The Red Book on Real Estate Contracts in Georgia

By Seth Weissman and Ned Blumenthal

The Red Book on Real Estate Contracts in Georgia answers your most difficult contract questions, helps keep you out of legal trouble, discusses issues that arise in real estate transactions, provides case law support for different positions and includes hundreds of sample special stipulations.

Written by GAR General Counsel, Seth G. Weissman and Ned Blumenthal, this one-of-a kind book has been described as the one resource every real estate professional in Georgia needs.

• Language: English
• Publisher: BookBaby
• Release date: Mar 19, 2021
• ISBN: 9781098354749

Seth Weissman

Seth G. Weissman is the senior partner in the law firm of Weissman PC in Atlanta, Georgia. He has been general counsel to the Georgia Association of REALTORS® for the last thirty years. Seth has always had a fascination with real estate negotiations and previously co-authored the book entitled Secrets of Winning the Real Estate Negotiation Game. Seth has degrees from the University of Pennsylvania, the University of North Carolina at Chapel Hill, and Duke University.

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Copyright © 2021

Weissman PC

All rights reserved.

DISCLAIMER AND TERMS OF USE

This book may not be reproduced in whole or in part without the express written permission of Weissman PC, with the exception that permission is hereby given for individual readers to copy individual italicized Special Stipulations placed throughout the book for their own personal and professional use only in specific real estate transactions. Such Special Stipulations may not otherwise be assembled in any format, copied, sold, distributed, or used for any commercial or other purpose without the express written permission of Weissman PC.

Any inclusion in this book of portions of Georgia REALTORS® forms (GAR Forms) is for educational purposes only. All GAR Forms are copyrighted and the references to the GAR Forms contained herein are with the express permission of Georgia REALTORS®. No portion of any GAR Form may be used by any person except in strict accordance with the license agreement of GAR.

This book is designed to provide accurate and authoritative information with regard to real estate sales contracts in Georgia. Since each transaction is unique and the facts and circumstances will vary from one transaction to another, no representations are made, however, regarding the appropriateness of the sample Special Stipulations and other information contained herein to specific real estate transactions. Additionally, the authors note that the GAR Forms are frequently updated and modified. Accordingly, it is important to confirm whether the content of any particular GAR Form has changed as such may significantly impact the commentary relative thereto or the appropriateness of any particular sample Special Stipulation. This book is sold with the understanding that neither the authors, publishers, Georgia REALTORS® nor Weissman PC are engaged in rendering specific legal or other professional advice. If specific legal or other expert assistance is required, the services of a competent professional should be sought.

DEDICATION

This book is dedicated to the staff of the Georgia REALTORS® who work tirelessly to promote the interests of REALTORS® in Georgia. This book is also dedicated to the two of the greatest real estate instructors of their generation – Greg Dunn (in memoriam) and Tom Gillett.

ABOUT THE AUTHORS

Seth Weissman is a founding partner of the real estate and litigation firm of Weissman PC. He received his undergraduate degree summa cum laude from the University of Pennsylvania, a master's degree in city and regional planning from the University of North Carolina at Chapel Hill, and a juris doctor degree from Duke University.

Seth has been the general counsel to the Georgia Association of REALTORS® for over 25 years and is actively involved in representing real estate brokerage firms, developers, builders, lenders and institutional owners of real property. Seth also has extensive experience setting up complex, mixed-use developments and condominium associations. Seth is a former Chair of the Real Property Law Section of the State Bar of Georgia and a member of the American College of Real Estate Lawyers. He is a former Professor of the Practice of City Planning in the College of Architecture at the Georgia Institute of Technology. Seth is an author on a wide range of real estate and real estate brokerage subjects, including law review articles and books on zoning and land use law in Georgia and real estate negotiations.

Ned Blumenthal is a partner with the real estate and litigation firm of Weissman PC. He received his undergraduate degree from Emory University in 1987, and his juris doctor degree from Emory University School of Law in 1990.

Ned is actively involved in representing and defending REALTORS® and real estate brokerage firms in civil actions, administrative proceedings, HUD investigations, regulatory compliance and commission claims. He is a former REALTOR® and lectures and writes frequently on many real estate brokerage topics, including risk reduction, claims avoidance, RESPA and fair housing. Ned is admitted to practice in Georgia, Florida and Maryland.

Foreword

The Red Book

A valid and enforceable contract is the bedrock of a successful real estate transaction. Since its initial publication in 1997, The Red Book has been regarded as a well-trusted and often cited authority on Georgia real estate contracts and an indispensable resource for Georgia REALTORS®.

The law in Georgia permits a real estate licensee to fill in the blanks of a contract which has been prepared by an attorney. However, as anyone who has been in the business for any period of time knows, the responsibility goes far beyond simply completing the blanks. The preparation of a well-drafted contract also includes decisions about which contingencies, exhibits, addenda, and special stipulations to include. The Red Book provides not only the basics in the legal preparation of contracts and a detailed explanation of the fine print but additionally includes hundreds of special stipulations with clarification, commentary, and tips for their usage presented in a way that is practical and easy to understand.

The real estate market and therefore the way REALTORS® do business is constantly evolving and as such the professional must evolve with it or be left behind. It has been 6 years since the publication of the last edition of The Red Book and it has been rewritten to address the most recent changes and developments in real estate law including closing attorneys serving as the holder of the earnest money, the recent appellate court decisions on liquidated damages, not to mention the Dodd Frank Wall Street Reform Act and TRID. This comprehensive, new edition educates the reader on these issues as well as many others in an easily digestible format with a straightforward, relatable approach. The Red Book is not only an essential tool in assisting REALTORS® in the preparation of contracts but additionally, it is the first place most agents and brokers turn when they find themselves in the midst of a contract dispute. The Red Book on Real Estate Contracts in Georgia truly belongs in every agent’s library of resources.

I have held a real estate license in Georgia for more than 30 years but have dedicated the last 18 years to real estate education. I can honestly say that there is no one more qualified to author such a text on real estate contracts in Georgia than Seth Weissman and Ned Blumenthal. Seth has served as general counsel to the Georgia Association of REALTORS® for more than 25 years and has a strong reputation for protecting REALTORS® by reducing liability and preserving commission rights while insuring the best representation to the clients whom we represent. As a former REALTOR® and now a licensed attorney, Ned brings a unique perspective in protecting licensees against claims.

As a practitioner and educator, I cannot recommend this book more highly. If you have a real estate license in the state of Georgia, you need this book!

Karen Loftus

2013 Captain of Industry – Northeast Atlanta Metro Association of REALTORS®

2014 Georgia Association of REALTORS® Educator of the Year

2016 Georgia Real Estate Educators Instructor of the Year

TABEL OF CONTENTS

CHAPTER 1: BEFORE THE CONTRACT

§1.1 THE OPEN HOUSE

§1.1.1 Injury While Viewing Property

§1.1.1.1 Liability of Agents and Affiliated Agents

§1.1.2 Pets as a Potential Property Hazard

§1.1.3 Selling New Construction Homes Where Not Everything Is Finished

§1.1.4 Selling Highly Dilapidated Property

§1.1.4.1 When the Seller Is Unfamiliar with the Condition of the Property

§1.1.4.2 When the Seller Knows or Suspects the Property to Be in a Dilapidated or Dangerous Condition

§1.1.4.3 Dilapidated Commercial Property

§1.1.5 Surveillance Equipment on the Property during Showings

§1.1.5.1 Legality of Using Surveillance Equipment during Open Houses

§1.2 COMMON REAL ESTATE SCAMS

§1.2.1 Personal Advertisement Webpages

§1.2.2 The ‘I Need Some of My Earnest Money Back’ Scam

§1.2.3 Wire Fraud or 'Updated' Payment Instructions

§1.2.3.1 Broker Liability for Cyber-Fraud

§1.2.3.2 Renting a House the Seller Does Not Own

§1.2.4 ‘You Need to Pay a Fine Right Away’ Scam

§1.2.5 Scams Involving Real Estate Fraud

§1.3 The Names for the Brokers

§1.3.1 Listing Broker and Selling Broker Now Referred to as Seller’s Broker and Buyer’s Broker

CHAPTER 2: CREATING A BINDING CONTRACT

§2.1 OFFER AND ACCEPTANCE

§2.1.1 Letters of Intent

§2.1.2 Time Limit of Offer

§2.1.2.1 Time Limits and Counteroffers

§2.1.3 Binding Agreement Date or Effective Date

§2.1.3.1 Contract When No or Wrong Binding Agreement Date Is Filled In

§2.1.3.2 Who May Fill In Binding Agreement Date

§2.1.4 Delivery of Acceptance Required

§2.1.5 Sample Problems regarding Time Limit of Offer

§2.1.6 Confidentiality of Offers in Residential Real Estate Transactions

§2.2 TERMS OF OFFER AND ACCEPTANCE MUST BE THE SAME

§2.2.1 Mutuality Requirement

§2.2.1.1 Agreements with Discretionary Contingencies

§2.2.1.2 Payment of Earnest Money Eliminates the Mutuality Requirement

§2.2.1.3 Recital of Consideration Eliminates the Mutuality Requirement

§2.3 COUNTEROFFERS

§2.3.1 Counteroffers and the GAR Contract

§2.3.2 Counteroffers Not Using the GAR Contract

§2.4 CREATING AN ENFORCEABLE REAL ESTATE CONTRACT

§2.4.1 Real Estate Contract Must Be in Writing

§2.4.2 Enforceability of Verbal Real Estate Contracts

§2.4.2.1 Amendments and Agreements to Terminate a Real Estate Contract Verbally

§2.4.3 Initialing Changes to a Contract

§2.4.4 The GAR Contract

§2.4.5 Initialing Every Page of a Contract

§2.4.6 Substituting Pages in a Contract

§2.4.7 Effect of Writing ‘Clean’ or Conformed Contract after Agreement Reached

§2.4.8 Dealing with Multiple Offers

§2.4.8.1 Multiple Offers from a Seller’s Perspective

§2.4.8.2 Call for Final and Best Offers

§2.4.8.3 Making Counteroffers to Multiple Buyers

§2.4.8.4 Considering Personal Letters and Other Buyer Materials

§2.4.8.5 Multiple Offers from a Buyer’s Perspective

§2.4.8.6 Escalation Clauses in Multiple-Offer Situations

§2.4.9 Signing a Contract in Multiple Counterparts

§2.4.10 Signing Separate Documents

§2.4.11 Contracts Consisting of Multiple Documents

§2.4.12 Proper Incorporation of Exhibits

§2.4.12.1 Numbering of Exhibits

§2.4.13 Reconciling Conflicts and Ambiguities within a Contract, or between the Contract, Special Stipulations, and Exhibits

