Bill Gulley, thanks for your insight...very thorough post
Lots of points to respond to, I'll address each one individually...
-----You're right, agents want to get paid. And they can...on sales, on leases, on options...even just consulting. And if they're "going hungry" it's because they're not charging enough or they get involved in deals that IMO are unqualified to be put together.
-----I agree that most brokers don't allow it and blame it on liability...but isn't every transaction a risk? It's why we carry E & O insurance. The problem is that most brokers are unwilling to go the extra steps to ensure that they have lease option documentation that satisfies state requirements for their agents...thus mitigating the risks and making sure that these deals will still be covered by their insurance carriers.
-----Yes, agents should not be doing loan underwriting. Lenders should. And owners should be advised to conduct their own due diligence on the prospective tenant-buyers ability to pay. It's fully disclosed that I am a real estate agent and in no way represent myself as a mortgage lender, credit expert or full service property manager.
(even though I have minimum requirements that a potential tenant-buyer must meet in order to enter into a tenant-broker agency relationship.)
-----With regards to dual/limited agency, laws may vary from state to state...however, in Utah...with proper documentation and adequate disclosure it's perfectly legal. We work within our limits, educate the parties as to what that means, advise to the fact that it's a choice to continue and if they wish can seek legal advice from a third party.
-----Agreed, buyers can lose down payment option funds if they can't get financed within the allotted time...and if tenant-buyers wish to place blame outside of themselves and pursue legal action against the other parties involved in the transaction...it wouldn't be the first time. It happens everyday, even with traditional bank-financed homes. Sometimes others parties are at fault, sometimes they're not. Another reason why it's important that every deal have evidence of full disclosure, proper paper trails and clean files.
-----Agents should always have their clients best interests at heart. For me this means not putting someone in a property that evidently doesn't have a good chance of being able to complete the purchase (I of course am not making this judgement alone, that's where pre-screening from a qualified mortgage lender comes into play...in my process anyway). Additionally, if an agent is going to be brokering lease options, they should have a support system available for the tenant-buyer to enroll in so they can get from point-A to Point-B.
-----And with regards to the SAFE Act, there are certain provisions outlined that specifically identify a real estate agent/broker's role in the transaction being exempt or not. Here, we're obviously not referring to lease option but rather the brokering of a seller financed transaction.
-----Again, thanks for your input here...really enjoyed the interaction from you and the others on this thread.
John Jackson Brian Gibbons