Q. - Do I Need a Real Estate Agent to Sell My Propery?

A. - There is no legal requirement that you have an agent or broker in order to either BUY or SELL real estate on your own behalf.

Time, Finances and the Expertise you have or can obtain must be considered in determining whether you Need a Real Estate Agent to handle your property transaction.

When you hire a Real Estate Agent or Broker you are generally hiring a 'team' of people qualified to Find a Buyer for your property.

In addition they will:

• Give you an idea on what price you may realistically receive;
• Suggest ways to make your property more saleable;
• Guide you through the process;
• Advertise your property;
• Show Your Property to Interested Buyers;

One of their more important functions is to Qualify potential Buyers. - i.e., make every attempt to determine whether the people who express an interest, can really go through with the purchase, and not just wasting time.

They charge a fee or commission for their services, based on a percentage of the sale or purchase price. - The commission rate may vary between the brokers, and will vary according to the 'market', and whether the property is 'residential' or 'commercial'.

In our 'market' the commission rate will usually be from 5% to 7% of the sale price. - In some instances you may be able to negotiate the rate, but this will depend upon how 'hot' or 'marketable' the property is.

Sometimes, when the property has a low market value, the commission may be set at a 'flat rate' dollar amount - or at a higher percentage rate.

That is reasonable since the costs and time involved in showing the lower valued property to potential purchasers may be the same or greater than it would be to show a higher valued piece of property.

They do not perform 'legal services' in connection with the sale or purchase. - These are performed by an attorney employed by: the Buyer - the Seller - a Closing Agent - a lender - or Title Insurer.

In many cases the owner of property may want to try to Sell property without an Agent or Broker.

It is perfectly legal, and if you have the time to 'show' the property to potential buyers - or if you already have a 'potential buyer' - then you probably should be able to handle the sale without a Broker or Agent.

If you intend to try to Sell property without an Agent or Broker you should begin by consulting with an attorney, who will explain the process to you, and provide all 'legal services' necessary.

For this, you should take advantage of an attorney's 'Initial Consultation' which is generally low cost or in some law offices 'free'.

Our office offers an Initial Consultation for $25.00, which will be credited toward the total fee for any Services we provide.

- See our Schedule of Fees & Services

Q. - Who Pays the Agent or Broker ?

A. - The person who hires him or her! The agent or broker owes his or her loyalty to the person that does the hiring, and does the paying.

In most cases the 'Seller' hires the Agent or Broker, and agrees to pay him or her in the Listing Contract.

Q. - What is a Listing Contract ?

A. - This is the written agreement between the Seller of property and the agent or broker that defines their respective obligations to each other.

In most instances this Contract is contained on a printed form furnished by the Broker or Agent, approved by the Board of Realtors in your area.

Generally the Agreement will provide:

• The price you are willing to take for the property.
• Any Conditions you Place on the sale.
• Any Conditions you Place on 'when' or 'how' the property may be shown.
• How much 'earnest money' must be deposited by a potential Buyer.
• Penalty provisions in the event you refuse to sell to a potential buyer.
• How much 'commission' you will pay the agent or broker.
• A period of time in which the agent or broker will have to find a Buyer.
• Whether or not other 'Agents' or 'Brokers' may also show the property.

Most Listing Contracts also contain Provisions for payment of a Commission after the expiration of the contract in the event you sell to a person who has been shown the property by the Agent or Broker.

Q. - How Long Should I List the Property with a Broker ?

A. - For whatever length of time you think is reasonable!

While your property is listed the sale, disposition and in some cases your use of the property is limited by the terms of your Listing Contract, - and dependent on the ability and efforts of the agent or broker you have listed the property with.

As to your particular property, one agent or broker may be able to do a better job of Selling your property than another. - It is our feeling that you should have a certain flexibility to make a change if your property has not been sold within a time you feel to be reasonable.

Many form Listing Contracts may provide up to six months for the Agent to find you a buyer. - If you do not feel that this length of time is reasonable then the agent will most likely agree to a shorter term listing.

Many people who have decided to attempt to sell their property without a real estate agent or broker may sometimes find it advantageous to agree to Listing their property for a single showing to a potential purchaser already located by the agent or broker.

Q. - What is a Real Estate Purchase Contract ?

A. - This is the written agreement between the Buyer and Seller which defines defines their respective obligations to each other.

