IN THIS ISSUE
A Message From Our President Form 2104 2-Day Notice to Cure Provision - Breaking it Down NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 1
2022 NMAR Committee Chairs
Wes Graham Treasurer Finance
Daniel Coleman Bylaws & RPAC Trustees
Jarred Conley Forms
The REALTOR® Voice is published four times a year by the New Mexico Association of REALTORS® 549 S Guadalupe St, Santa Fe, NM 87501 Phone: 800-224-2282 (982-2442 in Santa Fe) fax: 505-983-8809. www.nmrealtor.com 2021 NMAR Officers Damon Maddox, AHWD GRI GREEN MRP - President Hubert H. Hill II, CRS GRI - President Elect Coleen Dearing, CRS, ePRO, SRS, GRI - First Vice President Wes Graham, CRB CRS GRI C2EX - Treasurer
Sonya Roberts Growth & Involvement
Kent Simpson Issues Advocacy Fund
Connie Hettinga Grievance
Lois Sury Legislative
Kriston Roberts Member Services
Nate Brooks Professional Education
Paul Wilson Ombuds
Carol Bernstein Professional Standards
Sandylee Pasquale Benevolent Fund
M. Steven Anaya, RCE - Chief Executive Officer F.Tasha Martinez - Communications Director Nicole Hammes - Director of Member Programs Kim Garcia - Office Manager Ambyrly Maestas - Legislative Assistant Mellanie Trujillo - Accounting Manager
Copyright 2022 New Mexico Association of REALTORS® - all Rights Reserved. For permission to reprint any article or portion thereof contained in this edition, call 800-224-2282
Hubert Hill Pres-Elect Strategic Planning
Joshua Price Stanley H. Mathis Foundation
Volume 24, Edition 4, Fourth Quarter 2021 Published by the New Mexico Association of REALTORS® NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 2
NMAR Members Appointed to NAR Committees
Eviction Moratorium Lifted On March 24, 2020, the New Mexico Supreme Court issued an Order prohibiting the lower courts from executing Writs of Restitution for non-payment of rent (“Stay”). Under the New Mexico Owner Resident Relations Act and the New Mexico Mobile Home Park Act (“Acts”), before a landlord can evict a tenant for any violation of the rental agreement and/or the applicable Act, including the non-payment of rent, the landlord must first petition the court for, and the court must first issue a Writ of Restitution. On January 4, 2022, the New Mexico Supreme Court issued an Order that lifts the Stay and allows the lower courts to issue Writs of Restitution for the non-payment of rent. The Stay first will be lifted in the 9th Judicial District (Curry County) as of Feb.1, 2022 and will be accompanied by the implementation of a new Eviction Diversion Pilot Program. The stay will be lifted in other counties with the implementation of the Eviction Diversion Program in March 2022. Click here to read the Order
January 5 6
Forms Committee Growth & Involvement Committee 7 San Juan Installation 8 Otero Installation 12 Executive Committee 13 Silver City Installation 14 LCAR Installation 18 Legislative Session Begins 19 NM MLS Board Meeting 20 Las Vegas/Taos Installation 22 Clovis/Portales Installation 25 AE Training 26-28 NMAR Leadership/ Legislative/Board Mtg 28 Legislative Committee
February 5 8 11 16
Roswell Installation Carlsbad Installation Legislative Committee Grievance Committee Training 17 Professional Standards Training Legislative Session Ends 21 President’s Day NMAR Closed 23 Grievance Training NM MLS Board Meeting 24 Grievance/Professional Standards Board Mtg 25 Professional Standards Training 24-27 President’s Citcle Meeting
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 3
March
2 Forms Committee 7-8 Region XI, Salt Lake City 16 Finance Committee 11-14 AEI 23-24 NM MLS Board Meeting 25 Executive Committee
April 6 8 13 15 19 22
Forms Committee Strategic Planning Committee Member Services Committee NM MLS Board Meeting Good Friday - NMAR Closed Benevolent Fund Stanley H. Mathis Foundation Professional Education Legislative Committee RPAC Trustees
PRESIDENTS REPORT
Many Voices. One State; Share the Vision
Damon Maddox, NMAR President New Mexico Association of REALTORS®
2021 seemed like an extention of 2020, more Zoom meetings and the Governor’s mask mandate has kept everyone still at a distance. 2021 Regular 60-day Legislative Session Because the regular session was virtual and no one was allowed at the Capitol, we had to rely on texting to maintain contact with legislators and voice our concerns and recommendations on certain bills. We had a very successful legialtive session with the passage of: HB 230 Real Estate Licensure Recovery Limits SB 12 Allows for Remote Notarization SB 365 Adjustable Rate Mortgage Changes and Advocacy Updates and opposition of: HB 19 Transfer Tax Act HB 111 - Amends Owner-Resident Relations Act HB 291 - Income & Property Tax Package New Hires In July NMAR hired Nicole Hammes as Director of Member Programs, Tasha Martinez as Communications Director and Kim Garcia as the Office Manager. We continue to face changes as staff retired and left this year but we know we have a great team. We did get a reprieve in September at the in person NMAR Annual Conference at the Sandia Casino and Resort. It was so great to see everyone in-person. NMAR also saw changes. The building is leased 100% and NMAR leadership paid down debt on the building.
