THE VOICE OF REAL ESTATE IN NORTH CAROLINA
VOL 98 NO 4 | NOVEMBER 2019
Plus
The Road to Association Health Plans 2019 Recap, Awards and Graduates Should REALTORS® Wear Body Cams?
If you think the closing is just the icing on the cake, you should definitely get in touch. JOIN THE RELENTLESS
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November 2019
[CONTENTS]
features
Association Health Plans
18 The Truth About Cats, Dogs & Assistance Animals Confused about your responsibilities related to assistance animals and emotional support animals? Read on.
23 Should REALTORS® Wear Body Cameras?
A look at REALTOR® safety and how body cameras might come into play to prevent assaults on agents in the field.
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28 Uber for Real Estate
NC REALTORS® Paula Grossman and Leigh Mullins launch Zühaus, an app that connects REALTORS® with clients in a new way.
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YEAR IN REVIEW
18
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4 PRESIDENT'S LETTER
11 LEGAL TALK: FORM 350-T
5 INSIDE NC REALTORS® How to safely manage your passwords, NC REALTORS® election results
14 2019: YEAR IN REVIEW
6 ASSOCIATION HEALTH PLANS A healthy win at the Legislature
TALK TO US
Forms Guy chats about the buyer’s right to terminate a contract if the condition of a property changes. A quick look at this year’s success stories, graduates, award winners and more.
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Have something to talk about? Sure you do — and we want to hear it! Send us your comments, ideas or success stories to mallen@ncrealtors.org and you could be featured in the next Insight. ncrealtors.org • INSIGHT 3
Insight, Volume 98, Issue 3 President Asa Fleming, SFR, AHWD President-Elect Maren Brisson-Kuester Treasurer Kelly Marks, ABR, CRS, GRI Immediate Past President Amy Hedgecock, CPM, GRI Regional Vice Presidents Region 1: Sandy Hurst, Jacksonville; Region 2: Jim Goodman, Oak Island; Region 3: Connie Corey, Greenville; Region 4: Julia Tucker, Chapel Hill; Region 5: Laurie Edwards, High Point; Region 6: Penny Boyles, King; Region 7: Marsha Jordan, Lincolnton; Region 8: Geena Fie, Denver and Jennifer Frontera, Indian Trail; Region 9: Renee Cooney, Franklin; Region 10: Mollie Owen and Mark Parker, Raleigh. Chief Executive Officer Andrea Bushnell, Esq., CIPS, RCE Vice President of Communications & Marketing Mckenzie Allen Graphic Design Coordinator Raquel Stubblefield Content Marketing Coordinator Aliyah Ross Contributors Will Martin, Lee Nelson, Mark Zimmerman, For advertising information, visit ncrealtors.org/advertise or contact Keri Epps-Rashad at (336) 217-1049. INSIGHT (ISSN 24714127) (USPS 17170) is published four times a year in February, May, August and November by NC REALTORS®, 4511 Weybridge Lane, Greensboro, NC 27407. Periodicals Postage Prices paid at Greensboro, N.C. and additional mailing offices.
As I near the end of my journey as president of NC REALTORS®—a role I embraced with intense passion for our clients, communities, and industry—I have no regrets. I’m genuinely grateful for your input, ideas, support, and effort to achieve all of my initiatives. I wanted to place a greater emphasis on advocacy, and you answered the call. Literally. More than 7,000 of you responded to the Association Health Plan legislation Call for Action. Because of you, high quality, affordable health insurance will be available to our members once we clear remaining federal hurdles. I wanted to strengthen diversity and celebrate inclusivity, and boy did you deliver! You filled the room at our MOSAIC | Discussions on Diversity event in October and opened your hearts and minds to somewhat difficult topics of race, identity, and ethics. Your words and insights inspire me, and I look forward to seeing you #buildtheMOSAIC for years to come. Your vision is what makes this association work. Without it, we could not prosper. I’m confident as we enter 2020, with Maren BrissonKuester as your leader, that you’ll continue to support and build on the work we’ve started with a clear vision for the future. Thank you for having my back this year. It has been an honor.
POSTMASTER: Send address changes to INSIGHT, 4511 Weybridge Lane, Greensboro, NC 27407-7877. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. Articles which appear in Insight are an informational service to members and consumers. Their contents are the opinions of the authors alone and do not necessarily represent those of NC REALTORS®. Advertising of a product or service does not imply endorsement, unless specifically stated. To opt-out of paper copy mailings, email hello@ncrealtors.org with a subject line of “Insight opt-out.”
4511 Weybridge Lane, Greensboro, NC 27407 Phone: (336) 294-1415
ncrealtors.org
Asa Fleming, 2019 President
TECH HELPLINE
WHAT IS THE SAFEST WAY TO MANAGE YOUR PASSWORDS? It may be the biggest Catch-22 of technology: password protection keeps your data safe. After all, one in five Americans says they have experienced a compromise of an online account. Experts recommend using different, highly complex passwords, including a mix of random letters, numbers and characters. However, that approach makes these passwords nearly impossible for most people to remember. Instead of writing passwords down in a notebook, try using an online password manager instead. Password managers keep your passwords together in one place. They automatically create strong passwords for you, inserting them as you log in to your different accounts. CNET, a leading computer and software review magazine, provides a list of top-ranked password manager programs on their website. For 2019, the list includes Last Pass, 1Password, Bitwarden, Dashlane, Keeper and more. How safe are password managers? The typical password manager uses multi-factor authentication. This is a two-step process that makes your passwords safe. Your passwords are stored in what is essentially a “digital vault.” Access to your vault is only possible when you enter both a correct password and an authentication code. Your authentication code is on the device you own, keeping online hackers away from your information. A password manager makes sure your vault is protected by encrypting your password information locally before it ever leaves your device. Finally, your passwords are stored, in an encrypted form, on the program manager’s servers. What else can you do to keep your information safe? Once you have a password manager, you can keep your passwords more secure by following a few password best practices. • Change your passwords regularly, at least once a year • Never reuse the same password • Take advantage of smartphone/laptop technology like fingerprint scanning and face recognition • Select multi-factor authentication when available All of these practices together provide you extra layers of security and reduce your risk of your password being hacked. This article was pulled from a recent post on the Tech Helpline blog. Read more at techhelpline.com/blog. If you ever have any questions about how to protect your passwords, data or devices, contact the Tech Helpline, a free member benefit for all NC REALTORS®. Fast, friendly tech support is just a call, chat or email away. Learn more at ncrealtors.org/techhelpline.