This Agreement must be in writing, and in most instances this Contract is prepared by the attorney for either the Buyer or the Seller. - Whether you or Buying or Selling, you should have your own attorney review the actual contract before you obligate yourself to the terms and conditions of the Contract.

Generally the Agreement will provide:

• The Purchase and Sale Price.
• How and When the Purchase Price is to be Paid and the Deed Delivered.
• Amount of 'down payment' and conditions of distribution of funds.
• Date and manner of transfering possession.
• Obligations of the parties with respect to the property prior to 'Closing'.
• Any obligations of Seller to 'repair'.
• Any Conditions Placed on the Purchase or Sale - i.e., obtaining financing, etc.
• Descriptions of personal property that may be included in Sale.
• Definition of 'Closing Costs', and provisions for payment.
• Any 'reservations' or 'restrictions' on property after sale.
• Date and Place of 'Closing'.
• Provisions for extending 'Closing' date.
• Provisions for default by either of the parties.

Provisions,unique to your property and circumstance, should also be included in this Contract.

Q. - What is Title Insurance?

A. - As the name suggests, this is Insurance that the Title to the property you purchase is Marketable, subject only to exceptions which will be stated in the Policy.

The Title Insurer, in effect, guarantees the Warranty given by the Seller in the Warranty Deed.

In the event the Title is subsequently challenged, the Title Insurer, will defend Title, and pay damages, to the extent of the coverage, if you lose the property because the Title was not Marketable.

The extent of coverage and the conditions and limitations on the coverage are provided in the policy.

- Caveat - You should be aware that Title Insurance purchased for the benefit of a lender may not always protect the Buyer.

Q. - What is Title Examination ?

A. - Prior to the Closing of the Purchase and Sale of Real Estate the Records of Transactions affecting Title to the Real Estate will be examined by an attorney to determine whether Title is Marketable, and to determine what requirements must be met to make the Title Marketable.

The attorney will then give a written opinion of his or her Findings and state any requirements that must be met by the Seller, prior to the Sale being closed or completed.

If a Lender is involved, the Lender will generally designate the attorney that will make the examination.

If there is Title Insurance then the Title Insurer will generally designate the attorney that will make the examination.

A Buyer not borrowing purchase money, and not desiring Title Insurance, will generally hire his or her own attorney to make the examination.

This examination of the records will generally be made from an Abstract of Title which may be in the possession of the Seller, or part of the records of the Abstract Company.

- Caveat - You should never, ever, purchase real estate without a Title Examination!

Q. - What is an Abstract of Title?

A. - In Most, if not all States, a central office is designated for the recording and making a part of the public record all instruments that affect title to property. i.e. Deeds, Mortgages, Liens, Decrees in Probate, Judgments, etc.

In Most States the place for recording is located in the County where the property is located. It may be designated as the Registrar or County Clerk, or have some other name in your area.

In Oklahoma the County Clerk of the County where the property is located is the place for Recording and locating all instruments affecting title to real estate.

Companies, licensed by the State, which may be called Abstract or Title Companies, search the Public Records for those recorded instruments that affect title to a particular piece of property and bind copies in a book form. - The Abstract or Title Company then certifies that all instruments which affect title are in that Abstract. In many cases, certain instruments may be excluded, i.e., mineral conveyances, U.C.C. Filings, etc.

Without this service the Buyer would have to search all of the Records.

Your attorney, or the Title Insurer, will use this Abstract to make an examination of the Title to determine whether it is marketable.

Neither a Real Estate Broker nor an attorney may prepare an Abstract of Title, nor 'bring it to date'!

Q. - What are Closing Costs?

A. - Closing Costs is a rather loose term used to describe the costs, expenses and charges that will be added or deducted from the amount of money due to the Seller at the Closing, and added or deducted from the amount owed by the buyer at Closing.

Generally such costs, expenses and charges may be:

• Loan Origination Fees - Discount Points
• Abstracting - Title Insurance - Title Examination
• Costs of Appraisers
• Costs of Closing Agent
• Real Estate Commissions
• Preparation of Instruments and Documents
• Recording of Transfer and Mortgage Documents
• In Oklahoma, the Costs of Documentary Stamps affixed to Deed
• Costs of any proceedings or instruments necessary to correct title.
• Costs of Repairs, Surveys, Termite Certificates or Other Requirements.
• Ad Valorem Taxes - Generally Apportioned

Q. - Who Pays the Closing Costs and Expenses?

A. - The Contract between the Buyer and the Seller should both define 'Closing Costs'; - and make clear who is to pay them.

