7) CONTRACTS (12%)

Under which one of the following listing contracts must an owner pay a commission, regardless of who sells the property?

An exclusive right to sell listing. - an exclusive right to sell listing agreement guarantees a commission will be paid to the broker regardless who sells it.

The authority of the broker to accept a good faith deposit from a buyer is provided for in the:

listing agreement. - Question 23 covered a similar issue of broker authorization. The authorization is contained in the listing (employment) contract.

When an existing contract is replaced by an entirely new contract, it is an example of:

novation. - This question illustrates the need to be familiar with real estate terminology. Under a novation, there is a substitution or exchange of a new obligation or contract for an old one by the mutual agreement of the parties.

A listing agreement needs to comply with all the legal requirements for a valid contract, including:

offer and acceptance. - Answer choice A is the only acceptable answer. You cannot guarantee or perform illegal acts. Listings are not recorded, nor do they require acknowledged signatures.

Mutual consent is typically evidenced by:

offer and acceptance. - Mutual consent implies both parties have agreed to the contract. Thus, one party has made an offer and the other has accepted.

The essential elements of an enforceable contract are:

competency, mutual consent, lawful object, consideration. - Note that Question 1 showed that not all contracts need to be in writing, eliminating both answer choices B and C.

Which of the following contracts must be in writing in order to be enforceable? a) An agreement by a buyer to assume an existing loan secured by a deed of trust. b) An agreement which is not to be performed within one year of being entered into. c) listing to lease real property for one year. d) Both a. and b.

Both a. and b.

A listing agreement can be described as: a) a promise for a promise. b) a bilateral contract. c) an executory contract. d) All of the above.

All of the above.

To be enforceable, the listing of a business opportunity:

does not always have to be in writing. - Be wary of 'never' and 'always' in questions such as this. In this case, a business opportunity sale may include real estate which requires the listing to be in writing. Recognize that an open listing is not exclusive and yet is still valid and enforceable.

A(n) _________ is an example of a bilateral contract in which both the offeror and the offeree are grantors.

exchange agreement - This question requires you to identify a bilateral contract in which both parties may be in both positions. Only an exchange agreement provides this opportunity.

The typical listing contract authorizes a broker to:

find a purchaser and accept a deposit with an offer to purchase. - Each of the wrong answers can be seen as incorrect. An agent cannot obligate the seller to accept an offer nor can they transfer property owned by the seller.

Which of the following is an acceptable termination date for an enforceable exclusive listing of residential real property?

180 days after the listing agreement is signed. - An exclusive listing requires a specific termination date. This is generally based on the date the listing contract is signed.

Liquidated damages cannot exceed ______________ in the instance of an owner-occupied one-to-four unit residential property:

3% of the sale price - Liquidated damages are limited to 3% of the sales price on an owner-occupied one-to-four unit residential property (a protected property).

Which of the following contracts needs to be in writing in accordance with the Statute of Frauds? a) lease for one year. b) The sale of growing crops. c) A contract that is not to be performed for thirteen months. d) A contract that is to be performed within one year.

A contract that is not to be performed for thirteen months. - The Statute of Frauds, based on an old English statute, requires written contracts for actions not to be performed within one year.

Which of the following is true? a) An illegal contract can be an enforceable contract. b) A valid contract can be an unenforceable contract. c) A void contract can be enforced by one party only. d) Voidable means 'void unless validated.'

A valid contract can be an unenforceable contract. - An oral contract for more than a year may be valid but unenforceable.

Broker Greg took a listing on a commercial office complex and received an option to purchase the property within one month. On the 25th day of the listing, Broker Greg decides to buy the property. Before buying the property, Broker Greg is required to: a) disclose the existence of any outstanding offers received on the property to the seller. b) disclose all material information to the seller. c) obtain written consent from the seller which acknowledges any profit or anticipated profit. d) All of the above.

All of the above. This is an example of full disclosure. All of these conditions need to be met in order for the broker to correctly exercise their option to purchase the property.