ELECTION RESULTS President-Elect Kelly Marks | ABR, CRS, GRI Greensboro Regional REALTORS® Association Treasurer Laurie Knudsen | GRI Charlotte Regional REALTOR® Association Issues Mobilization Committee Kim Dawson | ABR, CIPS,CRS, GRI, SRES Durham Regional Association of REALTORS® Finance & Budget Committee Kelly Ross Benton Union County Association of REALTORS® Finance & Budget Committee Phillip Johnson | GRI Winston-Salem Regional Association of REALTORS® Finance & Budget Committee Adam Upchurch | SPS Topsail Island Association of REALTORS® NAR Director Tony Smith | ABR, CRS, GRI Charlotte Regional REALTOR® Association Region 1 Vice President Kim Endre | ABR, CRS, GREEN, RSPS, SFR, SRES Outer Banks Association of REALTORS® Region 2 Vice President Tony Harrington | ABR, AHWD, ALHS, CIPS Cape Fear REALTORS® Region 5 Vice President Kathy Haines | ABR, ePRO, SPS, SRES Greensboro Regional REALTORS® Association Region 7 Vice President Dennis Bailey | ABR, CCIM, CRS, GRI, SFR, SRES Cleveland County Association of REALTORS® Region 8 Vice President John Ogburn Charlotte Regional REALTOR® Association Region 10 Vice President Teresa Pitt | ABR, CRS, GRI Raleigh Regional Association of REALTORS® ncrealtors.org • INSIGHT 5
Association Health Plans: A Healthy Win at the Legislature BY MARK ZIMMERMAN SENIOR VICE PRESIDENT OF EXTERNAL AFFAIRS This year’s biggest legislative victory wasn’t on a traditional real estate issue. It involved health care. We tackled it because the health care impacted you as REALTORS®. For decades, REALTORS®, along with other small businesspeople and independent contractors, have been treated as second class citizens when it comes to health insurance. Since legally you work for yourselves, you cannot purchase the same kind of group health insurance that employees of large corporations are offered. Most group health insurance plans are much less expensive than individual plans, so REALTORS® end up paying a lot more to buy health insurance. Unfortunately, that means some REALTORS® cannot afford to buy any insurance. Our member survey revealed that 6,000 of your fellow REALTORS® are currently uninsured and thousands more can only afford 6 INSIGHT • November 2019
the minimum catastrophic coverage. At our initiative, Senate Bill 86 was introduced to fix this problem. It would change the law in North Carolina to allow associations like NC REALTORS® to offer group health insurance to our 47,000 independent contractor members. The bill authorizes “Association Health Plans” (AHPs) which would look and act like large corporate group health insurance plans. Like the other plans, AHPs would cover preconditions and children up to the age of 26. They will offer high quality coverage, and because groups can get discounts, they will also offer significant savings. When they are ready (which will take some time), they will be a new option for you.
The Road to AHPs It took extraordinary effort to get this bill passed. Your government affairs team needed all the tools you provide us to achieve success. Here’s the story of how it happened. Find Influential Legislators. Our first task was to get the bill properly introduced. We knew we wanted bipartisan support, which is rare these days in Raleigh. So, we worked hard to find influential legislators to sponsor the bill from
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6,000 of your fellow REALTORS® are currently
uninsured and
thousands more can only afford the minimum catastrophic coverage.
ncrealtors.org • INSIGHT 7
both sides of the aisle. While many of the sponsors were Republican, Representative Brian Turner, a Democrat and REALTOR® from the Asheville area, agreed to sign on. He joined Representatives Kyle Hall, Holly Grange (both also REALTORS®) and Josh Dobson, along with Senators Dan Bishop, Joyce Krawiec and Chuck Edwards. An all-star lineup. Write a Quality Bill. Next step was to get a quality bill written. We started having conversations with the bill sponsors and the NC Department of Insurance, which would regulate these plans. Health insurance is very complicated; we needed the knowledge and support of the experts. This collaborative effort gave us quality legislation to introduce.
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Formulate a Game Plan. We then put our advocacy plan together. First, in order to control the debate, we wrote white papers, fact sheets and talking points for the legislature. We added press releases and op-ed pieces to communicate with the public. We created a website and multiple Facebook and Twitter accounts to send our message on social media. Whenever a criticism came up, we were prepared to answer it immediately.
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Tell Member Stories. Then, we wanted to get your stories out. So, we surveyed the membership to discover how many of you had health insurance challenges. That helped us put personal stories into the conversation. Your association’s President Asa Fleming and Legislative Chair Wendy Harris testified in key committee meetings to put human faces on the issue.
