Charging non-Realtors® to Access GAR Forms
Have you heard the news that, beginning January 1, 2012, real estate licensees who are not Realtors® (not members of a Board or Association of Realtors®) will no longer have free access to GAR Forms? All agents affiliated with BHGRE Metro Brokers and CBC Metro Brokers are required to be Realtors and will have access to GAR Forms, but this will be a big change for some other companies that don’t require membership.
Once 2012 begins, non-Realtors® will have to pay a $199 annual licensing fee for access to GAR Forms. The GAR Forms will recognize the NRDS numbers of Realtors®. When non-Realtors® try to access the GAR Forms and cannot provide a NRDS number, they will be offered the opportunity to pay the annual licensing fee online. No fee payment, no GAR Forms access.
“GAR (Georgia Association of Realtors®) has always exclusively owned the copyright to the GAR Forms. The Forms were developed by GAR over the last 20 years through the hard work, dedication, and effort of the GAR Forms Committee working in conjunction with GAR legal counsel. Much time, effort and expense has gone into the creation of the Forms and continues to go into updating and improving the Forms each year,” according to Anne D. Gault, GAR President.
As an attempt to attract licensees, some brokerages allow their licensees to affiliate without becoming Realtors®. Therefore, the use of GAR Forms by non-Realtors®, who are not paying dues to GAR to support GAR Forms and other GAR services, has become controversial. Realtors® are simply no longer willing to share their very valuable work and intellectual property with “free-loading” nonmembers at no cost.
Why GAR Forms are the Best
This is not a blog about the benefits of being a Realtor®; that’s a whole other topic. This is a blog about the fact that GAR Forms are the best real estate forms available to Realtors® inGeorgiafor many reasons:
- They are the ONLY forms written to specifically protect the interests of Realtors® while also being fair to the interests of clients and customers. Any agent who has dealt with contracts written by the buyer’s or seller’s attorney knows that those documents are NOT designed to protect the real estate licensees, and are, in fact, often very unfriendly to licensees.
- GAR Forms have been successfully defended in court and, as such, the risk of court challenges to GAR Forms is less than with others.
- GAR has a history of conducting defense of its forms in court when legal challenges have been brought.
- GAR Forms are extremely comprehensive and include Forms for just about any real estate situation a Realtor® may be involved in.
- GAR Forms have been prepared in conjunction with legal counsel working hand-in-hand with the GAR Forms Committee. Bear in mind that non-attorneys are not permitted to create legal documents and you will realize the importance of this.
GAR to Enforce Copyrights
Realtors® with rightful access to GAR Forms can anticipate several “situations” which may arise after January 1, 2012 when dealing with non-Realtors® who have not paid the GAR annual licensing fee. Realtors® should be on the lookout for:
- 2011 and older GAR Forms being used after the 2012 Forms are made available.
- Thinly-disguised versions of GAR Forms.
- Non-Realtors® attempting to borrow a Realtor’s® NRDS number.
GAR President, Anne Gault has informed all Realtors that, “GAR recognizes that it may have to use legal means to enforce its valuable copyrights and is fully prepared to aggressively do so.” Any occurrence of the situations mentioned above should be reported to GAR (or a member of Broker Support if you are affiliated with Metro Brokers!).
What are some of the practical issues we will encounter after January 1?
Will each non-Realtor® company devise their own version of all the GAR Forms? How many different versions of a Purchase and Sale Agreement will a Realtor® potentially encounter, read and understand? Some non-Realtor® firms are already announcing that they will have non-GAR forms available for their agents to use. How they can accomplish this in such a short period of time without simply plagiarizing GAR forms and arrange for distribution of these documents will remain to be seen.
What if a non-GAR offer is received on our listing? Should we “counter” on a GAR Purchase and Sale in order to protect our client by using a document we are very familiar with and which protects our commission rights? How will a non-Realtor® representing or working with a buyer respond to that? Can we use a GAR Counteroffer to respond to a non-GAR offer? Will forms “turf wars” develop between Listing and Selling agents/brokerages?
What if a non-Realtor® claims to have a buyer interested in our listing and calls us asking that WE write the offer since he has no access to GAR Forms? Will Realtors® mention in their listing remarks, “Co-op commission is (some reduced amount) if Listing Agent writes the offer”?
Will Realtors® be responsible for reading and interpreting non-GAR documents for our clients and customers? Or will Realtors® suggest clients and customers seek legal counsel?
Let’s all take a deep breath……
Hopefully non-Realtors® will either decide to become Realtors® or to pay the GAR annual licensing fee in the interests of ease of access to and preparation of listings and contracts.
Otherwise, hopefully Realtors® and non-Realtors® will conduct themselves with their clients’ and customers’ interests in mind. Realtors® receiving non-GAR offers on their listings will need to take the time to completely read the offer, get clarifications from the non-GAR agent when needed and even invite the non-GAR agent to present his/her offer to the seller and provide answers about that offer.
Hopefully GAR-using Realtors® and non-GAR using non-Realtors®, when co-operating on a transaction, can agree whether to utilize GAR Forms (more work for the Realtor®) or the “other” forms (more work for both since the Realtor will be required to study and understand the “other” forms).
What should we do and NOT do?
Realtors® should never refuse to receive or refuse to present any written and signed offer, even if it’s written on a paper towel.
Realtors® should not disparage other licensees because they do not use GAR Forms.
Realtors® should not overlook violations of GAR’s copyright, but document them to their broker.
Realtors® should present all written and signed offers, even if the offer is on a suspected “bootleg” GAR Form (but do document the illegally-used GAR Forms to their broker).
Realtors® should be happy and proud to be Realtors®!
by Ann Bone