by inpac01 | Mar 15, 2022 | Real Estate
부동산 지식 33-Agency-1.Basic roles
a.The Agency Relationship
b.Fiduciary Duties
c.Forms of Real Estate Agency
d.Agency Disclosure Rules
The Agency Relationship-
1.Basic roles
2.Types of agency
3.Creating an agency relationship
4.Terminating an agency relationship
The most primary of relationships in real estate brokerage is that between
broker and client, the relationship known in law as the agency relationship.
In every state, a body of law, generally called the law of agency, defines and
regulates the legal roles of this relationship. The parties to the relationship are
the principal (a client), the agent (a broker), and the customer ( a third
party).
The laws of agency are distinct from laws of contracts, although the two
groups of laws interact with each other. For example, the listing agreement — a
contract -establishes an agency relationship. Thus the relationship is subject to
contract law. However, agency law dictates how the relationship will achieve
its purposes, regardless of what the listing contract states.
The essence of the agency relationship is trust, confidence, and mutual good
faith. The principal trusts the agent to exercise the utmost skill and care in
fulfilling the authorized activity, and to promote the principal’s best interests.
The agent undertakes to strive in good faith to achieve the desired objective,
and to fulfill the fiduciary duties.
It is important to understand that the agency relationship does not require
compensation or any form of consideration. Nor does compensation define
an agency relationship: a party other than the principal may compensate
the agent.
Basic roles
In an agency relationship, a principal hires an agent as a fiduciary to perform a
desired service on the principal’s behalf. As a fiduciary, the agent has a legal
obligation to fulfill specific fiduciary duties throughout the term of the
relationship.
The principal, or client, is the party who hires the agent. The agent works for
the client. The principal may be a seller, a buyer, a landlord, or a tenant.
The agent is the fiduciary of the principal, hired to perform the authorized
work and bound to fulfill fiduciary duties. In real estate brokerage the agent
must be a licensed broker.
The customer or prospect is a third party in the transaction whom the agent does
not represent. The agent works with a customer in fulfilling the client’s
objectives. A seller, buyer, landlord, or tenant may be a customer. A third party
who is a potential customer is a prospect.
by inpac01 | Mar 14, 2022 | Real Estate
부동산 지식 32-Agency
a.The Agency Relationship
b.Fiduciary Duties
c.Forms of Real Estate Agency
d.Agency Disclosure Rules
The Agency Relationship-
1.Basic roles
2.Types of agency
3.Creating an agency relationship
4.Terminating an agency relationship
by inpac01 | Dec 23, 2021 | Real Estate
부동산 지식 31-Validity of a conveyance
Validity of a conveyance
contract In addition to satisfying the foregoing requirements, a contract that conveys
an interest in real estate must:
be in writing
contain a legal description of the property
be signed by one or more of the parties
A lease contract that has a term of one year or less is an exception. Such leases do
not have to be in writing to be enforceable.
Enforcement limitations
Certain contracts that fail to meet the validity requirements are voidable if a
damaged party takes appropriate action. The enforcement of voidable
contracts, however, is limited by statutes of limitation. Certain other
contracts which are valid may not be enforceable due to the statute of
frauds.
Statute of limitations. The statute of limitations restricts the time period for
which an injured party in a contract has the right to rescind or disaffirm the
contract. A party to a voidable contract must act within the statutory period.
Statute of frauds. The statute of frauds requires that certain contracts must be
in writing to be enforceable. Real estate contracts that convey an interest in
Consideration
good
(“love and affection”)
valuable
sufficient insufficient
valid not valid
Chapter 10 Real Estate Contract Law 133
real property fall in this category, with the exception that a lease of one year’s
duration or less may be oral. All other contracts to buy, sell, exchange, or
lease interests in real property must be in writing to be enforceable. In
addition, listing agreements in most states must be in writing.
The statute of frauds concerns the enforceability of a contract, not its validity.
Once the parties to a valid oral contract have executed and performed it, even
if the contract was unenforceable, a party cannot use the Statute of Frauds to
rescind the contract.
For example, a broker and a seller have an oral agreement. Following the
terms of the agreement, the broker finds a buyer, and the seller pays the
commission. They have now executed the contract, and the seller cannot later
force the broker to return the commission based on the statute of frauds.
Electronic contracting
Contracting electronically through email and fax greatly facilitates the
completion of transactions. Clients, lenders, title agents, inspectors, brokers,
and other participants in a transaction can quickly share documentation and
information. Electronic contracting is made possible by the Uniform
Electronic Transactions Act (UETA) and the Electronic Signatures in Global
and National Commerce Act (E-Sign), which are federal laws. UETA, which
has been accepted in most states, provides that electronic records and
signatures are legal and must be accepted. E-Sign makes contracts, records,
and signatures legally enforceable, regardless of medium, even where UETA
is not accepted.
by inpac01 | Dec 22, 2021 | Real Estate
부동산 지식 30-CONTRACT VALIDITY
AND ENFORCEABILITY-Criteria for validity
CONTRACT VALIDITY
AND ENFORCEABILITY
Criteria for validity
A contract is valid only if it meets all of the following criteria.