§2.4.13.1 Hierarchy of Provisions in a GAR Contract

§2.4.13.2 Ambiguities in Contracts

§2.4.13.3 Missing Terms

§2.4.14 Resolving Conflicts

§2.4.15 Effect of Mistakes in the Contract

§2.4.15.1 Effect of a Mutual Mistake

§2.4.15.2 Effect of a Unilateral Mistake

§2.4.16 ‘Agreement to Agree’ Generally Unenforceable

§2.4.17 Facsimile Copies and Electronic Signatures

§2.4.18 Agreements to Reinstate a Contract

§2.5 WHEN AN OFFER CAN BE WITHDRAWN

§2.5.1 Option Contracts to Prohibit Withdrawal of Offer

§2.6 EXPLANATION OF TERMS RELATED TO TIME

§2.6.1 Definitions of Dates and Times

§2.6.2 Definitions of Other Words Commonly Used for Time

§2.6.3 Meaning of ‘Banking Day,’ ‘Business Day, ’and ‘Legal Holiday’

§2.6.4 Meaning of ‘Banking Hours’ and ‘Business Hours’

§2.6.5 Time Expiring on a Saturday, Sunday, or Public Holiday

§2.7 COMMON MISTAKES IN FILLING OUT PREPRINTED FORM REAL ESTATE CONTRACTS

§2.7.1 Missing Time Deadlines in Real Estate Transactions

CHAPTER 3: TITLE

§3.1 WHAT THE GAR CONTRACT PROVIDES

§3.2 NOTICE REQUIREMENTS FOR TITLE DEFECTS

§3.3 SELLER HAS OBLIGATION TO CONVEY GOOD AND MARKETABLE TITLE

§3.4 DEFINITION OF GOOD AND MARKETABLE TITLE

§3.4.1 When the Contract Is Silent

§3.4.2 Under the GAR Contracts

§3.4.3 Marketable Title versus Economic Marketability

§3.4.4 Marketable Title versus Insurable Title

§3.4.5 Agreement to Provide Title Acceptable to Buyer

§3.4.6 Threats of Litigation and the Filing of Lis Pendens Will Affect Title Marketability of Property

§3.4.7 Some Survey Defects Do Not Affect Title Marketability of Property, but May Affect Economic Marketability

§3.4.8 Remedies for Failure of Seller to Provide Clear Title under the GAR Contract

§3.5 ZONING MATTERS DO NOT AFFECT MARKETABILITY OR QUALITY OF TITLE

§3.5.1 Violations of Zoning Ordinances Are Not Matters Affecting Title to Property

§3.5.1.1 Legal Nonconforming Uses

§3.5.1.2 Illegal Nonconforming Uses

§3.5.1.3 Setback Lines

§3.5.1.4 Historic Properties and Historic Districts

§3.5.1.5 Stream Buffers

§3.5.2 Special Stipulations Warranting Zoning Status Are Enforceable

§3.6 COMMON ENCUMBRANCES ON PROPERTY

§3.6.1 Encroachments

§3.6.2 Boundary Line Agreements

§3.6.3 Easements and Licenses

§3.6.3.1 Landlocked Property: Easements by Necessity

§3.6.3.2 Landlocked Property: Easements by Necessity Do Not Include Utilities

§3.6.3.3 Blocking or Obstructing Easements

§3.6.3.4 Underground Pipeline Easements

§3.6.3.5 Shared Driveway Easements

§3.6.3.6 Easements of Support

§3.6.3.7 Cemeteries

§3.6.3.8 Water Rights: Prescriptive Easements

§3.6.4 Judicial Liens

§3.6.5 Special Assessment Liens

§3.6.6 Ad Valorem Tax Liens

§3.6.7 Federal Tax Liens

§3.6.8 Mechanics’ and Materialmen’s Liens

§3.6.9 Liens under the Georgia Condominium Act and the Georgia Property Owners' Association Act

§3.6.9.1 Common Law Liens of Homeowners Associations not Subject to the Georgia Property Owners Association Act

§3.6.10 Deeds to Secure Debt

§3.6.10.1 Three Methods to Cancel Deed to Secure Debt

§3.6.10.2 Reversion of Title to Grantor without Cancellation

§3.6.11 Covenants

§3.6.11.1 Duration and Application of Covenants

§3.6.12 Property Bonds

§3.7 SPECIAL ISSUES: BUYING AND SELLING LAND WITH TIMBER OR CROPS

§3.8 TITLE STANDARDS

§3.9 TITLE INSURANCE AGAINST LOSSES ARISING THROUGH DEFECTS IN TITLE

§3.9.1 Lender’s Title Policy Does Not Protect Owner

§3.9.2 Title Insurance Does Not Insure against All Risks of Ownership of Property

§3.9.2.1 Other Excluded Risks

§3.9.3 Enhanced Title Policy

§3.9.4 Insuring Over Title Defects

§3.9.4.1 Low-Risk Issues

§3.9.4.2 High-Risk Issues

§3.9.5 Title to Property Can Be Marketable and Still Be Worthless in an Economic Sense

§3.10 BANKRUPTCY BY SELLER CAN AFFECT TITLE

§3.10.1 Property of Debtor That Is Part of Bankruptcy

§3.10.2 Purchase and Sale Agreement Can Be Rejected in Bankruptcy

§3.10.3 Impact on Real Estate Transaction If One Co-Owner Files for Bankruptcy but the Other Does Not

§3.10.4 Sale of Property under Protection of Bankruptcy

§3.11 EFFECT OF DIVORCE ON TITLE

§3.11.1 Transferring Title during Divorce Proceedings

§3.11.2 Title by Decree

§3.12 EFFECTS OF DEATH ON TITLE

§3.13 TITLE THROUGH TRUSTEE

§3.14 TITLE BY PRESCRIPTION OR ADVERSE POSSESSION

§3.14.1 What Constitutes Sufficient Possession

§3.14.2 Possession Must Be Adverse to Interests of Record Owner

§3.14.3 Color of Title

§3.14.3.1 Documents That Qualify as Color of Title

§3.14.3.2 Examples That Do Not Qualify as Color of Title

§3.14.4 Adverse Possession Claim Not Available in Certain Circumstances

§3.15 EFFECT OF FORECLOSURE

§3.16 TRANSFER OF TITLE BY DEED

§3.16.1 Requirements for a Valid Deed

§3.16.2 Types of Deeds

§3.16.2.1 General Warranty Deed

§3.16.2.2 Limited Warranty Deed

§3.16.2.3 Quitclaim

§3.16.2.4 Gift Deed or Voluntary Deed

§3.16.2.5 Deed to Secure Debt

§3.16.2.6 Deed in Foreclosure or Deed under Power

§3.16.2.7 Tax Deed

§3.16.2.8 Survivorship Deed

§3.16.2.9 Difference between ‘Tenants in Common’ and ‘Joint Tenants with Right of Survivorship’

§3.16.2.10 Fiduciary Deeds

CHAPTER 4: PARTIES TO THE CONTRACT

§4.1 PARTIES WHO MUST SIGN THE CONTRACT

§4.1.1 All Buyers and Sellers Must Sign Contract

§4.1.1.1 Possession as Notice of Title

§4.1.1.2 Signature by Both Husband and Wife

§4.1.1.3 Signatures by Common Owners

§4.1.2 Recourse against Owner Who Signs Contract

§4.1.3 No Recourse against Owner Who Does Not Sign Contract

§4.1.3.1 Protecting Buyers When Sellers Not Properly Listed on Contract

§4.1.3.2 Recourse against Buyer Who Signs Contract

§4.1.4 Real Estate Brokers as Parties

§4.1.4.1 Real Estate Brokers are Parties for Limited Purpose

§4.1.4.2 GAR Contracts Enforcreable Without Broker's Signature

§4.2 PARTIES MUST SIGN IN THE RIGHT CAPACITY

§4.2.1 Owner Signing in the Wrong Capacity

§4.2.2 Authorized Agents or Representatives

§4.3 PERSONS WHOSE NAMES HAVE CHANGED

§4.4 USING A POWER OF ATTORNEY

§4.4.1 Requirements for a Power of Attorney

§4.4.2 Consequences of an Insufficient Power of Attorney

§4.4.3 Real Estate Brokers with Power of Attorney

§4.4.4 Spouse Has No Implied Power of Attorney to Sign for Other Spouse

§4.5 WHEN CORPORATIONS SIGN CONTRACTS

§4.5.1 Individuals Signing on Behalf of a Corporation

§4.5.2 Apparent Authority

§4.5.3 President May Sign for Corporation

§4.5.4 Effect of Corporate Seal Affixed to Contract

§4.5.5 Unformed Corporations Have No Authority to Contract

§4.6 WHEN PARTNERSHIPS SIGN CONTRACTS

§4.6.1 When a General Partnership Signs a Contract

§4.6.2 When Limited Partnerships Sign Contracts

§4.6.3 When Limited Liability Limited Partnerships Sign Contracts

§4.7 WHEN LIMITED LIABILITY COMPANIES SIGN CONTRACTS

§4.8 WHEN COURT-APPOINTED RECEIVERS SIGN CONTRACTS

§4.9 FIDUCIARIES: EXECUTORS, ADMINISTRATORS, TRUSTEES, AND CONSERVATORS

§4.9.1 When Executors Sign Contracts

§4.9.2 When Administrators Sign Contracts

§4.9.3 When Trustees Sign Contracts

§4.9.4 When Conservators of Minors Sign Contracts

§4.10 CAPACITY OF THE PARTIES TO ENTER INTO CONTRACTS

§4.10.1 Minors

§4.10.1.1 Students Residing in Georgia

§4.10.1.2 Contract of Minor Voidable upon Majority

§4.10.1.3 Contracting with a Minor

§4.10.2 Mentally Incompetent Persons

§4.10.2.1 Contracting with a Mentally Incompetent Person with a Guardian

§4.10.2.2 Contracting with a Mentally Incompetent Person without a Guardian

§4.10.2.3 Voiding a Contract with a Mentally Incompetent Person

§4.10.2.4 Voided Contracts May Require Restitution from a Mentally Incompetent Person

