Top News Extended Eviction Moratorium and Emergency Rental
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WRA Legal News Weekly January 11, 2021 Top News: • Extended Eviction Moratorium and Emergency Rental Assistance • Increase Diversity with Partnership for Success • Legal Hotline Available on Sunday Afternoons Legal Hottips: • Criteria for protected buyers • Repair of RECR defect • Discriminatory covenants • Condominium executive summary • Possible material adverse facts Top News Extended Eviction Moratorium and Emergency Rental Assistance In the latest COVID-19 relief act, Congress extended the Centers for Disease Control and Prevention (CDC) imposed eviction moratorium through January 31, 2021, and established a $25 billion fund to assist those who have missed rent or utility payments due to the pandemic. Grant money may be used to pay current and past due rent, utilities, home energy costs and other housing expenses incurred due to COVID-19. The Emergency Rental Assistance Program prioritizes assistance for households that have income totaling less than half the area median household income or where an individual has been unemployed for more than 90 days. Individuals who have qualified for unemployment benefits, experienced a reduction in household income, had other financial hardship due to COVID-19, or can demonstrate a risk of homelessness or housing instability can also apply. Any assistance received will not be treated as income. The act allows landlords and owners to assist renters in seeking grant money and allows the landlords to apply on behalf of a renter in their dwellings. If a landlord submits an application, the landlord must obtain the tenant’s signature either wet or electronic, provide the tenant a copy of the application and use any payments received to satisfy the tenant’s rental obligations. The specific application form and process has yet to be provided. See New Relief for Renters at www.consumerfinance.gov/about-us/blog/new-relief-for-renters and Emergency Rental Assistance Program Information for Renters at https://home.treasury.gov/policy- issues/cares/emergency-rental-assistance-program Increase Diversity with Partnership for Success The WRA Partnership for Success Program is designed to promote diversity within the REALTOR® membership and enhance the probability of long-term success for new minority agents. The Program offers the successful minority candidate the opportunity to have one year of REALTOR® dues and six months of MLS fees covered, and to attend real estate practice courses and networking events. Some Program benefits are “paid forward” via cash reimbursements or community service hours within three years. Potential applicants and their sponsoring brokers can obtain the application forms and watch the videos at www.wra.org/Partnership for more information. The Partnership for Success gives firms a way to recruit new agents and promote diversity based on race, color or national origin. Learn from Sean Lewis, the director of talent acquisition for EXIT Elite Realty, how the Partnership for Success can help you help a new agent by mentoring the agent and reducing barriers to entry such as dues and MLS fees. See Episode 23 of the Thursday Takeaways videos discussing the Program at www.wra.org/Education/Thursday_Takeaways/Thursday_Takeaways_- _Partnership_for_Success Do you know a good candidate for the WRA’s Partnership for Success program? In Episode 24 Sean Lewis explores the application process and how you can assist your new agent through the process successfully. Visit www.wra.org/ThursdayTakeaways/Episode24. And be sure to stay up to date on fair housing-related information by visiting the WRA Cultural Diversity in Housing Program Facebook page at www.facebook.com/CulturalDiversityInHousing. Legal Hotline Available on Sunday Afternoons The WRA offers WRA Legal Hotline hours on Sunday afternoons from 1:00 to 4:30 p.m. As always, members can submit questions online or by phone, and request a phone call, a written response or both. The WRA knows your transactions do not stop moving on the weekend so a WRA hotline attorney is available on Sunday afternoons. Hotline Listing Contracts – Protected Buyers QUESTION: The broker has provided a list of protected buyers to the seller within the required time frame after listing contract expiration. One of the protected buyers contacted the broker and insists his name be removed from the protected buyers list because he does not believe that “negotiations” took place during the term of the listing. The broker did speak with this buyer about his potential purchase of this vacant lot, which is adjacent to where this buyer’s home is located. The broker has been in contact with the owner/seller of the vacant lot (under broker’s former listing) and has offered to write an offer with this protected buyer. Neither the buyer