Home Buying in Los Angeles>Question Details

loong415, Home Buyer in Los Angeles, CA

Is listing agent also exempt from TDS as the seller. Should it be noted (the exemption) the Purchase agreement or on the counter offer?

Asked by loong415, Los Angeles, CA Wed Apr 3, 2013

We did not know about the TDS until the final walk through.

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If the listing agent is also the seller and he is selling the home as his fiduciary obligation then no, he is treated like any other trustee seller check California Civil Code Civil Code §1102.2 HOWEVER no trustee seller is exempt if they lived on the property within the past 12 months "any transfer by an executor, guardian or trustee in the exercise of their fiduciary duties in administering a decedent’s estate, guardianship or trust. This exemption does not apply if the executor, guardian or trustee is the former owner or lived in the property during the past 12 months (i.e. trustee of a revocable or family trust)" .... simply put similar to an reo/bank owned property is also exempt from TDS. How could they complete if they never lived on the property?
0 votes Thank Flag Link Sat Mar 15, 2014
One of the ways someone is exempt from completing and providing a TDS is if the property is in a Trust, or if it is a REO or Probate. Both agents would need to provide an AVID - Agent's Visual Inspection Disclosure...which also discloses the property condition...no exemptions or exceptions.

If the Seller is the listing agent, they still need to provide a TDS.
0 votes Thank Flag Link Fri Apr 19, 2013
Dear Looong,
You should have an AVID from the seller but this question is bordering on a legal issue since you have not been fully informed. You need a Real Estate Attorney for this.
0 votes Thank Flag Link Fri Apr 5, 2013
What do you think. ... better yet.. what does your agent think??? Yes, probate/ trusts are exempt, except for two rules.... no I am not going to tell you, that's your AGENT'S job. Yes, you should of been told a long time ago.... like within 7 days after opening escrow.

Talk to an attorney and see. You might get a better answer as far as your rights go.

Goood luck,

James
0 votes Thank Flag Link Thu Apr 4, 2013
As a follow up to my question... the listing agent actually promised a TDS and never delivered. At final walk through, the listing agent pleads (deceased parents) Trustee Sale for not having to do the TDS. My banker friend selling foreclosures says they always note TDS exemption in their Counter-Offer. Is the listing agent behaving unethically?
0 votes Thank Flag Link Thu Apr 4, 2013
Al: As understood, the only exemption is if the selling side has not lived on the premises. REO & probate are typical scenarios where the selling side would not need to provide these. Check with http://www.car.org legal hotline and they can help answer in more details with their legal council.
With thanks,
Renee Kische
Keller Williams Realty Los Angeles
323.377.7976
0 votes Thank Flag Link Thu Apr 4, 2013
Hi,

If the listing broker is also the seller he must do a TDS. Regardless he should do an AVID agents visual inspection disclosure.

On a probate, bank owned property, bankruptcy sale the seller is sometimes exempt from the TDS, but required to disclose any major material defect, or flaw if they have knowledge of it.

Probates, bankruptcy sales, and REO's usually are sold as-is.

Holding back on the TDS right before the close of escrow is suspicious, and I would have to read your contract, but usually the seller should have given you the TDS within 17 days of acceptance of offer and you have a certain time to accept or reject the property. If you released all contingencies or not also affects your right to cancel.

I cannot give legal or tax advice, and the above is what I understand from the experts.

Call, text, or email me because I need to ask you some questions to understand all the pieces in the puzzle.

Thanks

Al Goldberg Broker
alyourbroker@yahoo.com
800-765-3609
0 votes Thank Flag Link Wed Apr 3, 2013
Listing agents are not required to fill out the TDS. They have never lived in the property.

Usually, exemption situations are made known early int he escrow process.
0 votes Thank Flag Link Wed Apr 3, 2013
Yes, listing agent does not have to fill out. Only private Owner/Seller does.
0 votes Thank Flag Link Wed Apr 3, 2013
No one is required to fill that form out for you. Agents/ Broker's do it to protect themselves. If an agent was smart they would at least fill out page three on the TDS but nothing else and disclose it to the buyer if the seller is unable/ won't fill out the rest of the TDS form.
It sounds like you might have bought a foreclosure and you should have been given a REO advisory on what was exempt and what was not but again, it only is a disclosure, not required.
0 votes Thank Flag Link Wed Apr 3, 2013
It is a good practice for Agent to fill out Form called Agent Visual Inspection Disclosure.



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0 votes Thank Flag Link Wed Apr 3, 2013
I have never seen an agent fill out a TDS form, unless they had ownership in the property. Agents don't fill out TDS forms, unless something has changed and I am not aware of it. Agents do what is called an AVID form, this is for any deffects that an agent sees, knows about or hears.

Sounds like during the first 10 days of escrow your agent was a sleep or depending to much on the TC. And they didn't say anything about the discloures a seller gives a buyer or go over that with you as what was required or exempt. Finding out during the final walk through means.... you've probably already removed your contingencies, signed loan docs and waiting for the loan to fun.... the agent does have a broker, and no not the floor manager that sees how everything is going. Wake the big guy up and bother him while he getting ready to go play golf.

Good luck!
0 votes Thank Flag Link Wed Apr 3, 2013
First off, the TDS (Transfer Disclosure Statement) form is NOT a form that is to be filled out by the listing agent or the buyer agent. This form is for the Seller ONLY.

If a seller is exempt from having to do the TDS form, this is usually only on bank owned properties. Even if a seller has never seen or never lived on the property, they still need to complete a TDS.

Regarding where you would have seen that the seller is exempt; It should have been on the MLS sheet, alternative to that it should have been stated in either the Counter offer or an Addendum that the seller was exempt.

Your not receiving this form until the day of your Final Walk Through, however is not good. You should have received this form within the days of your Due Diligence period which is usually 17 days, however in this market, maybe it was 10-12 days.

In the end, my opinion for any Seller Disclosure form is that it is good Supplemental information. Supplemental ONLY to YOUR doing proper due diligence like hiring a Professional Home Inspector & / or other professionals to check the property for you, including but not limited to, plumbers, electricians, general contractors, geological or soils testers, mold inspectors etc.

I hope you're still able to close on your home purchase.

Shoot me an email directly to talk about this further, I don't look back on this same Trulia posting for answers after mine.

Emily S. Knell
EmilyKnell1@yahoo.com
562-430-3053 c
Realtor Since 1996
Realty ONE Group
Short Sale Listing Agent w/ 97% success rate
100% Success Rate in CA
Closing short sales within 300mi of my home!
0 votes Thank Flag Link Wed Apr 3, 2013
You should have had the TDS way before the walk-thru. I don't believe your seller/agent is exempt.
What does your Realtor say? Is there anything in the TDS of concern? Need more info.

Eileen Lanza
Keller Williams
323.810-7935
0 votes Thank Flag Link Wed Apr 3, 2013
There is not enough information to answer this question intelligently. The only time a seller or their agent is exempt from the TDS is if it is an REO or a probate, but even then I believe it has to actually be provided with the exemption status on it. If it is a regular sale the seller is obliged to provide a TDS with the listing agent's signature on it and the buyer and buyer's agent also sign. This is supposed to be provided before the inspection so the inspector can check out any information of concern on it. But again, there is not enough information here.
Web Reference: http://www.homejane.com
0 votes Thank Flag Link Wed Apr 3, 2013
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