Which of the following is true concerning an option? a) No consideration is necessary to create an option. b) An option is void if the consideration is inadequate. c) An option is valid so long as consideration is actually delivered. d) None of the above.

An option is valid so long as consideration is actually delivered. - The amount of consideration is not relevant. However, the consideration itself needs to be delivered to create a valid and enforceable option.

Anita signs a real estate purchase contract as a buyer. The contract states the offer to purchase is valid for three days. One day later, Anita wishes to rescind her unaccepted offer. Which of these answers is correct?

Anita may revoke the offer and recover her deposit. - Until the offer has been accepted, and the acceptance has been communicated to the buyer, Anita is free to revoke the offer.

Which of the following is true concerning an option? a) A fiduciary duty exists between the optionor and the optionee. b) Only the optionor is bound to perform under the terms of an option. c) Consideration does not actually have to change hands so long as the option says it has. d) The optionee has created a legal interest in the property.

Only the optionor is bound to perform under the terms of an option. - The optionor is the owner of the real estate. Thus, the optionor is the only party obligated to perform under the terms of the option.

An offer is terminated by:

Rejection by the offeree - This requires knowing who is who in the question. The offeror is the person who made the offer. The offeree is the person who may accept or reject an offer.

A broker receives an offer from a buyer. The deposit is in the form of a personal promissory note for $20,000 payable to the seller in 60 days, plus 10% interest. Which of the following is true?

The broker needs to accept the promissory note but must notify the seller the deposit is in the form of a promissory note. - A deposit for the purchase of property may be made in any form. However, the broker needs to disclose the form and amount of the deposit to the seller.

Heather made an offer to purchase real property. The seller accepted the offer but Heather died before this acceptance was communicated to her by the seller's agent. Based on these facts, which of the following is true?

The death of Heather constitutes a revocation of the offer. - Had the buyer's death occurred after communication of the acceptance of the offer by the seller's agent, her estate would have been responsible to complete the escrow.

Under a land sales contract for the sale of real property, legal title is held by the:

This is the reverse version of Question 18. Again, the vendor (seller) holds legal title to the property until the debt is repaid in full.

Which of the following statements is correct? a) Brokerage commissions are limited by law. b) Under an exclusive agency listing, the seller may not liable for a commission if they sell the property themselves. c) A finder may only take part in transaction negotiations when employed by a broker under a written employment agreement. d) A broker may never collect a commission if a sale is consummated after a listing has expired.

Under an exclusive agency listing, the seller may not liable for a commission if they sell the property themselves. - 'Under an exclusive agency listing, the broker is guaranteed a commission if the property is sold by anyone, unless the seller is excepted in the listing agreement. Though less common, this may occur when a FSBO seller later enters into exclusive agency with a buyer's agent, but personally sells the property to a buyer obtained from their efforts when the property was sold as a FSBO.'

When does a broker not have to present an offer to purchase real property to their principal?

When the offer is patently frivolous or the broker is acting on written instructions of the principal. - While this is the correct answer, as a matter of prudent practice, an agent is to disclose the existence of all offers to the seller, unless the seller explicitly instructs otherwise.

The most essential element of an enforceable listing contract is that it provides:

a written contract documenting the broker's employment. - The critical element to recognize in this question is that a listing contract is an employment contract.

acknowledgment (q. 55) bi-lateral contract (q. 10, 26) breach (q. 2) business opportunity listing (q. 54) capable parties (q. 15) coercion (q. 4) consideration (q. 11) counteroffer (q. 12) duress (q. 4) enforceable contract (q. 14) essential elements of a contract (q. 3, 6, 30) exchange (q. 16) exclusive agency listing (q. 24) exclusive right-to-sell listing (q. 9, 31) fraud (q. 56) hold harmless clause (q. 32) land contract (q. 17 - 21) lease (q. 57) liquidated damages (q. 22, 42) listing (q. 23, 25, 28, 29) loan assumption (q. 37) mutual consent (q. 5) net listing (q. 33) novation (q. 38) open listing (q. 27, 34) option listing (q. 41) option to buy (q. 39, 53) purchase agreement (q. 44, 45) qualified endorsement (q. 13) rejection (q. 8) rescission (q. 47) revocation (q. 35, 43, 48) specific performance (q. 49) Statute of Frauds (q. 1, 50) tender (q. 51) termination (q. 8, 36) time-essence provision (q. 46) unenforceable (q. 7, 52) void (q. 40) voidable contract (q. 4)

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Under a land sales contract, title is conveyed to a buyer when they pay ___________ the remaining unpaid amount on the purchase price.

all - Like most contracts, such as the purchase of an automobile, title is not conveyed until the final payment has been made.

