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Risking Your Money
 

Risking Your Money

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Learn to protect you hard earned money. From procuring cause issues, fines and penalties.

Learn to protect you hard earned money. From procuring cause issues, fines and penalties.

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    Risking Your Money Risking Your Money Presentation Transcript

    • Risking Your Money 8 Hour Mandatory Continuing Education 08-00-120-7539 By Peggy Santmyer
    • LEARNING OBJECTIVES
      • By participating in this class the student will explore some of the risk involved in protecting their commission.
      • Using group activities and lecture the class will explore Procuring Cause issues, MLS and TREC fines.
      • The Students will create risk management tools to share with the class.
    • Group Workshop
      • In your group discuss the
      • true and false questions
      • in the Pre-Assessment Evaluation on pages 6 and 7
    • Someone Else Wants the Commission
      • Has It Ever Happened to You??
      • Another Agent
      • A Builder
      • A Buyer
    • Black's Law Dictionary, Fifth Edition, defines procuring cause as follows:
      • The proximate cause; the cause originating a series of events, which, without break in their continuity, result in the accomplishment of the prime object.
      • The inducing cause; the direct or proximate cause. Substantially synonymous with 'efficient cause'." page 8
    • OUR NAR MANUAL
      • The broker will be regarded as the 'procuring cause' of a sale, so as to be entitled to commission, if his efforts are the foundation on which the negotiations resulting in a sale are begun.
    • PROCURING CAUSE
      • A cause originating a series of events which without break in their continuity result in the accomplishment of prime objective.
      • The broker who produces a purchaser ready, willing and able to buy real estate on the owner's terms.
    • There is no typical real estate transaction!
      • Therefore there are no pre-determined rules of procuring cause….
      • A Board of REALTORS ® or MLS rules may not establish pre-determined rules
      • Procuring cause is determined by an Arbitration Hearing Panel based on ascertainable facts
      • Page 9
    • NAR Code of Ethics
      • Article 17
      • In the event of contractual disputes or specific non-contractual disputes as defined by Standard of Practice 17-4 between Realtors  associated with different firms, arising out of their relationship as Realtors  , the Realtors  shall submit the dispute to arbitration in accordance with the regulations of their Board or Boards rather than litigate the matter.
      • Page 10
    • Specific Non-Contractual Disputes
      • If a Co-op Broker has already been paid the commission by the Listing Broker, Seller or Buyer and then another Co-op Broker claims to be the procuring cause the complainant may name the first Co-Op Broker as the respondent rather than the Listing Broker.
    • Specific Non-Contractual Disputes
      • If the complainant names the Listing Broker as the respondent the Listing Broker may name the first Co-op Broker as a 3 rd party respondent.
    • The request for arbitration
      • It is important that the agent that believes he/she has been wronged does not take any action that would interfere with the transaction. Often it is necessary to allow the transaction to close before taking the next step.
      • Must be filed with the Board within 180 days after closing, or after the arbitrable matter could have been known.
    • Grievance Committee
      • The request is reviewed by the Grievance Committee first to be sure it is filed properly.
      • The Board can decline to arbitrate if they feel the situation is too complex or the amounts of money too large.
      • If the Board declines, the REALTORS® are free to pursue the matter legally.
    • Arbitration Cases Between Two Different Firms
      • Will be between the Realtor  principals of the firms.
      • Realtor-Associates of a firm must be joined by the principal of their company to request arbitration.
      • Realtor-Associates have a vested financial interest in the outcome and have the right to be present throughout the proceedings and to participate but are not considered to be parties.
    • The Contractual Agreement Between the Brokers
      • Through MLS, Listing Brokers make unconditional offers of compensation to Selling Brokers (SAC or BAC) that are the procuring cause of the sale or lease.
    • SAC/BAC forms a Contractual Relationship
      • The offer of the Listing Broker in MLS (SAC/BAC) to cooperate and compensate is a unilateral offer.
      • Acceptance only occurs through the performance of a procuring cause of a successful transaction.
