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Note: I am a real estate professional, not a lawyer. Nothing herein should be construed as legal advice or instructions. BLUF
Last time we reviewed Paragraph 10: Possession – when the buyer gets to move in. Now is Paragraph 11: Special Provisions, which is a particularly delicate paragraph for Realtors who are often either fearful of this paragraph because they are wary of appearing to practice law, and be subject to the legal and financial ramifications thereof. Paragraph 11. Special Provisions are for any arrangements between buyer and seller that are NOT covered already in the contract or in a promulgated TAR/TREC Addendum available to Realtors. Agents are often fearful of adding anything to special provisions because they are constantly advised how difficult it can be not to appear to be “practicing law” by writing their own contractually obligating language into a contract. Certainly I try to avoid writing any special provisions if it can at all be helped. For the most part, the best advice for an agent is to follow their client’s direct instructions. Also I’ve been advised from using conditional language such as “if x then y or else z”. Sometimes agents use the special provisions to include anything that doesn’t fit elsewhere on the form (e.g. the legal description in Paragraph 2. They might write “See Special Provisions” instead). I’ve been advised it is better to reference a separate addendum in instances like these instead of referencing the Special Provisions. However, the legal description is a factual statement that would appear to me to meet the standards of being included in Special Provisions. Next is Paragraph 12: Settlement and Other Expenses (aka Closing Costs!) and Paragraph 13: Prorations (also related to Closing Costs). All about who pays what – buyer or seller? What have you used Special Provisions for? Are you an agent afraid to use it? Please share below! A prudent agent should exercise caution when adding terms to a contract in Paragraph 11. A poorly worded clause may lead to disagreements which can crater a transaction. Law Talk: Most agents understand the difficulty in attempting to formulate proper wording for a specific deal point desired by the parties to a transaction. In fact, TREC discourages agents from adding ANY extra agreements to a contract outside of the promulgated contract form. Recently, TREC significantly reduced the physical space allocated in Paragraph 11 for Special Provisions in an effort to limit problems associated with such added terms. Because most agents are not attorneys, they run the risk of being held liable for practicing law without a license, and exposing their client to significant risk, if an added term is challenged. However, the reality is that many transactions do require that some additional understandings be added to a contract to fully reflect the needs of the parties. In such instances, Par. 11 serves as a convenient tool to document the deal point. But a word of warning: if the added clause in any way conflicts with, modifies or contradicts other clauses contained elsewhere in the promulgated contract, it is critical that agents begin the clause with the following: “Notwithstanding anything else herein to the contrary…” This addition will make clear that the added clause supersedes, and takes precedence over, other parts of the contract that may conflict. Without the suggested preamble, the parties would be faced with a situation where the contract contains two contradictory agreements, neither of which would control over the other. In such a case, the added clause would be difficult to enforce if challenged, and the agent could be exposed to an unwanted liability claim. The best advice is always to avoid attempting to draft important legal clauses without an attorney. This Title Tuesday Tip is provided courtesy of Rattikin & Rattikin, LLP, attorneys and counsel for Rattikin Title Company and is not a legal representation or statement of law. Please confer with your legal counsel for any and all legal questions. Skip to Content
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return to top §535.65 Responsibilities and Operations of Providers of Qualifying Courses
return to top §535.66 Credit for Courses Offered by Accredited Colleges or Universities
return to top §535.67 Qualifying Education: Compliance and Enforcement
return to top Subchapter G Requirements for Continuing Education Providers, Courses and Instructors§535.70 Definitions