Who pays is a matter of negotiation, but generally in our area, the costs would normally be:

Paid by BUYER:

• Loan Origination Fees - Discount Points
• Title Examination of Abstract
• Title Insurance - Negotiated
• Costs of Closing Agent - Negotiated
• Real Estate Commissions
• Preparation of Instruments and Documents - Negotiated
• Recording Mortgages
• Apportionment of Ad Valorem Taxes for Remainder of Year

Paid by SELLER:

• Abstracting - Where Abstract is used
• Abstracting Portion of Cost of Title Insurance
• Title Insurance - Negotiated
• Costs of Closing Agent - Negotiated
• Preparation of Instruments and Documents - Negotiated
• Recording of Transfer Documents
• In Oklahoma, the Costs of Documentary Stamps affixed to Deed
• Costs of any proceedings or instruments necessary to correct title.
• Costs of Repairs, Surveys, Termite Certificates or Other Requirements.
• Apportionment of Ad Valorem Taxes for Year through date of Closing.

Q. - What is Escrow?

A. - Money which has been deposited for later distribution for a particular purpose is generally held in escrow.

Such money will only be paid out pursuant to specific instructions contained in an escrow agreement.

Mortgage Companies generally hold money in escrow for the payment of ad valorem taxes and insurance on mortgaged property.

In Sales of Property, earnest money and other deposits made pursuant to a purchase contract are held in escrow. This money is usually not distributed until the Closing of the Sale - or upon default of one of the parties to the purchase and sale contract.

Usually, but not always, the deposits will be held by an Escrow Agent or Closing Agent.

Q. - What happens at Closing ?

A. - Closing is when all matters related to the Purchase and Sale of Real Estate are Concluded.

This is when the Deed and Possession of Real Estate is given to the Buyer, and the Purchase Price is paid to the Seller.

All charges, costs and expenses of the Purchase and Sale Will Be Paid at closing, and all instruments and documents required will be signed and delivered.

This is when all money held in escrow is distributed according to the directions of the parties to the transaction.

Generally, at Closing all contractual obligations between the Buyer and Seller concerning the Purchase and Sale will be concluded. - See Warranty Deed

Q. - What is a Closing Agent ?

A. - The primary duty of a Closing Agent is to insure that each of the parties to a Sale and Purchase Contract have fulfilled their obligations under it.

In theory at least, the Closing Agent should be neutral to each of the parties as it concerns the transaction, the primary concern being that all parties are equally treated and protected according to the terms of the Purchcase and Sale Contract and the requirements of Law.

In practice, the 'Buyer' has more interests to protect at 'closing' than 'Seller'. The 'Seller' gets the purchase price and is finished. - The 'Buyer' has the property and all potential problems with it.

A Closing Agent may be any qualified person. i.e., an attorney, lender or Title Company, chosen by agreement of the parties.

In most cases where money is being loaned for the purchase, the Lender or Title Insurance Company will act as Closing Agent.

At Closing the Closing Agent will review all documents associated with the transaction to insure they are in conformity with the Purchase Contract, the Requirements made by the Title Examiner, and in compliance with Federal and State Law. - and explain each document to the parties.

The Closing Agent is responsible to:

• Obtain signatures of all parties to all necessary documents.
• Prepare and explain Disclosure Statements Required by Law.
• Pay All Charges, Costs and Expenses of the Sale.
• Distribute any money in Escrow as Instructed.
• Prepare a Closing Statement Showing the Disbursement of Funds.
• Record all Deeds, Mortgages, Mortgage Releases, etc.
• Provide copies of all papers to all parties.
• Do all things necessary to make the transfer of the property required by the Purchase Contract and by Law.

In most cases the Closing Agent makes a charge for these services which are paid at Closing. - Who pays this fee should be provided for in the Sale and Purchase Contract between the Buyer and Seller.

Most attorneys are qualified to act as a Closing Agent.

- See our Schedule of Fees & Services .

Q. - What is the Difference Between a Warranty Deed and a Quit Claim Deed ?

A. - Both types of Deeds convey all of the interests in the property which is owned by the Grantor ( Seller ) at the time the deed is executed. - i.e. - the Grantee ( Buyer ) gets all the interests owned by the Grantor at the time of execution.

There are two basic differences between the types of Deeds.

• A Warranty Deed warrants or guarantees that the Grantor has full and complete title, free and clear of encumbrances, except those noted on the deed - and contains a promise that if the title is challenged, the Grantor will defend the title.
  