nor the seller wants to cooperate with writing an offer and they continue to insist they have not been in discussion about the potential purchase of this lot. However, within days of the expiration of the broker’s listing, the broker received the call from the buyer asking why his name is on the protected buyers list that was sent to the seller. Is there a statute or other documentation establishing the protected buyer requirement and criteria for negotiation? Also, are there any case law examples that would show how the courts interpret who is or is not a protected buyer? ANSWER: The listing contract documents the relationship between the seller and the listing firm. The buyer does not have a say in whether or not the buyer is a protected buyer. The broker may refer the seller to the terms of the listing contract. The broker has the authority to continue to provide the brokerage services to the seller with regard to properly protected buyers, including offering to draft an offer to sell. Lines 255-271 of the WB-4 Vacant Land Listing Contract provide: PROTECTED BUYER: Means a buyer who personally, or through any Person Acting on Behalf of Buyer, during the term of this Listing: 1) Delivers to Seller or the Firm or its agents a written offer to purchase, exchange or option on the Property during the term of this Listing; 2) Views the Property with Seller or negotiates directly with Seller by communicating with Seller regarding any potential terms upon which the buyer might acquire an interest in the Property; or 3) Attends an individual showing of the Property or communicates with agents of the Firm or cooperating firms regarding any potential terms upon which the buyer might acquire an interest in the Property, but only if the Firm or its agents deliver the buyer’s name to Seller, in writing, no later than three days after the earlier of expiration or termination (lines 196-204) of the Listing. The requirement in 3), to deliver the buyer’s name to Seller in writing, may be fulfilled as follows: a) If the Listing is effective only as to certain individuals who are identified in the Listing, by the identification of the individuals in the Listing; or, b) If a buyer has requested that the buyer’s identity remain confidential, by delivery of a written notice identifying the firm or agents with whom the buyer negotiated and the date(s) of any individual showings or other negotiations. A Protected Buyer also includes any Person Acting on Behalf of Buyer joined in interest with or otherwise acting on behalf of a Protected Buyer, who acquires an interest in the Property during the extension of listing period as noted on lines 191-195. In Burkett & Associates, Inc., Century 21 v. James M. Teymer, 2009 WI App 67, the court found that the standards for determining whether negotiation has occurred are found in Sonday v. Dave Kohel Agency, Inc., 2006 WI 92 (see a case summary and link to the case opinion on page 12 of the August 2006 Legal Update, “Legislative Update 2006,” at www.wra.org/LU0608). In the Burkett case, the court noted the listing agent provided property information and the list price to the buyer on the telephone in response to his inquiry and later faxed the property data sheets, Real Estate Condition Report (RECR), survey maps and other information to the buyer at his request. This two-way communication was enough to constitute negotiation for the purposes of the listing contract definition, the court concluded. The court also remarked that, “We are not suggesting that a broker negotiates by unilaterally sending information to other parties. Here, ATC expressed an interest in the property and asked for sales information. Burkett then provided that information. This two-way communication fulfills the contract’s definition of negotiate.” READ MORE ABOUT IT: The Burkett case is summarized on pages 1-3 of the May 2009 Legal Update, “Case Law Update,” at www.wra.org/LU0905, and the Sonday case is summarized on page 13 of the September 2007 Legal Update, “Legal Action Update 2007,” at www.wra.org/LU0709. Also see the discussion of First Weber Group v. Guyant, 2011 WI App 84, on pages 2-3 of the November 2011 Legal Update, “Case Law Update 2011,” at www.wra.org/LU1111. Offer to Purchase – Inspection Contingency QUESTION: If a seller discloses an item as a defect on the seller’s Real Estate Condition Report and a buyer has an inspection, can the buyer ask them to fix/cure the defect? If the seller refuses, can the buyer get out of the transaction by issuing a Notice of Defects? ANSWER: Amendment Requesting Cure After a buyer has an inspection, the buyer can always ask the seller to cure any defect by offering a WB- 40 Amendment to Offer to Purchase, even if the buyer was aware of the defect because the seller disclosed it on the seller’s RECR. The seller is not obligated, however, to accept the buyer’s amendment.