NAR held their annual conference and Expo in San Diego this past November and we had a great number of REALTORS® from New Mexico attend. We were on the go from morning until evening attending sessions and events. Year-end Stats Year-end statistics will not be out until mid January but we had a stellar year. We had six months above $280,000 and the highest on record was this past month, with $290,500. Volunteers Our volunteers is what makes our local board and state association so great. A big THANK YOU to every 2021 Chairman for their work. Bylaws - Todd Clarke Credentials/Ombuds- Paul Wilson Forms - Pat Fell Growth & Involvement - Sonya Roberts Issues Advocacy Fund - Julie Blair Legislative - Lois Sury Member Services - Chip Olson Professional Education - Nate Brooks Professional Standards - Gary Wallace Grievance Sub Committee - Debbie Roger REALTOR® of the Year - Lela Holmes RPAC Trustees - Teri Scott Special shout-out to the Forms committee and staff, in Q4 2021. Fifteen+ forms and information sheets were updated, created and reformatted for our 7,500+ members. NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 4
We all lost three dedicated advocates for NMAR and NM REALTORS® this year;
Danny Wm. Vigil, NMAR 2021 President, Jim Maddox, NMAR Past President & 2002 REALTOR® of the Year Tom Whatley, 2014 Peggy Comeau Leadership recipient
All three were involved with RPAC. Their support of NMAR and our industry will not be forgotten. As we start the year and I would like to share my vision; Many Voices. One State; Share the Vision. I envision NMAR to be more member centric, to get more participation from our members from across the state. We have proven through this pandemic that we are stronger when we move forward to the future as one group. I look forward to the successes and challenges ahead as we continue to move forward. The three-year Strategic plan was approved at the September NMAR Board Meeting and of those I would like to highlight a few that are part of my focus for 2022:
NMAR promotes diversity and inclusion NMAR has a strong, ever increasing presence and influence in government and communities NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 5
NMAR operates with an efficient organizational structure NMAR cultivates and develops the next generation of leaders I wish everyone a wonderful 2022. I challenge each of you to commit and bring someone with you to your next leadership meeting.
FROM YOUR CEO
2021 - A Year Like No Other M. Steven Anaya, Chief Executive Officer New Mexico Association of REALTORS®
2021 has been a stellar year for Real Estate in New Mexico, we are headed in the right direction. New Mexico has seen an increase in job growth (Figure A). We still need almost 60,000 more jobs to get back to employment levels last seen in January 2020. New Mexico Real Estate continued to be one of the economic drivers for 2021, despite the constant shadow of COVID-19. We saw increases in every category for the year. Year-to-date sales for December 2021 ended with 29,435 sales compared to 26,885 from a year ago, a 27.71% increase.
Figure A
New Mexico saw an increase in housing permits, getting closer to 2008 levels. The third quarter ended with 7,136 permits issued (Figure B). Since 2020, the country is seeing the largest migration in decades (Figures C and D). New Mexico has seen an increase of almost 4,000 people moving into the state. Our neighbors all have seen larger increases, with Colorado gaining seven
Figure B
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 6
Figure C
times as many people as NM with 28,616, and Arizona adding adding 29 times more new residents at 114,706. What’s ahead for real estate? A group of more than 20 leading economic and housing experts, including NAR Chief Economist Lawrence Yun, participated in a consensus economic and real estate foreacast in early December that projected: • Annual unemployement rate back to normal • Home price appreciation to increase by 5.7%
Figure D
• Inflation rate to increase to at least 4% (Figure E) The real estate industry should continue to move in the right direction. 2022 will be a year of continued growth, as one of the main economic drivers for the state. Let’s keep moving forward!