When Jack sells his home, he wants to be relieved of the primary liability for payment of the existing loan. He needs to find a buyer who is willing to:

assume the existing loan. - The buyer's assumption of the loan is the only answer selection offered that will relieve the seller of the primary responsibility for the underlying debt. Though the obvious answer would be for the seller to pay off the loan, that answer selection is not provided and therefore cannot be selected.

On an exclusive listing, a broker is NOT disciplined for failure to:

attach a tax statement to the listing. - An exclusive listing requires a definite termination date. Further, copies of all documents that are signed need to be given to the person who signed them. A tax statement does not need to be attached to the listing.

In order to qualify for recording with the County Recorder, a land sales contract needs to:

be signed by both the buyer and seller and be acknowledged before a notary public. - Unlike a transfer by grant deed, a land sales contract needs to be signed by both parties. The signatures require acknowledgment before a notary public to be recorded.

A salesperson obtains a listing on a family member's house. After taking the listing, the salesperson changes brokers. The listing:

belongs to the salesperson's previous broker. - The broker is the agent to the principal and the salesperson is an agent of the broker. The listing was generated under the prior broker's license and thus stays with that broker.

A listing agreement in which a seller agrees to pay a broker a commission if they produce a 'ready, willing, and able' buyer and agree to use due diligence in procuring a buyer is an example of a(n):

bilateral executory contract. - Bilateral refers to a promise to perform made by one party in exchange for a promise to perform made by another party. Executory means the promised activities will be performed by both parties in the future.

Failure to perform as agreed under a contract is known as a(n):

breach - The failure to perform under a contract is known as a breach. The concept of answer selection A. novation will be referenced in Question 38.

When damages resulting from a breach of the contract are not adequate, each of the following may request specific performance, except the:

broker - The parties to an escrow do not include the broker. Thus, the damages described do not include the broker's fee nor would the broker have any authority to demand specific performance.

In a contract, the terms 'adequate, valuable, good or sufficient' refer to:

consideration - Consideration is something of value provided to both participants to a contract which induces them to perform.

Under a(n) __________ , the agent's fee is set as all sums received exceeding a net price established by the owner.

net listing - The answer is in the question. A net listing gives an established amount to the seller and all the excess to the broker.

Upon the default of a buyer under a land sales contract, the seller:

files a quiet title action. - In the instance of a land contract, also known as a contract sale, there is no trustee. Further, the vendor already has legal title to the property so answer selection D would impact them (the seller) rather than the vendee (the buyer). Thus, on a default by the buyer, the seller files a quiet title action.

Any intentional concealment of material facts by an agent is regarded as:

fraud - Intentional concealment is the key to the question. This is the condition required to evidence fraud beyond mere misrepresentation.

A buyer and seller initial the liquidated damages clause in a real estate purchase agreement. The buyer later defaults. The amount recoverable is:

given to the seller after the default. - The amount recoverable under a liquidated damages provision in a purchase agreement is not always limited to 3%, only for one-to-four unit residential property.

The following persons may not lawfully enter into a valid contract to purchase property, EXCEPT: a) unemancipated minors. b) minors who are wards of the court. c) convicts. d) international buyers.

international buyers. - Foreign buyers may lawfully enter into a valid contract to purchase property.

