Realtor Nov 08.p65 - Laguna Board of Realtors

LAGUNA BOARD OF REALTORS®
REALTOR ®
www.lagunaboardofrealtors.com
BOARD OF
DIRECTORS
2008
President
Rick McIntire
President-Elect
Wayne Woodyard
Vice President
Charles Brickell
Secretary
Ed Brown
Treasurer
Michael Gosselin
DIRECTORS
Shauna Covington
Bob Hartman
Beverly Milosevic
Nancy Pooley
Marcus Skenderian
Director for Life
Marie Thomas
Past President
Wayne Woodyard
COMMITTEE
CHAIRPERSONS
Affiliates
Christopher Williams
BORPAC/IMPAC Funds
Marie Thomas
Budget and Finance
Michael Gosselin
Community Events
Nancy Pooley
Education
Wayne Woodyard
Government/Legislative Affairs
Shauna Covington
Grievance
Noel Johnson
Internet Technology
Gary Boisen
Long Range Planning
Wayne Woodyard
Meals on Wheels
Traudi Hansen
Membership Orientation
Charles Brickell
Multiple Listings
Les Jenison
Professional Standards
Beverly Milosevic
Programs
Theresa Tatch
Public Relations
Nancy Pooley
Executive Vice President
Stephanie Lennon
NewS
november 2008
939 Glenneyre Street • Laguna Beach, California (949) 497-2474
Report of Legal Affairs Forum
Thomas N. Jacobson, Attorney at Law
O
n Friday October 17, 2008, I
attended the Legal Affairs Forum
held in connection with the fall
meeting of the California Association of
REALTORS®. This is a report of the
matters discussed at the meeting.
Our meeting began with a discussion relating to risk management. We had
a panel that discussed various aspects of
working with litigation counsel. The topics
touched on included establishing better and
more practical means of communication,
education programs designed to address
the needs of brokers and agents to current
issues, being prepared to work with counsel
by record keeping and other preservation
of evidence issues and understanding the
role of the litigation attorney.
My experience has been that
members of the real estate profession are
very effective when working with litigation
counsel. As one who has engaged in
litigation on behalf of brokers and agents, I
find that once we establish that as counsel
I am your advocate and not your adversary
the communication and cooperation is
usually better than we find in non-real
estate professional clients. One of the
reasons brokers and agents work well with
counsel is because brokers and agents are
usually quite well versed on the applicable
law and what the issues are in the controversy. Most brokers and agents understand that the file is everything. The
documents we need to demonstrate we
have properly served the clients and third
parties are contained in the documents of
the transaction.
In one of the programs I present,
25 Ways To Avoid A Lawsuit, I focus on
the importance of the written document.
Files should contain the required contracts
and disclosures, and the files should also
contain written correspondence with the
client and members of the public, as well as
notes of telephone conversations and
meetings. A plaintiff attempting to engage a
real estate professional rarely takes the
time during the course of the sale and
purchase of property to document telephone
calls and meetings. There is nothing like a
piece of paper to emphasize to a jury what
actually took place during a telephone
conversation.
Our next topic was a case law
update. The first case we discussed was
Cable Connection v. Direct TV. This case
is significant because the California Supreme Court ruled that an arbitration
agreement can contain a provision for
judicial review. This is in contrast to the
Federal Arbitration Rules that do not
provide for judicial review. Outside of
California, counsel must be careful when
incorporating judicial review provisions in
contracts because the federal courts have
not ruled on this issue.
The case of Gueyffier v. Ann
Summers, Ltd. held that an arbitrator did
not exceed is authority when he applied
equitable defenses to excuse a party from
breaching an agreement. The claim in this
case was that the plaintiff did not give a 60
day notice of dispute required under their
franchise agreement.
