Beware The Unauthorized Practice Of Law

By
Mortgage and Lending with Right Trac Financial Group, Inc., NMLS# 2709 NMLS #1012303

Since I have been active on the Rain, I have seen several posts by real estate professionals that boarder on the rendition of legal advice.  I did not see any thing in their profiles to indicate that they were licensed lawyers.  That can be a dangerous situation.

In a recent post by Maria Gilda Racelis, entitled, Agents Should Not Act and Talk Like Home Inspectors", most of the real estate sales professionals who commented on her blog agreed that they would not render advice that would otherwise be the bailiwick of a home inspector. I suggest to you today that you should not act or talk like a lawyer unless you are licensed to practice law.  That can be just as dangerous, if not more dangerous, than acting and talking like a home inspector.  In CT, it is a felony crime to practice law scales of justicewithout a license.

Some of the things that you need to avoid advising clients about are title matters, property line matters, types of deeds and the form of ownership that 2 or more people should use to acquire ownership to a property.  There are many more areas and you need to think before commenting on subjects that sound like legal matters. 

The thing that you may not realize is that some of these seemingly harmless and simple areas of the law that you may otherwise feel qualified to talk about may have implications far beyond the immediate sales transaction or financing transaction.  For example, the form of ownership by which the buyers take title, whether as tenants in common, joint tenants with rights of survivorship, or as tenants by the entirety (reserved only for married persons), may have implications down the road on the buyers' estate plans and may well have tax ramifications if their estates are large enough.

When I was in graduate school in Chicago in the mid-1970s, there was a big flap about what sales professionals could and could not do in terms of preparing contracts and avoid infringing on the practice of law.  The lawyers and real estate professionals did resolve their differences and entered into a somewhat renown Lawyer-Broker Accord. That agreement between the professions limited the sales professionals to just completing the blanks in a form board contract.  I know CA has an extensive set of board forms that give sales professionals a lot of latitude in managing a transaction and addressing a number of issues.  All the CA forms as I understand are prepared by the CA Bar Association.  They all seem to work well together just as was the result in Chicago after the Accord was formalized.

I would finally suggest that if you have any doubt, consult a lawyer.  They work on referrals too, and I am sure that most real estate attorneys would be glad to provide some free advice for a potential referral down the road. I would bet most of you have a connection with one or more attorneys.  Use it and avoid the consequences of practicing law without a license.

The statements and opinions expressed herein are the personal statements and opinions of the writer and are not to be construed as legal advice or legal opinions.  If you have any questions regarding the subject matter of this post, please contact a competent, local, licensed attorney.

Posted by

Your Dedicated Mortgage Consultant!

Randy Kirsch, NMLS #1012303

Right Trac Financial Group, Inc. NMLS #2709

110 Main St.

Manchester, Ct. 06042

Office: 860 647-7701 X120

Fax: 860 647-8940

Cell: 202-827-6434

Email: randy@righttracfg.com

www.righttracfg.com

 

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The blogs written and published by Randy Kirsch are not in any manner whatsoever to be considered as legal advice or as a legal opinions.  If you have legal questions or concerns regarding any area of real estate law or mortgage law you are advised to consult a licensed, competent real estate attorney in your local area to address your concerns and questions.

 

Randy Kirsch does not guarantee nor is in any way responsible for the accuracy of the information provided herein, and provides said information without warranties of any kind, either expressed or implied.

 

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Comments (103)

Richard Bazinet /MBA, CRS, ABR
West USA Realty - Scottsdale, AZ
Phoenix Scottsdale. Sellers, Buyers & Relocations

Kinda sad in a way, as I read the comments here, that we can't say anything anymore, I'm not saying that we should, but it's not about what we say, it's about 'liability'. We want to pass the blame on someone else, never to ourselves, we won't take responsibiliy for what we say. And on the other side of the coin, we are looking to 'blame' someone else for our own decisions and mistakes. 

Dec 07, 2014 10:07 PM
Chad Felter
Virginia Beach, VA
Providing service through out Hampton Roads

I think it is easy for RE agents to give their "personal opinions" based on their extensive knowledge and experience on any given situation (we are helpful people by nature...your Mom wouldn't expect any less) but it is often necessary to refrain from the legal matters by stating that your clients should speak to an attorney or tax professional. Great advice, especially for those of us who are very helpful and free with their words.

Dec 07, 2014 10:31 PM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Richard Bazinet /MBA - I am still trying to understand the way business is done based on posts of other AZ real Esate Professionals.  Interesting that your classes are so law-oriented.  You do need to know those areas of the law for your own purposes, but it would be a mistake to start passing aout advice to clients other than relating to the sale and purchase of a home, which is not always a clear line.

