You live in New York and are moving to Arizona. We are really different in the way we help you with your transaction… read on.
You are a lien theory state in New York (or many other states) and use attorneys to do your real estate transfers. Below is a map of red and blue. Red are title theory states and blue are lien theory states. More and more States are opting for title theory as their choice. Title theory states use a Deed of Trust and a promissory note with statutory rules for a non-judicial foreclosure, for the most part.
In Arizona, we are a title theory state and do not use attorneys for our real estate closings. Why?
Because back in 1961, the Arizona Bar Association sued the Arizona Land Title Association and Ford Hoffman Realty for practicing law without a license. Court case. They won. In the aftermath, the Arizona Association of REALTORS ran a referendum to the people to change the Arizona State Constitution. It was ratified by the people
The results: ” In 1962 the Arizona Supreme Court, in the consolidated cases of Lohse v. Hoffman and State Bar of Arizona v. Arizona Land Title and Trust Co.,’ aligned itself with the Arkansas decision but was reversed by an amendment to the Arizona Constitution. The amendment initiative, originated by the Arizona Real Estate Association, passed by a four to one margin.” ~~from the Santa Clara Law Review 1966.
1. Powers of real estate broker or salesman
Section 1. Any person holding a valid license as a real estate broker or a real estate salesman regularly issued by the Arizona State Real Estate Department when acting in such capacity as broker or salesman for the parties, or agent for one of the parties to a sale, exchange, or trade, or the renting and leasing of property, shall have the right to draft or fill out and complete, without charge, any and all instruments incident thereto including, but not limited to, preliminary purchase agreements and earnest money receipts, deeds, mortgages, leases, assignments, releases, contracts for sale of realty, and bills of sale.
True. In Arizona we do not use attorneys in most residential real estate transactions. But most licensees and brokers consult attorneys often and recommend clients consult with attorneys when necessary.
Our real estate salespersons go through a rigorous 90 hours of legal training for real estate licenses. They then go through further training with their broker. Ask me. I own/operate how2educate LLC, have written the required course, and am the broker owner of Lifestyles of Arizona LLC. We also do agent on-the-job training.
With our mortgage issues being more of a non-judicial nature (set by statute rather than being determined by a judge), a residential transaction can be easily negotiated with the standard forms available to every REALTOR member of the Arizona Association of REALTORS.
How long has the agent been in the business?
How many transactions has the agent closed over their career?
Ask them about the purchase contract. About the listing agreement. About the buyer broker agreement. About Arizona’s Stigmatized Property Law. About property disclosure laws. About buying properties with a well. About the difference between the Claimant 39 form and the Well Transfer form. About flood insurance. About alternative waste systems. About the Affidavit of Disclosure required on almost every Metes and Bounds property. About unpermitted issues. About AZ HOAs, both mandatory and voluntary. Ask about how the agent gets paid. Ask if the agent has a buyer broker agreement for you to sign, and does it state what the agent will do for you, the client.
If your agent is “new”, it does not mean that agent is incapable of representing your interests, but you must ask the questions and if the agent cannot answer the questions, it might be time to call the Designated Broker of the company or find another agent.
Scenario: New agent submits an offer on a property to a listing agent who submits the offer to the seller. Seller counter offers the offer with a 48 hr response period. In the meantime, another offer comes in from a different agent: over list price and all cash. Seller tells listing agent: Cancel the counter offer we have out. Agent calls new agent and says seller is cancelling the counter offer. New agent says, “but, I have a signed counter offer”… The agreement is not consummated until delivery. Would you be happy with an agent who had you sign a counter offer and then did not get it to the listing broker right away?
The above scenario is not just limited to new agents…
If the agent is not as helpful as you think they should be, contact their Designated Broker. You can look up the information going to the Arizona Department of Real Estate: http://services.azre.gov/publicdatabase/Default.aspx
If you need more questions answered, call me: 928-274-4088
Kathy Howe, Owner/Administrator/Educator/Broker
- how2educate LLC
- Lifestyles of Arizona LLC
- 1120 W SR89A
- Sedona, AZ 86336