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Ryan Shaughnessy, Broker/Attorney - Your Lafayette Square Real Estate Partner

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Questions to Ask Before Hiring a MLS Only or Flat Fee MLS Broker in St Louis

08-24-09
Ryan Shaughnessy, Broker/Attorney - Your Lafayette Square Real Estate Partner

Alternate Service Models - MLS Only and Flat Fee ListingIf you are considering to list your home for sale by owner ("FSBO") and intend to employ a MLS Only Broker or Flat Fee Broker to have the property listed on the local multiple listing service ("MLS"), there are 8 questions to ask before hiring a MLS Only Broker or Flat Fee Broker in St Louis:

Question #1 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Do you have sufficient information to adequately price your home for sale? Before you elect to proceed with a MLS Only Broker or Flat Fee Broker to list your home for sale in St Louis, it is important to gather sufficient information regarding the proper pricing of the home taking into consideration home sales in the area, homes listed for sale, and expired or canceled sales. This information is important to properly price the home. After gathering this information, you should make adjustments based on the difference between these homes. Improper pricing coupled with a MLS Only Listing or a Flat Fee Listing may result in little or no traffic or showings for your property. Generally, a MLS Only Broker or a Flat Fee Broker is unlikely to provide you with a comprehensive comparative market analysis. Often, the MLS Only Broker or Flat Fee Broker has not visited the property and isn't familiar with the property, neighborhood or local market conditions.

Question #2 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Do you fully understand how to prepare the home for sale? Before you elect to proceed with a MLS Only Broker or Flat Fee Broker to list your home for sale in St Louis, you should review the home and perform those repairs that are likely to be identified or discovered by a building inspector or that are likely to enhance the curb appeal for the home. The home that has great curb appeal is going to sell at a premium over a home that has little landscaping, needs paint or other repairs, etc. Generally, a MLS Only Broker or a Flat Fee Broker is unlikely to provide you with much personal assistance or guidance as to how to prepare your home for sale.

Question #3 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Are you prepared or willing to make your home easy to show? Before you elect to proceed with a MLS Only Broker or Flat Fee Broker to list your home for sale in St Louis, you must first make a commitment to make your home easy to show. Limited service listings offered by MLS Only Brokers or Flat Fee Brokers often are more difficult to show. As a result, some real estate agents are unwilling to show these properties where there are alternative comparable properties listed for sale. Common problems include unreturned calls or untimely responses to showing requests, lack of use of a SUPRA, restrictive showing times, and by appointment only showings. Unless your property is extremely desirable and priced well, these practices will create an impediment for real estate agents who want to show your property. Before selecting a MLS Only Broker or Flat Fee Broker to list your home for sale in St. Louis, you may want to ask the MLS Only Broker or Flat Fee Broker whether or not there is an option to use a showing service to receive telephone calls and schedule showing appointments. Difficulty in scheduling showings means less showing traffic. Less showing traffic generally results in more marketing time or days on market. If you want to sell you home quickly, then it would be advisable to make it easy to show.

Question #4 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

What services are being provided by the MLS Only Broker or Flat Fee Broker? Before you employ a MLS Only Broker or Flat Fee Broker to list your property for sale in St. Louis, it is important to understand what service are being provided by the MLS Only Broker or Flat Fee Broker. Under Missouri law, even MLS Only Brokers or Flat Fee Brokers must provide a minimum level of service that includes the following services:

  • Accepting delivery of and presenting to the client or customer offers and counteroffers to buy, sell, or lease the client's or customer's property or the property the client or customer seeks to purchase or lease;
  • Assisting the client or customer in developing, communicating, negotiating, and presenting offers, counteroffers, and notices that relate to the offers and the counteroffers until a lease or purchase agreement is signed and all contingencies are satisfied or waived; and
  • Answering the client's or customer's questions relating to the offers, counteroffers, notices, and contingencies. This minimum level of service is guaranteed by Missouri statute.

Before signing a listing agreement with a MLS Only Broker or Flat Fee Broker, you should verify that the requirements set forth in Sec. 339.780 R.S.Mo. (2008) are expressly included in the terms of the listing agreement.

Question #5 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Are you willing to market the property on the internet? Send out announcements? Send out e-blasts to agents? Are you familiar with restrictions and penalties associated with the sending of unsolicited e-mails or unsolicited facsimiles? Are you familiar with the fair housing laws? Before you employ a MLS Only Broker or Flat Fee Broker to list your property for sale in St. Louis, it is important to consider whether you have the time, ability and technical expertise to effectively market the property for sale. Here are three considerations:

  • First, you must be willing to expend the time to fully market the property for sale. This includes creating and sending flyers, creating and sending e-blasts, and entering information into web-based real estate search portals and classified ad syndication services.
  • Second, even if you have the time to market the home, do you have the training, resources and experience necessary to create effective, high qualify property flyers and other promotional materials.
  • Third, in addition to the creative skills necessary to produce marketing collateral, it also requires legal experience and technical expertise. Sending unsolicited facsimiles, sending unsolicited e-mails and even the incorrect working of the text for the marketing collateral may expose you to civil penalties under the Federal CAN-SPAM Act, Fair Housing Law, Federal Real Estate Settlement Practices Act, etc.