§4.10.3 Intoxicated Persons

§4.10.4 Persons Who Do Not Speak or Read English

§4.11 ASSIGNMENT AND SUBSTITUTION OF PARTIES TO THE CONTRACT

§4.11.1 Assignment in General

§4.11.2 Releases

§4.11.3 Fictitious Names and Straw Parties

§4.12 DEATH OF A PARTY TO CONTRACT

§4.12.1 Selling Property Not Yet Owned

§4.13 UNMARRIED PERSONS OWNING PROPERTY TOGETHER

§4.13.1 Interest in Common Property

§4 13.2 Right to Possess Common Property

§4.13.3 Maintenance of and Improvements to the Common Property

§4.13.4 Right to Profits from the Property

§4.13.4.1 Statute of Limitations Claims for Excess Proceeds

§4.13.5 Right of First Refusal on the Sale of Common Property

§4.13.6 Buy-Sell Agreements

§4.13.7 Statutory Partition of Property

§4.13.8 Equitable Partition of Property

§4.13.9 The Limited Liability Company Alternative

CHAPTER 5: DESCRIBING THE PROPERTY

§5.1 IDENTIFYING REAL PROPERTY

§5.1.1 Land System in Georgia

§5.1.2 Description Must Clearly Identify Property

§5.1.3 Identifying Air Space

§5.1.4 Identifying Water

§5.1.4.1 Rivers and Streams

§5.1.4.2 Tidewaters

§5.1.4.3 Beaches and Open Seas

§5.1.4.4 Lakes

§5.1.5 Identifying Mineral Rights

§5.1.6 Use of Metes and Bounds Legal Description

§5.1.7 Use of Street Address to Identify the Property

§5.1.7.1 Examples of Street Addresses Held to Be Inadequate

§5.1.7.2 Examples of Street Addresses Held to Be Adequate

§5.1.7.3 When Street Address Is Insufficient to Describe Property

§5.1.7.4 When Only the ‘Premises ’Are Being Conveyed

§5.1.8 Use of Tax Plats to Identify Property

§5.1.9 Use of Other Plats to Identify Property

§5.1.9.1 Use of Recorded Plats to Identify Property

§5.1.9.2 Use of Unrecorded Plats to Identify Property

§5.1.9.3 Identifying Common Areas on Subdivision Plat

§5.1.9.4 Use of Plats to Clarify Metes and Bounds Description

§5.1.9.5 Insufficient Plat Does Not Cure Defective Property Description

§5.1.9.6 Reference to Lots on Plat May Be Insufficient Description

§5.1.10 Surveys Generally

§5.1.10.1 Benefits of a Survey

§5.1.11 Types of Surveys

§5.1.11.1 Boundary Surveys

§5.1.11.2 As-Built Surveys

§5.1.11.3 Lot Consolidation Plats

§5.1.11.4 FEMA Evaluation Certification

§5.1.11.5 Topographical Surveys

§5.1.11.6 ALTA/ACSM Survey

§5.1.12 When Surveys Can Be Used to Supplement Description of Property

§5.1.13 Surveys in GAR Contracts

§5.1.14 Protection for Buyer If No Existing Survey Is Available

§5.1.15 Use of Previous Deeds

§5.1.16 ‘More or Less’ Descriptions May Be Insufficient

§5.1.17 Attaching Property Description or Later Survey to Contract after Execution

§5.1.18 Use of Preliminary Drawings or Diagrams to Supplement Description

§5.1.19 Occupancy Does Not Cure Defective Description

§5.1.20 Acceptance of a Counteroffer May Cure a Defect in the Property Description

§5.1.21 Use of Owner’s Name to Locate Property

§5.2 DESCRIPTION OF CONDOMINIUM AND CONDOMINIUM UNITS

§5.2.1 Description of Property That Is Part of a Condominium

§5.2.1.1 Common Elements

§5.2.1.2 Limited Common Elements

§5.2.1.3 Development in Phases

§5.2.2 Description of Condominium Units

§5.2.3 Master Condominiums

§5.3 MEASUREMENT OF SQUARE FOOTAGE

§5.3.1 Measurement for Single-Family Dwellings

§5.3.2 Measurement for Condominiums

§5.3.3 Measurement for Commercial Property

§5.4 BOUNDARY LINE DISPUTES

§5.4.1 Boundary Line Disputes and Fences

§5.4.2 Boundary Line Disputes and Trees or Vines

§5.4.2.1 Overhanging Limbs

§5.4.2.2 Invasive Roots or Vines

§5.4.2.3 Trees Growing on Boundary Lines

§5.4.3 Right to an Unobstructed View and Sunlight

§5.4.3.1 Solar Easements

§5.4.4 Public Restrictions on Tree Removal: Tree Preservation Ordinances

§5.4.5 Private Restrictions on Tree Removal: Homeowners Associations

§5.5 FIXTURES AND PERSONAL PROPERTY

§5.5.1 What Is Considered a Fixture?

§5.5.2 The Right to Remove Fixtures

§5.5.2.1 Removing Fixtures from Property Subject to a Security Deed

§5.5.2.2 Removing Fixtures from Foreclosed Property

§5.5.3 What Is Removable Personal Property?

§5.5.4 Manufactured Homes—A Special Case

§5.5.4.1 Making Manufactured Housing Part of the Real Property

§5.5.4.2 Converting Manufactured Housing from Real to Personal Property

§5.5.5 Use of Bills of Sale and Financing Statements

§5.5.6 Fixtures Checklist and Seller’s Property Disclosure Statement Exhibit

§5.5.6.1 Replacing Broken Fixtures Remaining with the Property Prior to Closing

§5.5.6.2 When There Is More Than One of a Particular Type of Fixture

§5.5.6.3 Seller’s Property Disclosure Statement Exhibit Not Attached to Contract

§5.5.7 Failure to Timely Remove a Fixture

§5.5.8 Duty to Restore after Removing a Fixture

CHAPTER 6: EARNEST MONEY

§6.1 WHAT THE GAR CONTRACT PROVIDES

§6.2 HOLDER OF EARNEST MONEY

§6.2.1 Holder of Earnest Money Is Generally a Fiduciary

§6.2.1.1 Protections in the GAR Contract against Claims of Breach of Fiduciary Duty

§6.2.2 When the Holder of Earnest Money Is Not a Signatory to the Contract

§6.2.3 Implied Consent of Nonsignatory Holder

§6.2.4 Does a Contract Exist before Escrow Agent Consents to Serve?

§6.3 LAWYER OR TITLE COMPANY HOLDING EARNEST MONEY

§6.3.1 Risk of CLosing Attorney Holding Earnest Money in All-Cash Transactions Where Closing Attorney is Representing the Buyer

§6.3.2 Earnest Money Must Be Wired or Sent by Other Means Acceptable to the Closing Attorney When the Closing Attorney Is Holding It

§6.3.3 Using Attorney’s Own Escrow Agreement

§6.3.4 Alternate Holder of Earnest Money When Closing Attorney Will Not Serve as Holder

§6.4 PAYMENT OF EARNEST MONEY

§6.4.1 Payment by Check

§6.4.1.1 Earnest Money Checks Written on Foreign Banks

§6.4.1.2 Earnest Money Checks for More than the Earnest Money May be Returned

§6.4.1.3 Civil Remedies

§6.4.1.4 Criminal Penalties

§6.4.2 Payment in Cash

§6.4.3 Payment by Wire Transfer

§6.4.4 Payment by Money Order

§6.4.5 Tangible Property Used as Earnest Money

§6.4.6 Construction Deposits and Earnest Money

§6.4.6.1 Protecting Buyer’s Earnest Money or Deposit

§6.4.7 Payment of Earnest Money When Buyer Has a Right to Terminate

§6.4.8 Payment of Earnest Money by Third Party

§6.4.9 Defining ‘Banking Day’ in Earnest Money Section

§6.5 PAYMENT OF EARNEST MONEY IN COMMERCIAL TRANSACTIONS

§6.6 INTEREST ON THE EARNEST MONEY

§6.7 PAYMENT OF EARNEST MONEY TO EXTEND CLOSING DATE

§6.8 CONTRACT MAY BE ENFORCEABLE EVEN IF BUYER FAILS TO PAY EARNEST MONEY

§6.9 SELLER HOLDING EARNEST MONEY

§6.9.1 Earnest Money on Condominium Sales

§6.10 BUYER OR SELLER MODIFYING THE EARNEST MONEY PROVISION

§6.10.1 Buyer or Seller Seeking to Modify the Contract with a Restrictive Endorsement on the Earnest Money Check

§6.11 RIGHTS AND DUTIES OF AN ESCROW AGENT UNDER A GAR CONTRACT

§6.11.1 Holder of Earnest Money Is Agent for Both Parties

§6.11.2 Broker Who Is an Escrow Agent Must Account for and Remit Earnest Money

§6.11.3 When the Holder Can Disburse Earnest Money

§6.11.4 Interpreting the GAR Contract

§6.11.5 Using the GAR ‘Unilateral Notice to Terminate; Agreement to Disburse Earnest Money' Form

§6.11.6 What Is a Reasonable Period for a Broker to Hold Earnest Money?

§6.11.7 Commencing an Interpleader Lawsuit

§6.11.7.1 What Is an Interpleader Action?

§6.11.7.2 The Cost of Interpleading

§6.11.7.3 When an Interpleader is Appropriate

§6.11.7.4 Practical Advice on When to Interplead or Disburse

§6.11.8 Broker’s Entitlement to Earnest Money as Commission

§6.11.9 Parties to GAR Contract Indemnify Holder for Only Certain Damages

§6.11.10 Broker’s Liability for Failure to Timely Deposit Earnest Money

§6.11.10.1 Failure of the Holder to Collect Earnest Money

§6.11.10.2 Failure of the Holder to Timely Deposit Earnest Money

§6.11.10.3 Failure to Timely Notify the Seller That the Buyer’s Funds Did Not Clear

§6.12 APPLICATION OF EARNEST MONEY WHEN CONTRACT IS BREACHED

§6.12.1 Partial Payment of Actual Damages

§6.12.2 Partial Payment in Suit for Specific Performance

§6.12.3 Earnest Money Designated as Liquidated Damages Should Not Be a Penalty

§6.13 DEDUCTIONS FROM EARNEST MONEY

§6.14 DISBURSEMENT OF EARNEST MONEY IF CONTRACT IS VOID

§6.15 MAKING EARNEST MONEY NONREFUNDABLE

§6.15.1 Making Earnest Money Nonrefundable in a Contingent Contract

§6.15.2 Making Earnest Money Nonrefundable in an ‘As-Is’ Contract

§6.16 BROKERAGE COMPANY NOT LIABLE FOR AGENT’S MISREPRESENTATIONS WITH REGARD TO EARNEST MONEY

§6.17 LAW AGAINST MONEY LAUNDERING

CHAPTER 7: PURCHASE PRICE

§7.1 WHAT THE GAR CONTRACTS PROVIDE

§7.2 PURCHASE PRICE BASED ON ACREAGE

§7.3 PURCHASE PRICE BASED ON APPRAISAL

§7.4 EFFECT OF FAILURE TO STATE FULL PURCHASE PRICE

§7.5 PAYMENT OF PURCHASE PRICE IN ALL CASH

§7.5.1 Payment of Purchase Price by Cashier’s Check

§7.5.2 Payment of Purchase Price by Wire Transfer

§7.5.3 What Constitutes Good Funds

§7.5.4 When a Lender Closes Its Doors

§7.6 ALLOCATION OF CLOSING COSTS IN ALL-CASH TRANSACTIONS

CHAPTER 8: METHODS OF PAYMENT AND FINANCING

§8.1 MORTGAGE FINANCING GENERALLY IN GEORGIA

§8.2 FINANCING PROVISIONS GENERALLY

§8.2.1 Prequalification Letters

§8.2.2 Contract for Deed

§8.3 MECHANICS OF FINANCING

§8.3.1 The Promissory Note

§8.3.2 The Deed to Secure Debt

§8.3.3 Power of Sale in Deed to Secure Debt

§8.4 TERMS OF LOAN MUST BE DEFINITE

§8.4.1 When Buyer Has ‘Ability to Obtain’ Loan in the Financing Contingency Exhibit

§8.4.2 Amount and Type of Loan

§8.4.2.1 Applying for a Different Loan Than Stated in Contract

§8.4.2.2 Requirement of Sufficient Cash at Closing

§8.4.3 Interest Rate Should Be Specifically Identified

§8.4.3.1 ‘Prevailing Rate’ Exception

§8.4.3.2 Setting an Interest Rate Range

§8.4.3.3 Relationship between Interest Rate and Discount Points and Meaning of the Phrase ‘At Par'

§8.4.3.4 Locking In an Interest Rate

§8.4.4 Term of Loan Must Be Identified

§8.4.5 Lender Authorization to Release Information to the Seller and Broker

§8.5 CONTINGENCIES AND OBLIGATIONS RELATED TO FINANCING

§8.5.1 Buyer’s Duty to Deliver Evidence of Ability to Close

§8.5.1.1 Seller’s Right to Terminate If Source of Funds Information Is Not Fully or Timely Provided

§8.5.1.2 Evidence of Ability to Close

§8.5.1.3 Other Potential Types of Evidence of Ability to Close

§8.5.2 Buyer’s Good Faith Obligation to Pursue Loan Approval

§8.5.2.1 Must Buyer Apply for a Loan to Satisfy a Financing Contingency?