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ASA FLEMING 2019 NC REALTORS® President
WENDY HARRIS 2019 NC REALTORS® Legislative Chair
Build a Team of Support. Next we built a formidable coalition of 19 trade associations, ranging from the Chamber to retailers to nonprofits to push the bill. They added their own voices to our messaging and their lobbyists to the legislative push.
convincing them of how many people would benefit from this bill. Naturally, your government affairs staff was fully involved, but so were our eight shared and regional GADs across the state, along with our State CADY THOMAS Political Coordinators (members Chief Lobbyist, assigned to each legislator). We Focus Public Affairs Partner also engaged our great group of association executives who helped get our message out to their associations to help advocate for this bill.
The Bill Becomes a Law All this work paid off in mid-August—eight months after we started—when the House passed the bill 82 to 32 and the Senate 32 to 9. We had achieved our objective—very strong bipartisan support. But, our job wasn’t done. We still had to make sure the Governor allowed the bill to become law. So, our attention shifted from the legislature to the executive mansion. We placed full page ads highlighting our association coalition in key newspapers and digital TV ads on key websites. Finally, we turned to you for your help and you really stepped up. Our Call For Action asked you to contact the Governor and you responded immediately. He received over 7,700 emails in the span of a few days, a record number. That made all the difference. On August 25, the bill became law.
Your Championship Season The passage of Senate Bill 86 was a true team effort. We used our political and polling consultants, communications staff, Issues Mobilization fund, the government affairs staff, field staff, AEs and our lobbying team. Our years of RPAC work helped, too. Through your investments in RPAC, we have been successful in ensuring we have many REALTOR® champions holding office. And, 83 percent of them voted for this bill. Finally, you, the members, helped by funding all those tools for us, and for answering our Call For Action. We were already having a very successful year on many of your other legislative priorities, but we are particularly proud of this victory. Thank you all for your continuing support of our team.
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Use our Power of Influence. Speaking of lobbyists, our team, led by NC REALTORS® veteran Cady Thomas, spent countless hours with legislators explaining the bill, answering questions and
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8 INSIGHT • November 2019
When can we offer an Association Health Plan? There is one more Federal change that has to happen before we can officially offer plans. While we work to clear that final hurdle, staff has begun the work of vetting insurers to partner with us so that plans will be ready when the path is clear.
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legal
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FORMS GUY A discussion on the buyer’s right to terminate a contract if the condition of the property changes BY WILL MARTIN | GENERAL COUNSEL
Dear Forms Guy, I’m confused about a change that was made this past July to the third checkbox in Form 350-T (“Notice to Seller That Buyer Is Exercising Their Unilateral Right To Terminate the Offer to Purchase and Contract (Form 2-T)). Can you help me?
Sincerely,
Ray
Forms Guy: I’ll do my best, Ray. What’s troubling you? Ray: Thanks, Forms Guy. In the old version of Form 350-T, the third checkbox gave the buyer the right to terminate the contract as a result of a fire or other casualty loss under paragraph 12 of the old version of the Offer to Purchase and Contract (Form 2-T). In the new version of Form 350-T, the third checkbox now gives the buyer the right to terminate the contract if the property “is not in substantially the same or better condition at Closing as on the date of
this offer, reasonable wear and tear excepted.” Why was the wording in this checkbox changed? It seems that the new wording gives buyers an easy way to terminate a contract if they want out! Forms Guy: Before I answer your question, I need to give you a little background. Before July 1, 2019, the contract had two different paragraphs that addressed the effect of something happening to a property during the time after an offer was made, but
before it closed. Paragraph 12 (“Risk of Loss”) addressed the effects of a fire or other casualty taking place (for example, a hail storm that damages the roof and/or siding), while paragraph 11 (“Condition of Property at Closing”) addressed other things that might happen, such as the failure of a system (for example, an HVAC system that was in good working order on the date of an offer, but breaks down just before settlement). There was confusion from time to time about whether a particular situation was covered under paragraph 11 or ncrealtors.org • INSIGHT 11
legal
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FORMS GUY paragraph 12. Each paragraph worked a little differently, so let me explain. Both paragraphs gave the buyer an “out” if the condition of the property changed in some material way after an offer but prior to closing. However, a buyer terminating under paragraph 11 was entitled to a refund of their Earnest Money Deposit, while a buyer terminating under paragraph 12 was entitled to a refund of their Earnest Money Deposit and their Due Diligence Fee. Also, under paragraph 11, it was clear that the appropriate time for determining whether the buyer had the right to terminate was at the time of closing. In contrast, under paragraph 12, it wasn’t entirely clear whether the buyer had the right to terminate at the time of the casualty loss or had to give the seller an opportunity up until the time of closing to fix the damage caused by the casualty. The task force of REALTORS® and real property attorneys responsible for the content of the contract decided that there didn’t appear to be a compelling reason to distinguish fire and casualties from other kinds of events that cause the condition of a property to change while it is under contract. They agreed that it would be wise to combine paragraphs 11 and 12 into a single paragraph addressing the effect of a material change in the condition of the property after it goes under contract but before it closes. The task force’s recommendation to combine the two paragraphs into a single new paragraph 11 was approved and became effective July 1, 2019. Ray: I appreciate the fascinating history lesson, but what does that have to with the change in Form 350-T? Forms Guy: I’m getting there, Ray. The third checkbox in the old version 12 INSIGHT • November 2019