Question #6 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Are you willing to offer a competitive commission rate to the cooperating or selling agent? Before you employ a MLS Only Broker or Flat Fee Broker to list your property for sale in St. Louis, you should verify that the MLS Only Broker or Flat Fee Broker is offering a fair and reasonable compensation to the selling agent or broker. If your MLS Only Broker or Flat Fee Broker is offering inadequate compensation to outside agents, your property is less likely to get shown regularly by outside agents.

Question #7 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Are you willing to go it alone without assistance? Notwithstanding the "minimum service" provisions under Missouri law, it is not uncommon for inexperienced or unsophisticated sellers to complain that they have been abandoned by their listing agent. Often, they receive a sign to place in the yard, a data sheet to prepare the entry into the MLS, and a checklist of suggested practices. However, what is missing is often knowledgeable, personal assistance. As a result, the owner often turns to the buyer's agent to perform what traditionally have been the role or duty for of the listing agent. An extremely common occurrence is a request for the buyer's agent to draft counteroffers, offer assistance on valuation, provided advice on negotiating strategies, or explaining the terms and legal impact of the provisions of the sales contract. Our standard is: sorry, I represent the buyer and can't help you. Now, it is important to understand that I want to get the sales transaction closed. However, I represent the buyer and limit my role to the duties performed by a buyer's agent. If you need assistance, you need to contact your listing agent. When you select a MLS Only Broker or Flat Fee Broker to list your home for sale in St. Louis, you need to understand that you are generally representing yourself in the transaction.

Question #8 to Ask Before Hiring a MLS Only Broker or Flat Fee Broker in St. Louis

Do you understand the provisions of the sales contract and your obligations under the sales contract? A real estate agent representing the buyer can't advise you regarding such issues as valuation, your rights under the sales contract, the advisability of specific provisions of the sale contract, the ability to enforce specific terms, etc. Although state law requires that the listing agent provide you with assistance in these areas, the reality is that you must be able to handle most, if not all, of the aspects of the sale on your own from drafting the sales contract to providing access for building inspections, municipal inspections, and gas appliance or utility inspection to negotiating the resolution of building inspections to providing payoff and other information to the title company, etc. Just because you aren't represented by an agent doesn't excuse non-performance of your obligations under the sales contract. Before you select a MLS Only Broker or Flat Fee Broker to list your home for sale in St. Louis, you must consider whether you are prepared to handle the paperwork and fully understand your rights and obligations under the sales contract.

Before you select a MLS Only Broker or Flat Free Broker to list your property for sale in St. Louis, PREA Signature Realty would like the opportunity to discuss alternate listing service packages. Under these programs, you pay a base commission plus a flat fee for each additional add-on service. For more information, contact Ryan Shaughnessy at PREA Signature Realty at 314-971-4381. Or, visit our website at www.PREASignatureRealty.com.

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Attorney Transaction Killers Series - Standard Lease Terms - Commons Issues for Attorney Review

08-20-09
Ryan Shaughnessy, Broker/Attorney - Your Lafayette Square Real Estate Partner

Model Lease Forms and ProvisionsUnlike the jointly drafted real estate sales contract approved by the Bar Association of Metropolitan St. Louis and St. Louis Association of Realtors, the model lease provided by the St. Louis Association of Realtors has not received similar treatment and is not uniformly used. The reasons for the lack of wide spread use and acceptance of model lease form include:

  • Owners often have their own leasing staff and have relied on attorneys and commercially available forms instead of Realtors for the source of their leases and lease terms.
  • Owners often draft their leases to address issues that have occurred in the past. In many cases, there are overreactions to the prior issue that result in one-sided or onerous terms.
  • In the leasing context, Owners have greater bargaining strength than tenants and there is less pressure to approve unfavorable or even balanced terms.
  • Model forms often are ill-equipped to reflect the specific leasing practices and requirements of the owner or the specific issues that arise due to the nature or condition of the property.
  • Model forms often do not take into consideration municipal ordinances and local practices that modify or govern leasing practices and customs in a particular jurisdiction.

