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2021 Arizona REALTOR® Voice
April 6
Reprinted with ADOR permission The speculative builder tax is imposed by Arizona cities and towns on the sale of improved real property by a speculative…
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Games of Chance or Risk, Such as Lotteries and Contests, Are Not Appropriate Incentives for Marketing
FACTS:
To generate business, Team Real Estate is seeking a new and innovative way to promote themselves and their listings. To do so, they are considering a drawing in which the winner will receive a $250 gift card. Specifically, Team Real Estate will enter into a drawing the name of individuals that “Like” their Facebook page, or attend one of their open houses.
ISSUE:
Is Team Real Estate’s promotional activity allowed?
ANSWER:
No. See Discussion.
DISCUSSION:
A.R.S. § 32-2153(13) provides that the commissioner may reprimand a licensee who “solicited, either directly or indirectly, prospects for the sale, lease or use of real property . . . through a promotion of a speculative nature involving a game of chance or risk or through conducting lotteries or contests.” Because the contemplated drawing could be considered a game of chance, it may be deemed a violation of the Commissioner’s rules.
A.R.S. § 13-3301(4) defines gambling in part as the “act of risking or giving something of value for the opportunity to obtain a benefit from a game or contest of chance or skill.” Performing an act such as attending an open house or “Lik[ing]” a Facebook page in exchange for entry into a drawing could be considered “giving something of value for the opportunity to obtain a benefit.” Because the contemplated promotional activity could be deemed gambling, the team should refrain from offering open house attendees and people that “Like” their Facebook page entry into a drawing.
Utilities on During Inspection
FACTS:
Seller and their agent entered into a Residential Listing Contract Exclusive Right to Sell/Rent (“Listing Contract”). The Listing Contract does not address whether Seller is responsible for keeping utilities on for purposes of Buyer’s walkthroughs and inspections. Thereafter, Buyer and Seller entered into the Arizona REALTORS® Residential Resale Real Estate Purchase Contract (“Purchase Contract”) following which Seller scheduled a home inspection.
ISSUE:
Must Seller have all utilities on when Buyer’s home inspection is performed?
ANSWER:
Yes.
DISCUSSION:
The Residential Purchase Contract, not the Listing Contract, is the agreement that outlines the contractual duties Buyer and Seller owe to one another. Lines 302-304 of the Purchase Contract state: “Seller shall make the Premises available for all inspections and walkthroughs upon reasonable notice by Buyer. Seller shall, at Seller’s expense, have all utilities on, including any propane, until COE to enable Buyer to conduct these inspections and walkthroughs.” As such, Seller must have all utilities on when Buyer’s home inspection is performed.
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