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06/27/2016: Why home sellers should think twice about some provisions in their contract with their listing agent

By Benny L. Kass

June 27, 2016

I contacted a Realtor to sell my home and was asked to sign a listing agreement that contains this language: "Seller shall indemnify and hold harmless Broker, Brokers agents, Cooperating Brokers and their agentsand service providers from any and all liability for any reason as result of injury to person(s) or damage orloss to property arising out of the Seller's grant of access pursuant to this paragraph."

I did not want to agree to indemnify and hold harmless the broker even if I was not at fault and the only negligent party was the broker. I would be fearful my homeowners policy would not cover. Do you agree?

If the agent accidently knocks a buyer down the stairs, the way I read this provision the seller would indemnify and hold the agent harmless. — Ray

I agree the indemnity is way too broad. I have no problem if you indemnify them if they are just negligent; presumably, your insurance should cover you. However, you should carve out "gross negligence" and "malicious conduct" from the listing agreement.

Furthermore, why should the indemnity be onesided; what about having the agent indemnify you in the same manner they want your indemnification? To me, what’s fair is fair.

In the vast majority of real estate transactions, everything goes relatively smoothly, and there should be no need to call on the indemnification. But I worry about what I call the "horrible hypotheticals" and, thus, recommend you modify their indemnification clause and make it similarly apply to the broker.

I was saddened when I learned Prince had died prematurely but surprised that he did not have a will. My husband and I are in our 40s and have two young children. We started thinking about our future. What do we need to protect ourselves and our children should things happen to one of us? — Carrie

I, too, was upset when Prince died. But was not surprised that he did not have a will. Too many people — rich or poor — just don’t bother to spend the time (and a few dollars) creating an estate plan. One never knows when tragedy will strike, and then it’s really too late to start planning.

I cannot provide legal advice in this column, and you both should consult with a local attorney who understands estate planning. But here are the documents that everyone should have at a minimum.

• A last will and testament: How do you want your assets to be distributed? Do one of you have children from a previous marriage and want them to receive something? Do you want to give a gift to someone, or do you want to disinherit someone? All these questions must be answered and spelled out in the will. You should name a personal representative (called executor in many states), and always — always — name an alternate just in case the person you name is unable or unwilling to serve.

• Durable power of attorney: Here, you authorize someone to handle your affairs, such as signing legal document or checks. If, for example, you are the only one that can sign checks, your husband needs this power of attorney to sign if you are not competent. Again, name one person and an alternate.

• Durable power of attorney for health: Some people combine health and financial in the same document, but I prefer a separate power or attorney to deal with your health matters. Often, the person you select for financial matters will not be the same person you want for healthrelated matters.

• Living will, also known as advance directive: If you are medically determined to be brain dead, do you want life support to continue or should "the plug be pulled"? I don’t like that concept, but it does help people understand what is at stake. According to AARP, a living will spells out what types of medical treatment a person wants at the end of life if he’s unable to speak for himself.

It tells medical professionals a person’s wishes regarding specific decisions, such as whether to accept mechanical ventilation.

There are a large number of websites that offer standard forms, but I would first go to Aging with Dignity (www.agingwithdignity.com) for helpful information.

Benny L. Kassis a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. Send questions to blkass@kmklawyers.com.

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