Although there is no uniform acceptance of the model lease form provided by the St. Louis Association of Realtors, the provisions contained in the model lease form represent in my opinion balanced terms that can be used as the basis for developing a good, well-written lease that is fair while still adequately protecting the interests of the landlord.

In the table below, I set forth the individual terms of the model lease form in the first column. The second column sets forth a brief description of the lease term as well as a short comment on areas that may be appropriate for review by the attorney reviewing the model lease form.

LEASE TERMS COMMONLY USED IN ST. LOUIS

COMMON ISSUES FOR ATTORNEY REIVEW

PARTIES AND PROPERTY. Tenant, agrees to lease from the undersigned Landlord the following real property located in the City/County of [Insert City/County Name], Missouri, known as and described as follows: [Insert Street Address & Unit No.]

Describes Leased Premises. Specify parking and storage area assignments.

TERMS Tenant agrees to pay a total of $[Insert Annual Rent] to Landlord for the rental period of [Insert Period] beginning [Insert Start Date] and ending on [Insert End Date]. Tenant covenants and agrees to pay a monthly rental fee of $[Insert Rent Rate] in advance on the [Insert Payment Date] day of each month during the term of this lease. The first month's rent shall be paid on [Insert First Payment Date]. If Tenant takes possession of the property in advance of the term, all conditions of this lease shall prevail and rent shall be paid pro rata to the beginning of the month. In the event the Landlord receives the rental payment on or before the due date each month, a $[Insert Discount] discount shall be applied to the monthly payment.

Sets forth Rental Rate.

Use of discount encourages timely payment of rent by creating incentive for early payment.

ADDITIONAL RENT All monthly rent payments shall be paid on or before the due date without a grace period and if not received by Landlord when due, then in addition to other remedies which are contained herein or as may be provided by law, Tenant agrees to pay additional rent of $[Insert Late Fee] per day for each day such rent or partial rent is overdue as liquidated damages, actual damages being impossible to ascertain. An insufficient check shall incur the same additional rent until such time as the check is made good. All rental payments shall be paid to [Insert Property Manager] and delivered to: [Insert Payment Address] or to such other place as the Landlord may, from time to time, direct.

Sets forth late fee described as liquidated damages and not penalty and identifies where rent payment should be delivered.

Make sure late fee is reasonable.

SECURITY DEPOSIT The security deposit of $[Insert Earnest Money] payable upon execution of this lease, shall be held by [Insert Party Holding Security Deposit], without interest to Tenant for the term of this lease, in part, as a guarantee of the performance by the Tenant of the agreements contained herein. Landlord is hereby authorized to expend from this deposit, such sums necessary to clean the premises and correct or repair damage done by the Tenant or Tenant's guests or invitees. Within thirty (30) days after the termination of the tenancy or recovery of possession by Landlord (whichever is later), Landlord shall either return to the Tenant the full security deposit or furnish a written itemized list and cost or estimated cost of any such damages or reasons for which the security deposit or any portion thereof is being withheld along with the balance of the security deposit, if any. In the event the security deposit is not sufficient to correct or repair the damage or restore the loss due to Tenant's non performance, then Tenant agrees to pay such additional amount upon notification of the dollar amount. The security deposit is not to be construed by the Tenant as a payment of any installment of rent due under the terms of this lease. The security deposit refund may be in one check, jointly payable to all Tenants and such refund check and itemization of deduction may be mailed to one Tenant only. NOTE: IN NO EVENT SHALL SECURITY DEPOSIT BE USED BY TENANT AS ANY PART OF RENT. Missouri Landlord and Tenant Act Chapter 441 and 535 RsMo states that a tenant may not apply or deduct any portion of the security deposit in payment of rent.

Review amount of security deposit for statutory compliance. Security deposit cannot exceed 2x the monthly rent.

Review return of security deposit provision for statutory compliance. Requirements for notice, inspection, and deadline for return set forth in statute.

RETURNED CHECK There shall immediately accrue a charge of $[Insert Return Check Fee] as additional rent, for each event of any check delivered to the Landlord, which upon presentation to the designated depository thereon, is dishonored for reason of insufficient funds, account closed, payment stopped or otherwise. At any time after such an occurrence, Landlord may require all subsequent amounts payable under this lease to be paid by Tenant in the form of cash, cashiers check or money order.

Sets forth return check fee policy. Statutory provision may allow collection of 2x face value up to $500 plus attorney's fees.

USE OF PROPERTY Tenant agrees that the property shall be occupied by no more than [Insert Number of Occupants] person(s), as a residence for Tenant and Tenant's immediate family or other such persons identified on Tenant's application or otherwise identified herein, and shall not be used for any other purpose whatsoever, however, Tenant shall be permitted to entertain guests for limited periods of time, not to exceed two weeks. Tenant shall comply with all applicable laws regulating the use of the property. Failure to comply will cause a default of this agreement.