  
• A Warranty Deed also serves to convey the interest of the grantor which he may acquire after the execution of the deed.

In most cases where a contract is entered for the purchase and sale of real property, the contract will call for a Warranty Deed which guarantees title.

Where the property is given as a gift - or as a result of property settlement agreements in a divorce - or to settle disputes over title - or where one joint owner intends to convey his or her interest to another joint owner - or where the parties agree that title might not be certain, the Quit Claim Deed is commonly used.

Q. - What is 'JOINT TENANCY'?

>A. - 'Joint Tenancy' is an estate in property, title to which is held in the names of two or more persons - each of whom have an undivided interest in the property.

Upon the death of one, that person's interest passes to the 'survivor(s)'. - the other joint tenant(s>

Property held in Joint Tenancy is not a part of the 'probate estate' of the decedent.

To create a joint tenancy estate it is necessary to make the establishment of this estate clear on the deed, title or certificate of ownership, by the use of the words - as 'joint tenants, and not as tenants in common, with full rights of survivorship.

Sometimes people attempt to create a 'joint tenancy' by the use of the words - 'and or'. - In most states this merely gives either of the persons the full title to personal property - and a tenancy in common in real property.

- We recommend that the 'joint tenancy' estate, in most cases only be used - when the property is jointly acquired - the parties are husband and wife - or a single person and an adult child who is an only child. There are many exceptions to this general rule, and before making your decision discuss the options with your attorney.

- Never - Never, ever create a 'joint tenancy' with a minor child!

The most important consideration in creating a 'joint tenancy' is that both parties actually want the property to pass to the 'survivor' of them. i.e., the last to die..

See - FAQ - Pre-Nuptial Agreements - Ante Nuptial

- Serious problems can arise when you create a 'joint tenancy' in the names of more than one person - people don't always die in the proper order! - or when the 'joint tenant ' is one of several adult children, and you expect that child to be 'fair' with the others!

- If you put one adult child's name on a bank account for 'convenience only', unless you want that child to have the whole account on your death, be sure that your bank does not create an ownership or joint tenancy interest in the account in the name of the adult child!

- Caveat: - Joint Tenancy is a good estate planning tool - but whenever you put someone else's name on title to your property, be absolutely sure you know the full legal consequences. You should consult with your attorney to determine whether whether a 'Joint Tenancy' does what you want and expect it to do.

- Creation of a 'joint tenancy' is irrevocable without the 'consent' of the other joint tenant

Q. - What is Marketable Title?

A. - Marketable Title is defined as ' . one free from apparent defects, grave doubts and litigious uncertainty, and consists of both legal and equitable title fairly deducible of record.' - Title Examination Standards of Oklahoma, Title 16 Okla. Stats., Chap. 1, Appendix, Sec. 1.1

Statutes in most States provide similar Standards for determining when Title is Marketable. - If Title, as shown by the record, does not meet those Standards then corrective work must done to make the Title Marketable before the Final Closing of the Sale.

- Caveat: - You should never Purchase Real Estate until you are assured that you have Marketable Title.

Q. - I Want to Sell my property - Where do I Start?

A. - More Coming - Please Come Back

• Determine the market for your property
• Determine the value of your property
• Determine whether you have a ready buyer.
• Determine how long you have to sell the property.
• Determine whether you have the time & expertise to Sell it yourself.
• Determine How Long it will take you to Deliver Possession.
• If You intend to use a broker - find the right one!
• Contact an Attorney before signing anything!

Q. - What is a Contract for Deed?

A. - This is a Contract between Seller and Purchaser which requires the Deed to property be delivered after full payment of the Purchase Price.

This one document contains the Sales Contract, the conditions of the Sale, the Promissory Note and the lien on the property.

Many Sellers choose this method of Selling in the belief that in the event the Buyer Defaults, the property automatically comes back to them.

Statutes in Oklahoma and many States provide that this Contract for Deed creates an equitable interest in the Buyer, and upon default the same procedure must be used to foreclose this interest as is required for a Mortgage.

About the only real advantage to the Seller in the use of this method is that the Buyer may not be able to place a second lien on the property.

Q. - I am Buying or Selling Property - Can I use the forms I picked up at the book store ?

A. - You can get Forms for everything from Contracts, to Deeds, to Trusts and Wills, - and just fill in the blanks.

These forms will accomplish whatever the Form provides. - Unfortunately the completed form may not accomplish what you really want and may not cover your unique circumstances.