    • Four Contracts that may be present in one Transaction page 11
      • 1. Listing Agreement
      • between Seller & Listing Broker
      • 2. Buyer Representation Agreements
      • between Buyer and Buyer’ Broker
      • 3. Purchase Agreement/Contract
      • between Buyer & Seller
      • 4. Offer to Cooperate and Compensate the Procuring Cause of the Sale (through MLS) between Listing Broker & Procuring Cause Broker (SAC and/or BAC)
    • Boards and Associations of REALTORS 
      • Provide arbitration to resolve contractual issues and questions and specific non-contractual issues and questions that arise between members, members and their clients, and in some cases, between parties to a transaction that was brought about through the efforts of REALTORS  .
      • Page 12
    • Split awards are the exception
      • Awards are generally for the full amount in question
      • In exceptional cases awards may be split between the parties.
      • Split awards should only be used when the panel determines that the transaction would have only resulted through the combined efforts of both parties.
    • Article 16 of the NAR Code of Ethics
      • REALTORS shall not engage in any practice or take any action inconsistent with the agency or other exclusive relationship recognized by law that other REALTORS  have with clients.
      • Page 12
    • The Code of Ethics Must Not Be Used as a Club or a Lever
      • The Board must distinguish between controversies which are properly the subject of arbitration and controversies involving the Code of Ethics
      • For complaints involving both charges of unethical conduct and request for arbitration, the dual complaint must be severed and arbitration heard prior to hearing any ethics charges.
      • Page 13
    • Factors for Consideration by Arbitration Hearing Panels
      • Factor #1.
      • No predetermined rule of entitlement
      • Procuring cause shall be the primary determining factor in entitlement to compensation.
      • Agency relationships, in and of themselves, do not determine entitlement to compensation.
      • The agency relationship with the client and entitlement to compensation are separate issues. Page 15
    • Factor #2.
      • Arbitrability and appropriate parties
      • Was there ever a contract between the Brokers?
      • Are the proper parties named?
      • Factor #3.
      • Relevance and admissibility
    • Factor #4.
      • Communication and contact
      • abandonment and estrangement
      • Did the Broker make reasonable efforts to develop and maintain a relationship?
      • Did the Broker abandon the purchaser?
      • Did the Broker do something or not do something that caused the Buyer to become estranged from the Broker?
      • Page 16
    • More about Abandonment and Estrangement
      • If a Buyer has became estranged from the first Broker or feels abandoned by the first Broker
      • The Arbitration Hearing Panel may want to consider whether such conduct caused a break in the series of events leading to the transaction
      • And whether the successful transaction was actually brought about through the initiation of a separate, subsequent series of events by the second cooperating broker.
      • Factor #5.
      • Conformity with state law
      • Factor #6.
      • Consideration of the entire course
      • of events
    • Continuity and breaks in continuity - abandonment and estrangement
      • What was the length of time between the broker’s efforts and the final sales agreement?
      • Did the original introduction of the purchaser or tenant to the property start an uninterrupted series of events leading to the sale or lease?
      • If there was an interruption or break in the original series of events, how was it caused and by whom?
      • Did the broker who made the initial introduction to the property maintain contact with the purchaser or tenant, or could the broker’s inaction have reasonably been viewed by the buyer or tenant as a withdrawal from the transaction?
      • Was the entry of any cooperating broker into the transaction an intrusion into an existing relationship between the purchaser and another broker, or was it the result of abandonment or estrangement of the purchaser, or at the request of the purchaser?
    • Procuring Cause Workshop
      • Pages 19-21
      • Remember to ONLY answer the question that is asked!
    • Avoiding Disputes
      • Before entering into a buyer representation agreement, determine whether the buyer is subject to a prior agreement.
      • Be with your buyer client when they are looking at property.
      • If the property is not in MLS, have a separate written agreement in regard to compensation. Page 22
    • Avoiding Disputes
      • If either a buyer or a seller are under contract with another Broker and tell you they are unhappy, direct them back to their Broker to try to resolve the problem.
      • If the buyer indicates they have already looked at a property ask questions. They did introduce this buyer to this property.
    • Avoiding Disputes
      • Realize that showing a buyer a home, during an open house, may not determine procuring cause.
      • Present all offers and counter offers promptly.
      • Keep good records, notes, copies of other communications.
    • Avoiding Disputes
      • Return calls promptly.
      • If a dispute arises try to find a win-win solution.
      • Remember that the existence of an agency relationship does not, by itself, determine procuring cause.