§8.5.2.2 Must a Buyer Apply for a Loan under the GAR Conventional Loan Contingency?

§8.5.2.3 Buyer Deemed Approved for a Mortgage Loan Unless Buyer Gives Notice of Disapproval

§8.5.2.4 Financing Contingency Removed Unless Buyer Obtains Loan Denial Letter from Lender; Options of Buyer and Seller

§8.5.3 Obligation to Apply for a Loan with a Second Lender

§8.5.4 Obligation of Buyer to Accept Seller Financing or Allow the Seller to Buy Down the Rate

§8.5.5 Inability to Procure or Have the Ability to Procure a Loan

§8.5.5.1 Involuntary Change in Financial Condition

§8.5.5.2 Voluntary Change in Financial Condition

§8.5.6 Buyer May Waive Financing Contingency

§8.5.7 Exceptions to Buyer Waiving Financing Contingency

§8.5.8 Married Persons and Financing Contingencies

§8.5.9 Loss of Financing after End of Due Diligence Period or Expiration of Financing Contingency Period

§8.5.10 Examples regarding Financing Contingency

§8.6 FHA LOANS

§8.6.1 Maximum Loan Amount and Appraisal

§8.6.2 Limitation on Contributions to Closing Costs and Discount Points

§8.6.3 Certain Lender Fees Cannot Be Paid by the Buyer

§8.6.4 Mortgage Insurance Premium

§8.6.5 FHA Credit and Down Payment Requirements

§8.6.6 Prohibition against Buyer Receiving Credit for Repairs at Closing

§8.6.7 Assumption of FHA Loan

§8.6.8 FHA Financing for Condominium Units

§8.7 VA LOANS

§8.7.1 Eligibility Requirements and Entitlement

§8.7.1.1 Amendatory Clause

§8.7.2 Funding Fee

§8.7.3 Certain Closing Fees Cannot be Charged to the Buyer

§8.7.4 Prohibition against the Buyer Receiving Credit for Repairs at Closing

§8.7.5 Assumption of VA Loan

§8.8 SELLER FINANCING

§8.8.1 Who Is Required to Be a Licensed Mortgage Lender?

§8.8.2 Exemptions

§8.8.3 Special Issues regarding Seller Financing

§8.8.3.1 Satisfactory Credit Report

§8.8.3.2 Excessive or Unlawful Interest Rates

§8.8.3.3 Ability of a Buyer to Resell or Transfer Interest in Property

§8.8.3.4 Ability of a Buyer to Assign Rights

§8.8.3.5 Personal Obligation for Repayment

§8.8.3.6 Personal Property as Additional Collateral

§8.8.3.7 Proof of Payment of Taxes

§8.8.3.8 Third-Party Guarantee for Repayment of Loan

§8.8.4 Assignment of Rents and Leases

§8.8.5 Alterations to Property

§8.8.6 Costs Associated with Preparing and Recording Documents

§8.8.7 Note and Deed to Secure Debt Made in Favor of More Than One Seller

§8.8.8 Additional Issues If the Seller Takes Second Priority Security Interest

§8.8.8.1 Default under First Priority Deed to Secure Debt

§8.8.8.2 Payment to Reinstate First Priority Loan

§8.8.8.3 Excess Proceeds to Second Priority Deed Holder

§8.8.9 Wrap Mortgage

§8.9 THIRD PARTY ASSISTING WITH FINANCING

§8.10 ASSUMING OR TAKING SUBJECT TO EXISTING LOAN

§8.10.1 Identifying the Loan

§8.10.1.1 Required Specificity of Loan Description

§8.10.2 The Purchase Price and Loan Assumptions

§8.10.2.1 Purchase Price Set in Contract

§8.10.2.2 Cash to Control Price

§8.10.3 Special Issues regarding Loan Assumptions

§8.10.3.1 Release of Seller Liability on Loan

§8.10.3.2 Protection of the Seller Where There Is No Release of Liability

§8.10.3.3 Increase in Interest Rate on Loan Assumption

§8.10.3.4 Dragnet or Open-End Clauses

§8.10.4 Costs Associated with Loan Assumption

§8.11 TAX-DEFERRED EXCHANGES

§8.11.1 Forward Qualified Intermediary Exchange

§8.11.2 Reverse Qualified Intermediary Exchange

§8.11.3 Construction Exchanges

§8.11.4 Tenancy-in-Common Exchanges

§8.11.5 Personal Residence Exchanges

§8.11.6 Leasehold Exchanges

§8.11.7 Pitfalls Associated with 1031 Exchanges

§8.11.7.1 Step Transaction Doctrine

§8.11.7.2 Drops and Swaps

§8.11.7.3 Related Party Exchanges

§8.11.7.4 Other Boot Considerations

§8.11.8 Sample 1031 Exchange Provision for Purchase and Sale Agreements

CHAPTER 9: APPRAISAL, SALE OF OTHER PROPERTY AND OTHER CONTINGENCIES

§9.1 CONTINGENCIES VERSUS CONDITIONS PRECEDENT

§9.2 CONTINGENCIES IN GENERAL

§9.3 APPRAISAL CONTINGENCIES GENERALLY

§9.3.1 The Approach in the GAR Contract

§9.3.2 Types of Appraiser Classifications

§9.3.3 Appraisal Arbitration

§9.3.4 Property Rarely Appraises above the Purchase Price

§9.4 TERMINATION OF AGREEMENT IF PROPERTY DOES NOT APPRAISE FOR THE PURCHASE PRICE

§9.5 SALE OR LEASE OF OTHER PROPERTY OWNED BY THE BUYER

§9.5.1 Purchase Contingent on Sale or Lease of Buyer’s Current Residence

§9.5.2 The Approach in the GAR Forms Purchase Contingent on the Sale or Lease of the Buyer’s Property

§9.5.3 Buyer’s Delaying of Closing Date on the Buyer’s Property

§9.6 PURCHASE OF OTHER PROPERTY BY THE BUYER

§9.7 BACKUP CONTINGENCY

§9.7.1 Sellers and Backup Contracts

§9.8 GENERAL KICK-OUT CONTINGENCIES

§9.9 REZONING CONTINGENCIES

§9.9.1 Appeals Period

§9.9.2 Court Challenges of Zoning Requests

§9.9.3 Denial of Rezoning and Its Effect upon Later Applications

§9.9.4 Specificity Required

§9.9.5 Conditions Imposed by Local Zoning Authority

§9.9.6 Purchase Price Tied to Rezoning Results

§9.9.7 Zoning Issues for Buyers

§9.10 OTHER CONTINGENCIES

CHAPTER 10: DISCLOSURES

§10.1 WHAT MUST BE DISCLOSED

§10.2 WHAT THE GAR CONTRACTS PROVIDE

§10.2.1 Seller’s Disclosure of Latent Defect(s) and Fixtures Checklist Exhibit

§10.2.2 Seller's Property Disclosure Statement Exhibit for GAR Contract

§10.2.3 Items That Remain with the Property as Set Forth on Fixtures Checklist

§10.2.4 Seller’s Property Disclosure Statement for a GAR New Construction Contract (GAR Form F310)

§10.2.5 Seller’s Property Disclosure Statement for GAR Lot/Land Purchase and Sale Agreement (GAR Form F307)

§10.2.6 Seller’s Property Disclosure Statement for GAR Condominium Resale Purchase and Sale Agreement (GAR Form F304)

§10.3 INCORPORATING THE SELLER’S PROPERTY DISCLOSURE STATEMENT EXHIBIT (GAR FORM F301) INTO THE CONTRACT

§10.3.1 Rationale for the Seller’s Property Disclosure Statement Exhibit Being Part of the Contract

§10.3.2 Effect of Property Disclosure Statement Being Part of the Contract

§10.3.3 Broker’s Liability for False Statements in Seller’s Property Disclosure Statement Exhibit

§10.4 COMMUNITY ASSOCIATION DISCLOSURES

§10.4.1 Type and Number of Associations

§10.5 THE GAR COMMUNITY ASSOCIATION DISCLOSURE EXHIBIT (GAR FORM F322 OR ‘CAD’)

§10.5.1 Who Pays for What When the GAR Community Association Disclosure Exhibit (‘CAD’) Is Made Part of the Contract?

§10.5.1.1 Items Generally Paid for by Seller

§10.5.1.2 Seller Obligated to Pay All Assessments Owing Through Closing

§10.5.1.3 Seller Pays for Seller Clearance Letter

§10.5.1.4 Buyer Pays for Transfer, Initiation and Administrative Fees Fully and Accurately Disclosed in the Contract to the Buyer

§10.5.1.5 Seller Pays for Transfer, Initiation and Administrative Fees above an Agreed Amount

§10.5.2 Special Assessments and the GAR Community Association Disclosure Exhibit (GAR Form F322)

§10.5.2.1 Where Seller Accurately Discloses Special Assessments Approved or Under Consideration

§10.5.2.2 Definition of the Term Under Consideration

§10.5.2.3 Where Seller Does Not Accurately Disclose a Special Assessment That Has Been Passed or is Under Consideration

§10.5.2.4 What Did the Seller Know and When Did the Seller Know It

§10.5.2.5 Surprise Special Assessments Arising After the Binding Agreement Date

§10.6 SELLER’S DUTY TO DISCLOSE WITHOUT PROVIDING A SELLER’S PROPERTY DISCLOSURE STATEMENT EXHIBIT OR A SELLER'S DISCLOSURE OF LATENT DEFECT(S) AND FIXTURES CHECKLIST EXHIBIT

§10.7 DUTY OF A BROKER TO DISCLOSE DEFECTS MAY BE GREATER IN SOME SITUATIONS THAN THE DUTY OF THE SELLER

§10.8 DISCLOSURE TO BE ACCURATE AND COMPLETE AS OF BINDING AGREEMENT DATE

§10.9 DELAYED DELIVERY OF SELLER’S PROPERTY DISCLOSURE STATEMENT EXHIBIT OR THE DISCLOSURE OF LATENT DEFECTS AND FIXTURES CHECKLIST EXHIBIT