of Form 350-T was designed for use by buyers who had elected to terminate the contract under old paragraph 12, that is, when a fire or other casualty loss destroyed or materially damaged the property before closing. As a result of the consolidation of paragraphs 11 and 12 into a single new paragraph, the wording in the third checkbox of Form 350-T needed to be changed to track the wording in the new paragraph 11. Ray: Okay, I understand that the third checkbox in the old version of Form 350-T was there for buyers who wanted to terminate the contract under old paragraph 12. You said that a buyer also had the right to terminate under old paragraph 11 if something other than a casualty loss caused the condition of the property to change after an offer, but before closing. Why wasn’t there also a checkbox in Form 350-T for buyers who wanted to terminate under old paragraph 11? Forms Guy: It was merely an oversight, Ray. My guess is that it was overlooked when Form 350-T was
first created, and nobody ever noticed that it wasn’t there. It’s pretty rare for the condition of a property to change substantially by something other than a fire or other casualty. Ray: Are you saying that a buyer always had the right to terminate the contract if the property was not in substantially the same or better condition at closing, and there just hasn’t been a checkbox in Form 350-T? Forms Guy: Yes, that is correct. The “new” wording in the third checkbox of Form 350-T isn’t really new at all. That wording has been in the contract for many years. Let’s get back to your concern that the third checkbox in the new version of Form 350-T might give a buyer an easy “out” of the contract. A buyer can’t just check the third checkbox and send it to the seller and think that magically entitles them to terminate the contract and get their Earnest Money Deposit back. They have to be able to demonstrate that the property
“A buyer can’t just check the third checkbox and send it to the seller and think that magically entitles them to terminate the contract and get their Earnest Money Deposit back.” WILL MARTIN | GENERAL COUNSEL
is no longer in “substantially the same condition” as a result of something that happened after they made an offer on the property. Admittedly, reasonable minds may differ on whether or not the property is in substantially the same condition. Still, it is clear that the property doesn’t have to be in exactly the same condition and that relatively insubstantial changes would not support a buyer’s attempt to terminate the contract under paragraph 11. Also, if something did take place that arguably put the property in something less than substantially the same condition, the buyer would have to give the seller a reasonable opportunity to return the property to the condition it was in before the buyer could terminate under paragraph 11. That’s because the buyer’s right to terminate under paragraph 11 is triggered by the property not being in substantially the same condition at closing. The seller would have the benefit of the 14-day permitted delay under paragraph 12 to make any necessary repairs. A buyer who attempts to terminate a contract under paragraph 11 without having a demonstrable basis for doing so is running the risk that they are in breach of contract if they fail to close, which would entitle the seller to keep their Earnest Money Deposit. Ray: Thanks for the explanation. I have another question. Let’s say something significant does happen to a property while it’s under contract, and the seller is unable or unwilling to restore the property to the condition it was in before the change took place.
If the buyer elects to terminate the contract, why wouldn’t they also get their Due Diligence Fee back under new paragraph 11? Forms Guy: Good question, Ray. I think the answer lies in understanding the difference between a breach of contract by the seller and the failure or non-fulfillment of a condition of the contract. If the seller breaches the contract, the buyer is entitled to recover damages the buyer has sustained on account of that breach. It’s clear under paragraph 8(n) of the contract that this would include any Due Diligence Fee and Due Diligence costs incurred by the buyer. On the other hand, a “condition” of a contract (also called a “contingency”) is different. Think of a condition as a prerequisite to a party’s obligation to perform. If the prerequisite fails or is not satisfied, that party is legally excused from performing. But the failure or non-fulfillment of a condition is not considered a breach by the other party. Remember that before the “Due Diligence Contract” was introduced in 2011, the contract contained many such conditions. Under the old contract, if the buyer was unable to obtain a loan or the property didn’t appraise, the buyer had the right to terminate the contract and get their Earnest Money Deposit back. However, the failure of either of those conditions wasn’t a breach of contract by the seller that entitled the buyer to recover anything other than their Earnest Money Deposit. The few conditions that remain today treat the nonfulfillment of a condition in this same
way. For example, the buyer is only entitled to a refund of their Earnest Money Deposit under the FHA/VA Financing Addendum (Form 2A4-T) if the property doesn’t appraise, or under the Short Sale Addendum (Form 2A14-T) if the seller doesn’t get short sale approval from all lien holders. Applying this distinction to new paragraph 11, if something happens to a property under contract that causes it to be in less than substantially the same condition as on the date of offer, and the seller does not restore the property to the condition it was in before the change took place, the buyer, at their option, is legally excused from having to complete the transaction. However, if the seller fails to restore the property to its previous condition, it is not a breach of contract, so the buyer is entitled to a refund of their Earnest Money Deposit but not of any Due Diligence Fee or Due Diligence costs. In combining paragraphs 11 and 12 of the old contract into a single paragraph, the Joint Forms Task Force concluded that this result was consistent with the way conditions work from a legal point-ofview and with the way they have been treated historically in the contract and its various addenda.
DID YOU KNOW? NC REALTORS® have free, unlimited access to our Legal Hotline and lawyers with more than 30 years experience. Call 336-294-1415 or email legalhotline@ncrealtors.org with any questions regarding contracts, forms, fair housing, disclosure and more.
ncrealtors.org • INSIGHT 13
Gives Back
14 INSIGHT • November 2019
YEAR IN REV
VIEW
ANNUAL »
RISING STARS »
During XCHANGE ‘19—our 2019 Convention and Expo in Pinehurst, N.C.—multiple NC REALTORS® members were presented with recognition and achievement awards.
The purpose of the award is to recognize members who have been REALTORS® for five years or less and who have provided exemplary service to the local board while exhibiting strong leadership potential.
