NEFMLS Forms Revised-- by Jeff Marks

All of the NEFMLS forms were revised in December 2015. Thank you to the members of the forms committee, who met many times to update and improve the forms. The forms committee members were Stan Bishop, David Elian, Eileen McVeigh, Jerry Smith, Andre Boutte, Marc Jernigan, Mark Rosener, Carmen Bogard, Karen Palmer, Carol Zingone, Linda McInnis, Ryan Ford, Starr Keating, Laura Evans, Kay Seitzinger, Lee Osbourne, Pat Alters, Clare Berry, Gonzalo Mejia, Linda McMorrow, Clark LaBlond, Ben Bates, Jr., Wanda Franklin, Sonny Downey and NEFMLS Executive Officer Ron Stephan. Thanks also to NEFMLS staff members Kimberly Wiggins and Amy Trujillo. When you see them, please thank them for all of their hard work. Here are the changes in the forms.

Exclusive Right of Sale Listing Agreement. 

Page 1.

• There is an additional line for the names of the Sellers at the top, and the following words have been added after the word SELLER "name(s) as reflected on deed, or if individual(s), government-issued photo ID, and marital status".  
• Below that, the following phrase is new and is in bold "SELLER represents that SELLER has legal authority and capacity to convey the Property and that no other personal entity has an ownership interest in the Property." This is similar to the language in the revised NEFAR suggested Purchase and Sale Agreement. 
• Paragraph 1 has the following new words "GRANT OF EXCLUSIVE AUTHORITY TO SELL PROPERTY." 
• After that paragraph, there is a new line that reads as follows: "The Property [  ] is [  ] is not SELLER's principal residence" and a place for Sellers to initial. 
• In paragraph 1D (PERSONAL PROPERTY), the word "if" was added in the first sentence that now reads as follows: "The following items, if owned by SELLER and existing on the Property on the date of a buyer's offer, are included in the Purchase Price...."
• Now included in the items that stay with the house are "bulbs, smoke detectors and intercom".

Page 2. 

• In paragraph 3 (Terms), if there is Seller financing it now states "if marked, attach Seller Financing Addendum" and if mortgage assumption is marked it now states "if marked, attach Mortgage Assumption Addendum." Therefore, the terms of seller financing or mortgage assumption are not contained within the Listing Agreement itself but rather in separate stand-alone addenda. 
• Also in paragraph 3, where it lists the closing costs that Seller agrees to pay, the following was deleted "WDO report for VA loan only." This was done because under new rules the veteran can pay for the WDO in Florida and in other states where WDOs are common. I think the NEFAR suggested form of Purchase and Sale Agreement will be changed soon to reflect this as well. 
• Further down in paragraph 3, a phrase was added requiring the Seller to pay costs to cure all association violations. 
• In paragraph 3D (Prorations), the following words were added after the statement that all taxes, rents, condominium and homeowners' association fees, solid waste collection/disposal fees, storm water fees, and CDD fees will be prorated through before the date of closing "based on the most recent information available to the closing attorney/settlement agent, using the gross tax amount for estimated tax prorations." 
• In paragraph 3E (Posessions), the words legal counsel were put in bold in the following sentence: "If possession is to be delivered before or after closing, the buyer and SELLER shall execute a separate possession agreement prepared by legal counsel at possessor's expense at least 5 days before date of closing on terms reasonably acceptable to buyer and SELLER." 
• At the bottom of page 2, in the section regarding property that is rented, now the seller must provide the buyer with rent rolls as well as copies of the leases.

Page 3. 

• In paragraph 4, the wording was changed slightly to read "At least one of the following paragraphs must be initialed for the listing to be placed in NEFMLS." Below that are four separate paragraphs addressing whether the sale will produce sufficient funds to satisfy all mortgages or not. These paragraphs are now lettered A, B, C and D for easier reading. 
• Additionally the following sentence was added in two places "The Listing Agreement Short Sale/Pre-Foreclosure Addendum is Required and is attached if paragraph 4D is initialed." 
• At the bottom of page 3, the space for the seller to initial has been moved to be in the middle of the paragraph instead of the end of the paragraph regarding utilization of a Northeast Florida Association of Realtors, Inc. authorized lock box.

Page 4.

• In paragraph 5C, you are now authorized to order a home warranty if the seller is obligated to provide it. 
• In paragraph 5(C)(7) the word "videos" was added in the sentence where seller grants to NEFMLS, NEFAR, and BROKER the unlimited right to use, publish, disseminate, sell and license to others all techs, graphics, photos, videos, virtual tours.... 
• At the end of that paragraph 7(C) the underlined words were added "and therefore NEFMLS, NEFAR and BROKER have no control over any electronic display and no obligation to remove any of the above content from any electronic display at any time." (The prior version of the Listing Agreement had used the words public website instead of any electronic display.) The same wording changes were made several times in paragraph 5(D)(C). 
• In paragraph 6 (Seller Obligations) the underlined words were added "make the Property available to a buyer, buyer representative, buyer's broker. buyer's licensed inspectors/contractors, and appraisers for inspections and investigations ...".

