Florida Realtor April 2011 : Page 8
Law & Ethics Other Concerns In addition to the tax implications, there are other special concerns when dealing with foreign buyers and sellers. Immigration and national security laws require individual for-eign persons to have a visa or other documentation to visit or remain in the United Stages. They must ensure that they have the legal documentation necessary to comply with immigration and national security laws. They may also need an Individual Taxpayer Identiﬁ cation Number (ITIN), which is a tax-processing num-ber available only to certain nonresi-dent and resident aliens, their spouses and dependents who are not permitted to get a Social Security Number (SSN). The ITIN may be obtained from the IRS us-ing a Form W-7. Because foreign buyers or sellers must have ITINs before closing real property transactions, it would be prudent for them to apply for the num-bers early in the process. Since the Statute of Frauds requires all enforceable contracts for sale of real estate to be in writing and signed by the party that will be charged, it may be wise for the foreign person to have a contract that has been written in English trans-lated into his or her native language by an oﬃ cial translator. Florida Realtors® currently has the FAR-9 Sale and Pur-chase Contract and FARA-10 Residential Sale and Purchase Contract: Compre-hensive Addendum available in Spanish, Portuguese and German. These transla-tions may be obtained by logging on to floridarealtors.org/ToolsAndSupport/ Forms/index.cfm. Obviously, a professional tax attorney or immigration attorney should handle questions from a global buyer or investor about tax and immigration issues. Once you highlight these concerns, encourage global buyers to seek counsel from the appropriate legal, tax, immigration and language professionals. ETHIcs Just Say No to Discrimination Find out what happens when one Realtor® ﬁ nds himself in a pickle with a seller who may want to discriminate. ith the globalization of the real estate market and with buyers from for-eign countries as well as many diﬀ er-ent ethnicities migrating to Florida to acquire real estate, it’s necessary to revisit a Realtor’s obligation in provid-ing services to everyone. Realtor Paul receives a phone call from Seller Sam, who wants to sell his investment property. Seller Sam’s primary residence is right across the street from the investment property, which he has rented out for many years but is now ready to sell. Realtor Paul does an extensive market analysis and meets with Seller Sam to establish the price and the listing agreement. The price conversation is easy as the development is very well established and has not had challenges with dis-tressed properties. Like Sam, almost all residents are retirees who bought in this development because it’s oﬀ the beaten path. After signing the listing agreement Realtor Paul and Seller Sam discuss marketing options. Sam asks that the property’s advertisements say “quiet 8 FLORIDA REALTOR April 2011 W streets, nice Catholic Community.” Paul checks his information and ﬁ nds the words quiet streets are probably OK, but tells Sam that they can’t advertise a spe-ciﬁ c religious aﬃ liation or preference. Sam is disappointed, but understands. On Paul’s way out the door, Sam says, “By the way, there are no terrorists in this neighborhood, and that is how we prefer it. Wink, wink, nudge, nudge.” Realtor Paul assumes that Seller Sam was just kidding. The ﬁ rst open house is scheduled, and Paul contacts Sam with Article 10 of the Realtor® Code of Ethics is very clear that “Realtors® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, or na-tional origin. Realtors shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial sta-tus, or national origin.” Despite the clarity of this Article, sometimes our members run into problems when a seller is not as clear. the details. There is a good amount of foot traﬃ c at the open house, and Paul feels conﬁ dent this listing will sell quick-ly. He soon receives an oﬀ er from Buyers Bill and Betty, who walked through the listing. When Realtor Paul presents the oﬀ er to Seller Sam, the seller says noth-ing about the price or terms but starts asking Paul questions about the buyers, wanting to know where they’re from and what they look like. He also asks if they’re from another country. Paul im-mediately realizes they have a problem and tells Sam that he can no longer rep-resent him in the sale. Sam agrees and also says he wants to wait before accept-ing an oﬀ er. Paul agrees to communicate that to the buyers. Paul tells the prospective buyers that the seller is not ready to respond to their of-fer. He also explains that he will no longer be representing the seller. Bill and Betty know someone in the neighborhood who has warned them about Sam and his pref-erences, and they feel that he is discrimi-nating against them. They ﬁ le a complaint against Paul, citing Article 10. Is it a violation? Most likely, the hearing panel will not ﬁ nd Paul in violation of Article 10 as once he suspected his seller planned to dis-criminate unlawfully, he counseled him against it, and when he suspected his seller was still planning to discriminate based on religion and national origin, he gave up the listing.