return to top §535.71 Approval of CE Providers
return to top §535.72 Approval of Non-elective Continuing Education Courses
return to top §535.73 Approval of Elective Continuing Education Courses
return to top §535.74 Qualifications for Continuing Education Instructors
return to top §535.75 Responsibilities and Operations of Continuing Education Providers
return to top §535.77 CE Providers: Compliance and Enforcement
return to top Subchapter H Recovery Fund§535.82 Proration of Payments from the Recovery Trust Account
return to top §535.83 Association of Designated Broker on Claim
return to top Subchapter I License Renewal§535.91 Renewal of a Real Estate License
return to top §535.92 Continuing Education Requirements
return to top §535.93 Late Renewal Applications
return to top Subchapter J Fees§535.101 Fees
return to top Subchapter L Inactive License Status§535.121 Inactive Salesperson License
return to top §535.122 Reactivation of Salesperson License
return to top §535.123 Inactive Broker Status
return to top Subchapter M Nonresidents§535.131 Unlawful Conduct; Splitting Fees
return to top §535.132 Eligibility for Licensure
return to top §535.133 Consent To Be Sued; Exception to Requirements
return to top Subchapter N Suspension and Revocation of Licensure§535.141 Initiation of Investigation; Order Requirements
return to top §535.142 Consumer Complaint Processing
return to top §535.143 Fraudulent Procurement of License
return to top §535.144 When Acquiring or Disposing of Own Property or Property of Spouse, Parent or Child
return to top §535.145 False Promise
return to top §535.146 Maintaining Trust Money
return to top §535.147 Splitting Fee with Unlicensed Person
return to top §535.148 Receiving an Undisclosed Commission or Rebate
return to top §535.149 Lottery or Deceptive Trade Practice
return to top §535.153 Violating an Exclusive Agency
return to top §535.154 Registration and Use of Alternate, Team and Assumed Business Names Used in Advertisements
return to top §535.155 Advertisements
return to top §535.156 Dishonesty; Bad Faith; Untrustworthiness
return to top Subchapter P Enforcement Action for Unlicensed Activity§535.181 Investigation and Actions
return to top Subchapter Q Administrative Penalties§535.191 Schedule of Administrative Penalties
return to top Subchapter R Real Estate Inspectors§535.201 Definitions
return to top §535.206 The Texas Real Estate Inspector Committee
return to top §535.208 Application for a License
return to top §535.209 Examinations
return to top §535.210 Fees
return to top §535.211 Professional Liability Insurance, or Any Other Insurance that Provides Coverage for Violations of Subchapter G of Chapter 1102
return to top §535.212 Education and Experience Requirements for a License
return to top §535.213 Qualifying Real Estate Inspector Instructors and Courses
return to top §535.214 Education and Experience Requirements for a License
return to top §535.215 Inactive Inspector Status
return to top §535.216 Renewal of License
return to top §535.217 Mailing Address and Other Contact Information
return to top §535.218 Continuing Education Required for Renewal
return to top §535.219 Schedule of Administrative Penalties
return to top §535.220 Professional Conduct and Ethics
return to top §535.221 Advertisements
return to top §535.222 Inspection Reports
return to top §535.223 Standard Inspection Report Form
return to top §535.224 Practice and Procedure
return to top §535.226 Sponsorship of Apprentice Inspectors and Real Estate Inspectors
return to top §535.227 Standards of Practice: General Provisions
return to top §535.228 Standards of Practice: Minimum Inspection Requirements for Structural Systems
return to top §535.229 Standards of Practice: Minimum Inspection Requirements for Electrical Systems
return to top §535.230 Standards of Practice: Minimum Inspection Requirements for Heating, Ventilation, and Air Conditioning Systems
return to top §535.231 Standards of Practice: Minimum Inspection Requirements for Plumbing Systems
return to top §535.232 Standards of Practice: Minimum Inspection Requirements for Appliances
return to top §535.233 Standards of Practice: Minimum Inspection Requirements for Optional Systems
return to top §535.240 Proration of Payments from the Real Estate Inspection Recovery Fund
return to top Subchapter S Residential Rental Locators§535.300 Advertising by Residential Rental Locators
return to top Subchapter T Easement or Right-of-way Agents§535.400 Registration of Easement or Right-of-Way Agents