The next case we addressed was
Strong v. Beydoun. This was a case of the
attorney that forgot to put it in writing. A
client retained an attorney. The first
attorney contacted one of his colleagues
Continued page 7
Affiliate Spotlight – PennySaverUSA.com/Weekender
David Martins
F
or over 30 years, the PennySaver has been a very
popular real estate publication in Laguna Beach. Used
by Orange County’s top agents, the Weekender edition,
which comes out on Thursdays, has several pages of real
estate ads. It is no wonder that the PennySaver has been
called the bible of real estate in Laguna. It is common to
see multi-million dollar homes for sale as well as hundreds
of rental ads in the Weekender. Laguna residents love
receiving the Weekender and looking to see how much
homes in their neighborhoods are selling for.
One of the great advantages of the PennySaver
magazine is that it is a direct mail publication. Both businesses and homes receive the PennySaver magazine.
Another advantage of the publication is that you can target
the zones you want to advertise in, thus virtually eliminating
wasted circulation. Laguna Beach is divided into two
books: Laguna Beach and Ritz Coast. The Laguna Beach
book covers all the mailboxes from North Laguna south to
approximately the Montage Resort. The Ritz Coast book
covers the South Laguna and Monarch Beach area.
Although every mail box receives the PennySaver, we
get many requests for extra copies. Every week we print
several hundred extra copies. You can find extra copies at
most real estate offices in Laguna Beach and at the
Visitors Bureau in downtown Laguna.
One of the most often asked questions from agents is
“What is your advice for a successful advertising
2
program?” The answer depends
on what the goals and objectives of
the agent are. I ask a series of
questions to better understand the
agent’s objectives. As a general
rule, I will say that you need to be
consistent. If you’re in business
year round, you should have an advertising program year
round.
Many agents do not realize the wide variety of products
we offer. For example, we combine print and internet.
We not only put your ad on the internet, but we also offer
links, web pages, toll free numbers, and many other
options. On the print side, we can print and deliver flyers
for as low as 2.5 cents per copy. On the delivery side, if
you have flyers or brochures that you would like delivered, we also offer that service. Classified ads are also
an excellent value. When you run a classified ad, the ad is
printed and delivered to the entire South County region,
from Lake Forest to San Clemente. That’s over 240,000
mailboxes!
As an affiliate of the Laguna Board of Realtors, I’m
proud to help its members with their advertising needs.
Please feel free to call me with any questions.
David Martins, RealEstateSpecialist,
PennySaverUSA.com/Weekender
949-614-2607 - dmartins@pennysaverusa.com
Park(ing) Day
GALLERY OF FAME
November
I
t may be the fondest wish for city dwellers forced to drive and park their cars
in a crowded city. It could be the deepest dream of lovers of green space who
feel trapped by ribbons of concrete and asphalt: Turning a parking space into ...
a park.
On Friday, September 19th the San Francisco-based REBAR art
collective joined forces with The Trust for Public Land, a nonprofit land conservation organization, to celebrate PARK(ing) Day, during which artists, activists
and ordinary citizens converted metered parking spots into temporary public
parks in locations around the world
The idea originated in San Francisco - a city that knows a thing or three
about tight parking — as a one-off in November 2005, when REBAR devised
the “PARK(ing)” idea as a way to explore new and artistic ways of using
metered parking space. The idea was first executed in a space on Mission
Street near downtown San Francisco with 200 square feet of roll-up sod, a 15foot tree, a park bench and the chutzpah common to San Franciscans. The trialrun event generated attention around the world.
The collective connected with the Trust in 2006, collaborating to create
“PARK(ing) Day,” which basically expanded on the original Bay Area experiment, making it a national and global experience. Some 47 other locations got
into the act. The 2007 event was bigger still; some 200 temporary parks in 50
cities were constructed.
Several companies in Orange County participated this year and many
here in Laguna Beach. If you walked down Forest Ave. and Ocean Ave. you
would have seen many parks along the way. Ron May from May Contractors
set one up on Glenneyre Street right outside the Laguna Board of
REALTORS® building.
The Laguna Board
of REALTORS®
and Affiliates
Charitable
Assistance Fund
All donations are welcome
and will be used specifically to
help a member in need.