Figure E
NMAR Voice | Fourth Quarter 2021 | Page 7
LEGAL UPDATE
Form 2104’s 2-DAY NOTICE TO CURE PROVISION – BREAKING IT DOWN
Ashley Strauss-Martin NMAR General Counsel
Summer of 2021 we added the Deadline Default provision to the Residential Purchase Agreement (Para. 37(A)). The provision requires that if a Deadline Default occurs, the non-defaulting party must serve the defaulting party with a two-day notice to cure, Form 2112 (“2-Day Notice”). If the defaulting party cures the default within the two days, the non-defaulting party must proceed with performance under the Agreement; however, if the defaulting party fails to cure the default within the two days, the non-defaulting party has all options available by the contract and the law, including, but not limited to the recovery of damages and in the event of a material default, the option to stop performing and terminate the contract. In the case of a buyer default, the seller would have the right to retain the earnest money. The Two Elements of Deadline Default First, there must be a date and/or time by which one party has to perform. Examples of defaults with a deadline include (but are not limited to): • The buyer’s obligation to deposit TOM Fee and/or Earnest Money by a certain date; •
The buyer’s obligation to deliver the pre-quali fication letter or proof of funds by a certain date;
•
The seller’s obligation to deliver a document by a certain date;
• A party’s failure to Close by the Closing Date may be considered a Deadline Default (assuming the failure to Close is not due to a contingency not being satisfied).
REMEMBER – NO DEADLINE, NO DEADLINE DEFAULT! Second, the failure to perform by the deadline must constitute a DEFAULT. Whether a failure to perform by a deadline is a default (or not), depends on a couple of factors. Is the performance an obligation or a right? • If it’s an obligation (and therefore, required), then failure to perform constitutes a default. It’s often “required” if the beneficiary of the performance is NOT the party responsible for the performance. For example, the seller is to provide the buyer with the documents in Para. 19. These documents are provided by the seller for the benefit of the buyer. Therefore, performance by the seller is an obligation and is required (unless waived by the buyer). • If it’s a right, then failure to perform may constitute a waiver of that right, but failure to perform would not be considered a default. It’s often a right, and therefore, “optional” if the beneficiary of the performance is the same party charged with performing. Examples of a right or option to perform include the buyer’s right to conduct inspections and the buyer’s right to object to observations, inspections or documents. These rights under the Agreement are to be performed by the buyer for the benefit of the buyer. They are optional, not required. Therefore, a buyer’s failure to timely exercise any of these rights is not a default, but rather a waiver of the buyer’s right to make objections or terminate as applicable.
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 8
Does the missed deadline result in an automatic termination? In the event the missed deadline results in an automatic termination, neither party is required/obligated to perform, neither party has a right to perform and the failure of one or both parties to perform is not a default. For example, if the parties do not reach a Resolution by the Resolution Deadline, the Agreement terminates. The parties are not obligated to reach an agreement and failure to do so does not constitute a waiver of a right or a default. Therefore, the Deadline Default would not be applicable to these situations. REMEMBER – NO DEFAULT, NO DEADLINE DEFAULT Additional Comments: • The non-defaulting party may choose NOT to send the 2-Day Notice. Nothing requires the non-defaulting party to send the 2-Day Notice, but if they don’t send it (and the 2-Notice is required), then the non-defaulting party is not afforded the rights associated with the default. For example, if a buyer defaults, a seller may have the right to refuse to sell the house to that buyer and/or may choose to sue the buyer for damages, but the seller would not be afforded these rights if the seller failed to give the buyer the opportunity to cure the default. And again, if the buyer did timely cure the default, the seller would have no further recourse, but if the buyer failed to do so, then the seller could pursue the above options.
• The Purchase Agreement does not require that the 2-Day Notice be sent within a certain time frame. Consequently, if a Deadline/Curable Default occurs, the non-defaulting party may send the 2-Day Notice at any point after the default. And regardless of when it is sent, the two days starts running. • Note the definition of days (Para. 33(E)) for purposes of calculating time under the 2-Day Notice. WHY WAS THE 2-DAY NOTICE TO CURE ADDED? In short, for the benefit of the buyers, sellers and brokers. In contract law, courts analyze defaults (or breaches) as either “material” or “non-material” Why is this relevant? A non-material breach may entitle the non-defaulting party to damages, but it would not relieve the non-defaulting party from performance. For example, if a court determined that the buyer’s failure to timely deliver earnest money was a non-material default/breach, the court may award the seller damages for that default (if the seller had any damages), but the court would not likely say that the seller no longer had to sell to the buyer. But, if the buyer failed to timely deliver the earnest money and the seller gave the buyer the opportunity to cure that default and the buyer failed to timely cure the default, it is more likely that the court would enforce the default and relieve the seller from their obligation to sell to the buyer. In the above scenario, the buyer is the defaulting party, but a seller could also be a defaulting party. For example, the seller could fail to timely deliver a document. In that case, the same analysis would apply. Continued on page 12
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 9
New Mexico Major Investors 2021 Thanks to NMAR’s Major Investors and every RPAC contributor! These donors know RPAC works for them at the local, state, and federal level and their participation and generous investment helped your association win the prestigious President’s Cup from NAR for meeting fundraising and advocacy goals.