    • Other information
      • Is there any other information that would assist the hearing panel in having a full, clear understanding of the transaction giving rise to the arbitration request or in reaching a fair and equitable resolution of the matter?
      • The objective of the panel is to carefully and impartially weigh and analyze the whole course of conduct of the parties and to render a reasoned peer judgment.
    • Mediation as a Board Service
      • Before going to arbitration the parties will be asked if they would like to try to resolve the problem in mediation.
    • Differences between Arbitration and Mediation
      • In Mediation the parties decide how to work it out. In arbitration the panel decides.
      • Split awards are more common in Mediation.
      • No big winner, no big loser in Mediation.
      • A kinder, friendlier way to settle the problem
      • What do You Know About MLS Rules?
      In your group discuss the true and false questions in the Pre-Assessment Evaluation on pages 22 and 23
    • MLS Providers:
      • NTREIS is a regional MLS
      • NTREIS is owned by participating associations in the North Texas area.  
      • Most associations also serve as an MLS provider or they may contract those services through a member association.  
      Page 25
    • MLS Providers are Responsible for:
      • billing and collection of MLS fees
      • maintenance of the subscriber database
      • enforcement of MLS rules
      • providing minimum training
      • providing basic level of customer support.
    • Enforcement of MLS Rules
      • Complaints must:
      • be in writing
      • identify the complaining party
      • be submitted to the MLS Provider of the alleged violator (or through their member association)
    • The MLS Committee
      • Considers complaints
      • Imposes sanctions
      • Sanctions can be appealed through the Professional Standards Committee
    • Maximum fines for MLS Violations
      • Recently increased from $5,000 to $15,000
      Page 25
    • Improper Advertising
      • Redistribution of the MLS content to websites other than the broker/agent owned sites
      • Property information posted to the internet not kept current
      • Page 26
    • More Improper Advertising
      • Inclusion, without permission, of other brokers listings in print media (newsletters, postcards)
      • Publication of sold information on specific properties
      • Copying photos and other media from prior listings
    • MULTIPLE LISTING SERVICE RULES AND REGULATIONS OF :
      • NORTH TEXAS REAL ESTATE INFORMATION SYSTEMS, INC. (NTREIS)
    • SECTION 3 - PURPOSE
      • A Multiple Listing Service is a means by which authorized Participants make blanket unilateral offers of compensation to Other Participants
      • A facility for the orderly correlation and dissemination of listing information so Participants may better serve their clients and the public.
      Page 28
    • Entitlement to compensation
      • Is determined by the Other Participant's performance as procuring cause of the sale or lease.
      Page 29
    • Let’s Define…..who is:
      • "Participant" means an eligible Designated REALTOR® Member of an Association of REALTORS® or Designated Broker who satisfies the requirements of Section 5.04 or Section 5.05 of the Bylaws of NTREIS.
      Page 30
    • Let’s Define…..who is:
      • " Subscriber " means a non-principal broker, sales associate, and a licensed or certified appraiser affiliated with a Participant.
      • "Other Participant" means a Participant, other than the Listing Participant, who is working with a prospective buyer(s) or tenant(s) of Listed Property
    • Let’s Define…..who is:
      • "Clerical Office Staff" means those licensed/unlicensed employees of, or independent contractors associated with a Participant member who performs exclusively clerical duties and are not engaged in listing, showing, marketing, or selling Listed Property.
    • Let’s Define…..who is:
      • “ Personal Assistants" means those licensed or unlicensed employees of, or independent contractors associated with a Subscriber.
      Page 30
    • PARTICIPATION POLICIES
      • Participation in the MLS is available to the firm, partnership, or corporation of any REALTORS® principal of an Association
      • Must pay required dues and fees and agree to abide by the Bylaws and the Rules
    • PARTICIPATION POLICIES
      • Participants must hold a current, valid real estate broker's license
      • Participants must be capable of accepting and offering compensation to and from Other Participants
      • Or be licensed or certified to engage in the appraisal of real property.
      • Page 31
    • LIABILITY
      • Each Participant shall be liable for all obligations to the MLS for the Participant's firm, partnership, or corporation and for compliance with the Bylaws of NTREIS and these Rules by all persons affiliated with such Participant who utilize the MLS.
      Page 32
    • REQUIRED TRAINING
      • Every member must complete an approved course of MLS computer training.