Tony Smith REALTOR® of the Year
Stephanie Walker Hall of Fame Award
Seth Barbee Brunswick County Association of REALTORS®
Bradley Cotton Cape Fear REALTORS®
Margaret Bishop Ben Ball Community Service Award
Tony Harrington REALTOR® Innovation & Entrepreneurial Excellence Award
Jerry Holland Greensboro Regional REALTORS® Association
James Logan Winston-Salem Regional Association of REALTORS®
Kathy Carpenter Committee Member of the Year Award
Sofia Crisp Champion Award
Timothy Mock Raleigh Regional Association of REALTORS®
Nathan Perry Greenville-Pitt Association of REALTORS®
Deb Hays Champion Award
Wilson Sherrill Regional Service Award, Region 2
Rachel Powell High Point Regional Association of REALTORS®
Lori Venable Durham Regional Association of REALTORS®
Brooke Cashion Regional Service Award, Region 6
Jonathan Yeatts Charlotte Regional REALTOR® Association
ncrealtors.org • INSIGHT 15
Graduate, Realtor®
Institute
NC REALTORS ® WILLIAM C. BASS
LEADERSHIP ACADEMY
CLASS OF 2019 »
21 GRI Classes held across North Carolina this year.
GRI DESIGNEES » As of 10/25/19 Lisa Baker Vinson Barbara Jennifer Barrier Matthew Bergevin Hubert Bisselele Leanne Brittain Evona Cholewa Patsy Clark Erin Cohen Chad Collins Consuelo Colvin Melanie Cooper Misty Cooper Johnny Cox Teresa Dalsing Deborah Davis Douglas Dixon Dustin Dupre Quanta Edwards Jennifer Elkins Kimberly Endre Linda Farmer Kyle Graham Susan Graham Whitney Harris Terry Hedrick Amy Herold Henry Hilgartner Brian Jernigan Lydia Jimenez Gregory Johnson Phillip Johnson Robert Jones Brandon Kanagy Noel Kharas Michelle Kuld William Long Saralyn Maiella
Kim Majhi Angela McGill Lee Midget DaRhonda Morgan Johnson Nancy Gina Nikitas Rochelle Ogburn Vanessa Olson Sherrie Osborne Mark Paris Deborah Parker Sara Purvis Benjamin Ray Tammy Rice Matthew Rudisill Teresa Rufty Joel Sandman Dana Scrattish Bob Shea Smith Shelia Eric Sipe Janice Spainhour Kevin Stephens Robert Stockton Tracy Stull Michael Temple Susan Tilley Sally Vanjoske James Walden Kathlyn Wangrin Charlie Ward Crystal Williams Tammy Wilson Mary Ann Wilson Kimberly Wynn Wei Yongjun Joel York
16 INSIGHT • November 2019
Chester Bartlett Carolina Smokies Association of REALTORS®
Cristina Grossu Charlotte Regional REALTOR® Association
Phillip Johnson Winston-Salem Regional Association of REALTORS®
Amanda Martin Long Leaf Pine REALTORS®
Tim McBrayer Raleigh Regional Association of REALTORS®
Dave Noyes Hendersonville Board of REALTORS®
Melissa Polce Charlotte Regional REALTOR® Association
Sandy Stewart Mid Carolina Regional Association of REALTORS®
Lisa Thomas Triangle Commercial Association of REALTORS®
Adam Upchurch Topsail Island Association of REALTORS®
Katie J. Wangrin Land of the Sky Association of REALTORS®
1,427 REALTORS® participated in NC REALTORS® Gives Back—our first statewide community service day. This event was initiated by the NC REALTORS® William C. Bass Leadership Academy Class of 2019.
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Everything you need to know about the law and your responsibilities.
L
aws surrounding assistance animals, service animals and emotional support animals have been barking up much talk in the real estate industry recently. Maybe you have a tenant seeking to rent a house with a pet deposit fee but claims to have a trained service dog. Or BY ALIYAH ROSS you’re assisting a prospective buyer in a condominium CONTENT MARKETING association with a no-pet COORDINATOR policy who claims to have an emotional support rabbit. Are you familiar with the housing laws regarding such animals and how it affects how you do business? Knowing the details of these laws will help you protect the rights of your clients and steer clear of violating the federal Fair Housing Act (FHA) and getting reported to the United States Department of Housing and Urban Development (HUD.) And what about the Americans with Disabilities Act (ADA)? How does that apply? Don’t worry; we’ll break it down for you. What are assistance animals? FHA and HUD regulations prohibit discrimination
because of disability and require housing providers to make a “reasonable accommodation” for persons with disabilities. Many people with disabilities rely on animals to assist them with their daily lives, and HUD uses the term “assistance animals” in interpreting the FHA’s reasonable accommodation requirement. Under the FHA, permitting a person with a documented disability to keep an assistance animal is viewed as a reasonable accommodation in a housing unit. While dogs are the most common type of assistance animal, other animals can also be assistance animals. Almost anything can be considered an emotional support animal, from a dog or cat to a hamster, snake, parrot and more. The main factor separating these classes of animals from your family dog named Spot is that they are not considered pets. They work, provide assistance or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates symptoms or effects of a person’s disability. They do not have to be trained to accommodate an individual with a disability. Tenants who need an assistance animal are not responsible for paying any form of pet fees and are permitted to have an assistance animal even under no-pet housing policies. However, the tenant is still responsible for paying for any damage their assistance animal may cause to a rental property or to the health and safety of others. ncrealtors.org • INSIGHT 19
How does the ADA factor in? The ADA protects a person with a disability from discrimination in places of public accommodation. The office of a property management firm is a place of public accommodation, as are hotels, restaurants, professional offices, gas stations, etc. An individual rental unit is not. Therefore, the ADA standards will apply to your decision whether or not to allow the animal to be present in your rental office, but not when considering a request for reasonable accommodation for a rental unit. The ADA also helps us in defining the term “service animal.” Unlike the expansive definition of an assistance animal in the FHA, a “service animal” under the ADA may only be a dog and, in limited circumstances, a miniature horse, that is individually trained to perform specific tasks for the benefit of a person with a disability. The most common example is seeing-eye dogs or those that help with physical disabilities, but it can go beyond that. For example, a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels. Or, a person with depression may have a dog that is trained to remind her to take her medication. Many brokers are more familiar with the ADA’s more restrictive requirements, and mistakenly believe that the FHA has the same standard. That is not the case. Let’s take a look at how the FHA applies. What am I allowed to ask or consider from prospective tenants or clients about assistance animals? When it comes to making an exemption to a no-pet policy for a rental unit, be it an apartment, condominium or house, the FHA will be the applicable law in almost every case. There are only two questions that HUD says a housing provider should consider with a request for an assistance animal as a reasonable accommodation: 1. Does the person seeking to use and live with the animal have a disability—i.e., a physical or mental impairment that substantially limits one or more major life activities? 