Thanks for sharing.  Make it a great day.

Dec 07, 2014 10:48 PM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Doug Rogers - IMHO, its a great answer!

Thanks for sharing.  Make it a great day.

Dec 07, 2014 10:49 PM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Richard Bazinet /MBA - interesting isn't it.  Of course, no one wants to end up as a defendant in court.

Thanks for your further thoughts.

Dec 07, 2014 10:51 PM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Chad Felter - Disclaimers and limiting statements are always a good idea, but I am not sure that 100% of the buyers and sellers always pick up on those statements.

Thanks for sharing.  Make it a great day.

Dec 07, 2014 10:54 PM
Chad Felter
Virginia Beach, VA
Providing service through out Hampton Roads

Luckily people's half listening skills don't violate any laws or ethics.

Dec 08, 2014 12:50 AM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Chad Felter - as long as you document you statement and disclaimer in your file, then you can lessen the impact of those that have selective hearing.

Dec 08, 2014 12:54 AM
Kevin Stormer
Homeowners Mortgage Enterprises Inc. - Greenville, NC

Sometimes the best answer to give your client is, "I don't know."  Don't be too proud to let your client know that you're not an expert in the legal arena.  Refer them to an attorney for the correct answers.  This will make you look more knowledgeable than spouting out random fluff.

Best wishes,
iHeart Loan
www.iheartloans.com

Dec 08, 2014 03:49 AM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

You are absolutely correct  Kevin Stormer - some people do let their egos get in the way however and run the risk of a problem coming back to haunt them.

Thankls for sharing.  Make it a great evening.

Dec 08, 2014 07:57 AM
Will Nesbitt
Nesbitt Realty at Condo Alexandria - Alexandria, VA
Nesbitt Realty is a family-run brokerage.

Good warning, Manchester, CT Mortgage Consultant Randy Kirsch at 8606477701 X120 with Right Trac Financial Group.

Dec 09, 2014 03:04 AM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Will Nesbitt - hope people heed it!

Make it a great afternoon.

Dec 09, 2014 05:13 AM
Sharon Parisi
United Real Estate Dallas - Dallas, TX
Dallas Homes

Randy Kirsch We're fortunate in Texas to have contracts promulgated by a broker-lawyer committee.  We also have many excellent real estate attorneys who enjoy making a living. Every two years we are required to take legal and ethics classes, in addition to broker of record required classes.  That said, it's still easy to misstep, if one is not cautious.  Excellent topic!

Dec 09, 2014 04:17 PM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Thanks Sharon Parisi  A lot of states apparent6ly have the form contracts that are used by real estate sales professional prepared by lawyers.  The problem araises most often, I think, when a sales professional deviates from the form contract by changing or adding provisions.

Thanks for sharing.  Make it a great day.

Dec 10, 2014 01:17 AM
Jeff Jensen
The Federal Savings Bank/Lending in 50 states - Greenwich, CT

There is always a fine line.  I just read a post with a disclaimer.

Dec 10, 2014 06:19 AM
Tony Morganti
RE/MAX Crossroads in Cuyahoga Falls and Stow, Ohio - Cuyahoga Falls, OH
CRS, ABR, SRES - Cuyahoga Falls, Stow

Yes the line is fine and when doubt check with your broker or attorney.  It is so easy to slip over that line without meaning to.  

Dec 10, 2014 10:23 AM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

I even put a disclaimer on this post Jeff Jensen - I am concerned that by having a JD degree people will be even more confused than with individuals that do not have a legal education.  And, there is a very fine line!

Thanks for sharing.  Make it a great day.

Dec 10, 2014 09:17 PM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

I advocate for the use of a conservative approach to these issues Tony Morganti -  if there is any doubt about whether an issue warrants the advice of an attorney, refer the client to an attorney rather than venturing into murky waters yourself.

Thanks for sharing.  Make it a great day.

Dec 10, 2014 09:19 PM
Ron Buck
The Ron Buck Group - Laguna Niguel, CA
Associate RE Broker at Keller Williams Realty

"I am not an attorney but..." could come back to bite us. Thanks for the reminder and the history lesson.

Dec 11, 2014 01:37 AM
Randy Kirsch
Right Trac Financial Group, Inc., NMLS# 2709 - Manchester, CT
(NMLS# 1012303) Your Dedicated Mortgage Consultant

Good point Ron Buck - and the bite could be quite painful!

Thanks for sharing.  Make it a great day.

Dec 11, 2014 03:04 AM

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