§10.10 DISCLOSURE OF REPAIRS MADE TO GET A HOUSE READY TO SHOW

§10.11 DISCLOSURE OF LEAD-BASED PAINT

§10.11.1 Sellers’ Disclosure Obligations

§10.11.2 The GAR Lead-Based Paint Exhibit

§10.12 THE INTERSTATE LAND SALES FULL DISCLOSURE ACT

§10.13 DISCLOSURES OF NEIGHBORHOOD CONDITIONS

§10.13.1 Disclosure of Neighborhood Conditions

§10.13.2 Presence of a Registered Sex Offender or Drug Laboratory in Neighborhood

§10.14 GEORGIA’S STIGMATIZED PROPERTY STATUTE (DISCLOSURES OF MURDERS, SUICIDES, AND LOATHSOME ILLNESSES)

§10.15 BUILDER DISCLOSURES FOR NEW CONSTRUCTION CONTRACT

§10.15.1 Subdivision/Neighborhood Disclosures

§10.15.2 Environmental Disclosures

§10.15.3 Disclosures Related to the Home

§10.15.4 Disclosures Related to the Lot

§10.15.5 View Disclosures

§10.15.6 Miscellaneous Disclosures

§10.16 USE OF BROCHURES TO LIMIT LIABILITY

§10.16.1 Protection Brochure for Buyers

§10.16.2 Protection Brochure for Sellers

§10.16.3 Other GAR Brochures

CHAPTER 11: DUE DILIGENCE PERIOD, INSPECTION,CONSTRUCTION, AND REPAIR ISSUES

§11.1 DUE DILIGENCE PERIOD

§11.2 INSPECTION ISSUES

§11.2.1 Buyer’s Right to Inspect Generally

§11.2.2 Buyer’s Duty to Inspect

§11.2.2.1 Duty to Investigate Further

§11.2.2.2 Invasive Testing

§11.2.3 Home Inspection Report

§11.2.3.1 Ownership and Disclosures of Inspection Reports

§11.2.3.2 Dealing with a Bad Inspection Report

§11.2.3.3 Only Latent or Hidden Defects Need Be Disclosed by the Seller

§11.2.4 Duty to Hire a Professional Inspector

§11.2.4.1 Seller Wants Buyer to Hire a Professional Home Inspector

§11.2.5 Inspection for and Damage from Termites and Other Pests

§11.2.5.1 Builder Contracts and Termites

§11.2.5.2 Limiting Seller’s Obligation to Repair Termite Damage

§11.2.5.3 Seller to Provide Termite Report

§11.2.5.4 Broadening Seller’s Obligation to Repair Termite Damage

§11.2.5.5 Buyer Obtaining Termite Inspection and Report at Seller’s Expense

§11.2.5.6 Problems with Carpenter Ants

§11.2.5.7 Seller’s Actual Knowledge of Termite Damage Necessary for Fraud Claim

§11.2.5.8 Buyer Must Use Due Diligence to Protect against Fraud

§11.2.5.9 Seller’s Pest Control Inspector May Be Liable to Buyer for Negligent Inspection

§11.2.5.10 Pest Control Company May Be Liable for Fraudulently Concealing Termite Damage

§11.2.5.11 Oral Promise to Provide Termite Letter at Closing Unenforceable

§11.2.5.12 Inspection Standards of the Georgia Pest Control Commission

§11.2.5.13 Pest Control Contracts and Guarantees

§11.2.5.14 Pest Control Bonds

§11.2.5.15 Amount of Damages to Which Buyer May Be Entitled

§11.2.5.16 Emerging Pest Issues

§11.2.5.17 Bedbugs

§11.2.6 Residential Lead-Based Paint Hazard Reduction Act of 1992

§11.2.6.1 Pre-1978 Residential Properties Exempt from the Act

§11.2.6.2 Seller’s Right to Copy of the Buyer’s Lead-Based Paint Test Results

§11.2.6.3 Record-Keeping Requirements

§11.2.6.4 Penalties for Violating the Act

§11.2.6.5 Level at Which Lead-Based Paint Becomes Hazardous

§11.2.6.6 Right to Terminate If Lead-Based Paint Is Found

§11.2.6.7 Renovation and Repairs of Property with Lead-Based Paint

§11.2.7 Other Environmental Issues: Radon, Asbestos, and Methamphetamine

§11.2.7.1 Radon Testing

§11.2.7.2 Right to Remove Asbestos

§11.2.7.3 Methamphetamine Testing

§11.2.7.4 Mold Testing

§11.2.7.5 Right to Terminate Due to Inability or High Cost of Obtaining Property Insurance

§11.3 REPAIR ISSUES

§11.3.1 Selling a Property ‘As Is’

§11.3.1.1 Special Disclosure by Sellers Unfamiliar with Condition of the Property

§11.3.2 Negligent Repair of Property

§11.3.3 Property Sold with Right to Request Repair of Defects

§11.3.3.1 Counting Time Periods Correctly When Property Is Sold with Right to RequesRepairs

§11.3.3.2 Buyer Can Only Request Repairs to ‘Defects’ Identified by a Professional Inspector

§11.3.3.3 Inspectors Can Limit Their Liability

§11.3.3.4 Extending the Inspection and Defect Resolution Period

§11.3.3.5 Meaning of ‘Last Offer or Counteroffer’

§11.3.3.6 Right to Request Repairs Limited to ‘Defects’

§11.3.3.7 Right to Terminate for a Condition That Is Not a ‘Defect’

§11.3.3.8 Accepting Certain Defects

§11.3.3.9 ‘Defects’ Include Products Subject to Class Action Lawsuits

§11.3.3.10 Resolving Disputes over What Is a ‘Defect’

§11.3.3.11 Seller Does Not Have to Replace the Defect If It Can Be Repaired

§11.3.3.12 Walk-Through

§11.3.4 Seller’s Duty to Repair

§11.3.4.1 Deciding Who Should Make Repairs

§11.3.4.2 Deciding Who Should Pay for Repairs

§11.3.4.3 Repairs with Guarantees

§11.3.4.4 Specifications on How Repairs to Be Made

§11.3.4.5 Additional Damage Discovered While the Repair is Being Made

§11.3.4.6 Seasonal Inspections

§11.4 PROPERTY SOLD SUBJECT TO DUE DILIGENCE PERIOD

§11.4.1 Due Diligence Period Intended to Create Option Contract

§11.4.2 Purchaser’s Right to Market the Property during Due Diligence

§11.4.3 Due Diligence Period in Commercial Transactions

§11.4.3.1 Length of Due Diligence Period

§11.4.4 Due Diligence in Lot/Land Transactions

§11.4.5 Buyer Contracting for Multiple Properties

§11.4.6 Amendment to Address Concerns with Property

§11.4.6.1 Using Amendment to Address Concerns with Property as Notice to Terminate

§11.4.6.2 Right to Proceed Rather Than Right to Terminate

§11.4.6.3 Including a Due Diligence Period but Agreeing Not to Ask for Repairs

§11.4.6.4 Combining Right to Terminate with Seller’s Right to Continue Offering Property for Sale

§11.4.6.5 Buyer Exercising Right to Terminate during Due Diligence Period

§11.4.6.6 End of the Due Diligence Period

§11.4.6.7 Expiration of Right to Terminate Does Not Affect Other Contingencies in Contract

§11.5 SPECIAL TYPES OF DUE DILIGENCE

§11.5.1 Due Diligence in Purchasing a Lot

§11.5.2 Size of Septic Tank

§11.5.3 Septic Systems

§11.5.4 Utilities

§11.5.5 Soil Conditions

§11.5.6 Well Test

§11.5.7 Environmental Due Diligence

§11.6 SELLER’S REPRESENTATIONS AND WARRANTIES IN COMMERCIAL REAL ESTATE TRANSACTIONS

§11.7 COMMON REPRESENTATIONS AND WARRANTIES IN A COMMERCIAL PURCHASE AND SALE AGREEMENT

§11.8 HOME WARRANTY PROGRAMS

§11.8.1 Limited Warranty

CHAPTER 12: NOTICE

§12.1 CLOSINGS GENERALLY

§12.1.1 Only Attorneys Can Conduct Closings

§12.1.2 Closing Process

§12.1.3 Notice Generally

§12.1.4 Notice under the GAR Contract

§12.1.5 Notice to the Broker or Agent Is Generally Notice to the Broker’s or Agent’s Client

§12.1.6 Notice to an Unrepresented Party

§12.1.7 Notice Delivered in Person

§12.1.8 Notice Delivered via Overnight Delivery Service

§12.1.9 Notice Delivered via U.S. Mail

§12.1.10 Notice Delivered by Facsimile

§12.1.11 Notice via Email

§12.1.12 Notice by Text Message

§12.1.13 When Is Notice Received?

§12.1.14 Limiting Form of Notice

CHAPTER 13: CLOSING AND POSSESSION

§13.1 BUYER OR SELLER UNAVAILABLE AT CLOSING

§13.1.1 Power of Attorney

§13.1.1.1 Notarization and Equal Dignity Rule

§13.1.2 Mail-Away Closings

§13.1.3 Seller or Buyer Unavailable due to Incarceration

§13.2 PROPERTY CONDITION

§13.2.1 Risk of Property Loss before Closing Generally on Buyer

§13.2.2 Insurance Policies in Force Majeure Situations

§13.3.3 Contracting around the Risk of Loss

§13.3.4 Risk of Loss of Timber or Crops in Land Sales Transactions

§13.3.5 Contract Provisions Alter General Rule on Risk of Loss

§13.3.6 Property Condition at Closing to Be Same as at Binding Agreement Date

§13.3.6.1 Property Being in Same Condition Includes Conditions Revealed in Seller’s Property Disclosure Statement

§13.3.6.2 What Is Normal Wear and Tear?