      • Each MLS Provider will be responsible for providing the course
      • Each Participant and Subscriber must complete the training before being furnished a public and private ID No. and access to the MLS.
      Page 32
    • A Penalty
      • A Participant will be fined by the MLS Provider in an amount determined by the MLS Provider for each Subscriber not reported by the Participant who uses the MLS.
      Page 33
    • MLS Subscription Waivers Available only to:
      • A. Clerical Office Staff of a Participant
      • (NOTE: Licensed Personal Assistants of Subscribers do not qualify under this exemption).
      • B. Property managers who collect rent only and do not lease or list units for lease in the MLS.
      Page 33
    • More Waivers….
      • C. Commercial salespersons who do not list, show, sell or lease residential property required to be filed with the MLS.
      • D. Appraisers, engaged exclusively in commercial appraisals, who do not utilize the MLS.
      • E. Corporate officers who do not show, list, sell, lease, or appraise real property.
      Page 33
    • LISTING PROCEDURES
      • Acceptable:
      • Exclusive Right to Sell Listings
      • Exclusive Agency Listings
      • Unacceptable:
      • Net Listings
      • Open Listings
      • Non-Agency Listings
      Page 34
    • The Participant Represents
      • By submitting a listing to the MLS, the Listing Participant warrants and represents that the Listing Participant has a fully executed Qualified Listing Agreement signed by each property owner.
    • The Exclusive Right to Sell Listing
      • Owner authorizes the Listing Participant to make blanket unilateral offers of compensation to Other Participants
      Page 35
    • The Exclusive Agency Listing
      • Authorizes the Listing Participant, as exclusive agent, to make offers of compensation to Other Participants but the owner reserves the right to sell the property on an unlimited or restrictive basis.
      • Page 35
    • EA (exclusive Agency) or ER (exclusive Right to Sell)
      • Exclusive agency listings and exclusive right-to-sell listings will be clearly distinguished
      • Page 35
    • TIMING….
      • Each listing of property for sale or lease, located within the primary service area of NTREIS, must be filed with MLS within 3 days
      • from the effective date of the listing.
      • Owner can prohibit in writing.
      3 Days Page 36
    • The Rules, the rules, the rules
      • Each Listed Property may be filed in only one Property Type Classification and one geographic area of the MLS;
      • However if a property is listed for sale and for lease simultaneously, such listing may appear in the appropriate categories.
    • And Even More Rules
      • For listings appearing in the MLS more than once, the Participant will be fined $50.00 each day the listing appears as a duplicate.
    • FOR SALE/FOR LEASE
      • If an owner lists property for sale and for lease with different brokers, the owner shall specify in writing to each, whether only a "For Sale" or only a "For Lease" sign or both signs may be placed on the Listed Property.
      Page 37
    • Advertising
      • Listed Property may be advertised only by the Listing Participant or owner(s), unless otherwise authorized in writing by the Listing Participant
    • Listing Participant to Verify
      • Accuracy of the information
      • That the language is not offensive
      • That the information does not violate Federal Fair Housing Laws
      • That the information does not violate the duty of confidentiality without the owner’s consent
      Page 37
    • Do Not Fix, Control…….
      • NTREIS may not fix, control, specify, recommend, suggest, record nor monitor commission rates , professional service fees or commission splits for brokerage services to be rendered by a Participant.
      • Page 38
    • Terminated from MLS
      • For failing to abide by a membership duty (violation of the Code of Ethics, Association Bylaws, Bylaws of NTREIS, the Rules, or other membership obligation
      • Current Listings, at the Participant's option, can be retained in the MLS until sold, leased, withdrawn, or expired.
      • Page 38
    • Terminated from MLS
      • For failure to pay dues, fees or charges
      • the MLS Staff will withdraw all of the expelled or terminated Participant's listings which are filed with the MLS.
      • Notices of suspension/termination will serve as notification that listings of Participant will be withdrawn from the MLS.
      • Page 39
    • Listings may be withdrawn..
      • Listings of property may be withdrawn from the MLS, by the Listing Participant, before the expiration date of the listing agreement with written authorization from the owner(s) of such property for such withdrawal.
      Page 39
    • Not to Hide $$
      • A Listing Participant shall not withdraw or cancel a Listed Property for the purpose of concealing the sale or the sales price.