Golden Rs and Hall of Fame $25,000+
Golden R and Hall of Fame $50,000+
Wes Graham, Clovis/Portales Patricia Pipkin, Santa Fe Jim Maddox, CARNM (in loving memory)
Golden R
M. Steven Anaya, NMAR Gayla Brumfield, Clovis/Portales Damon Maddox, Greater Albuquerque
Crystal R
Golden R Member Board
Cathy Colvin, Greater Albuquerque Belinda Franco, Greater Albuquerque Jeffrey Rose, Greater Albuquerque
James Russ, Ruidoso/Lincoln County Paul Wilson, Greater Albuquerque
Jeanette Raver, Greater Albuquerque Tom Whatley, Las Cruces (in loving memory)
President’s Circle
New Mexico had 10 President’s Circle Members for 2021. President’s Circle members are those major investors who also give $2000 directly to NAR targeted candidates during the year.
M. Steven Anaya, NMAR Wes Graham, Clovis/Portales Damon Maddox, Greater Albuquerque
Jim Maddox, CARNM (in loving memory) Patricia Pipkin, Santa Fe James Russ Ruidoso/Lincoln Co. Kent Simpson, Las Cruces
Emmary Simpson, Las Cruces Tom Whatley, Las Cruces (in loving memory) Paul Wilson, Greater Albuquerque
Sterling R Member Boards The Clovis/Portales Association of REALTORS® The Commercial Association of REALTORS® NM The Las Cruces Association of REALTORS® The New Mexico Association of REALTORS®
The Otero County Association of REALTORS® The Ruidoso/Lincoln County Association of REALTORS® The San Juan County Board of REALTORS® The Santa Fe Association of REALTORS®
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 10
Sterling Rs
M. Steven Anaya, NMAR Paul Barry, San Juan County Natalia Beraun, Greater Albuquerque Carol Bernstein, Greater Albuquerque Julie Blair, San Juan County Deborah Bodelson, Santa Fe David Brigman, CARNS Nathan Brooks, Greater Albuquerque Gayla Brumfield, Clovis/Portales Amanda Champine, Greater Albuquerque Todd Clarke, CARNM Beth Crabbe, Otero County Melanie Cravens, Greater Albuquerque Kent Cravens, Greater Albuquerque Mandy Culler, San Juan Bill Davis, Roswell Coleen Dearing, Santa Fe Jean Duran,Greater Albuquerque Sherry Eichorn, Las Cruces Megan England, Greater Albuquerque Sharon Exarhos, San Juan County Patricia Fell, Silver City Sherry Fowler, Greater Albuquerque Belinda Franco, Greater Albuquerque Emily Garcia, Santa Fe Bridget Gilbert, Greater Albuquerque Anastacia Golden Morper, Taos County Heidi Gray, Greater Albuquerque Laura Harris, GAAR Billie Haynie, Las Cruces Connie Hettinga, Las Cruces Hubert Hill, Greater Albuquerque Lela Holmes, San Juan County Karen Hudson, CARNM Amy Hummer, Las Cruces Lyndell Johnson, Greater Albuquerque Richard Laemmle, Gallup Ben Lyons, San Juan County Tim MacEachen, CARNM Catherine Moon, Taos Justin Munoz, Otero County Sandylee Pasquale, Greater Albuquerque Joshua Price, Greater Albuquerque Richard Randals, Tucumcari Jeanette Raver, Greater Albuquerque Sonya Roberts, Otero County Debbie Rogers, Silver City Jeffrey Rose, Greater Albuquerqude Caroline Russell, Santa Fe Teri Scott, Otero County Baryalai Shalizi, Santa Fe Kent Simpson, Las Cruces Emmary Simpson, Las Cruces Peggy Stevenson, Las Cruces Ashley Strauss-Martin, NMAR Lois Sury, Santa Fe Ric Thom, Greater Albuquerque Jeffrey Thomas, Santa Fe Marcia Tidwell, Roswell Sam Todd, San Juan Deena Turner, Ruidoso/Lincoln County Amparo Usrey, Gallup Teri Vasquez-Hatcher, Greater Albuquerque Tego Venturi, Greater Albuquerque Cathy Vickers, Sierra County Gary Wallace, Santa Fe Judy Wilson Greater Albuquerque Michael Woolley, Taos
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 11
Form 2104 Continued from page 9
