Real Estate Outline
Fall 2007, UNL Law
Professor Medill
I. The Sales Transaction
A. Contracts for the Sale of Land
– Steps in the Sales Transaction
– Listing agreement
– sales k
– inspections of prop. and title
– buyer’s financing
– closing
– recording
1. Real Estate Listing, Agents, and Brokers
– Generally, the agent is the agent of the seller. NE requires
agency disclosure statement.
– buyer’s agent (but the buyer’s agent gets paid how? commission comes out of $ of the house; could pay by the hour; typically a matter of local practice.)
– Generally, the agent has authority to show, advertise, and mkt. the
property; NO authority to enter into K.
– Can be given power of attorney, however, so this cld. be
accomplished.
– Three types of listing agreements
a. open listing
b. exclusive agency listing, and
c. exclusive rght. to sell listing
– most residential listings are of this type
– When is commission due?
a. when willing buyer is produced (traditional)
b. when the deal is closed (Dobbs rule)
– but, exception if Seller sabotages the deal.
c. For installment K/s, when the 1st pymnt. is made
– Duty to Disclose
1. material defects
2. NOT rsnbly discoverable upon inspection
3. Seller MUST complete disclosure stmnt. for broker.
2. Disclosure of Brokerage Relatnshps. (neb.)
– discussed already above
3. Real Estate Sales Contracts Terms
– Time; 120-180 days, typically
– Price; value range, listed at the high end of the range
– Includes all attached fixtures except;
– this is important to the buyer! chandeliers may not come w/ the house
– Title; “all encumbrances of record” shorthand way to cover what you don’t know.
– also non-recorded agreements w/ neighbors
– wrrnty. deed/quitclaim deed
– Compensation of Broker
– negotiate commission/typically 6% (despite anti-trust laws, agents in smaller markets price-fix.
– Forfeiture of Earnest Money
4. Statute of Frauds and Part Performance
– Um, yeah.
– NRS s. 36-105 (Buyer MUST sign; “person to whom prop. is to be sold
or leased.)
– Elements to Satisfy you, Baby
– writing
– identifies the parties (up and down your street)
– indicates that the W is an agreement for the sale of property
– states the essential terms of the parties’ agreement
– E/T are . . .
– description of the R/E to be sold (all jrsdctns.)
– PRICE!!
– E/T are NOT . . .
– time and date of closing (reasonable time)
– method of pymnt. (most jrsdctns. say in cash
unless W says otherwise)
– type of deed to be delivered at closing
he closing date. (Watch out for
this one!)
– Typically, a couple of weeks will be reasonable time to extent
clsng. date.
– Effect of late-tendering performance
– Time NOT of essence?
– reasonably late? Non-material breach
– late pty. liable for damages resulting from delay, BUT
– late pty. can still enforce the K
– Key here is was the time of delay reasonable
– Time IS of the essence?
– ANY delay is a material breach
– late pty. no longer able to enforce the K
– late pty. is L for loss-of-bargain damages, if any
6. Title to be Conveyed at Closing
– Implied Covenant of Marketable Title
– Every K for the sale of R/E is deemed to contain an implied
covenant that title conveyed by the seller will be maktble. (a term
of art) UNLESS the pts. agree otherwise.
– promise to deliver quit-claim deed, for example.
– some cts. say the covenant is NOT negated, even here
– Marketable Title
– title in FSA
– NOT subject to any encumbrances