In many states, including Oklahoma, you are not required to have a lawyer to represent you in any legal proceeding, or to prepare your own legal documents.

You may even write your own will if you want to, without a lawyer.

You may also change the transmission in you car - but you need to know what you are doing!

- Caveat: - You should realize that most lawyers spend a great deal of their time in litigation correcting the mistakes created by persons who have chosen to fill out forms, or do their own legal work without sound legal advice.

Before using Legal Forms for any purpose, you should take advantage of an attorney's 'Initial Consultation' which is generally low cost or in some cases 'free'.

Our office offers an Initial Consultation for $25.00, which will be credited toward the total fee for any Services we provide.

- See our Schedule of Fees & Services .

Also See our FAQ - About Probate.

Q. - My Wife or Husband's name isn't on the title to my property. - Why does he or she have to sign the deed or mortgage when I sell it, or borrow money on it ?

A. - In Oklahoma, the Constitution Article 12, Sect. 2, prohibits the sale of homstead property without the consent of the spouse.

Since the public records may not reflect whether the property is claimed to be a part of homestead the Title Examiner will always require that the spouse join in the execution of the deed or mortgage to insure that any claim to a homestead interest is also conveyed.

Q. - My property has a mortgage on it. - Can I Sell it and let the Buyer take over the payments ?

A. - Caveat - Any time you attempt to sell property , either real estate or personal property, which is mortgaged you may have severe legal consequences. - These may be short term or long term.

These legal consequences are usually provided for in the 'loan documents', either the promissory notes or the mortgage.

Before entering into any agreement to Sell property, Real or Personal, you should consult an attorney and give him or her a chance to review those documents in order to properly advise you concerning the 'legal consequences.'

Most attorneys have 'horror stories' about these types of transfers.

This question cannot properly be answered concerning your particular circumstances on the Telephone.

For this, you should take advantage of an attorney's 'Initial Consultation' which is generally low cost or in some cases 'free'.

Our office offers an Initial Consultation for $25.00, which will be credited toward the total fee for any Services we provide.

- See our Schedule of Fees & Services.

Q. - My property has a Mortgage on it, but the person that holds the Mortgage has Died. - How do I get the Mortgage Released ?

A. - The Personal Representative of the Estate of the deceased person will have the authority to Release Mortgages, Execute Deeds pursuant to a Contract for Deed, and perform all contractual obligations of the deceased person.

Q. - What ia a Quiet Title Suit ?

A. - This is an actual lawsuit brought for the purpose of having the Court determine the ownership of real property.

Such a suit may be required by the Title Examiner when there are defects in the Title which prevent the Title from being Marketable

Q. - What ia a Partition Suit ?

A. - Many times two or more people own an interest in real property, but cannot agree on its use. - One may need to liquidate his or her interest, or may want to own the complete title.

Where the parties cannot agree concerning the division, any one or more of them may file a suit in the District Court asking the Court to Partition the property.

If the property cannt be divided in kind, - i.e., by actual division of the property by giving each of the parties a part, then the property will be ordered sold and the proceeds of the sale apportioned among the owners according to their interest.

In many cases this Partition Suit may be a part of a Quiet Title action.

Q. - I Bought property at a Tax Sale - How do I get a Tax Deed ?

A. - Each year the County Treasurer will offer property for sale for delinquent taxes.

Purchasers generally receive a 'Tax Certificate' upon payment of the delinquent taxes, plus the expenses of the Sale.

After the Certificate is issued any person having an interest in the property may redeem the property upon payment of the taxes, expenses of the sale and interest.

After two years, if no one has redeemed the property, the purchaser may apply for a Tax Deed.

In most cases the property will be redeemed, and the purchaser will be paid back his investment - plus interest.

Currently the interest rate is greater than can be obtained on the same investment in Certificates of Deposit or Savings, and may represent a good investment.

However, the purchaser at a Tax Sale should realize that in most instances the property will be redeemed and he or she will never get the property - only a profit on the investment.

Specific Statutes govern the procedure for obtaing a Tax Deed and you really should have an attorney for this.

Even after you apply for a Tax Deed the property may still be redeemed.

You should also remember that the Tax Deed conveys only the quality and quantity of title which the County had. - subject to any defects in Title that appear from the record.

In most cases you will still need to quiet title to the property to make it marketable.