§13.3.7 Risk of Loss with a ‘Tear-Down’ Home

§ 13.3.8 Seller Has Right to Remove House or Other Major Improvements

§13.3.9 Buyer’s Obligation to Build on Lot

§13.3.9.1 Developed Lot Standards

§13.3.10 Buyer Has Right to Do Work on Property before Closing

§13.3.11 Cleanliness of the Property at the Time of Closing

§13.4 ALLOCATION OF COSTS ASSOCIATED WITH PURCHASE AND SALE

§13.4.1 Closing Costs

§13.4.1.1 Seller’s Contribution at Closing

§13.4.1.2 Seller’s Contribution to Closing Costs Must Be Used for Specified Purposes

§13.4.1.3 Choice of Closing Law Firm

§13.4.2 Closing Costs in Commercial Transactions

§13.4.3 Other Buyer and Seller Expenses

§13.4.3.1 Flood Insurance Issues

§13.4.3.3 Mortgage Insurance

§13.4.3.4 Properties Serviced by Septic Systems and Wells

§13.4.3.4 Credits at Closing

§13.5 TAXES, UTILITIES, AND HOMEOWNER’S ASSOCIATION DUES

§13.5.1 Proration of Property Taxes

§13.5.2 Selling Property during Pending Tax Appeal

§13.5.3 Payment of Transfer Tax

§13.5.4 Payment of Intangible Tax

§13.5.5 Water Bills, Utility Bills, and Sanitation Bills

§13.5.6 Changes in Prorations after Final Bills Received

§13.5.7 Withholding Tax on Sale of Georgia Property

§13.5.7.1 Requirements under Georgia Law

§13.5.7.2 Requirements under Federal Law

§13.5.8 Condominium and Homeowner’s Association Dues

§13.6 CLOSING DATE AND POSSESSION

§13.6.1 What the GAR Contract Provides

§13.6.2 Effect of Time Is of the Essence Clause on Closing Date

§13.6.2.1 Absent Contract Provision, Time Is Not of the Essence

§13.6.2.2 Timely Performance When Time Is of the Essence

§13.6.2.3 Contract Does Not Automatically Terminate When Closing Date Passes

§13.6.3 Timing of Date of Closing and Possession

§13.6.3.1 Indefinite Closing Date Generally Construed as Reasonable Date

§13.6.3.2 Date of Closing Can Be Extended by Oral Agreement

§13.6.3.3 Closing on a Sunday

§13.6.3.4 Extending Closing Date Unilaterally

§13.6.3.5 Contract May Authorize Party to Extend Closing Date

§13.6.3.6 Closing Date Extended due to Construction Delays

§13.6.3.7 Closing Date Extended If Due Diligence Period Extends beyond the Closing Date

§13.6.3.8 Damages for Failing to Close

§13.7 TRANSFER OF WARRANTIES AND SELLER WARRANTIES IN NEW CONSTRUCTION CONTRACTS

§13.8 SELLER REMAINING IN POSSESSION AFTER CLOSING

§13.9 BUYER OBTAINING POSSESSION BEFORE CLOSING

§13.10 TENANT REMAINING IN PROPERTY AFTER CLOSING

CHAPTER 14: REAL ESTATE COMMISSIONS

§14.1 WHAT THE GAR CONTRACT PROVIDES ABOUT COMMISSIONS

§14.1.1 Commission to Be Set Out in a Separate Agreement

§14.1.2 Including the Commission in the Purchase and Sale Agreement

§14.1.3 Selling Broker Sharing the Listing Broker’s Commission

§14.1.3.1 Variable Commissions

§14.1.3.2 Negotiating a Change in the Commission Paid to a Buyer's Broker

§14.1.4 Payment of Commission at Closing

§14.1.4.1 Commission Confirmation Agreement; Instructions to Closing Attorney

§14.1.4.2 Instructions to Closing Attorney Agreement and Listing Agreement Should Be Sent to the Closing Attorney

§14.1.4.3 Problems and Disputes Arising from Commission Confirmation Agreements

§14.1.5 Payment of Commission prior to Closing

§14.1.5.1 Flat Up-Front Fees

§14.1.5.2 Commissions in Lease/Purchase Transactions

§14.1.5.3 Retainer Fees

§14.1.6 Commissions Owing When the Buyer or Seller Breaches the GAR Contract

§14.1.7 Terms of the Sales Contract Can Control over the Listing Agreement

§14.2 WHAT THE GAR EXCLUSIVE SELLER BROKERAGE ENGAGEMENT AGREEMENT PROVIDES ABOUT COMMISSIONS

§14.2.1 Amount of Commission, Commission Split, and Disclosing the Commission Split to the Seller

§14.2.2 When Commission Is Earned

§14.2.3 Protected Period after Expiration or Termination

§14.2.3.1 Difference between Mutually Agreeing to Terminate a Listing Agreement and Having Seller Unilaterally Terminate the Same

§14.2.3.2 Extension of the Listing Agreement While Property Is under Contract

§14.3 THE GAR EXCLUSIVE BUYER BROKERAGE ENGAGEMENT AGREEMENT

§14.3.1 Commissions When Buyers Sign Two Buyer Brokerage Agreements

§14.4 DEFERRED PAYMENT OF REAL ESTATE COMMISSION

§14.5 OTHER METHODS OF CLAIMING A COMMISSION

§14.5.1 Procuring Cause

§14.5.2 Quantum Meruit

§14.6 ONLY A BROKER MAY PURSUE A COMMISSION

§14.7 BROKERAGE COMMISSIONS IN COMMERCIAL REAL ESTATE TRANSACTIONS

§14.7.1 What Constitutes Commercial Real Estate?

§14.7.2 Right to File Lien to Enforce Payment of Commission

§14.7.2.1 When a Lien Can Be Filed

§14.7.2.2 How to File a Lien

§14.7.2.3 What the Lien Must Provide; Notice of Lien

§14.7.2.4 Civil Suits to Collect on the Lien

§14.7.2.5 Who Is Responsible for the Court Costs and Expenses of the Proceedings?

§14.7.3 Dissolving the Broker’s Lien

§14.8 BROKERAGE COMMISSIONS IN LEASE TRANSACTIONS

CHAPTER 15: DISPUTES ARISING FROM THE CONTRACT

§15.1 BREACH OF CONTRACT PRIOR TO CLOSING

§15.1.1 Anticipatory Breach

§15.1.1.1 Anticipatory Breach by Affirmative Statement

§15.1.1.2 Anticipatory Breach by Action

§15.1.1.3 Innocent Party’s Requirement with Terminating due to Anticipatory Breach

§15.1.1.4 Effect of Anticipatory Breach

§15.1.1.5 Curing the Anticipatory Breach

§15.1.2 Monetary Damages

§15.1.3 Specific Performance

§15.1.4 Rescission or Cancellation

§15.1.5 The GAR Contract

§15.2 BREACH OF CONTRACT AFTER CLOSING

§15.2.1 Monetary Damages

§15.2.2 Specific Performance

§15.2.3 The GAR Contract- Doctrine of Merger and Survival

§15.3 FRAUD

§15.3.1 Elements of Fraud

§15.3.1.1 Cases Where Buyers’ Fraud Claims Have Been Denied

§15.3.1.2 Cases Where Sellers Have Been Found Liable for Fraud

§15.3.2 Remedies for Fraud Claims against the Seller

§15.3.2.1 Merger (or Entire Agreement) Clause

§15.3.3 Remedies for Fraud Claims against Brokers and Agents

§15.4 LIMITING LIABILITY OF BROKERS

§15.4.1 Disclaimers in General

§15.4.2 How Disclaimer and Exculpatpry Language in GAR Contracts Protects Brokers

§15.4.3 Limitation of Broker Liability

§15.4.4 Limitation on the Duties and Liability of Brokers

§15.4.5 When Disclaimer Is Deleted or Modified

§15.5 LIMITING LIABILITY OF BUILDERS

§15.6 COURT ACTION

§15.6.1 Use of Lis Pendens

§15.6.1.1 Lis Pendens Notice

§15.6.1.2 Effect of Lis Pendens on Sale

§15.6.1.3 Duration of Notice

§15.6.2 Time Limit for Filing Suit

§15.6.3 Action to Take upon Breach of Contract

§15.6.3.1 Notice of Breach

§15.6.3.2 Attending the Closing

§15.7 ALTERNATIVES TO LITIGATION

§15.7.1 ADR Procedure for Residential Construction Disputes

§15.7.2 What the GAR Contracts Provide

§15.7.2.1 Alternative Dispute Resolution between Buyers and Sellers in the GAR Purchase and Sale Agreement

§15.7.2.2 Alternative Dispute Resolution between Builder and Buyers in the GAR New Construction Purchase and Sale Agreement

§15.7.2.3 GAR Brokerage Engagement Agreements

§15.7.3 Limiting the Disputes That Can Be Arbitrated

§15.7.4 Agreement to Arbitrate Must Be Initialed

§15.7.5 Right to Insist on Arbitration May Be Waived

§15.7.6 Arbitration versus Mediation

§15.7.7 Selecting an Arbitrator

§15.7.8 The Arbitration Process

§15.7.9 The Mediation Process

§15.7.10 Advantages of ADR Procedures

§15.7.11 Disadvantages of ADR Procedures

§15.7.12 Enforcement of Binding Arbitration

§15.7.13 Court-Ordered ADR

§15.7.14 When ADR Is Recommended

CHAPTER 16: RISK ALLOCATION IN REAL ESTATE CONTRACTS

§16.1 SPECIAL RISKS IN REAL ESTATE TRANSACTIONS

§16.1.1 Property Being Purchased Is or Will Be Served by a Septic System

§16.1.2 Property Is Adjacent to or near Undeveloped Property Designated for Future Recreational Use by the Developer

§16.1.3 Property Is on a Lake

§16.1.4 Property Being Purchased Is a Short Sale

§16.1.5 Property Being Purchased Is on a Stream

§16.1.6 Property Is Served by Well Water

§16.1.7 Property Being Purchased Is Older or Historic

§16.1.8 Property Being Purchased Is an Existing Condominium Unit

§16.1.9 Property Being Purchased Is a New Construction Home

§16.1.10 Seller Is Unfamiliar with the Property

§16.1.11 Property Being Purchased Is Leased

§16.1.12 Property Being Purchased Is Leased for Agricultural Cultivation

§16.1.13 Property Being Purchased Is Leased for Hunting

§16.1.14 Property Being Purchased Is Condemned after the Purchase and Sale Agreement Becomes Binding but before Closing

§16.1.15 Parties are Concerned about the Enforceability of Certain Contract Terms

§16.2 RISK ALLOCATION IN REAL ESTATE CHECKLISTS

§16.2.1 Risks Relating to the Condition of the Property

§16.2.2 Risks Involving Financing and/or the Economy That the Buyer Faces When Signing a Contract

§16.2.3 Risks Relating to Changing Life Circumstances That the Buyer Faces in Signing a Purchase and Sale Contract

§16.2.4 Risks Relating to Neighborhood Conditions That the Buyer Faces When Buying a House

§16.2.5 Risks the Buyer Faces Relative to the Title of the Property

CHAPTER 17: SHORT SALES AND REO PROPERTIES

§17.1 SHORT SALES

§17.1.1 Preparing the Seller

§17.1.1.1 Tax Consequences

§17.1.1.2 Mortgage Fraud Issues

§17.1.2 Role of the Real Estate Licensee in the Short-Sale Process

§17.1.3 Preparing for Listing and Sale

§17.1.3.1 Second Mortgages and Short Sales

§17.1.3.2 Workout Packet

§17.1.4 Listing and Sale of the Property

§17.1.4.1 Information to Include in Multiple Listing

§17.1.4.2 Short-Sale Contingencies

§17.1.5 Obtaining the Lender’s Approval

§17.1.6 Commission Issues

§17.1.7 Closing Date

§17.1.8 Short-Sale Purchase Addendums

§17.1.9 Short-Sale Licensee Certifications

§17.1.10 Short-Sale Indemnity Agreements

§17.1.11 Short-Sale Scams

§17.1.12 Advertising Short Sales

§17.2 WHAT IS AN REO?