Identifies occupants and is intended to prohibit change in true occupants while permitting guests as well as to prohibit transient uses.

GOVERNMENTAL INSPECTIONS AND OCCUPANCY PERMIT Before possession and if required by any applicable governmental authority, Landlord shall comply with occupancy code requirements. Tenant shall obtain an occupancy permit.

Occupancy inspection required for most (not all) City properties.

Review statutory penalty for failing to obtain occupancy permit. Local ordinance may make it illegal to collect rent without an occupancy permit.

Review provision for statutory compliance regarding who is responsible for obtaining and paying for occupancy inspection and permit. Local ordinance may make this non-delegable duty of landlord.

POSSESSION Landlord will permit Tenant to quietly and peaceably hold, occupy and enjoy said property during the term hereof without interference by the Landlord provided that Tenant observes and performs all of the agreements contained herein. Landlord's liability for failure to deliver possession on the specified date shall be limited to the abatement of rent due from Tenant until possession is delivered.

Sets forth standard quiet enjoyment provision.

Review abatement provision as it may not be suitable for tenant's requiring to move on set date.

ILLEGAL DRUGWARNING Illegal drug trafficking, manufacturing or use is a violation of law and this lease, subjecting Tenant to all applicable penalties. In the event Tenant or any member of Tenant's family or any of Tenant's guests, invitees, agents or employees uses or is involved in the use, distribution or manufacture of illegal drugs while on Landlord's property, it shall be just cause for the termination of this lease and the eviction of the

Tenant.

Provision is intended to avoid forfeiture provisions for illegal drug trafficking and manufacture from leased premises. Review for statutory compliance with seizure and forfeiture provisions of statute and disclosure requirements regarding meth production, storage and sale from leased premises. For landlords, emphasize use of criminal records checks of tenants.

ACCESS BY LANDLORD Tenant shall assume all responsibility for the terms and conditions of this lease at the time of occupancy but no later than the first day of the term hereof. Landlord shall be entitled and shall have the right, at all reasonable times, to inspect said property for any damage or destruction or to determine whether or not Tenant is performing and observing all of the agreements contained herein, and for the purpose of making any necessary repairs. For a period of 60 days prior to the expiration or termination of this lease, Landlord shall have the right of access to the property at all reasonable times for the purpose of showing to prospective tenants, buyers, appraisers, lenders and inspectors. Landlord shall not be liable to Tenant or any member of Tenant's family or any of Tenant's guests, invitees, agents or employees for any loss, injury or damage to them or their personal property from any cause whatsoever, except Landlord's gross and willful negligence.

Sets forth landlord's right to enter and inspect property.

Creates a 60 day window for showings at end of lease term.

Disclaims liability for personal injury or property damage. Review case law to verify whether language use is effective disclaimer of liability.

RESPONSIBILITIES OF LANDLORD In addition to other responsibilities set forth elsewhere in this lease, Landlord shall be responsible for the cost to maintain the residence in good and habitable condition including costs associated with reasonable wear and tear of the tenant, except as provided for damages caused by Tenant's neglect and except as provided herein. Landlord has disclosed to Tenant, in writing, any facts known to Landlord as regards to any prior use of the property as a site for production, distribution or the use of methamphetamine in the property.

Sets forth warranty of habitability which cannot be disclaimed and allocates responsibility for maintenance.

Review to determine whether re-allocation of maintenance requirements between landlord and tenant is appropriate.

Provides for meth disclosures required by statute. Review for statutory compliance.

LIABILITY AND INDEMNITY Landlord shall not be liable to Tenant, Tenant's guests or other occupants or persons on the premises for personal injury, property damage or other losses to such persons or their property caused by theft, burglary, assault, other crimes, fire, water, ice, wind, rain, smoke, or any other cause. Furthermore, Tenant agrees to indemnify and hold Landlord free and harmless from any and all liability for injury to or death of any person, or for damage of property arising from the use and occupancy of the premises by Tenant or from the act or omission of any person or persons, including Tenant in or about the leased premises with the express or implied consent of Tenant. Landlord requires Tenant to obtain personal household contents and personal liability insurance. Landlord shall have no duty to furnish smoke detectors, except as required by law, however, if furnished, Tenant is responsible for keeping them operational by furnishing batteries.

Disclaimer of liability by landlord. Review case law regarding effectiveness of disclaimer.

Requires indemnification of landlord by tenant and requires liability insurance. Confirm amount and coverage requirements for tenant required insurance.

Review effectiveness of attempts to disclaim duty to provide working smoke detectors. Local ordinance may impose duty to provide working smoke detectors.

