A few years ago I was doing a closing with a buyer client.  The seller's attorney was new and the listing agent wasn't present at the closing.  The attorney never asked for the smoke detector certification at the closing.  He went through the paperwork, passed out the checks, and sent everyone on their merry way.  I was holding my check and the seller's waiting for the go-ahead to distribute them when he would go on record at the registry of deeds.  It was a long wait.  After three hours, I finally called him.  He admitted that he didn't have the smoke cert and was trying to reach the listing agent who was in Vermont and out of cell range to get the document.  I waited a little longer. 

I received a call from one of the partners in the law firm who yelled at me, accusing me of pulling the wool over his attorney's eyes - basically trying to blame me for the attorney's mistake.  I pointed out to him that I was the buyer's agent and had no reason to try to dupe the attorney into missing the smoke cert.  He finally calmed down, but the tirade left me with a wary feeling about him.  Clearly, he was trying to limit his liability. 

In the meantime, the buyer was unpacking in his new home.  All of his stuff was there and he was settling in.  And then we found out - the listing agent hadn't gotten a smoke detector certification.  It was December 30 and there were no appointments left on New Year's Eve, so we would have to wait until January 2 to get the smoke cert.  We hadn't actually closed - even though the paperwork was signed, keys were passed and the buyer had moved in. 

We needed an occupancy agreement so that the buyer could legally stay in the place where his stuff was already and which he had already handed in cash for.  The seller's attorney offered to draft the agreement since it was their fault we were in this predicament.  By this time, I had headed home - 45 minutes from the house and my client.  They faxed it to the listing agent who was back in town and she offered to take it to the buyer for signature.  I told her I wanted to see a copy first.  The buyer's attorney was nowhere to be found, so I needed to look out for my client. 

The seller's attorney was supposed to fax a copy of the agreement to both of us, but he only sent it to the listing agent. I had told the buyer not to sign anything until he talked to me and got the OK.  So the next thing I know, I get a call from the buyer saying the listing agent was at his door asking for a signature.  I told her I didn't have a copy of the form and I needed to see it before he could sign it.  They headed back to her office and faxed me the form.  At the top of the form it said "Use and Occupancy Agreement", but this is where any resemblance to an actual use and occupancy agreement ended.  The rest of the form said that the buyer would not store his belongings in the property or occupy the property until the smoke detector certification was complete and that if he did, he'd hold the attorneys harmless for any damage due to fire that might occur before closing.  Note that - he wouldn't hold the seller harmless, he'd hold the attorneys harmless.  There was absolutely nothing in the agreement that indicated anything that a standard use and occupancy agreement would have.  (Yes, the attorneys knew that he had moved in already - hence the need for the Use and Occupancy Agreement in the first place.) 

I told my client not to sign the form and I called the attorney to tell them that he wouldn't be signing it.  I had to be careful not to be seen as trying to practice law without a license, so I told the seller's attorney that we would have my client's attorney review the form and when they OKed it, he would sign it.  Since we hadn't been able to get a response from his attorneys this whole time, it seemed a fair bet that they wouldn't get back to us until after the closing anyway.  And I couldn't imagine his attorney approving his signature on that document.

The moral of the story - ALWAYS read what the attorney/title company sends you.  Even if you think you already know what it says.  I can't tell you how many times I've had contracts that I've sent back for correction come back without the corrections having been made.  And this time, outright deception from the seller's attorney.  As our clients' representatives, we need to be diligent in this as in everything.  Don't take it for granted - READ EVERYTHING.

Kelle Sparta is the author of The Consultative Real Estate Agent - Building Relationships that Create Loyal Clients, Get More Referrals, and Increase Your Sales, as well as being a speaker and trainer specializing in the real estate industry. Kelle is the founder of Sparta Success Systems, a real estate training company that provides tools, products, and training to empower agents and brokers to create lives and businesses they can love. For more information, visit her website at http://www.spartasuccess.com/. © 2008, Kelle Sparta.