§17.2.1 Offer and Counteroffer

§17.2.2 Condition of Property

§17.2.2.1 Sold ‘As Is, Where Is’

§17.2.2.2 Seller’s Disclosure

§17.2.2.3 Duty of Real Estate Licensee to Disclose Adverse Material Facts Pertaining to the Physical Condition of the Property

§17.2.2.4 Buyer’s Right to Inspect

§17.2.3 Type of Transaction

§17.2.3.1 Cash Transactions

§17.2.3.2 Financed Transactions

§17.2.4 Seller Concessions

§17.2.5 Commission

§17.2.6 Special Conditions

§17.2.7 Settlement and Closing

§17.2.7.1 Where Is the Closing?

§17.2.7.2 When Is the Closing?

§17.2.7.3 Prorations at Closing

§17.2.7.4 Type of Deed Transfer

§17.2.7.5 Title Policies

§17.2.7.6 Additional Alterations

§17.2.8 Seller’s Right to Terminate

§17.2.8.1 Closing Date Has Passed

§17.2.8.2 Negative Proceeds

§17.2.8.3 Lender-Required Repairs

CHAPTER 18: LEASING

§18.1 THE RENTAL APPLICATION

§18.2 DENIAL OF THE RENTAL APPLICATION

§18.3 FAIR HOUSING ISSUES IN THE RENTAL OF RESIDENTIAL REAL ESTATE LEASING

§18.3.1 Section 8 Tenants

§18.4 MOVE-IN INSPECTION

§18.5 MOVE-OUT INSPECTION

§18.6 SECURITY DEPOSITS IN LEASE

§18.7 REPAIR AND MAINTENANCE

§18.7.1 Property in Need of Repair

§18.8 ADVERTISING THE PROPERTY FOR LEASE OR FOR SALE DURING THE TERM OF THE LEASE

§18.9 DEFINITION OF USUFRUCTS, ESTATE FOR YEARS, TENANCIES AT WILL, TENANCIES AT SUFFERANCE, AND VERBAL LEASES

§18.9.1 Usufructs

§18.9.2 Estate for Years

§18.9.3 Tenancies at Sufferance

§18.9.4 Tenancies at Will

§18.9.5 Verbal Leases

§18.10 DISPOSSESSING A TENANT

§18.10.1 When the Tenant Is Current on Rent Payments

§18.10.1.1 With an Acceleration Clause

§18.10.1.2 When the Lease Is Silent about Termination or a Tenant Has Held Over

§18.10.2 When a Tenant Is Behind on Rent Payments

§18.10.3 Commencing the Dispossession

§18.11 SERVICE OF THE SUMMONS AND AFFIDAVIT

§18.12 ANSWERING THE SUMMONS OR LAWSUIT

§18.13 WRIT OF POSSESSION

§18.14 CUTTING OFF UTILITIES TO A TENANT IN BREACH OF HER LEASE

§18.14.1 A Word on Magistrate Courts

§18.15 MILITARY ACTIVATION OF TENANTS

§18.15.1 The Servicemembers Civil Relief Act

§18.16 DISCLOSURES OF PROPENSITY TOWARD FLOODING

§18.17 DISCLOSURES OF AGENTS AND OWNER

§18.18 ATTORNEY’S FEES PROVISIONS IN LEASING TRANSACTIONS

§18.19 COMMENCEMENT AND ENDING DATES OF LEASES

CHAPTER 19: SPECIAL TYPES OF CONTRACTS

§19.1 OPTION CONTRACTS

§19.1.1 In General

§19.1.2 The Owner Must Be Obligated to Sell

§19.1.3 Expiration Date

§19.1.4 Consideration Is Necessary

§19.1.5 Exercise of Option

§19.1.6 GAR Option Contracts

§19.1.6.1 Option

§19.1.7 Purchase and Sale Agreement

§19.1.8 Right of First Refusal

§19.1.8.1 Form of Right of First Refusal

§19.1.8.2 Verbal Rights of First Refusal May Be Enforceable

§19.2 LEASE/PURCHASE AGREEMENT

§19.2.1 Earnest Money

§19.2.2 Lease Compensation

§19.2.3 Lease for Lease/Purchase Agreement

§19.2.4 Lease with an Option to Purchase

§19.2.4.1 Consideration for Option to Purchase

§19.2.4.2 When Tenant Can Exercise the Option to Purchase

§19.2.4.3 Terms of Purchase Should Be Specified in the Option Agreement

§19.2.5 Flipping Properties with Lease/Purchase or Option Agreements

§19.3 AUCTION REAL ESTATE PURCHASE CONTRACTS

§19.3.1 Auctioneer of Real Property Must Be a Real Estate Licensee

§19.3.2 No Liens Permissible with Absolute Auctions

§19.3.3 Separate Agreements to Bid

§19.3.4 Auction of Condominium Units

§19.4 CONFIDENTIALITY AGREEMENTS IN COMMERCIAL REAL ESTATE TRANSACTIONS

§19.4.1 Information to Be Kept Confidential

§19.4.2 People with Access to Be Kept Confidential

§19.4.3 Enforcing a Confidentiality Agreement

CHAPTER 20: THE GEORGIA BROKERAGE RELATIONSHIPS IN REAL ESTATE TRANSACTIONS ACT

§20.1 AUTHORITY FOR LICENSEES TO COMPLETE LISTING OR SALES CONTRACTS

§20.1.1 Unlicensed Assistants’ Authority to Perform Real Estate Services

§20.1.1.1 Unlicensed Assistants to Property Managers

§20.2 TYPES OF BROKERAGE RELATIONSHIPS

§20.2.1 The Broker-Client Relationship

§20.2.2 Written Agreement Required for Client Relationship

§20.2.3 Engagement

§20.2.3.1 Identify the Types of Agency Relationships Available through the Broker

§20.2.3.2 Conflicts of Interest

§20.2.3.3 The Broker’s Compensation

§20.2.3.4 The Broker’s Legal Obligation to Keep Information Confidential

§20.2.4 Broker Can Work with a Customer without a Written Brokerage Agreement

§20.2.5 Sales Agreement Is Not a Brokerage Engagement

§20.2.6 Different Brokerage Agreements Needed to Sell and Buy Property

§20.2.7 Representing a Client without a Written Agreement

§20.2.8 Types of Broker-Client Relationships

§20.2.8.1 Single Agency Representation

§20.2.8.2 Dual Agency

§20.2.8.3 Designated Agency

§20.2.8.4 Sub-Agency

§20.3 DUTIES OWED BY BROKERS TO OTHER BROKERS

§20.4 DUTIES OWED TO CLIENTS BY BROKERS

§20.4.1 Broker Must Perform Terms of the Brokerage Engagement Agreement

§20.4.2 Broker Must Promote the Interests of the Client

§20.4.2.1 The Broker Must Seek a Price and Terms Acceptable to the Client

§20.4.2.2 The Broker Must Timely Present All Offers to and from the Client

§20.4.2.3 Adverse Material Facts

§20.4.2.4 Obtaining Expert Advice

§20.4.2.5 Accounting for Funds Received

§20.4.3 Ordinary Skill and Care Required

§20.4.4 Broker Must Comply with All Applicable Laws and Regulations

§20.4.5 Confidential Information

§20.4.5.1 Knowledge Is Not Imputed to the Broker in a Designated Agency or Dual Agency Situation

§20.4.5.2 Confidentiality after Termination of the Brokerage Engagement

§20.4.6 Conflicting Duties

§20.5 DUTY OF CARE TO CUSTOMERS

§20.5.1 Duties Owed by the Listing Broker to Prospective Buyers or Tenants

§20.5.1.1 On-Site and Off-Site Disclosure Obligations Are Exclusive

§20.5.1.2 Duty to Disclose Adverse Conditions on Property

§20.5.1.3 No Duty for the Broker to Discover Adverse On-Site Conditions

§20.5.1.4 When Disclosure of On-Site Conditions Is Required

§20.5.1.5 Disclosure of Adverse On-Site Conditions Shields the Broker from Liability

§20.5.1.6 Sellers and Landlords Not Relieved of Disclosure Duties for Adverse On-SiteConditions

§20.5.1.7 Duty to Disclose Adverse, Off-Site Conditions under BRRETA

§20.5.1.8 Duty Not to Knowingly Give False Information

§20.5.1.9 Elements of Fraud Must Be Proven

§20.5.2 Duties Owed by the Buyer’s or Tenant’s Agent to the Seller or Landlord

§20.5.2.1 Financial Status of the Buyer or Tenant

§20.5.2.2 Buyer/Tenant Not Relieved of Duty to Disclose to the Seller/Landlord

§20.5.2.3 Broker’s Duty to Not Knowingly Give False Information

§20.6 BROKER-CUSTOMER RELATIONSHIPS

§20.6.1 Ministerial Services May Be Performed for Customers

§20.6.1.1 Ministerial Services Must Be Performed with Ordinary Care

§20.6.2 Types of Broker-Customer Relationships

§20.6.2.1 Customer Relationship Exists before Entering into Written Brokerage Agreement

§20.6.2.2 Broker Representing Client in a Transaction May Perform Ministerial Acts for the Other Party to the Transaction

§20.6.2.3 Transaction Brokerage

§20.6.2.4 Duties of Transaction Brokers to All Parties in a Transaction

§20.6.2.5 Disclosure of Parties to the Transaction Not Affected by the Disclosure Duties of a Transaction Broker

§20.6.2.6 Transaction Broker’s Duty Not to Knowingly Give False Information

§20.6.3 Transaction Brokers’ Liability for Providing False Information Limited by BRRETA

§20.6.4 The GAR Agreement to Work with Buyer as a Customer Form

§20.6.4.1 Agreement to Work with Buyer as a Customer

§20.6.4.2 Customer Acknowledgment regarding Commission to a Broker

§20.6.4.3 Arbitration

§20.6.4.4 Limitation against Liability

§20.7 CHANGING THE BROKERAGE RELATIONSHIP

§20.8 TERMINATION OF THE BROKERAGE RELATIONSHIP

§20.8.1 When a Broker Can Terminate a Brokerage Relationship

§20.8.2 Duties of Broker upon Termination of Brokerage Relationship

§20.8.3 When the Client Can Terminate a Brokerage Relationship

§20.9 BROKERS SWITCHING BROKERAGES

§20.9.1 Death of an Agent or Broker

§20.10 BRRETA AND THE GAR’S BROKERAGE ENGAGEMENTS

§20.10.1 Protections against Liability in the GAR Brokerage Engagements

§20.10.2 Getting Buyer-Clients to Sign a Written Brokerage Agreement

§20.10.3 Commission Claims and the GAR Brokerage Engagements

§20.10.3.1 The Exclusive Buyer Brokerage Engagement Agreement

§20.1.3.2 The Non-Exclusive Buyer Brokerage Agreement

§20.10.3.3 The Exclusive Seller Brokerage Engagement Agreement

§20.10.3.4 The GAR Contract

§20.11 MAKING SMART CHOICES ABOUT AGENCY

§20.11.1 Rule #1. Only Offer Agency to a Party If You Do Not Already Have a Client in the Transaction

§20.11.2 Rule #2. Timely Disclose Who You Represent But Avoid Being Overly Legalistic

§20.11.3 Rule #3. Practice Registration, not Representation

§20.11.4 Rule #4. Avoid Transaction Brokerage

§20.11.5 Rule #5. Avoid Dual Agency Whenever Possible

CHAPTER 21: CONDOMINIUMS, HOMEOWNER ASSOCIATIONS, AND OTHER FORMS OF COMMUNITY ASSOCIATIONS

§21.1 CONDOMINIUMS

§21.1.1 What Is a Condominium?