2. Does the person making the request have a disabilityrelated need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? A “no” answer to either of the questions means that a housing provider is not obligated to make a reasonable accommodation according to HUD. If the answer is “yes” to both, then HUD states the FHA requires an exception to a “no pets” rule or other modifications to current policies. As a real estate professional, you must use your best judgment to make these determinations. If a tenant or prospect has a disability that is apparent (for example, being blind), you are not allowed to inquire about the disability. However, if the disability is not readily apparent or known to you, it is permissible for you to ask him or her to submit reliable documentation of the disability and the need for 20 INSIGHT • November 2019
an assistance animal. If the disability is readily apparent or known, but the need for the animal is not, you may ask him or her to provide documentation of the disability-related need for an assistance animal. What documentation can I or should I require tenants to submit for an assistance animal request? Because the FHA does not require assistance animals to be individually trained or certified, and there is no state or federal law regarding the registration of service animals, you cannot require prospective tenants to show registration papers. However, there are a few things you can ask or require these individuals to provide. HUD states the following in its FHEO Notice: “Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal.” Most sources indicate that the request should be in writing and explain how the reasonable accommodation helps or mitigates symptoms of the disability. While the tenant or prospect does not need to disclose the disability, he or she will need to provide documentation from a doctor or other health professional. According to HUD, a physician, psychiatrist, social worker or another mental health professional can provide documentation that the animal provides support that alleviates one or more of the identified symptoms or effects of an existing disability.
Emotional Support Animals & House Bill 796
The topic of emotional support animals is also circulating in the halls of the North Carolina General Assembly. In April, House members, including NC REALTOR® Brian Turner, introduced House Bill 796 “Emotional Support Animals—Rental Units.” The legislation sets out requirements for landlords regarding emotional support animals and also develops a structure for persons with a disability to register their animal as “emotional support.” The bill defines an emotional support animal as a companion animal that “a health service provider has determined provides a benefit for a person with a disability.” The legislation also clearly defines a “health service provider” to ensure that there are not untrained persons making this determination solely for a fee. It limits these providers to only a physician, nurse practitioner, physician assistant, psychiatrist, psychologist or clinical social worker, all of whom must be licensed to practice in North Carolina. The legislation received significant support in the House of Representatives, passing that chamber by a vote of 115-1. It is currently awaiting consideration in the Senate. Want to keep up with this legislation and everything else going on in NC REALTORS® Government Affairs? Read the REALTOR® Advocate email newsletter, which reaches your inbox on Fridays.
Am I allowed to ask details about the tenant’s disability? Absolutely not! While a housing provider may ask for documentation of the disability-related need for the assistance animal, he or she may not ask for personal medical details. HUD states that a housing provider “may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.” What happens if the tenant provides all documentation? If the tenant provides sufficient documentation about the disability and the need for the assistance animal, the housing provider must offer an exception to a “no pets” policy. This permits the tenant to live with and use the assistance animal in all areas of the premises where people are typically allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services. Remember, a person with a disability may not be required to pay a pet fee or deposit for an assistance animal. Still, he or she may be required to pay the costs of repairs for damage the animal causes to the premises. Am I ever allowed to deny the request? Denying a request for accommodation to allow an assistance animal may be done only in limited circumstances. A request may be denied if the resident does not have a disability, as defined by the FHA, or if granting the request to keep an assistance animal is not a “reasonable accommodation” to allow a person with a disability access to the housing unit. For example, it would not be a reasonable accommodation to allow a tenant to keep a breed of dog that the housing provider’s insurance carrier considers dangerous. In this instance, the housing provider would have to provide evidence that the breed of dog would impact the availability or cost of liability insurance under their current policy or a comparable policy from another carrier in the marketplace.
“We all read the crazy news headlines where someone is trying to board a plane with their emotional support peacock or tarantula or whatever, and I think any property manager would happily regale you with bizarre stories about emotional support animals that they’ve encountered. For example, I was talking to a property manager from Denver and she had a 1-bedroom apartment and the tenant had 10 emotional support chickens! Each chicken was prescribed for a different disability. As a property manager, it is my job to know what questions can be asked, and how to relay to the owner that a reasonable accommodation needs to be made if everything is in order. I really try to tell my clients that “these are not pets, they are medical devices” and hope that helps my clients to understand.” Amy Hedgecock | Owner of Fowler & Fowler in High Point, N.C.