If you would like to
contribute, please deliver to
the Board office or mail to:
LBR/CAF
P.O. Box 4084
Laguna Beach, CA 92652
3
First-Time Buyer Tax Credit: A Reason to Buy Now
T
he First-time Home Buyer Tax Credit was passed this
year as part of the Housing and Economic Recovery
Act (H.R. 3221) on July 30 and targets any individual or
household that hasn’t owned a home for at least three
years. Taxpayers can take the credit on their 2008 tax
return if they bought their house this year after April 9.
It’s worth up to $7,500 and can be taken in a single
tax year. Authorization for the credit ends July 1, 2009, so
if your customers wait to buy in the first half of 2009 they
can take the credit on their 2009 tax return.
The actual credit amount is set as a percentage of the
home purchase amount. That percentage amount is 10
percent, so your customers can get 10 percent of the
home price credited against their tax liability, up to a
maximum $7,500.
Income limits are $75,000 for individuals and $150,000
for households. Individuals whose income exceeds the
$75,000 limit but isn’t more than $95,000 can still take the
credit but on a reduced basis. The same thing applies to
households earning up to $170,000.
Any house is eligible as long as it’s a primary residence and is in the United States.
To help keep the program cost effective for taxpayers, the federal government requires the tax credit to be
paid back in small, 6.67-percent increments over 15 years.
4
For that reason, some analysts have likened the credit to a
15-year, interest-free loan to help make home buying
affordable.
There’s one restriction on the type of financing that
your customers can use if they plan to take the credit.
That restriction is on tax-exempt mortgage financing.
That only applies if your clients are using below-market
interest-rate financing from a public agency or nonprofit
that’s funding the loan using proceeds from a tax-exempt
mortgage-revenue bond issue. For most buyers, this won’t
be an issue. It’s mainly an issue for low-income buyers
using special mortgage financing.
NAR Government Affairs has created two
helpful documents that you can share with your clients to
help them learn more about how the tax credit works.
The documents are on downloadable and printable PDFs:
·
·
First-time home buyer tax credit chart
First-time homebuyer tax credit FAQ
Laguna 500 Winner!
Susan Neely from Prudential California Realty was
was this month’s Laguna 500 Winner!
5
Welcome New Members
REALTORS®
®
Lee Ann Canaday – Broker
Stuart Thomas – Re/Max
Susan Beifuss – Coast Sotheby’s
Louise Winders – Coldwell Banker
Brooke Bailey – Coldwell Banker
David Prewitt – First team Estates
Michael Lovullo – Lantern Bay Realty
Affiliates
Chaz Bradley – O C Chef
Kristen Heusser – Furnish to Sell
6
Report of Legal Affairs Forum - continued from front page
and asked for help on the case. The second attorney
obliged and had direct contact with the client throughout the
course of the litigation. Upon completion of the litigation
the client refused to pay the second attorney. The court
held the second attorney could not collect from the client
because there was no contract between the second attorney and the client. The moral of this story is that real
estate professionals should understand how important it is
to put all of your understandings with your client in writing.
This applies specifically to buyers’ brokers and the BuyerBroker Agreement that every broker should use when
there is a potential of a short sale or other current issue that
may affect how much money the seller will pay in commissions.
In Waltrip v. Kimberlin the court went through the
complicated analysis of addressing competing liens. One
was a judgment lien and the other a lien for attorneys’ fees.
In an interesting analysis (probably not the sentiments of
Wells Fargo) the court held that a judgment lien obtained by
Wells Fargo was not superior to a lien for attorneys’ fees
because a judgment lien does not become perfected until
there is money available to satisfy the lien, whereas an
attorney’s lien is perfected upon signing of the retainer
agreement. Property managers that find the damages are
much greater than anticipated and that all of a sudden the
tenant wants to contest the action.
In Pelton-Shepherd Industries, Inc. v. Delta
Packaging Products addressed the importance of discovery
cut off dates and the filing of timely discovery replies.
Litigants have every right to rely on such dates in the
process of dispute resolution.
