ask george & chuck
Sept. 24, 2007

Tree encroachments, full-price offers ...
Answers to real estate questions as appearing
in the Houston Chronicle

Dear George: My neighbor's tree roots have damaged my driveway. Do I have any recourse?

Answer: The first you should do is communicate with your neighbor. Inform him that the roots are encroaching on your property and have damaged your driveway. Tell him that you'd like to arrive at a solution that is satisfactory to everyone involved. Roots from a neighbor's tree can be as much of an encroachment problem as overhanging branches. It's in everyone's best interests to arrive at a solution without involving lawyers or hard feelings. If you are unable to arrive at a solution, seek the help of an attorney who is experienced in dealing with this type of problem.

Dear George: Are rent-to-own and lease-to-own properties legal in Texas?

Answer: Lease-to-own and rent-to-own transactions, also known as lease-option contracts, have never been illegal in Texas provided an owner or the owner's agent complies with applicable Texas and federal statutes affecting real estate. Most transactions of this type are too complex to effectively be standardized, so the Texas Real Estate Commission has not provided any forms for real estate licensees to use. Those who wish to offer this type of transaction to consumers would be well-advised to seek competent legal counsel.

Dear George: We made a full-price offer without contingency on a Thursday evening. The owners were pleased. Friday morning, we were asked to submit a letter of credit, which we got to our REALTOR®'s office within four hours. Later that day, our REALTOR® told us that the owners had sold to someone else for $10,000 less because he could pay cash. This second buyer was represented by the listing REALTOR®, which means she received a better commission from representing the buyer and seller. The listing REALTOR® never told her client about our letter. Three days later, we saw the same property listed again twice under two REALTORS® for two different prices; both listings are "sale pending." Is that legal?

Answer: Sellers are free to accept or not accept whatever offers they receive on their property; there isn't any first-come first-accepted rule. The real estate agent who represents the seller in a transaction is called the listing agent. While that agent is required by law to treat all parties to a transaction fairly, the listing agent's primary duty is to represent the interests of the party he represents, the client. In your situation, the listing agent's client was the seller.

As for the listing REALTOR® not telling the seller about your letter of credit, that would be very difficult to prove. You don't even know if that knowledge would've changed the seller's mind. Perhaps the seller values cash more than assertions made in a letter of credit. It's also possible that whoever told you the seller never received your letter is mistaken. As for the better commission earned by the listing agent, even if that is a fact it does not indicate she did not adequately represent the interests of the seller, nor does it mean she was guilty of any wrongdoing. As for the issue of two REALTORS® showing that same property in two different MLS listings, reflecting two different amounts, and classified as sale pending, that would be an issue you should report to your area's MLS director. Contact the Texas Association of REALTORS® at 800/873-9155 and ask for contact information for your city's MLS director.