Contract Validity Requirements
Competent parties. The parties to a contract must have the capacity to
contract, and there must be at least two such parties. Thus, the owner of a
tenancy for life cannot deed his interest to himself in the form of a fee simple,
as this would involve only one party. Capacity to contract is determined by
three factors:
legal age
mental competency
legitimate authority
Depending on state law, a contract involving a minor as a party may be either
void or voidable. If the law allows a minor to contract, the contract will
generally be voidable and the minor can disaffirm the contract.
To be mentally competent, a party must have sufficient understanding of the
import and consequences of a contract. Competency in this context is separate
and distinct from sanity. Incompetent parties, or parties of “unsound mind,”
may not enter into enforceable contracts. The incompetency of a party may be
ruled by a court of law or by other means. In some areas, convicted felons may
be deemed incompetent, depending on the nature of the crime.
During the period of one’s incompetency, a court may appoint a guardian who
may act on the incompetent party’s behalf with court approval.
If the contracting party is representing another person or business entity, the
representative must have the legal authority to contract. If representing another
person, the party must have a bona fide power of attorney. If the contracting
party is representing a corporation, the person must have the appropriate power
and approval to act, such as would be conferred in a duly executed resolution
of the Board of Directors. If the contracting entity is a general partnership, any
partner may validly contract for the partnership. In a limited partnership, only
general partners may be parties to a contract.
Mutual consent. Mutual consent, also known as offer and acceptance and
meeting of the minds, requires that a contract involve a clear and definite offer
and an intentional, unqualified acceptance of the offer. In effect, the parties must
agree to the terms without equivocation. A court may nullify a contract where
the acceptance of terms by either party was partial, accidental, or vague.
Valuable consideration. A contract must contain a two-way exchange of
valuable consideration as compensation for performance by the other party. The
exchange of considerations must be two-way. The contract is not valid or
enforceable if just one party provides consideration.
Valuable consideration can be something of tangible value, such as money or
something a party promises to do or not do. For example, a home builder may
promise to build a house for a party as consideration for receiving money from
the home buyer. Or, a landowner may agree not to sell a property as
consideration for a developer’s option money. Also, valuable consideration can
be something intangible that a party must give up, such as a homeowner’s
occupancy of the house in exchange for rent. In effect, consideration is the price
one party must pay to obtain performance from the other party.
Valuable consideration may be contrasted with good consideration, or “love and
affection,” which does not qualify as consideration in a valid contract. Good
consideration is something of questionable value, such as a child’s love for her
mother. Good consideration disqualifies a contract because, while one’s love or
affection is certainly valuable to the other party, it is not something that is
specifically offered in exchange for something else. Good consideration can,
however, serve as a nominal consideration in transferring a real property interest
as a gift.
In some cases, what is promised as valuable consideration must also be deemed
to be sufficient consideration. Grossly insufficient consideration, such as
$50,000 for a $2 million property, may invalidate a contract on the grounds that
the agreement is a gift rather than a contract. In other cases where there is an
extreme imbalance in the considerations exchanged, a contract may be
invalidated as a violation of good faith bargaining.
Legal purpose. The content, promise, or intent of a contract must be lawful.
A contract that proposes an illegal act is void.
Voluntary, good faith act. The parties must create the contract in good faith
as a free and voluntary act. A contract is thus voidable if one party acted
under duress, coercion, fraud, or misrepresentation.
For example, if a property seller induces a buyer to purchase a house based on
assurances that the roof is new, the buyer may rescind the agreement if the roof
turns out to be twenty years old and leaky.
by inpac01 | Dec 21, 2021 | Real Estate
부동산 지식 29-Legal status of contracts
Real Estate Contract Law
Contract Validity and Enforceability
Contract Creation
Classifications of Contracts
Contract Termination
CONTRACT VALIDITY AND ENFORCEABILITY
Legal status of contracts
Criteria for validity
Validity of a conveyance contract
Enforcement limitations
Electronic contracting
A contract is an agreement between two or more parties who, in a “meeting
of the minds,” have pledged to perform or refrain from performing some act.
A valid contract is one that is legally enforceable by virtue of meeting certain
requirements of contract law. If a contract does not meet the requirements, it
is not valid and the parties to it cannot resort to a court of law to enforce its
provisions.
Note that a contract is not a legal form or a prescribed set of words in a
document, but rather the intangible agreement that was made in “the meeting
of the minds” of the parties to the contract.
Legal status
of contracts In terms of validity and enforceability, a court may construe the legal status of a
contract in one of four ways:
valid
valid but unenforceable
void
voidable
Chapter 10 Real Estate Contract Law 129
Valid. A valid contract is one which meets the legal requirements for
validity. These requirements are explained in the next section.
A valid contract that is in writing is enforceable within a statutory time period.
A valid contract that is made orally is also generally enforceable within a
statutory period, with the exceptions noted below.
