When listing property, it may not be obvious who the real owners are and who can really sell the real property. Really?
We are all familiar with the rule that requires a licensee to conduct a competent, diligent inspection of the property prior to listing. In addition to the physical inspection of the property, a prudent licensee also inspects the title of the property to determine who the real owners are and who has the actual authority to sell the property. Real estate ownership can take on many faces; ownership may be by an individual, multiple individuals, an entity, an estate, a trust, a governmental entity or combinations thereof. Taking the time to investigate at the time of listing will assure enforceable offers and smoother closings. The questions and answers that follow address some of the ownership issues that a listing broker may encounter when listing property.
Trusts
The broker’s friend asked to list his property, and the listing appointment is scheduled. The broker contacted the title company in advance to have a search and hold done. The title company stated the property is held in a trust. Can the broker enter into a listing with the owner?
As our population ages, to create an organized distribution of assets upon death, an owner may work with an attorney or estate planner to create a trust to hold title to property. When the property is held in a trust, the trust, not the individual who owns the property, and the trust documents will designate the trustee(s). There may be one trustee, or there may be two or more co-trustees. It is prudent, prior to listing the property, for the seller or the seller's attorney to review the trust documents to determine exactly who the trustee(s) are and who is authorized to bind the trust to a listing contract and ultimately convey the property at closing. Once the required individuals are determined, those signatures will be needed for all conveyances, including the offer — and any counter-offers or amendments thereto — and the deed per Wis. Stat. § 706.02.
Power of attorney
The agent has a listing with a mother who owns the home herself. During the listing, the daughter had the Power of Attorney (POA) for her mother, so the broker worked with both the mother and daughter. The mother died, and the daughter will become the personal representative for her mother's estate. Does the agent still have a valid listing?
The death of the individual seller effectively terminated the listing contract. Likewise the authority of an individual with a power of attorney ends when the principal dies. Until a new listing contract is signed by the personal representative or another appropriate party representing the estate, the marketing of the property would need to cease. The estate is seen in the law as a separate entity that is different from the mother who passed away regardless of whether she had been acting in her own right or via the power of attorney.
Estates
A property is going to be listed by the personal representative of the estate. The personal representative said the family will be coming to remove items from the property, and an auction for personal property will take place. How should the listing broker address this?
The listing contract addresses items that are included or not included in the list price. Take the time to tour the property with the personal representative and try to get a complete list of items that will be included in the list price. Before listing, it would be helpful to create an inventory and look specifically for items that might be considered by a buyer to be personal property, and discuss whether they are staying with the property or are going to auction or to family members. Also try to pinpoint items that are rented and insert them on the proper line in the listing. It is then critical to have any offers accurately reflect the rented items and personal property that will be removed or sold at auction before the sale.
The agent listed property being sold by an estate. The property has been rented for many years by tenants. While the tenants say they have a one-year lease, the personal representative finds no written agreement and thinks the tenants have a month-to-month tenancy. What notice is required to have the tenants vacate?
Per Wis. Stat. § 704.09, the general rule is that buyers take title to the property subject to the tenant’s rights. In anticipation of an offer, the personal representative may work with legal counsel to determine if there is documentation to prove either a lease for a term or a month-to-month tenancy. Although generally used in commercial settings, the personal representative may obtain an estoppel letter with the tenants. The estoppel letter will identify the term of the tenancy, any material terms and conditions, and what if any security deposit there may be. These details from the estoppel letter may then be used when negotiating an offer with a potential buyer to avoid post-closing issues with the tenant.
To learn more about estoppel letters, see page 10 of the March 2012 Legal Update, “2012 WB-15 Commercial Offer to Purchase,” at www.wra.org/LU1203.
Life estates
The broker is working with a potential seller, and the broker has been told there is a life estate. Who must sign the listing, and who will sign the offer?
A life estate is an interest that is limited in duration to the life of the person holding the life estate or to the life of some other designated person. Someone who has a life estate interest is not a legal owner of the property, however that person has the right to live in the property until death. This person is known as a “life tenant.” Although a broker may enter into a listing with a life tenant, a contract to sell the property is only enforceable when both the life tenant and all remaindermen sign the offer and deed. A life tenant may sell his or her interest in the property, but to convey full title to the property in fee simple absolute, all will need to agree.
See page 8 of the June 2007 Legal Update, “Ownership and Title Pointers for Brokers,” at www.wra.org/LU0706 for further information regarding life estates.
Divorce
A seller entered into a listing contract with an agent, and the seller told the listing agent he was divorced. An offer on the property has been accepted. The broker just found out the seller is still married, and the wife does not want to sell the property. Does the offer need to be signed by the wife? Would the wife need to sign the deed?
The broker could have avoided this surprise by asking more exploratory questions at the time of the listing and confirming with the title company whose names are on the title. In Wisconsin, Wis. Stat. § 706.02 provides that both spouses must sign all documents conveying an interest in any homestead property, including an offer to purchase and a deed. Generally speaking, a “homestead” is the home or dwelling of a married person. The definition is intended to be broad and covers a property as long as one or both of the spouses lives there.
If the property is not a homestead, the broker must determine how title to the property is held to know who needs to sign the offer and the deed. If only the husband is on the title, the husband would have the authority to convey the property. Given the Wisconsin Marital Property Act, the seller may consult with legal counsel about the implications of the pending divorce. If the husband and wife are both on the title, then both parties would need to sign the offer and the subsequent deed.
Resources
Tracy Rucka is Director of Professional Standards and Practices for the WRA.