      Page 39
    • Listing information submitted via computer
      • Participant warrants and represents that such Participant has a fully executed Qualified Listing Agreement and Data Input Sheet in such Participant's office
    • When submitted via computer
      • Participants covenant with NTREIS and all Other Participants to retain a copy of such Listing Agreement and Data Input Sheet for at least one year after the date the Listed property is sold, leased, or expires, whichever occurs later.
      Page 39
    • Participant/Subscriber who submits Media :
      • Warrants and represents that such has ownership of, or the authority from the owner to submit such Media to the MLS
      • Grants NTREIS a non-exclusive license authorizing the MLS, other Participants and Subscribers the right to publish the Media anywhere the MLS Media may appear.
      • Page 40
    • NTREIS reserves the right to reject/remove from the MLS:
      • Any Media containing any text, personal advertising, or personal promotion of a Subscriber or Participant.
    • Media from a Prior Listing
      • Before a Participant or Subscriber uses Media from a previous listing submitted to the MLS, that Participant or Subscriber shall obtain the written consent of the former Listing Participant to use such Media.
      Page 40
    • NTREIS does not permit
      • The following to be placed in the Property Description section of a listing:
      • the name of the listing agent
      • phone number
      • e-mail address or
      • web address of the listing agent or
      • other similar information that is not descriptive in nature and relevant to an accurate portrayal of the Listed Property
      Page 41
    • Let’s Keep It Real
      • Only a true current photograph of Listed Property may be placed in the “Property Photograph” section
      • No decorative borders
      • No other embellishments
      • No enhanced modifications
      • No misrepresentation of the true condition or appearance of the property.
      Page 41
    • Appointments
      • Appointments for showing Listed Property shall be conducted exclusively through the Listing Participant.
      • The Listing Participant may authorize the Other Participant to show the Listed Property as indicated in the showing instructions or showing features field.
      Page 42
    • When You Can’t Reach the Listing Agent
      • If after reasonable effort you are unable to contact the Listing Participant or his/her representative, you may make direct contact with the owner only for the purpose of showing Listed Property.
      Page 42
    • Offers
      • With the consent of the Listing Broker you may deliver an offer or counter-offer to the owner, so long as you do not discuss or attempt to discuss the terms or conditions of the offer or counter-offer with the owner.
      • A copy of the offer or counter-offer must be delivered to the listing broker.
      Page 42
    • Keep Those Offers Coming!
      • Unless otherwise agreed in writing by the Listing Participant and the owner, the Listing Participant shall submit to the owner all written offers to purchase, lease, or exchange the Listed Property as soon as practicable until the closing of a sale.
      Back Up Offers Page 42
    • Brokerage Activity Only
      • Access, entrance to, and/or activities of any agent while inside Listed Property is restricted and limited to brokerage activities for authorized real estate licensees pursuant to the Texas Real Estate License Act and such other activities expressly authorized by the owner of the Listed Property.
      Page 43 NO
    • Possible Fines
      • A Listing Participant must report to the MLS any change in the status of a Listed Property within three (3) days
      • Upon receipt of a written complaint MLS staff will attempt to contact the accused
      • Possible fines can be from $50-$100 per day if not resolved
    • True Sales Price Must Be Reported Unless…..
      • It is expressly prohibited by a provision in the contract of sale or lease.
      • The true sales price must be reported promptly to the MLS after the closing of a transaction by the Listing Participant.
    • Can Parties Request Sales Price Not Be Disclosed?
      • Yes
      • The Participant who is working for or with the Party requesting non-disclosure of the true sales price shall furnish to the MLS Staff within three (3) days
      • A copy of the contract or an affidavit signed by the Listing Participant and the Other Participant certifying that the contract contains a confidentiality provision prohibiting the disclosure of the true sales price
      • Page 43
    • Just Say “NO”
      • The Listing Participant shall not use the withdrawn status or any other status to avoid reporting the sales price or any other sales information
      Pages 44
    • For each violation, a Participant shall be subject to a minimum fine of
      • $100 for the first violation
      • $500 for the second violation occurring within a twelve month period
      • $1,000 for each additional violation occurring within such twelve-month period.
      Pages 44
    • No Sales Price= List Price
      • The last known listing price, if any, otherwise the original listing price, will be used to replace any reported zero sales price.