In an important indemnity case, Crawford v.
Weather Shield Mfg., Inc. the California Supreme Court
held that the provisions of an indemnity clause required the
subcontractor to defend the contractor even though the
subcontractor may not have been negligent. This demonstrates the importance of understanding indemnity clauses
in any agreement entered into by a real estate professional.
Clauses that may appear to be so-called boiler plate may
not be harmless and may have a substantial economic
effect on the parties executing the agreement.
The case of California National Bank v. Woodridge
Plaza held that under a lease agreement for space in a
shopping center providing for rent not to exceed that paid
by a competitor, when the competitor left the shopping
center the rent to be paid would be measured against the
prevailing rate in the area. This was a case of not properly
drafting the lease clause to address the obvious. One of
the things negotiators should always remember is to
provide for the contingency no matter how remote it
might seem.
Our next topic of discussion was about procuring
cause. We reviewed the Procuring Cause Guidelines
published by CAR and examined some of the scenarios
that might give rise to issues of procuring cause. The
significant factor to remember is that there is no one size
fits all rule about procuring cause. It is highly dependent
on the facts and more often than not it is a judgment call
of which of the competing interest actually deserves the
commission. The Guidelines contain a chart that might
be helpful in examining a particular dispute, but the chart
is not able to resolve all of the possibilities that may arise
when there is a procuring cause issue.
During our lunch we received a presentation
from Fred Arnold, president of the California Association
of Mortgage Brokers. He emphasized the problems the
mortgage industry was having with unavailability of
money and exceptionally high qualification requirements.
An example he provided us involved an individual with a
credit score of 630 and their inability to get a loan based
on that credit score. The down payment requirements
are higher and it is generally more difficult to obtain
financing. He reviewed with us the foreclosure and
short sale scenario that many REALTORS® are very
familiar with.
One of the factors agents and brokers need to
address with their clients is the need to obtain the lender
reporting the loan was “satisfied” rather than emphasizing the lender took a short sale or deed in lieu. Brokers
and agents should work for their clients to negotiate this
important concession. It does not harm the lender and
can be of great benefit to the homeowner when they
want to purchase a new home.
Should you have any questions concerning any
item covered by this report please do not hesitate to
contact me.
THOMAS N. J ACOBSON
ATTORNEY AT LAW
3750 SANTA FE, SUITE105
RIVERSIDE, CALIFORNIA 92507
(951) 682-7882 y FACSIMILE (951) 682-7884
tom@tomjacobsonlaw.com
7
NOVEMBER CALENDAR of events
Tuesday, November 4th
Election Day
Wednesday, November 5th
Marketing Meeting at the Woman’s Club 9:00 a.m.
LB Broker Preview 10:00 a.m. – 1:00 p.m.
Thursday, November 6th
Marketing Meeting at all Park Pizza 8:15 a.m.
LN Broker Preview 9:00 a.m. – 1:00 p.m.
Wednesday, November 19th
Marketing Meeting at the Woman’s Club 9:00 a.m.
LB Broker Preview 10:00 a.m. – 1:00 p.m.
Thursday, November 20th
Marketing Meeting at all Park Pizza 8:15 a.m.
L.N. Broker Preview 9:00 a.m. – 1:00 p.m.
Friday, November 21st
Board of Directors Meeting 8:30 a.m.
Tuesday, November 11th
Veterans Day
Wednesday, November 26th
No Meeting or Preview
Wednesday, November 12th
Marketing Meeting at the Woman’s Club 9:00 a.m.
LB Broker Preview 10:00 a.m. – 1:00 p.m.
Thursday, November 27th
Happy Thanksgiving – Board Office Closed
Thursday, November 13th
Marketing Meeting at all Park Pizza 8:15 a.m.
LN Broker Preview 9:00 a.m. – 1:00 p.m.
