legallines BRYAN LYTLE
When worlds collide
Q:
Who signs?
A: There are two types of seller situations that give
agents fits about who is to sign the contract: estates and divorces. Quite often these result in the listing agent either having the wrong parties sign, or having last-minute crises near closing. In Virginia, when the owner of property dies, absent a survivorship provision in the deed, that property is transferred in one of two ways: by will or by intestate succession (no will). If there is a will, then the will must be recorded in the land records in order to transfer title to the persons named in the will (called devisees). If there is no will, then a list of heirs (at a minimum) must be prepared and recorded in order to vest title in those heirs. Determining the heirs by intestate succession requires an attorney because it is not always who one might think. In my experience, one of the children, or someone in a similar capacity, goes to an agent and says “I am the heir” or “I am the executor” and wants to sell the property. Rarely does the agent actually determine if that is in fact true, and in many cases it is not true. (For example, the “executor” may not have actually qualified, may not have the power to sell the real estate, there may be step-children with an interest, etc.). In far too many cases the documentation necessary to vest title has not been recorded, and the day before 10 July/August 2011
closing is too late to get it done. So whenever you consider taking an estate listing, you must have the prospective clients contact an attorney early in the process to ensure your clients actually have authority to sign your listing and sell the property, and to make sure that the documentation will be ready at any subsequent closing. With respect to divorces, typically what happens is one of the parties says “I got the house in the divorce and I want to sell it.” That may be true, and usually is, but the problem is that most divorce attorneys are not familiar with real estate and do not prepare a deed to properly vest title in the spouse who got the property in the divorce. In other words, the divorce decree or separation agreement may say that your prospective client got the house, but that divorce decree and/or separation agreement does not vest title in your client — there must be a deed from the ex-spouse. What happens? You get near closing only to find out that that divorce deed was never prepared and executed and you have to hunt down the ex-spouse in order to obtain a deed. I don’t think it would surprise you that many ex-spouses are not very cooperative — especially if they got burned in the divorce and lost the house. The solution is simple: Whenever anyone, including a prospective client who recently got divorced, asks you to list their house, you should ask for a copy of their deed. Unless a lawyer tells you differently, every person listed on that deed must sign your listing and any subsequent contract. If they do not have a deed, then ask your favorite settlement agent to get you a copy from the clerk’s office. If no one can provide you with a deed with just your prospective seller’s name(s), that should tell you there is a problem, and you should have your prospective client consult an attorney as soon as possible. As always, if you are in any doubt about a prospective client’s ability to sign, or how they sign, then the time to ask an attorney or your broker is sooner rather than later. Remember, it would be both a Real Estate Board and Code of Ethics violation for you to list property for sale where you do not have the authorization and consent of all of the owners. www.VARealtor.com