It is up to the tenant or person who requests the accommodation to show that the accommodation is necessary for him or her to have an equal opportunity to use and enjoy the dwelling. Once he or she makes that showing, the burden of proof shifts to the housing provider to show that the accommodation is unreasonable. The underlying goal of the FHA is to provide access to housing. The unjustified denial of a requested accommodation is a form of housing discrimination. What’s the most important takeaway here? The FHA and the ADA are both laws protecting the rights of persons with disabilities. The FHA applies to housing units, and the ADA applies to anywhere the public can go. When it comes to making an exemption to a no-pet policy for a rental unit, be it an apartment, condominium or house, the FHA will be the applicable law in almost every case. The FHA allows you to ask: 1) Does the person have a disability? and 2) Does the animal provide assistance or support related to the disability? If the person is able to answer both of those questions, you are required to make an exception and allow an animal, even if you have an established no-pets policy. When in doubt—call the Legal Hotline Not sure how to handle a housing situation involving a service or assistance animal? Call the NC REALTORS® Legal Hotline for assistance. All NC REALTORS® members have free, unlimited access to the hotline and a team of lawyers ready to assist you with any legal issues you face on the job. Call 336-294-1415, Monday-Friday, to find resolution and alleviate any worry about your legal risks on the job. ncrealtors.org • INSIGHT 21
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22 INSIGHT • November 2019
Should REALTORS® Wear
Body Cameras? BY LEE NELSON An Elizabeth City real estate agent found herself in a scary and dangerous situation while showing a rental property this March. A man pretending to be working with a group of investors ended up touching the agent several times and refusing to let her leave the property once he had her inside. “He told the agent, ‘You aren’t leaving,’” said Stacey White, broker at Howard Hanna Real Estate Services in Elizabeth City. She also serves this year as president of the Albemarle Area Association of REALTORS®.
ncrealtors.org • INSIGHT 23
33% of REALTORS®
say they have feared for their personal safety or the safety of their personal information during their job (NAR 2018 Member Safety Report).
The man was charged with second-degree kidnapping and assault. White talked with the agent quickly after the incident happened and continues being a support for her. “She had a very hard time getting back out there for her job or going back into a house,” White said. Viewing vacant properties, meeting complete strangers and hosting open houses can put agents in dangerous situations. In fact, 33 percent of REALTORS® say they have feared for their personal safety or the safety of their personal information during their job according to the 2018 the NAR 2018 Member Safety Report. The incident in this small area of the state pushed REALTOR® associations and broker/owners to make safety forefront in agents’ days and nights. But for some, the thought goes to prevention. Would or could this or other assaults happen if REALTORS® wore body cameras? The opinions vary, but the rise of professionals besides law enforcement officers using body cameras continues to rise. 24 INSIGHT • November 2019
Chicago company customizing body cams Tech companies continue to raise the bar on the components added to body cameras to give REALTORS® and others more protection and deterrence from criminals. Occly Solutions of Chicago designed small wearable alarms called the Linc. This body cam, which is much smaller than police body cams, is only two and a half inches by three inches and weighs very little. You can easily pin it on your jacket or shirt. “I have one on my polo shirt right now,” says Marc Harris, CEO of Occly. The Linc device features 22 hours of battery life, plus an emergency alarm button, cameras and sensors that record valuable evidence and can notify friends, family and authorities of an emergency. For REALTORS®, this device can record who has entered and exited during an open house, plus, help protect them during meetings with potential buyers or sellers.
Showing Properties the Safe Way • Use a reliable, secure lockbox system • Show properties before dark • Call the office once an hour to check in • Get acquainted with the neighbors • Prepare a scenario so that you can leave if needed • Leave the front door unlocked for a quick exit • Lock your valuables in the car trunk • Park at the curb in front of the property rather than in the driveway To learn more about these tips and others, visit NAR’s REALTOR® Safety website at nar.realtor/Safety.
“Wearable body cameras are a behavior modifier,” says Harris. “It modifies the behavior before it happens. If it can’t prevent it, then we are a comprehensive tool for getting help.” Former cop turned real estate professional thinks body cams won’t help predators “I don’t think body cams would make a difference anyway with real estate agents,” says Dave Legaz, retired New York City sergeant and broker of The Legaz Team of Keller Williams Realty in Flushing, N.Y. He is a real estate instructor and teaches agent safety classes across the country. His webinar, Prospect or Predator? Reduce the Risk of Being Targeted, is on the NAR website after first airing in September. “But I don’t believe getting a copy of a driver’s license of your clients helps either. What a predator wants to do is be comfortable with you and you with him,” he says. “The more time they spend with you, then that feeds into their
fantasizing. The body cam won’t deter anything along with any app that runs a criminal check.” Predators that target real estate agents and others usually use their real names and real phone numbers, he states. “They do their predatory behaviors for their highs just like I get my highs by running,” Legaz adds. Also, those who depend on an app to decipher someone’s background might be getting a false sense of security, Legaz says. A large amount of errors happen with the criminal data base. “Serial rapists will rape 11 times before ever getting caught, so they aren’t in the system until they are caught,” he adds. He wants people to understand that police wear body cams to back up the officer’s word not to deter crime. So, a body cam may not work for REALTORS® in that way. Legaz is also a director of the Beverly Carter Foundation. The foundation was created as a result of the kidnapping and murder of Arkansas real estate broker Beverly Carter ncrealtors.org • INSIGHT 25