MULTIPLE TENANTS: Each Tenant is jointly and individually liable for all obligations and sums due under this lease agreement. A lease violation by one Tenant is a violation by all Tenants. Notice by Landlord to any adult Tenant is notice to all Tenants.

Provides for joint and several liability for obligations under lease including payment of rent and property damage.

RESPONSIBILITIES OF TENANT: In addition to other responsibilities set forth in the lease, Tenant shall:

• Pay all utilities when due including, if applicable, electric, gas, water, and trash removal. Tenant shall make arrangements for such services prior to occupancy and shall maintain such services (and, when necessary, provide heat for the building) throughout the term of the lease.

• Obtain personal liability insurance and, if desired, personal household contents insurance.

• Inspect smoke alarms monthly, if applicable, and replace batteries when needed.

• Change furnace filter regularly (at least every three months) if residence has a forced air system.

• Keep air conditioner compressor clean and free of debris, leaves, grass clippings, etc.

• Keep garbage, trash, waste and debris in proper containers and dispose of same at least weekly.

• Comply with subdivision/condominium rules and regulations, a copy of which, if applicable, is attached.

Except where the following exterior maintenance items are provided for by the subdivision/condominium, Tenant

shall also:

•1. Keep sidewalks and driveways free from snow, ice and anything that may present a danger to Tenant or others.

•2. Keep grass cut, watered and trimmed and reasonably free of leaves and debris.

•3. Provide the necessary and proper care for shrubs and trees.

•4. Maintain gutters and downspouts so as to be clean and operable.

It is further understood, acknowledged and agreed that Tenant shall:

• Be responsible for the cost of repair of glass, screens and doors if damaged by accident or neglect of Tenant or anyone else.

• Be responsible for the cost of pest/insect control, except for wood destroying insects/pests, first reported to landlord 30 days or later after possession.

• Be responsible for the cost of repairs to bath, tub/shower enclosures, tile, walls and floors if grout or caulk is not intact and properly sealed so as to prevent water penetration behind such seals when such condition was not reported, in writing, to Landlord before damage occurred.

• Be responsible for the cost of repairs to garbage disposal (if any), bathtub, toilets or drains, if caused by rags, excessive grease, glass, metal, plastic, etc. or any accident or neglect of Tenant or anyone else.

• Be responsible for any other cost incurred by Landlord (repairs or otherwise) resulting from accident or negligence of Tenant or Tenant's invitees or guests.

• Be responsible to immediately notify Landlord, in writing, of any repairs needed that, if left unattended, would result in damage to the residence.

In addition, it is understood, acknowledged and agreed that Tenant:

• Shall keep no pets on the property without the express written consent of Landlord.

• Shall not paint, or install or remove wallpaper, or otherwise alter the residence in any manner without the written consent of Landlord.

• Shall not alter, replace or add door or window locks and shall return all keys to Landlord upon termination of this lease. Landlord agrees to change locks upon request of Tenant and receipt of payment for the applicable locksmith or other contractor service fee.

• Shall not park or allow guests to park anywhere on the property except in regular spaces provided for such vehicle parking.

• Shall not park or store any recreational vehicle, trailer or commercial vehicle on the property without the written consent of Landlord

• Shall not store flammable or hazardous materials, except nominal amounts of gasoline, which is to be stored in proper containers.

• Shall refrain from activities of any kind that would interfere with any neighbors' peaceful enjoyment of the property they occupy.

• Shall not assign this lease or sublease or rent any portion of the property to anyone else.

• Shall keep Landlord informed at all times of Tenant's current phone numbers (residence, work and cell).

• Shall, upon vacating, remove all personal property belonging to Tenant and shall thoroughly clean the property and shall pay Landlord's cost of professional carpet cleaning to be done after vacating.

• Shall pay all attorneys fees and court costs in the event legal proceedings are instituted by Landlord for non-payment of rent or late charges or any other breach of this lease by Tenant, including eviction cost.

Review to insure it meets specific requirements of landlord or tenant and/or is consistent with type or condition of property.

Review for inconsistent maintenance obligations.

Review reasonableness of restrictions on use.

Review attorney's fees provisions.

HOLDOVER. If Tenant holds over and fails to vacate on or before the agreed upon move-out date (end of lease term, or any renewal or extension period, or the move-out date agreed to by the parties), Tenant shall be liable to pay double rent for the holdover period and shall indemnify Landlord and/or prospective tenants or buyers for damages (i.e., lost rent or profits of sale, lodging expenses and attorney's fees).

Describes statutory provision for double rent penalty for holdover tenants after expiration or termination of lease.

