Off-Market Property Goes on Market, is a Contract Still Enforceable?

[quincy]

There is a huge difference between an unlicensed assistant who is acting on behalf of a licensed broker and what the op is doing. The unlicensed assistant is an employee of the broker and is not being compensated For their activities of soliciting a buyer or seller.

In the most basic terms; op gets to make the parties known to each other


After that he walks away. Scheduling a walk through is part of soliciting a sale.

And here I disagree with you again.

 

[justalayman]

And here I disagree with you again.

Well, you’re entitled to be wrong. I don’t hold it against you

 

[quincy]

Well, you’re entitled to be wrong. I don’t hold it against you

I have been wrong in the past.

Not very often, though.

 

[justalayman]

Don’t Do
• Cannot show property
• Cannot discuss terms or conditions of a possible sale
• Cannot discuss other features of the property, such as location,
neighborhood, or schools
• Cannot engage in other conduct that “is used, designed, or structured for
solicitation purposes”

http://afmc1.com/files/2015_CAR_Guidelines_for_Unlicensed_Assistants.pdf

Kind of hard to schedule a showing without discussing the location.

A few other tidbits;

COLD CALLING

Don’t Do

• Cannot discuss the real property needs of the prospective client or use the call for solicitation purposes with respect to a specific property, transaction, or product



BUYERS

• Schedule appointments with agent to show property. Assistant may also
show agents own listings but cannot discuss terms or any other information not already advertised.

(Obviously op is not a licensed agent or broker so he cannot have his own listings)

Don’t Do
• Information about the property must be provided by the broker or salesperson, unless it is obtained from a data sheet prepared by a real estate licensee and that fact is made clear to the person requesting the information.


COMMUNICATING WITH THE PUBLIC

Don’t Do
• Cannot communicate with the public “in a manner which is used, designed or structured for solicitation purposes with respect to a specific property, transaction or product”
• Unlicensed assistant cannot give out terms of properties


And those are all speaking to an assistant who is employed by a broker. Op doesn’t even meet those qualifications.

 

[quincy]

http://afmc1.com/files/2015_CAR_Guidelines_for_Unlicensed_Assistants.pdf

Kind of hard to schedule a showing without discussing the location.

A few other tidbits;

COLD CALLING

DonÂ’t Do

• Cannot discuss the real property needs of the prospective client or use the call for solicitation purposes with respect to a specific property, transaction, or product



BUYERS

• Schedule appointments with agent to show property. Assistant may also
show agents own listings but cannot discuss terms or any other information not already advertised.

(Obviously op is not a licensed agent or broker so he cannot have his own listings)

DonÂ’t Do
• Information about the property must be provided by the broker or salesperson, unless it is obtained from a data sheet prepared by a real estate licensee and that fact is made clear to the person requesting the information.


COMMUNICATING WITH THE PUBLIC

DonÂ’t Do
• Cannot communicate with the public “in a manner which is used, designed or structured for solicitation purposes with respect to a specific property, transaction or product”
• Unlicensed assistant cannot give out terms of properties


And those are all speaking to an assistant who is employed by a broker. Op doesnÂ’t even meet those qualifications.

There are obvious differences between a real estate office's assistant and CalBayArea. For one difference, there is no clear client and no clear fiduciary relationship. I only used the do's and don'ts for a real estate office assistant for lack of a better comparison.

Perhaps CalBayArea will tell us how he is locating the buyers and sellers - as it is soliciting of buyers and sellers that I see as the biggest issue.

Discussing the location of the property would be for listed properties and would (generally) refer to the location features (e.g., depressed, affluent, etc). The properties CalBayArea is finding for buyers are unlisted properties.

Keep finding those links, though, justalayman. I am reading what you provide.


(For the ease of others, I made the link you provided a "live" link in my quote of your post)

 

[justalayman]

Before the finder's exception may apply, it must appear that the "activity is limited to arranging an introduction [between the parties] ..." (Spielberg v. Granz (1960) 185 Cal. App.2d 283, 290-291 [8 Cal. Rptr. 190]), and the services performed in bringing the parties together cannot involve any role "`in negotiating the price or any of the other terms of the transaction....'" (Evans v. Riverside Internat. Raceway (1965) 237 Cal. App.2d 666, 676 [47 Cal. Rptr. 187].) If the broker takes any part in the negotiations, no matter how slight, he is not a middleman but a broker. (Rhode v. Bartholomew, 94 Cal. App.2d 272, 280 [210 P.2d 768].)

https://scholar.google.com/scholar_case?case=17264156739347790103&q=“real+estate”+unlicensed+showing+finder+fee&hl=en&as_sdt=4,5

 

[quincy]

https://scholar.google.com/scholar_case?case=17264156739347790103&q=“real+estate”+unlicensed+showing+finder+fee&hl=en&as_sdt=4,5

Okay. That is more along the lines of what I see CalBayArea doing - acting as a middleman. A matchmaker.