return to top §535.401 Required Notices
return to top §535.402 Complaints, Disciplinary Action and Appeals
return to top §535.403 Renewal of Registration
return to top §535.404 Fees
return to top §535.405 Employee of Owner or Purchaser
return to top Chapter 537 Professional Agreements and Standard Contracts§537.11 Use of Standard Contract Forms
return to top §537.20 Standard Contract Form TREC No. 9-15
return to top §537.21 Standard Contract Form TREC No. 10-6, Addendum for Sale of Other Property by Buyer
return to top §537.22 Standard Contract Form TREC No. 11-7, Addendum for "Back-Up" Contract
return to top §537.23 Standard Contract Form TREC No. 12-3, Addendum for Release of Liability on Assumed Loan and/or Restoration of Seller's VA Entitlement
return to top §537.26 Standard Contract Form TREC No. 15-6, Seller's Temporary Residential Lease
return to top §537.27 Standard Contract Form TREC No. 16-6, Buyer's Temporary Residential Lease
return to top §537.28 Standard Contract Form TREC No. 20-16
return to top §537.30 Standard Contract Form TREC No. 23-17
return to top §537.31 Standard Contract Form TREC No. 24-17
return to top §537.32 Standard Contract Form TREC No. 25-14
return to top §537.33 Standard Contract Form TREC No. 26-7
return to top §537.35 Standard Contract Form TREC No. 28-2, Environmental Assessment, Threatened of Endangered Species, and Wetlands Addendum
return to top §537.37 Standard Contract Form TREC No. 30-15
return to top §537.39 Standard Contract Form TREC No. 32-4, Condominium Resale Certificate
return to top §537.40 Standard Contract Form TREC No. 33-2, Addendum for Coastal Area Property
return to top §537.41 Standard Contract Form TREC No. 34-4, Addendum for Property Located Seaward of the Gulf Intercoastal Waterway
return to top §537.43 Standard Contract Form TREC No. 36-9
return to top §537.44 Standard Contract Form TREC No. 37-5, Subdivision Information, Including Resale Certificate for Property Subject to Mandatory Membership in a Property Owners' Association
return to top §537.45 Standard Contract Form TREC No. 38-7, Notice of Buyer's Termination of Contract
return to top §537.46 Standard Contract Form TREC No. 39-8
return to top §537.47 Standard Contract Form TREC No. 40-9
return to top §537.48 Standard Contract Form TREC No. 41-2
return to top §537.51 Standard Contract Form TREC No. 44-2
return to top §537.52 Standard Contract Form TREC No. 45-2, Short Sale Addendum
return to top §537.54 Standard Contract Form TREC No. 47-0, Addendum for Property in a Propane Gas System Service Area
return to top §537.55 Standard Contract Form TREC No. 48-1, Addendum for Authorizing Hydrostatic Testing
return to top §537.56 Standard Contract Form TREC No. 49-1, Addendum Concerning Right to Terminate Due to Lender's Appraisal
return to top §537.57 Standard Contract Form TREC No. 50-0, Seller's Notice of Termination of Contract
return to top §537.58 Standard Contract Form TREC No. 51-0
return to top §537.59 Standard Contract Form TREC No. 52-0
return to top §537.60 Standard Contract Form TREC No. 53-0, Addendum containing Notice of Obligation to Pay Improvement District Assessment
return to top §537.61 Standard Contract Form TREC No. 54-0, Landlord's Floodplain and Flood Notice
return to top §537.62 Standard Contract Form TREC No. OP-H, Seller's Disclosure Notice
return to top §537.63 Standard Contract Form TREC No. OP-L, Addendum for Seller's Disclosure of Information on Lead-Based Paint and Lead-Based Paint Hazards as Required by Federal Law
return to top §537.64 Standard Contract Form TREC No. OP-M, Non-Realty Items Addendum
return to top Chapter 541 Rules Relating to the Provisions of Texas Occupations Code, Chapter 53§541.1 Criminal Offense Guidelines
return to top §541.2 Criminal History Evaluation Letters/Determination of Fitness
return to top Chapter 543 Rules Relating to the Provisions of the Texas Timeshare Act§543.1 Definitions
return to top §543.2 Registration
return to top §543.3 Amendments
return to top §543.4 Fees
return to top §543.5 Forms
return to top §543.6 Violations
return to top §543.7 Complaints and Disciplinary Proceedings
return to top §543.8 Contract Requirements
return to top §543.9 Disclosure Requirement
return to top §543.10 Exemptions
return to top §543.11 Escrow Requirements
return to top §543.12 Maintenance of Registration
return to top §543.13 Renewal of Registration
return to top §543.14 Assumed Names
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