DESTRUCTION OF PROPERTY. In the event the property is rendered partially uninhabitable by fire or other casualty, rent shall be reduced proportionally until such time as property is habitable. Landlord shall proceed immediately to render the property habitable and if repairs are not completed within 30 days after the date of the damage or loss, then Tenant shall have the option of terminating this lease immediately thereafter by giving Landlord written notice of termination. If the property is totally destroyed or rendered uninhabitable by reason of fire or other casualty, the lease shall immediately terminate.

Provides for abatement of rent, cancellation or termination of lease due to property damage rendering leased premises uninhabitable.

CONDEMNATION. In the event of condemnation under governmental right of eminent domain or otherwise or in the event of a sale of the property under threat of such condemnation, Landlord may terminate this lease but not without written notice to Tenant not less than sixty (60) days in advance of the rent due date.

Provides for termination due to transfer or sale of property due to eminent domain.

DEFAULT BY TENANT. In the event of a default by Tenant of any rent payment or in the performance of or compliance with any agreements contained herein, Landlord shall, without demand, be entitled to possession of the property. Tenant shall, upon written demand by Landlord, quit and surrender said property to Landlord. Tenant's obligation to pay rent for the full term shall not be terminated, provided however, that Tenant shall be entitled to credit for any rent thereafter collected by the Landlord for re-renting said property during any part of the balance of the term hereof, less any expenses in connection therewith. The remedies provided for in this paragraph shall be in addition to the other remedies provided for herein or as provided by law. Failure by Landlord to enforce or demand performance of any obligation of Tenant, or to seek remedy for breach

thereof shall not waive or excuse defaults of other obligations nor further defaults of the same obligation.

Sets forth landlord remedies upon breach of lease by tenant.

Allows for renting of leased premises to mitigate damages.

ABANDONMENT. If Tenant is absent from the premises for five (5) consecutive days following notice of default of this lease, or if Tenant leaves personal property at the premises after the termination of the lease, all personal property found in or on the premises may be deemed by Landlord to be abandoned. Landlord may peaceably enter, remove and dispose of such personal property as Landlord sees fit without any liability or duty to account for such personal property to Tenant. Cost of removal of personal property shall be paid by Tenant.

Defines abandonment and authorize re-entry and disposal of tenant personal property.

Review for statutory compliance regarding abandonment.

INSPECTION OF PROPERTY Tenant acknowledges having inspected said property prior to the execution of this lease and finds the same to be in good, safe, and clean condition and repair except as may be otherwise noted. Tenant further agrees to keep said property in as good and clean condition and repair as when so inspected and when first occupied, and will keep said property free from any debris, trash and filth, and will not do anything to create a danger of fire or cause an increase in insurance rates or to cause a cancellation of insurance. Upon the expiration of this lease or its termination, Tenant will surrender possession of the leased property (including any Landlord owned personal property) in as good, clean and safe condition and repair as on the date of this lease except for reasonable wear and tear. Tenant agrees that no representation as to condition has been made and that no promise to decorate, alter, repair or improve the property has been made except what has been set forth herein. Before executing this agreement, Tenant should contact law enforcement officials for information pertaining to whether registered sex offenders or other convicted criminals reside in the area. If Tenant is not satisfied with such information, Tenant should not lease this property.

Requires inspection and acceptance of condition of leased premises.

Sets forth maintenance and repair duties of tenant.

Requires all pre-leasing promises of repairs to be made in writing.

Requires tenant to make sex offender related inquiries.

21. CHECK ONE

___ This lease agreement is part of a Lease/Purchase agreement, Sale Contract is attached.

___ This lease agreement is for lease only, attach Form #2161 for Relationship Disclosure and Form #2119 for Lead Based Paint Disclosure.

Provides for addendum of lease purchase, lead paint disclosure, and relationship disclosure for agency relationship.

If you are interested in professional representation regarding the drafting and negotiation of leases or if you are interested in learning more about our leasing services, please contact Ryan Shaughnessy at PREA Signature Realty at 314-971-4381 or send an e-mail to Ryan@PREASignatureRealty.com. Or, visit our website at www.PREASignatureRealty.com.

Attorney Review Series

Attorney Review Series - Residential Leases

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Real Estate Sales Training - The Words and Philosophy of Yogi Berra - Learn from the Past or Repeat the Mistakes of History

08-19-09
Ryan Shaughnessy, Broker/Attorney - Your Lafayette Square Real Estate Partner

Yogi Berra - Real Estate Sales Training

Words and Wisdom of Yogi Berra

Over the next month, I will be taking a brief look at the words and philosophy of Yogi Berra as it relates to real estate sales training. Prior installments of the Yogi Berra Real Estate Sales Training Series included:

The fifteenth installment of the Yogi Berra Real Estate Sales Training Series starts with the quotation "This is like deja vu all over again." Yogi Berra played in fourteen World Series with six against the Brooklyn Dodgers and one against the New York Giants. When asked how he felt about the 2000 World Series between the New York Mets and the New York Yankees, Yogi Berramade his comment about "deja vu all over again." In doing so, Yogi Berra explained that it was funny how things tend to repeat themselves with the same tension, excitement and emotions.