Friday, November 28th
Board Office Closed
Preview, Preview, Preview
Laguna 500
If you would like to participate in this and have a
chance of winning $500 all you have to do is sign your
property up for preview and sign the preview card of
each agent that walks through your listing. Or if you
are just out previewing you must attend the marketing
meeting at 9:00 at the Laguna Beach Woman’s Club
and pick up a preview card. Then turn the card in at
the next meeting with the signatures of all the agents
that hosted a property.
Annual Holiday Installation
Breakfast
Will be held at the Aliso Creek Inn
at 31106 Coast Highway on
Tuesday, December 9th at 8:30 a.m.
Tickets are $30 each and can be
purchased at the Board office in
mid November.
REALTOR® and Affiliate of the year
will be announced during the ceremony.
8
9
Existing-Home Sales Rise on Improved Affordability
WASHINGTON, October 24, 2008
Existing-home sales increased last month as
buyers responded to improved housing affordability
conditions, according to the National Association of
Realtors®.
Existing-home sales – including single-family,
townhomes, condominiums and co-ops – rose 5.5
percent to a seasonally adjusted annual rate¹ of 5.18
million units in September from a level of 4.91 million in
August, and are 1.4 percent higher than the 5.11 millionunit pace in September 2007.
Lawrence Yun, NAR chief economist, said more
markets are seeing year-over-year gains. “The sales
turnaround which began in California several months ago
is broadening now to Colorado, Kansas, Minnesota,
Missouri and Rhode Island,” he said. “The South was
hampered by much lower home sales in Houston in the
aftermath of Hurricane Ike.”
NAR President Richard F. Gaylord, a broker
with RE/MAX Real Estate Specialists in Long Beach,
Calif., said low home prices and low interest rates have
been attracting buyers. “This is the first time since
November 2005 that home sales have been above yearago levels,” he said. “Credit tightened at the end of
September, but the improvement demonstrates that
buyers who’ve been on the sidelines want to get into the
market to make a long-term investment in their future.”
According to Freddie Mac, the national average
commitment rate for a 30-year, conventional, fixed-rate
mortgage fell to 6.04 percent in September from 6.48
percent in August; the rate was 6.38 percent in September 2007.
Yun said there may be market disruptions. “The
credit markets are not settled yet, although the mortgage
market stabilized with the government takeover of
Fannie Mae and Freddie Mac. Inventory remains high,
and price declines are pressuring owners,” he said.
“Additional housing stimulus would stabilize prices more
quickly, which in turn would bring faster stability to Wall
Street. Removing the repayment feature on the first-time
buyer tax credit and permanently raising loan limits
would bring more buyers into the market and further
reduce inventory.” For more information, contact:
Walter Molony 202/383-1177 wmolony@realtors.org
.
The National Association of Realtors®, “The
Voice for Real Estate,” is America’s largest trade
association, representing 1.2 million members involved
in all aspects of the residential and commercial real
estate industries.
FHA Posts List of Lenders in Hope for Homeowners Program
The Federal Housing Administration (FHA) of the
U.S. Dept. of Housing and Urban Development has
posted a list of lenders participating in the HOPE for
Homeowners program. Participating lenders have indicated an interest in refinancing loans under the HOPE for
Homeowners program.
When contacting the lenders, the FHA is strongly encouraging consumers to also contact their servicing lender and
any subordinate lien holders as their participation is vital in
order to refinance into a HOPE for Homeowners mortgage. The program is voluntary and servicing lenders may
offer different solutions for avoiding foreclosure. The FHA
plans to update the list weekly on Fridays.
10
The REALTOR® News is published
monthly as a service for the members
and affiliates of the Laguna Board of
REALTORS®. Although considerable
effort is made to ensure the accuracy
and reliability of the information published, The Board does not guarantee
the accuracy or assume liability for the
use of any information published. Any
by-lined articles published are the responsibility of the contributing writer.
Submitted articles may be edited due
to space requirements.
Type/Design
Ward C. Blackburn
Tradewind Publications • (949) 487-7313
wardblackburn@aol.com
11
LAGUNA BOARD OF REALTORS
939 GLENNEYRE ST.
LAGUNA BEACH CA 92651
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