in 2014. She had been targeted because she was perceived to be a “rich broker who worked alone,” according to the foundation’s website. “A predator looks for vulnerability and subservience. They get that information by the way you handle the first phone call such as by saying you’d help them any way you can at any hour of the day,” he says. “They also get information by your photo images on your business card or billboard, and your behaviors you show during a first meeting. We need to stop attracting these predators.” What NAR says about body cams The National Association of REALTORS® does not have a policy regarding body cams, says Lesley Muchow, NAR’s deputy general counsel and vice president of legal affairs. “NAR does, however, take REALTOR® safety seriously. NAR has a host of available resources aimed at educating its member about the importance of personal safety, and encourages the use of technology tools to enhance a member’s personal safety protocols,” she says. Legal ramifications could be brought against real estate professionals wearing a body cam. So, Muchow advises before using any device capable of recording or videotaping, REALTORS® should be familiar with state law requirements for the use of such devices, including required notice and consent. “North Carolina law would permit a broker to wear a body cam without disclosing the fact or obtaining consent so long as it wasn’t recording an audio conversation between persons other than the broker,” says Will Martin, NC REALTORS® Legal Counsel. The North Carolina Real Estate Commission recommends not using any device in the home as a means of trying to gain information on potential buyers or their agents. Such an attempt to gain potentially confidential information about a buyer would most likely be considered inappropriate at best, and has the potential to result in criminal or civil liability. Before purchasing and wearing a body cam device, it is very important to do your research, seek educational tools and even consult an attorney. “Knowledge, awareness and empowerment are the core components of NAR’s REALTOR® Safety Program, and members and associations are encouraged to take advantage of the valuable resources made available through the program,” Muchow explains. Webinars, videos, newsletters and real-time alerts about safety concerns and emergencies are just a few of the ways the REALTOR® Safety Program aims to educate the real estate community on how to be proactive and vigilant about on-the-job safety. In addition to NAR’s resources, NC REALTORS® and the North Carolina Real Estate Commission collaborated to produce the NC Real Estate Safety Guide. This document contains common sense safety tips that have been compiled from crime victims and real estate associations across the country. Download an online copy at ncrealtors.org/protect. 26 INSIGHT • November 2019
“You have to listen to your gut…” Leigh Brown Broker/Owner of RE/MAX Executive Concord, N.C. Gun toting REALTOR® For 19 years, Leigh Brown, broker/owner of RE/MAX Executive in Concord, believes agents do not take those “hair on the back of your neck” moments seriously. They ignore their intuition that something is wrong. “You have to listen to your gut,” she says. “I have not experienced any shenanigans in this business. But I’m very outspoken and very visible that I carry a gun in my business.” She actually took her REALTORS® to a concealed carry class together. Some aren’t big fans of guns, but the personal safety techniques were popular. “This is an inherently a very dangerous business. I’m a female entrepreneur in a car and in empty houses with strangers,” she explains. Brown always brings a buddy with her at open houses such as a mortgage partner. She also understands all the crazy stuff happening to REALTORS® because she operates a podcast Crazy Sh*t in Real Estate. Brown would wear a body cam if it was made available, but she admits that it would be hard to learn how to wear it and be disciplined to pin it on every day. “And would the public be OK with REALTORS® wearing body cams?” she asks. White doesn’t believe so. She feels that clients, who are weary of body cams, will just find a REALTOR® who doesn’t wear one. Complacency needs to end Right after the Elizabeth City incident, the Albemarle Area association offered a self-defense class. They also produced a Real Estate Safety Guide with information for agents and clients. “REALTORS® get too complacent,” White says. “I live in a small community where everyone knows everybody. And as an agent, we try to be helpful. But I try to express to new members that you splash your name and face all over the place and that can make yourself an easy target.” She believes that you have to have faith in people, but you also have to be cautious at every step and use the sources out there to protect you—whether that’s a body cam or something else. Lee Nelson is a freelance journalist from the Chicago area. She has written for Yahoo! Homes, TravelNursing.org, MyMortgageInsider.com, and REALTOR® Magazine. She also writes a bi-monthly blog on Unigo.com.
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NC REALTORS® launch Zühaus, aka “Uber for Real Estate.” NC REALTORS® Paula Grossman and Leigh Mullins launched Zühaus in August of 2019. Since then, the app has helped REALTORS® connect with their clients in a new way. We caught up with Grossman to learn more about the story behind this innovative app and why it is being called the “Uber for real estate.” How long have you been in the real estate industry? My business partner Leigh Mullins and I have been in the real estate industry for the better part of our lives. I learned from my father growing up, and Leigh made a career in investing. Together, we opened Joseph Bailey Real Estate Co., a boutique concierge firm in Cary. What inspired you to develop the Zühaus app? We were inspired to create the Zühaus app primarily by how cold leads are currently cultivated. Agents are forced to compete with other agents for the same customer, and end up bombarding potential clients with calls, texts and emails. How did you come up with the name? The name Zühaus means “at home” in German. We wanted an edgy look, something concise and catchy to resonate with all generations. We also wanted something that helps create a feeling of comfort and security—like when you are “at home.” What are some notable features of the app? We wanted to establish a platform where potential buyers can search for a home and connect with an agent to see the home on their schedule. In the same way that Uber works, the first agent within the designated proximity of the property to claim the appointment gets it. This process gives that agent a guaranteed face-to-face meeting with interested buyers. The app does the lead chasing for you. Who currently has access to Zühaus, and what can REALTORS® and consumers expect from the app in the future? Our goal is to establish a strong foothold in our home state of North Carolina. The app is available in Raleigh now. The next target markets are Charlotte and the Crystal Coast. After that, we plan to launch in cities across the United States that we have identified as progressive and are experiencing a great degree of growth.
Zühaus app creators Leigh Mullins (left) and Paula Grossman (right) are also REALTOR®/owners of Joseph Bailey Real Estate Co. in Cary.
How It Works Zühaus is designed to be convenient for clients and agents. Here’s how the process works: 1. Search for a home Zühaus is a search engine—giving buyers the ability to search homes in their area for a future showing. 2. Connect with a REALTOR® After discovering a home in the search, buyers then get connected with a real estate professional that will answer any questions they have about a listing and schedule a showing. 3. Schedule an appointment Buyers can get a first look at a listing the same day or schedule a tour in the future. For more information, visit getzuhaus.com or follow on social media @getzuhaus.
ncrealtors.org • INSIGHT 29
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