Real Estate Sales Training

So, how does this Yogi Berra quotation relate to real estate sales training? Well, Yogi Berra understood that things have a way of happening again. Well, that seems to be certainly true with real estate as much as it ever did in baseball.

Here are some thoughts on how the quotation relates to real estate sales:

  • Market Changes. The real estate market goes up and it goes down. Today, it may be a buyer's market. Tomorrow, it may be a seller's market. The simple fact is that the market constantly is moving and changing. When the real estate market is in turmoil and prices are falling, it is good to know and remember that it "deja vu all over again." We have been there before and we bounced back. It will happen again.
  • Timing the Market. There will always be someone who tries to time the market to get the "best price" or the "best deal." Although I pay attention to trends in the market as a real estate professional, I don't subscribe to trying to time, beat or even predict the market on a personal level. I can't do it in the stock market and I doubt that I could do it in the real estate market. My personal philosophy is a bit different. When it comes to buying or selling real estate, I buy or sell based on my personal circumstances. Otherwise, I would probably mutter its "deja vu all over again" reminding myself about when I bought IBM stock high, sold IBM stock in a panic at its low point, and then saw it rebound. Just as I thought my IBM stock wouldn't fall and then did or that it wouldn't rebound and then it did - I suspect that many will see their home values rebound - but how and when won't be easy to predict and many will again chase the shift in the market.
  • Technological Changes. In the past 20 years, I have seen many changes from computers the size of a room to fax machines to bag phones to the rise of the internet to I-phones and more. In the end, technology didn't change the business basics. Although texting, social networks and the internet will undoubted change how we communicate with customers or approach business, I doubt that it will change how business gets done. Real estate has and will always be local and has and will always be about personal relationships. There are no magic elixirs. The basics are what worked then and what still work now.
  • Agent Training. Now, back to the quote, I see many of the same things when it comes to agents embracing technological changes just as I did before. Just as we agonized over the purchase of a fax machine, were reluctant to embrace the technological change associated with computers and were slow to embrace the internet, I see the same attitudes today when I speak to agents about using technology from social networking to blogging today. Yes, it appears that some are reluctant to embrace change - yet again will be chasing the curve.

For the unfiltered words and philosophy of Yogi Berra, take a look at When You Come to a Fork in the Road, Take It! : Inspiration and Wisdom from One of Baseball's Greatest Heroes by Yogi Berra and Dave Kaplan. It is quick read and mixes baseball, business and Yogi-isms in a great little package.

Interested in real estate sales training? Or, better yet, purchasing a home in Yogi Berra's childhood neighborhood known as The Hill? Contact Ryan Shaughnessy at PREA Signature Realty at 314-971-4381.

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Blogging for Business is a Presentation for Using a Real Estate Blog to Generate Referrals, Develop Leads and Promote Listings

08-18-09
Ryan Shaughnessy, Broker/Attorney - Your Lafayette Square Real Estate Partner

"Blogging for Business" is a presentation designed for use by small real estate brokerages and individual agents to introduce agents to the use of a real estate oriented ActiveRain blog to generate referrals, develop leads and promote listings.

 

Blogging For Business

 

The presentation may be used with attribution.  Additional materials are available for use in connection with presentation including a 2009 Blogging Plan.  For more information on this presentation, contact Ryan Shaughnessy at PREA Signature Realy at 314-971-4381 or visit our website at www.PREASignatureRealty.com.

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Attorney Transaction Killers Series - A Better Approach to Attorney Review of Real Estate Transactions - Residential Leasing

08-17-09
Ryan Shaughnessy, Broker/Attorney - Your Lafayette Square Real Estate Partner

Attorney - Lease Review

As an attorney and a real estate broker, I understand the need for attorney review of some (not all) real estate transactions to protect the interests of the tenant or purchaser. The first four installments of the "How the Attorney Killed my Real Estate Deal" series discussed how and why a relatively simple lease transaction wasn't consumnated. In this and the next three installments, I will discuss how to review a residential lease to avoid becoming a case study in the "How the Attorney Killed my Real Estate Deal" series.