I made your link live.

 

[justalayman]

Okay. That is more along the lines of what I see CalBayArea doing - acting as a middleman. A matchmaker.

I made your link live.

That is what he is claiming to be but given the actions taken in furtherance of a sale, I believe he has travelled into the realm of a licensed agent.


His transfer of reports and such is clearly going beyond the mere introduction of the parties.

Before the finder's exception may apply, it must appear that the "activity is limited to arranging an introduction [between the parties] ..." (Spielberg v. Granz (1960)

Discussing the benefit or cost of using an re agent

and the services performed in bringing the parties together cannot involve any role "`in negotiating the price or any of the other terms of the transaction....'" (Evans v. Riverside Internat. Raceway (1965) 237 Cal. App.2d 666, 676 [47 Cal. Rptr. 187]

And

If the broker takes any part in the negotiations, no matter how slight, he is not a middleman but a broker. (Rhode v. Bartholomew, 94 Cal. App.2d 272, 280 [210 P.2d 768].)



I suggest calbayarea speak with a lawyer before filing any suit against the buyer of the property in question. Filing suit and making statements he is intentionally committing a crime is never a wise move. He needs to have clarity of his legal position before he pulls the handle of the hangman’s gallow I believe he has positioned himself upon. Extrication after pulling the handle has limited benefits.

 

[quincy]

That is what he is claiming to be but given the actions taken in furtherance of a sale, I believe he has travelled into the realm of a licensed agent.


His transfer of reports and such is clearly going beyond the mere introduction of the parties.

Before the finder's exception may apply, it must appear that the "activity is limited to arranging an introduction [between the parties] ..." (Spielberg v. Granz (1960)

Discussing the benefit or cost of using an re agent

and the services performed in bringing the parties together cannot involve any role "`in negotiating the price or any of the other terms of the transaction....'" (Evans v. Riverside Internat. Raceway (1965) 237 Cal. App.2d 666, 676 [47 Cal. Rptr. 187]

And

If the broker takes any part in the negotiations, no matter how slight, he is not a middleman but a broker. (Rhode v. Bartholomew, 94 Cal. App.2d 272, 280 [210 P.2d 768].)



I suggest calbayarea speak with a lawyer before filing any suit against the buyer of the property in question. Filing suit and making statements he is intentionally committing a crime is never a wise move. He needs to have clarity of his legal position before he pulls the handle of the hangman’s gallow I believe he has positioned himself upon. Extrication after pulling the handle has limited benefits.

I am still seeing him as a middleman/matchmaker - but agree with your last suggestion as I have recommended the same thing in most of my posts.

 

[justalayman]

I am still seeing him as a middleman/matchmaker - but agree with your last suggestion as I have recommended the same thing in most of my posts.

Man are you being a tough cookie today.



I think I have the guy nailed on only what he has actually provided. As with most situations, we are likely getting a very cropped picture of the entire scene. Given what has been provided I can’t imagine anything not seen as being exculpatory. Most people bring that out pretty quickly but are resistant to provide the inculpatory evidence.

 

[quincy]

Man are you being a tough cookie today.



I think I have the guy nailed on only what he has actually provided. As with most situations, we are likely getting a very cropped picture of the entire scene. Given what has been provided I can’t imagine anything not seen as being exculpatory. Most people bring that out pretty quickly but are resistant to provide the inculpatory evidence.

A tough cookie, huh? I honestly don't mean to be ...

... and suddenly I want some Oreos.

 

[justalayman]

A tough cookie, huh? I honestly don't mean to be ...

... and suddenly I want some Oreos.

Do Oreos go with a Detroit midget?


Or maybe they’re better paired with a Banana Stand Hefeweizen


A banana stand Hefeweizen? Sounds like summer wear not appropriate to be worn out side of one’s home or a gymnastic move.

 

[quincy]

Do Oreos go with a Detroit midget?


Or maybe they’re better paired with a Banana Stand Hefeweizen


A banana stand Hefeweizen? Sounds like summer wear not appropriate to be worn out side of one’s home or a gymnastic move.

I haven't yet tried the Banana Stand Hefeweizen (it sounds both intriguing and disgusting at the same time ) but I think it's a law that you must eat Oreos with milk.

 

[PayrollHRGuy]

I know countless successful investors and developers that buy privately off-market, directly from sellers frequently. I guess it's just not a problem until it is.....

But those investors and developers are buying it for themselves and you are basically brokering the deal between others. That is exactly what is being done here.

 

[quincy]

But those investors and developers are buying it for themselves and you are basically brokering the deal between others. That is exactly what is being done here.

So some think.