Broker Matthews took a 90-day exclusive agency listing to sell a property owned by Tyler. After 30 days without selling the property, Tyler sent Broker Matthews a letter cancelling the listing. One week later, Tyler enters into open listings with several other brokers. Two weeks later, one of the brokers sold the property. In this situation, Tyler:

is liable for payment of a commission to Matthews as well as to the selling broker. - The open listing guaranteed payment to the procuring broker. The exclusive listing is a bilateral contract which cannot be voided unilaterally. Therefore, the seller owes a commission to both brokers.

A real estate transaction in which the buyer gains possession of a property while the seller retains legal title until the debt is fully repaid is an example of a(n):

land sales contract. - Neither trust deeds nor mortgages transfer possession without concurrently transferring legal title.

The terms 'index,' 'triple net' and 'flat' are used to describe:

leases. - All of these terms relate to leases as they describe how rent is to be calculated and charged.

The hold harmless clause in a listing agreement protects the agent from liability for:

misinformation about the property from the seller. - This clause is in the listing contract between the seller and the broker, for the broker to be 'held harmless.' Logically, it is protection against actions by the other party to the contract.

All of the following are essential elements of a contract, except: a) an offer. b) acceptance. c) consideration. d) performance.

performance - Performance is not essential to form a valid contract. Performance may be required to complete the activity called for in a contract after it has been signed (offer and acceptance), but is not necessary to the formation of a contract.

Writing 'without recourse' on the back of a check creates a(n):

qualified endorsement. - 'Qualified' suggests the endorser meant to set certain restrictions on the check. In this instance, if the check is not honored, the endorser is not liable.

The instrument most likely to state that 'time is of the essence' is a(n):

real estate purchase contract. - The purchase agreement is the only contract offered that would require a response from the opposing party within a stated period of time.

Acknowledgment by a notary public of the signature on a deed is done as a prerequisite for:

recording the deed at the county recorder's office. - Recording requires a notary acknowledgment verifying the identity of the signors. Even if a deed is valid, it cannot be recorded without acknowledgment.

An offer to perform in accordance with contractual obligations is an example of:

tender. - To make an offer is to 'tender' the offer.

Brokers Phoebe and Saul both have an open listing on a property. Broker Phoebe showed the property to a prospective buyer, but the buyer decided not to buy. Two weeks later, Broker Saul contacted the same buyer and arranged a sale of the property. The seller is obligated to pay a commission as follows:

the full amount to Saul. - An open listing guarantees the entire commission to the procuring broker (Saul in this example.)

A real estate buyer can rescind an offer until:

the seller's acceptance has been communicated to the buyer. - it is the communication of the acceptance of the offer to the buyer that limits their ability to rescind the offer.

Seller Vega listed a vacant lot with Broker Wright for $120,000. Prospective buyer Marty submitted an offer at a purchase price of $100,000 with the offer to expire in 30 days. The next day, Seller Vega countered at $110,000. Buyer Marty rejected the counter. Three days later, Seller Vega delivered to Broker Wright a signed acceptance of Buyer Marty's initial $100,000 purchase offer. When Broker Wright told Buyer Marty of Seller Vega's acceptance, Marty stated he did not intend to buy the property. Based on the foregoing actions:

there is no contract. - When a counteroffer is made, no matter what the reason may be, the original offer is voided.

When a broker has a nonexclusive listing, to be legally entitled to a commission, they need to be able to prove they:

they were the procuring cause of the sale - To collect a commission, the broker needs to locate a buyer who is ready, willing and able to buy, and they must prove they were the procuring cause of the sale.

A husband signed a contract to sell community real estate without his wife's signature. The contract is:

unenforceable. - Both owners of community property need to be involved in the sale of property held by both parties.

The right of possession and equitable title is held by the:

vendee - In most cases, the party name ending in 'or' owns the real estate. In the instance of a land contract, the 'ee' (vendee) is the buyer and therefore has possession and equitable title of a property, but not legal title.

A contract based on an unlawful purpose is:

void. - Any contract to perform an illegal act is void by definition. This is one of the four essential conditions of a contract.

If one party in a contract is coerced or placed under duress by the other party, the contract is _________ at the discretion of the injured party.

voidable - The party that suffers from duress has the right to cancel the contract. Therefore, the contract is voidable by the injured party only.