Valid but unenforceable. State laws declare that some contracts are enforceable
only if they are in writing. These laws apply in particular to the transfer of
interests in real estate. Thus, while an oral contract may meet the tests for
validity, if it falls under the laws requiring a written contract, the parties will not
have legal recourse to enforce performance. An oral long-term lease and an oral
real estate sales contract are examples of contracts that may be valid but not
enforceable.
Note that such contracts, if valid, remain so even though not enforceable.
This means that if the parties fully execute and perform the contract, the
outcome may not be altered.
Void. A void contract is an agreement that does not meet the tests for validity,
and therefore is no contract at all. If a contract is void, neither party can enforce
it.
For example, a contract that does not include consideration is void. Likewise,
a contract to extort money from a business is void. Void contracts and
instruments are also described as “null and void.”
Voidable. A voidable contract is one which initially appears to be valid, but is
subject to rescission by a party to the contract who is deemed to have acted
under some kind of disability. Only the party who claims the disability may
rescind the legal effect of the contract.
For example, a party who was the victim of duress, coercion, or fraud in
creation of a contract, and can prove it, may disaffirm the contract. However,
the disaffirmation must occur within a legal time frame for the act of rescission
to be valid. Similarly, if the party who has cause to disaffirm the contract
elects instead to perform it, the contract is no longer voidable but valid.
A voidable contract differs from a void contract in that the latter does not require
an act of disaffirmation to render it unenforceable.
부동산 계약법
계약 유효성 및 집행 가능성
계약 생성
계약의 분류
계약 해지
계약 유효성 및 집행 가능성
계약의 법적 지위
유효성 기준
운송 계약의 유효성
시행 제한
전자계약
계약은 “마음의 만남”에서 어떤 행위를 수행하거나 수행하지 않기로 약속한 둘 이상의 당사자 간의 합의입니다.
유효한 계약은 계약법의 특정 요구 사항을 충족함으로써 법적으로 집행 가능한 계약입니다. 계약이 요구 사항을 충족하지 않으면 유효하지 않으며 계약 당사자는 법원에 의지하여 계약을 집행할 수 없습니다.
식량.
계약은 법적 형식이나 문서에 명시된 단어의 집합이 아니라 계약 당사자의 “마음의 만남”에서 이루어진 무형의 합의라는 점에 유의하십시오.
법적 지위
계약의 유효성과 집행 가능성의 측면에서 법원은 다음 네 가지 방법 중 하나로 계약의 법적 지위를 해석할 수 있습니다.
유효
유효하지만 시행할 수 없음
무효
무효
제10장 부동산계약법 129
유효한. 유효한 계약은 유효성에 대한 법적 요구 사항을 충족하는 계약입니다. 이러한 요구 사항은 다음 섹션에서 설명합니다.
서면으로 된 유효한 계약은 법정 기간 내에 집행할 수 있습니다.
구두로 이루어진 유효한 계약은 일반적으로 아래 명시된 예외를 제외하고 법정 기간 내에 집행할 수 있습니다.
유효하지만 시행할 수 없습니다. 주법에 따르면 일부 계약은 서면으로 작성된 경우에만 시행할 수 있습니다. 이러한 법률은 특히 부동산에 대한 지분 양도에 적용됩니다. 따라서 구두 계약이 다음에 대한 테스트를 충족할 수 있지만
유효한 경우, 서면 계약을 요구하는 법률에 해당하는 경우 당사자는 이행을 집행하기 위한 법적 소구권을 갖지 않습니다. 구두 장기 임대 및 구두 부동산 매매 계약은 유효할 수 있지만 유효하지 않은 계약의 예입니다.
시행 가능.
그러한 계약은 유효한 경우 시행할 수 없더라도 그대로 유지됩니다.
이는 당사자가 계약을 완전히 이행하고 이행하는 경우 결과가 변경되지 않을 수 있음을 의미합니다.
무효의. 무효 계약은 유효성 테스트를 충족하지 않으므로 전혀 계약이 아닌 계약입니다. 계약이 무효인 경우 어느 당사자도 이를 집행할 수 없습니다.
예를 들어, 대가가 포함되지 않은 계약은 무효입니다. 비슷하게,
사업체로부터 금품을 갈취하는 계약은 무효입니다. 무효 계약 및 상품은 “무효”라고도 합니다.
무효. 무효 계약은 처음에는 유효한 것처럼 보이지만 일종의 장애 하에 행동한 것으로 간주되는 계약 당사자에 의해 해지될 수 있는 계약입니다. 장애를 주장하는 당사자만이 계약의 법적 효력을 해제할 수 있습니다.
예를 들어, 계약을 체결할 때 강박, 강압 또는 사기의 피해자가 되었고 이를 입증할 수 있는 당사자가 계약을 거부할 수 있습니다. 하지만,
거부 행위가 유효하려면 법적 기간 내에 거부가 발생해야 합니다. 유사하게, 계약을 거부할 이유가 있는 당사자가 대신 계약을 이행하기로 선택한 경우, 계약은 더 이상 무효화되지 않지만 유효합니다.
무효 계약은 무효 계약과 다릅니다. 무효 계약은 무효 계약을 이행할 수 없도록 하기 위해 불인정 행위를 요구하지 않습니다.
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