§21.1.2 Creating a Condominium

§21.1.3 Disclosure Package

§21.1.4 Advertising and Sales Brochure Requirements

§21.1.5 Insurance in a Condominium

§21.1.6 Developer Control

§21.1.6.1 Members of a Condominium Association

§21.1.6.2 Powers of the Condominium Association

§21.1.6.3 What ‘Developer Control’ Means and How Long It Continues

§21.1.7 Remedies and Statutes of Limitations

§21.1.8 Conversion Condominiums

§21.1.9 Expandable Condominiums

§21.1.10 Master Condominium

§21.1.11 Bank-Owned New Condominium Units

§21.1.12 Resale Condominiums

§21.1.12.1 Common Expense Assessments

§21.1.12.2 Property Condition

§21.1.12.3 Copies of Condominium Legal and Financial Documents

§21.2 HOMEOWNERS ASSOCIATIONS

§21.2.1 What Is a Homeowners Association?

§21.2.2 Creating a Homeowners Association

§21.2.2.1 Homeowners Associations Created under the Georgia Property Owners’ Association Act

§21.2.2.2 Common Law Homeowners Associations

§21.2.3 Restrictive Covenants

§21.2.3.1 Homeowners Association’s Ability to Restrict Use of Signs

§21.2.4 Waiver of Compliance

§21.2.4.1 Claims for Breach of Covenant

§21.2.4.2 Claims for Unpaid Assessments or Fees

§21.2.5 Amending a Declaration of Covenants after a Buyer Purchases Property

§21.2.5.1 Requirement for Uniformity

§21.2.6 Rules and Regulations Enacted without Voting

§21.2.7 Copies of Homeowners Association Covenants and Financial Documents

§21.2.8 Contract Issues to Consider regarding Homeowners Associations

§21.2.8.1 Mandatory Membership, Voluntary Association, or No Association

§21.2.8.2 Developer’s Obligations to Build and Turn Over Recreational Facilities

§21.2.8.3 Buyers’ Assurances That Other Homes in the Community Will Be of the Same Standards and Equal Value

§21.2.8.4 Approval of House Plans by the Association

§21.3 COOPERATIVES

§21.3.1 Creating a Cooperative

§21.4 TIME-SHARES

§21.5 MIXED-USE DEVELOPMENTS

§ 21.6 COMMUNITY ASSOCIATIONS AND CLOSING LETTERS

CHAPTER 22: MORTGAGE FRAUD

§22.1 WHAT IS MORTGAGE FRAUD (GENERALLY)?

§22.2 WHAT IS MORTGAGE FRAUD (RMFA)?

§22.2.1 What Constitutes Residential Mortgage Fraud?

§22.2.1.1 Conspiracy to Commit Mortgage Fraud

§22.2.1.2 Aiding Another to Commit Mortgage Fraud

§22.3 STRICTER APPRAISAL STANDARDS IN PLACE

§22.3.1 Inflated Appraisals

§22.4 EXAMPLES AND CASE STUDIES

§22.4.1 Inflated Property Values

§22.4.2 Fraudulently Qualified Buyers

§22.4.3 Inflating the Sales Price

§22.4.4 Short Sales

§22.4.5 Fake Leases

§22.4.6 Primary Residence Games

§22.4.7 End Lender Lack of Diligence

§22.5 TIPS FOR RECOGNIZING MORTGAGE FRAUD

§22.6 THE GAR AGREEMENTS

§22.7 WHERE TO REPORT MORTGAGE FRAUD

§22.8 CONSEQUENCES OF COMMITTING MORTGAGE FRAUD

§22.9 CONSEQUENCES OF UNFAIR BUSINESS PRACTICES FOR REAL ESTATE LICENSEES

§22.9.1 Brokers’ Liability for the Fraud of Their Agents

CHAPTER 23: MECHANICS’ AND MATERIALMENS’ LIENS

§23.1 THE GEORGIA LIEN STATUTE

§23.1.1 Definitions

§23.1.2 Who Can File a Lien?

§23.1.3 What is the Amount of the Lien?

§23.1.4 To What Property May a Lien Attach?

§23.1.5 Exclusive Remedy as to Owner

§23.1.6 Trouble with Tenants

§23.1.7 Creation of Liens

§23.1.7.1 Substantial Compliance by Lien Claimant

§23.1.7.2 Timely Recording and Notice

§23.1.7.3 Additional Notice If Notice of Commencement Filed

§23.1.8 Perfecting the Lien

§23.1.8.1 Timely Commence a Lien Action against Whoever Owes the Money

§23.1.8.2 Notice of Commencement of Lien Action

§23.1.8.3 Exemption from Lien Action When the Contractor Is Dead, Has Disappeared, or Is Bankrupt

§23.1.9 Priority of Liens

§23.1.10 Dissolving Mechanics’ and Materialmen’s Liens

§23.1.11 Preliminary Notice of Lien Rights

§23.1.11.1 Requirements of the Preliminary Notice of Lien Rights

§23.1.12 Dissolving a Preliminary Notice of Lien/Demand for Filing Claim of Lien

§23.1.13 Cancellation of Preliminary Notice of Lien Rights

§23.1.14 Notice of Commencement; Notice to Contractor

§23.1.14.1 Notice of Commencement

§23.1.15 Notice to Contractor

§23.1.16 Discharge of Lien by Filing a Bond

§23.1.16 Waiver and Release of Lien and Bond Rights

§23.1.17.1 Liens May Not Be Waived in Advance

§23.1.17.2 Interim Waiver

§23.1.17.3 Final Waiver and Release

§23.1.18 Voiding Recorded Liens That Have Not Been Perfected

§23.1.18.1 By Operation of Law due to Passage of Time

§23.1.18.2 By Notice of Contest

§23.1.19 Computation of Time

CHAPTER 24: AD VALOREM TAX ON REAL PROPERTY

§24.1 HOW PROPERTY TAXES ARE CALCULATED AND BILLED

§24.1.1 What Real Property Is Subject to the Ad Valorem Tax?

§24.1.2 Identifying the Players

§24.1.3 Assessment of the Property for Taxes

§24.1.4 Possible Deductions/Exemptions

§24.1.4.1 The Homestead Exemption

§24.1.5 Making a Property Tax Return

§24.1.6 Payment of Taxes

§24.1.7 Appealing the Valuation of Property Taxes

§24.1.7.1 Who Has the Right to Appeal?

§24.1.7.2 Who Are Appeals Made To? When Must Appeals Be Filed?

§24.1.7.3 Appeal Decision

§24.1.7.4 Arbitration Alternative

§24.1.7.5 Properties Valued over $500,000

§24.1.8 Claim for Refund of Taxes Paid

§24.2 PROPERTY TAX ABATEMENTS AND PREFERENTIAL ASSESSMENTS

§24.2.1 Statewide Tax Abatement Programs

§24.2.1.1 Landmark Historic Property Tax Abatement Program

§24.2.1.2 Rehabilitated Historic Property Tax Abatement Program

§24.2.2 Local Government Tax Abatement Programs

§24.2.2.1 Urban Enterprise Zone (UEZ) Tax Abatement Program

§24.3 WHAT HAPPENS WHEN TAXES ARE NOT PAID IN A TIMELY FASHION?

§24.3.1 Late Payment Notices and Issuance of a Fiere Facias (‘Fi. Fa.’)

§24.3.2 Transfer of Tax Fi. Fas. to a Third Party

§24.4 THE LEVY AND SALE OF TAX FI. FAS.

§24.4.1 Tax Foreclosures

§24.4.2 Non-judicial ‘Regular’ Tax Sales

§24.4.2.1 The Levy on the Tax Fi. Fa.

§24.4.2.2 Presale Requirements

§24.4.2.3 Day of the Sale

§24.5 DEFECTIVE AND PROBLEMATIC TAX SALES

§24.5.1 Levying Officer’s Right to Rescind and the Court’s Right to Set Aside a Sale

§24.5.2 Court’s Authority to Set Aside a Tax Deed

§24.5.3 Common Defects Rendering a Tax Deed Void or Voidable

§24.6 POST-TAX SALE ISSUES FOR THE TAX DEED PURCHASER IN THE FIRST YEAR

§24.6.1 Buyer’s Title

§24.6.2 Buyer’s Rights to the Property

§24.6.3 Buyer’s Responsibilities

§24.7 SURPLUS FUNDS GENERATED BY THE TAX SALE

§24.7.1 How Surplus Funds Are Calculated and What Happens to Them

§24.7.2 Levying Officer’s Notice of Surplus

§24.7.3 Process for Claiming Surplus Funds

§24.7.4 Interpleader Action for Surplus Funds

§24.7.5 Compelling the Disbursement of Surplus Funds by Filing a Money Rule Action

§24.8 RIGHTS OF REDEMPTION FOLLOWING TAX SALES

§24.8.1 Who May Redeem

§24.8.2 The Tax Deed Holder’s Obligations to Allow Tender

§24.8.3 Inquiry Addressed to Tax Deed Holder

§24.8.4 Calculation of Redemption

§24.8.5 Issuance and Form of Redemption Quitclaim Deed

§24.8.6 Effect of Redemption

§24.9 FORECLOSING THE RIGHTS OF REDEMPTION

§24.9.1 Procedure to Foreclose the Equitable Right of Redemption

§24.9.1.1 Determination of Who Is Entitled to Notice and Form of the Notice

§24.9.1.2 Sending Out Notice

§24.9.1.3 Passage of the Barment Expiration Date

§24.9.2 Ripening by Prescription under O.C.G.A. §48-4-48

§24.9.3 State of Title upon Termination of the Equitable Right of Redemption

CHAPTER 25: WATER RIGHTS

§25.1 NON-NAVIGABLE WATERS

§25.1.1 Definition

§25.1.2 Ownership of Land beneath Non-Navigable Waters

§25.1.3 Riparian Rights in General

§25.1.4 Usage of Water in Non-Navigable Streams

§25.1.4.1 Possession and Fishing Rights

§25.1.4.2 Irrigation

§25.1.4.3 Diversion, Detention, or Pollution of Water

§25.1.4.4 Construction or Removal of Dams

§25.2 NAVIGABLE WATERS

§25.2.1 Federal Preemption regarding Water Rights

§25.2.2 Definition in Georgia Law

§25.2.3 Ownership of Land Adjoining Navigable Waters

§25.2.4 Usage of Water

§25.2.4.1 Areas of Federal Control