Page 5.

• In paragraph 6 (Seller Obligations), the underlined words were added "comply with the Foreign Investment in Real Property Tax Act (FIRPTA) if any SELLER is a "foreign person" as defined by FIRPTA, which may require SELLER to provide additional funds at closing; “SELLER agrees to disclose to closing attorney/settlement agent at least 10 days before closing if any SELLER is not a U.S. citizen or resident alien". 
• A new sub-paragraph J was added as follows "not engage in any audio recording of a buyer, buyer's representatives, buyer's broker, inspectors and appraisers when any of them are on the Property in accordance with Florida Statute 934." 
• At the bottom of page five in paragraph 8 under  Compensation and Cooperation, there is new, easier to read formatting on the cooperating real estate commission offered to a single agent for  buyer,  a transaction  broker  for  buyer  and  a  non-representative  (broker  who  has  no relationship with the buyer). 
• Also at the bottom of page 5 and the top of page 6 the following new words were added "SELLER hereby directs closing attorney/settlement agent to disburse at closing all compensation to brokers payable hereunder."

Page 6.

• The only change was in paragraph 8(2) where the underlined words were added "If SELLER refuses and fails to sign and offer at the price at the terms stated in this Agreement or any amendments to this Agreement,..."

Page 7.

• In paragraph 12 (Complete Agreement and Miscellaneous Provisions), the following sentence was added "Any written communication or notice between BROKER and SELLER may be sent by facsimile or email." 
• Additionally, the following sentence was added in bold "If any SELLER is married and BROKER has not been notified in writing by any SELLER that divorce proceedings are pending, any modification to this Agreement and/or communication (including without limitation price changes, extensions and changes to NEFMLS listing information) from either spouse shall be deemed binding on the other spouse and may be relied upon by BROKER, and SELLER hereby appoints SELLER' s spouse as attorney in fact for these purposes." 
• Later in that paragraph, the underlined words were added "The Property is to be offered to any person without regard to ·race, color, religion, sex, handicap, familial status, national origin, sexual orientation or gender identity." This is in conformity with NAR Code of Ethics Article 10. 
• Also in that paragraph, the underlined words were added to confirm that the broker has the right to assign the Listing Agreement "This is a legal contract and binds SELLER and their heirs, legal representatives, successors and assigns of SELLERs and the assigns of BROKER."

Page 8.

• A new paragraph 17 was added which reads as follows: "17. FIRPTA: [ ] mark if any SELLER is not a U.S. citizen or resident alien." The last paragraph of the document was reworded as follows: "Pursuant to Florida Statute 475, BROKER must provide SELLER with a copy of this Agreement within 24 hours of execution by BROKER and SELLER." 
• There are now four seller signature lines instead of two. 
• Also, there is a new part entitled Preferred Contact Information, which  includes lines for seller's mailing address, email address and phone number.

Seller Financing Addendum to Exclusive Right of Sale Listing Agreement.

• This is now a stand-alone two page form. Much of the wording contained in it is a summary of seller financing rules under the Dodd­ Frank Act, which regulates seller financing. The regulations are not severe, especially for a seller who finances only one property in any twelve month period.

Assumption Addendum to Exclusive Right of Sale Listing Agreement.

• We have not seen many assumptions because conventional mortgages are not assumable without the prior written consent of the lender. However, if interest rates increase we may see assumptions for VA and FHA loans. This is now a new stand-alone form which describes all of the terms of the mortgage to be assumed and makes the transaction contingent on the lender's approval of the assumption if such approval is required lender.

Short Sale/Pre-Foreclosure Addendum to Exclusive Right of Listing Agreement.

• On page 1, in paragraph three, the words "Closing Disclosure or a settlement statement" have replaced the words "HUD 1 Settlement Statement". The same change was made in paragraph 5C on page 1.
• On page 2, the words Settlement Statement were replaced with "A preliminary Closing Disclosure or a closing statement". T
• he third page, which is the signature page, has been reformatted. There are now four seller lines and lines for Preferred Contact Information.

Brokerage Compensation Agreement. 

• This is a form used for a one time listing. On page 1, after the word SELLER, the following was added "(name(s) as reflected on deed, or if individual(s), government issued photo ID...'' 
• Page 2 is the signature page. It has been reformatted and now has four seller lines and lines for Preferred Contact Information.

Change Authorization Amendment to Exclusive Right of Sale Listing Agreement.

• The title of the form has changed. The prior title was "Change Request Amendment." It is not a request but rather an authorization.

Seller’s Waiver of   Entry into the NEFMLS Addendum to Exclusive Right of Sale Listing Agreement. 

• This form was first created by NEFMLS late in 2014. The few changes were for grammar and style.