      • Such sales shall be identified by a 'Z' flag indicating that the reported sales price is either the last known listing price or the original listing price, as the case may be.
      Page 44 'Z' Flag
    • Real Estate Signs
      • Only the "For Sale" sign of the Listing Participant may be placed on a Listed Property.
      • Prior to closing, the Other Participant may place a sold sign on the Listed Property only with the consent of the Listing Participant .
      Page 45
    • Passwords/access codes = Secret
      • Users shall not furnish to or permit the use of their MLS passwords or access codes to any person, firm, company, or other entity.
      Page 45
    • COMPENSATION TO OTHER PARTICIPANTS
      • May not publish or display to customers or clients
      • The Listing Participant shall specify on each listing filed with the MLS the compensation offered to Other Participants for their services .
      • Entitlement to compensation is determined by the Other Participant's performance as the procuring cause of sale (or lease).
      Page 45
    • COMPENSATION
      • At the option of the Listing Participant, subject to authorization by the owner, the Listing Participant retains the right to determine the amount of compensation offered to Other Participants
      • Compensation may be the same or different, or zero to either subagents (SAC) or buyer agents (BAC), but not zero to both of them.
    • Variable Rate Commission
      • Must be disclosed by the Listing Participant as required by the MLS. (VR Flag)
      • A variable rate commission agreement = the owner of the property agrees to pay a specified commission if the property is sold or leased by the Listing Participant
      • And a different commission if the sale or lease results through the efforts of an Other Participant or through the efforts of the seller/landlord.
    • Disclose the Differential
      • In response to inquiries from Other Participants, the Listing Participant shall disclose the differential which would result.
      • If the Other Participant is a buyer/tenant agent, the Other Participant must disclose such information to his/her client, before the client makes an offer to purchase or lease. Page 46
    • ENFORCEMENT OF RULES OR DISPUTES
      • Each complaint alleging a violation of the Rules must:
      • be in writing;
      • identify the complaining party; and
      • be submitted to the MLS Provider from whom the participant/subscriber against whom the complaint is filed either obtains MLS service or holds membership.
      Page 47
    • Who Do You Tell??
      • If the alleged offense is a violation of the Rules it may be considered and determined by the MLS Provider where the accused holds membership or by the MLS Provider from whom the accused obtains MLS service.
      Page 47
    • If a violation is found….
      • the MLS Committee, which considered the complaint may impose a sanction
      • the recipient of such sanction may request a hearing by the Professional Standards Committee
      Page 47
      • Complaints involving arbitration, a violation of another Broker’s agency relationship or unethical behavior will be referred to the Professional Standards committee.
      EXCEPTIONS Page 47
    • USE OF COPYRIGHTED MLS COMPILATIONS
      • Participants shall:
      • maintain control over each copy of any MLS Compilation leased to them by NTREIS
      • shall not distribute copies to persons who are not Subscribers.
      • Be permitted to display the MLS Compilation solely to prospective buyers and tenants in their ordinary business activities. Page 48
    • Things We Can Do…
      • MLS information necessary to determine the estimate of value may be reproduced and attached to the report as supporting documentation.
      Page 48
    • NTREIS Reports
      • May be used by Participants for demonstrations of market share in advertising by a Participant or in other public representations.
      • Participants may not include, in any advertising, information about specific properties, including the address, sales price, or other terms of sale, which are listed with Other Participants or which were sold by Other Participants (as either listing or cooperating broker).
    • Required Notice
      • Any advertising based on information supplied by NTREIS or the MLS must clearly demonstrate the period of time over which such claims are based and shall include the following notice:
      • "Based on information from the North Texas Real Estate Information Systems, Inc., for the period (date) through (date)."
      Page 49
    • No Seller Info to Customer or Clients
      • Participants and Subscribers may not publish or display to customers or clients:
      • the name of the seller/occupant
      • phone number
      • or e-mail address of any seller or occupant of Listed Property.
      • Page 50
    • More Ways to Risk Your Money
      • The Real Estate License Act
      • Rules of the Texas Real Estate Commission
      • NAR Code of Ethics
      • Anti-Trust Laws
      • Deceptive Trade Practices Act (DTPA)
      • Federal, State and Local Fair Housing Acts
    • That’s All Folks