right to determine who gets your money. I just don't believe that's proper under our rules. And I guess we've been seeing more of not just them making their own decision, plenty of finger a finger in the air. It's been that they've, you know, that they've said essentially ahead of time, here's a you know, under if the financing falls through, I'm going to give it to but you know, they sort of take those provisions and sort of have it tied down the parties agree but right. Okay. It's like that has not gone to the commission yet to his mouth. I understand what the commission was sort of saying that whatever you agreed upon ahead of time doesn't count. It's what you actually have to agree upon at the time of the dispute. You can't predetermine you can't. You have ways when the agreement matters, right. And the other problem is the Commission has no jurisdiction over lawyers. So they can't hear anything that lawyers do. They have no jurisdiction over the South County Bar and the Supreme Court have jurisdiction over they have no jurisdiction. So that's the big problem. The problem also is when I tried the case before the commission, my broker released money based on a sentence that said, an earnest money to be released back to the buyer. It was clear cut. The statute says unless there's no other reasonable interpretation, then you need the release. The court or the commission at that time said we're not in the position of interpreting contracts and making decisions on each one of these. So we're saying court order. I disagree with him. I think that this that basically disavows with the law requires them but they took a little sentence little sentence that said an earnest money to be released, the buyer is still said, my broker cannot really start his money without the release. But we can go a whole nother hour on this and that and that's why str has dead we took out that's why Another reason is if you see a version of our ACR contract that has this contractual is versus or is my language, that's another tell that is an outdated more because we took out that language after that case. Now real quick segment on the end of the world as we know it. So this weekend, I did a 10 mile hike on the Palmetto trail from the Alston trailhead, which is near Jenkins, villas summer plant pomaria to prosperity. And at the end of this hike, which was on an old railroad track was pretty cool. I wanted some smattered covered and diced hashbrowns which you can only get of course the Waffle House. So we drove the first Waffle House on that exit over there by mid Carolina golf course. And the man standing outside goes in locks the door, we walk up to the door and it's like 230 in the afternoon. And they look at us and say we're closed now in my I don't know 51 years of living. I've never seen a waffle house closed. So I was kind of baffled. But we drove down to the next exit now which was the cheapen exit and there was another waffle house when we pulled in that there was only one car in the parking lot. So we walk inside and they're like, we don't have any workers so we can open we only have one person I'm here today and we have nobody to market so we're closed. This is the end of the world or at least the end of America as we know it when we can't eat it a waffle house when they can't find enough people to work at a waffle house is utterly amazing. That's the end of the world as Gary. Now let's move over to Gary's good news only. Redfin reports. I don't know if this is good news or bad news but over half of buyers are getting or going above the ask price. They said more than 51% of homes have sold above their lowest price and the four week period ending may 23. That's up from 26%. A year ago, according to Redfin, numerous other sales records were said including medium home sales prices now 354,002 50 number days on the market 17 which is down from 36 just one years ago. So now let's talk about Coronavirus. Coronavirus, Coronavirus. So cases on May 29. Were 12,663 in the United States. The closest day I can find to that low number was May 17. But I'm not talking may 17 of 2021. I'm talking may 17 of 2020. And when we had 12,831 case, that's over a year ago, we haven't had cases as low. So it's been a year, March 22 was the first day of 2020 that we actually passed 10,000 cases. So for now over a year. We are getting down to what it was at the very beginning of this Coronavirus. Remember cases didn't start spiking until mid to late March of last year. So it's almost goes back to the beginning of the Coronavirus from nature journal immunity to Coronavirus last at least a year possibly a lifetime improving over time especially after vaccination. According to two new studies the funding may help put to rest lingering fears created by the media of course that protection against a virus will be short live together to study suggests that most people have recovered from COVID-19 and who are later immunized will not need boosters. vaccinated people who were never infected most likely will need the shots however, as will a minority of who were infected but did not produce a robust immune response. Both reports look at people who have been exposed to the Coronavirus about a year earlier sales that retain a memory of the virus persist and the bone marrow and may turn out antibodies wherever needed. According to one of the studies published in Monday in the journal Nature once again another thing that the media completely lied to you about now if you ever want more proof that the media doesn't care about the truth and never did when it comes to COVID it's been it's been all about politics and clickbait with the media. Then this admission this week by Facebook, the media falchi and the CDC should make you really furious. Remember it was a year ago with the previous administration was talking about the virus and where it came from. Facebook blocked all of that and said it was a crazy conspiracy theory that was made by a bunch of wackos well, Facebook will no longer take down pose claiming that COVID-19 was manmade or manufactured. Company spokesperson told Politico on Wednesday that the move to acknowledge the renewed debate about the virus origins. The narrative is in flux. Facebook's policy tweets arrive as support surges in Washington for a fuller investigation of the origins of COVID-19 after Wall Street Journal reported that three scientists at the Wuhan Institute of Neurology were hospitals laws and the late 2019 was symptoms consistent with the virus, which is what we've been saying for over a year. But of course, Facebook said it was a fringe conspiracy theory. Perhaps Facebook isn't the great arbiter of truth as they claim to be from the National Academy of Sciences 2% of SARS COVID to positive individuals carry 90% of the virus circulating in the community. That's pretty astonishing stat. Now as of 6am, on May 30, a total of 135 million Americans have been fully vaccinated, which is 14.7% of the entire country's population. 290 point 7 million vaccine doses have been administered. 166 million people have already gotten at least one dose, which means 50% of the total population is received at least one in South Carolina 33.69% of the population has been fully vaccinated. On the seven day tracker this current seven day moving average of daily cases is 12th. out towards can be 21,006 27, which is a decrease of 22.3% compared to the previous seven day average. Which now means are decreased from our height is 91.4%. Down, we're only down we have 9.64% left and we're done. The seven day average is for positive test is 2.6% means 97.4%. People who test test negative now hospitalizations are also down 10.1%, which is the lowest seven day average since August first. And then finally seven day average four deaths down again this week. 13.2%. So that is your Gary's good news. So I'd like to thank everybody for tuning in this week. We hope everybody enjoys it. We'll do one more week of the differences between the ccra and the SCR contract and then we'll move on to another topic. I hope everybody has a wonderful weekend. Please like this. Subscribe to us and share. They'll take care