ask george & chuck
June 23, 2008

Questionable transaction fees, heirship affidavits
Answers to real estate questions as appearing
in the Houston Chronicle

Dear George: An heirship affidavit was filed and recorded for my sister and me on three properties. Does this suffice as a title?

Answer: Provided the affidavit of heirship is accurate and signed by disinterested witnesses with personal knowledge of the decedent's family history, it may suffice without having to involve a title company. However, it's normally done as part of a closing when the title company can talk to the witnesses and ask them questions as to any inconsistencies. When you prepare the affidavits and record them ahead of time, witnesses may die or move; it becomes tougher to confirm the facts for title insurance. As a practical matter, though, an unchallenged affidavit of heirship is relied on by a title examiner if it was filed a few years ago.

Dear George: Two hours before closing on the sale of our home, my husband and I discovered we owed $1,500 more than the amount our REALTOR® told us to bring to the closing. One of these charges was a referral fee for $900 to the REALTOR®'s mom, another agent. Our REALTOR® explained that fee was because his mom had referred us to him for the listing; this claim is false. He agreed to remove the $900 fee when we challenged his mother's claim, but he was very upset about it. Is there a law that protects us from a situation like this? Also, our listing agreement expired two months before we closed. Are we obligated to pay any REALTOR® fees since the agreement expired?

Answer: The law that protects sellers from situations such as the one you experienced is the Real Estate License Act, which is enforced by the Texas Real Estate Commission. In order to take action against your REALTOR®, you must file a written complaint. Go to TREC's Web site and select the "Complaints, Consumer Info" tab for instructions on how to file a complaint. As to whether or not the REALTOR® was entitled to fees on an expired agreement, it depends on when the negotiations with your buyer began. If negotiations began before the listing agreement expired, the REALTOR® earned the commission. If negotiations began after your listing agreement expired but the REALTOR® complied with the protection-period provisions in Paragraph 5.D.E., the REALTOR® earned the commission. Otherwise, you did not owe the commission, and you'll need to file a civil suit to recover it.