A. Nature of Attorney Review of Residential Leases.

1. Consider Relative Negotiation Strength and Bargaining Position of the Parties. Before reviewing a residential lease, it is important to carefully consider and weigh the strength of the party's respective bargaining positions. Factors such as market conditions, vacancy rates, rental rates, demand for the property, etc. may have an impact on the willingness of the landlord to make changes to the leases. When there are high vacancy rates, landlords generally (but not always) are more amenable to revisions. However, notwithstanding vacancy rates, some landlords will simply demand that the lease as drafted by the landlord be executed. Before you waste any time or effort in drafting revisions to a lease, I would first pick up the telephone and contact the landlord, leasing agent or landlord's attorney to discuss the proposed changes.

2. Understand the Circumstances of the Tenant. In addition, it is important to also understand the nature of the transaction and the concerns of the tenant. For example, a tenant with unstable employment may desire to include a provision allowing for lease termination prior to the expiration of the lease term. Similarly, a tenant who may be operating a business from the apartment certainly will desire the inclusion of terms different than the average residential lease. The nature of the proposed revisions should have a reasonable relation to the legitimate concerns of the tenant and should factor in the likelihood that the scenario will occur as well as the nature of the risk or possible monetary damage. Too often, attorneys will take a shotgun approach to drafting when a scapel is more effective. In the end, you are more likely to win concessions if you pick your battles instead of simply rewriting the lease in its entirety.

3. Focus on Lease Review and Informed Decision Making - Not Rewriting Entire Lease. In any event, before drafting a new lease, it is important to understand that lease review should start with identifying potential issues and assessing the likelihood of occurrence and risk associated with the issue. After identifying the issues and explaining the risk, the attorney should clearly communicate the risks to the tenant. The tenant should make an informed decision and should provide clear direction regarding what items or risks should or should not be addressed.

B. Issues Common to Lease Review.

1. Types of Common Issues: With respect to a residential lease, there are common reoccuring concerns. Often, these concerns fall into three categories:

  • Lease terms that vary from the promised or advertised lease terms - such as additional fees, lack of parking designation, etc.
  • Lease terms that are onerous, are burdensome or are the result of unequal bargaining power - such as re-entry provisions, right to show, limitation of damages, disclaimer of warranties, etc.
  • Lease terms that are illegal or unenforceable - such as self-help remedies, confession of judgment, etc.
  • Lease terms that are boilerplate and don't fit the transaction or property - such as form leases not tailored to a specific property.
  • Lease terms necessary due to specific tenant concerns or the property such as pets, right to use as home office, ADA related improvements, etc

2. Abbreviated List of Issues to Review with Tenant: Although this isn't a comprehensive checklist list, here is a list of common, reoccurring concerns that should be reviewed with the tenant:

  • Lease Term: How long does the lease run? Does the lease automatically renew?
  • Rent: Is the monthly rent stated in lease as advertised? Are there any additional fees for parking, storage, condominium fees, amenity fees (e.g pool or fitness center), etc.? Is there a grace period? Is interest or late fees charged on late rental payments?
  • Security Money: How much is the security deposit? Is there a post move-out inspection? For deductions from the security deposit, is there a requirement that an itemized list of deduction be provided?
  • Utilities: What utilities are included in the monthly rental rate? What utilities are provided by the landlord?
  • Pet: Are pets permitted? If so, is there a pet fee or other requirement?
  • Parking/Storage/Decks/Patios: What are the terms of use for parking, storage, decks or patios?
  • Restrictions on Use: What are the restrictions on the use of the leased premises? Does the tenant intend to operate a home business?
  • Restrictions on Occupancy: Does the lease restrict the number of occupants? Do you have to disclose the name of the occupants?
  • Termination: Can the lease be terminated by the landlord or tenant before the expiration of the lease? What are the grounds for termination? What are the penalties for termination? What notice is required for termination of the lease? Is there a cure period?
  • Repairs/Maintenance: Who is responsible for repairs? Who is responsible for maintenance? Who is responsible for for items like lawn mowing or snow removal?
  • Self-Help: Does the lease grant the landlord any right to reenter the property? Does the lease address abandonment? Does the lease purport to grant a lien against the tenant's personal property?
  • Verbal Promises: Are verbal promises such as repairs, painting, etc. reduced to writing?
  • Legal Compliance: Do the provisions of the lease comply with federal, state and local laws and regulations?
  • Execution: Is the lease property executed? Did the tenant receive a copy of the signed lease?

This outline is a basic roadmap of common issues to be discussed and reviewed in a residential lease. In a future post, I will provide a more detailed checklist for the review of leases as well as a library of common lease provisions.

Looking for experienced buyer or tenant representation? Contact Ryan Shaughnessy at PREA Signature Realty at 314-971-4381.

Attorney Review Series

Attorney Review Series - Residential Leases

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