Frank and Sandra I. listed their property located at 16 Summit Drive, East Oshew, New Hampshire with ML Associates and Joe Y as their listing agent.

Dan S. testified that he and his wife Isabelle had driven from New Jersey 5 times to view the property, but felt they needed to meet with the owners Frank and Sandra I. to adequately have their questions answered about the property before they could make an offer. After the Holidays, Dan and Isabelle S. called their co-broke agent, Ken B. from the CGS Agency to make an offer. They were told that the property was under agreement.

Dan S. testified that he called Frank and Sandra I and that Frank and Sandra I. were upset because they were not contacted by Joe Y.

Eva T., also of ML Associates, presented another buyers‘ (Goss) offer to Joe Y along with a buyer-broker representation. When Joe Y. presented the Goss offer to Frank and Sandra I., he indicated that the law required him to be a dual agent because Eva T. represented the buyers and they were from the same agency and that he could not let Frank and Sandra I. see the offer unless they signed a dual agency consent agreement.

Frank I. testified that they were confused as to why at the last moment as an offer was presented that suddenly their agents no longer represented them, but they believed Joe Y. because he said it was the law.

Frank I. testified that when Joe Y. presented him with the Goss offer, he had specifically instructed Joy Y. to get in touch with Dan and Isabelle S., but Joe Y. advised Frank and Sandra I. Not to contact Dan and Isabelle S. because he felt that they were procrastinators and advised Frank and Sandra I. to accept the Goss offer. Frank I. Testified he instructed Joe Y. to contact Dan and Isabelle S. anyway.

Based on Joe Y.’s representation of the situation, Frank and Sandra I. accepted the Goss’s offer even though it was at a lower price than they wanted and the closing date was sooner than they wanted.

Dan and Isabelle S. purchased the Purchase and Sales Contract from the Gosses for $25,000.00. Frank and Sandra I. successfully sued ML Associates for $25,000.00 plus court costs.

Question:

When should the Dual Agency Disclosure have been presented and how did was Dual Agency process violated.

NHREC Case#2- Real or Personal Property

Patricia D. was licensed as a real estate broker and was the broker of record for P.S.Realty.

Patricia D. listed her own property for sale, single-family residence located at Fairview St., Manchester, NH.

The Smiths purchases the property from Patricia D. on December 17, 1999 at which time they had the gas company come in and turn on the gas fireplace insert unit. The Smiths testified that the gas company serviceman found a plumber’s business card with a note on it warning that the valve to the unit was broken and not to turn it on.

Patricia D. testified that she knew that her plumber had left the note on his business card behind the front panel of the unit for the benefit of the new owners and that she was not trying to hide anything. Patricia D. testified that the last time she used the unit it was working properly and the reason the plumber came to the property was to turn the gas off in the entire house because it would be vacant.

The plumber testified that Patricia D. did not have him turn the gas off in the house rather Patricia had him turn it off to the fireplace insert.

Patricia testified that she did not consider the gas fireplace unit a as part of the sale and that the only reason she left it there was because her new residence did not have a fireplace so she had no need of it and it was not included on the Purchase and Sales Agreement.

The Smiths testified that they considered the gas fireplace insert to be part of the house because the fireplace cannot be used without it unless extensive plumbing is done to remove the gas lines from the chimney. The Smiths also testified that they were very interested in the gas insert rather than the traditional fireplace when they made the offer on the property because of Mrs. Smith’s asthma.

The Seller Property Disclosure form filled out by Patrice D. did not indicate any problems with the fireplace insert.

Question:

Is the insert real or personal property?  And specifically, what is your reasoning?