As you can see, not only does the 2-Day Notice benefit the defaulting party, by giving them an opportunity to cure the default, but it helps the non-defaulting party, as it strengthens the non-defaulting parties’ position when enforcing the default (if the default is not cured within 2 days). Further, in some cases, the failure to meet a deadline is not the fault of the defaulting party, but rather the defaulting parties’ broker. The NMREC’s Broker Duties requires brokers to assist their client/customer in meeting the terms of the Purchase Agreement and failure to do so may constitute a breach of those Broker Duties. But that’s just the beginning of the liability the broker may have. What if a buyer gives an earnest money check to a buyer’s broker, but the buyer’s broker fails to timely deliver the earnest money to the title company? Not only could the buyer’s broker be found in violation of their Broker Duties, but if the seller elected to terminate the contract as a result, the buyer who lost the home may pursue those damages against the buyer’s broker who failed to timely deliver the earnest money. But with a 2-Day Notice to Cure, the
buyer’s broker has an opportunity to “make it right”, keep the contract from terminating and keep themselves from being found in violation of Broker Duties and/or getting sued for negligence. Lastly, while this is new to Form 2104, it is not a new concept; an opportunity to cure is common in contracts. For example, the NMAR Commercial Purchase Agreement has always had a 5-day cure period. Unlike terms that have come and gone from the Residential Purchase Agreement over the years, this one is here to stay, so familiarize yourself with it – for your client’s benefit, as well as your own. Legal Update provides a limited and general discussion of some, but not all, aspects of issues that is intended but not guaranteed to be accurate as of the date published. This information may become outdated and it is the responsibility of the user to determine if it is current. No summary of the law is a substitute for legal advice with respect to a particular matter. No attorney-client relationship is intended or implied. If legal advice is required, the services of a competent attorney should be obtained. NMAR members are cautioned against engaging in the unauthorized practice of law by advising a consumer of legal rights and obligations or by applying the law to particular facts and circumstances. © 2021 New Mexico Association of REALTORS®
REALTOR® Party Training - Tennessee
From left, James Russ, Past President, Cathy Colvin, Connie Hettinga, Wes Graham, Damon Maddox, Steve Anaya, Paul Wilson
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 12
NAR REALTORS® Conference & EXPO, San Diego 2021
New Mexico REALTORS ® who attended the 5-day conference left with valuable information, new connections and honor Danny Wm Vigil at the NMAR in San Diego dinner.
NMAR REALTOR® Voice | Fourth Quarter 2021 | Page 13
Notice of Openings and Guidelines/Requirements
The New Mexico Associations of REALTORS® is currently seeking applications for the following positions for terms to begin January 2, 2023.
• First Vice -President ............... One to be Elected (one-year term; automatically moves up to President Elect for 2024 and President for 2025) •
Treasurer............... One to be Elected (two-year term)
• District Vice Presidents................ Three to be Elected (two-year terms) One from each of the following Districts: Central, Northeast, and Southwest These individuals represent their respective district areas throughout the State. • NAR Director......................... The NAR Director position will be updated to reflect changes approved by the NAR Board in November. Further information will be disseminated. Application forms and duties of offices are outlined in the Bylaws, Operating and Fiscal Policies, and Policy Attachments of the New Mexico Association of REALTORS®, available in the members only section of nmrealtor.com. If you have any questions about the application process, please contact Kim Garcia at 1-800-224- 2282, ext. 164 or kim@nmrealtor.com. All applications received by the deadline of 5:00 p.m., May 15, 2022, will be forwarded to the Credentials/Leadership Committee. Elections will be held at the 2022 Fall Board of Directors meeting of the New Mexico Association of REALTORS®. Click here for more information.
Registration for the 2022 AE Institute is Open! #NARAEI2022 Download a preview of the 2022 AE Institute schedule, and check out the clothing items available. All purchases benefit the AE Professional Development Fund. See you in Atlanta!
