Order for Appointment of Real Estate Special Commissioner (Court Approved)

THE COURT FINDS that parties have an interest in real property, which property must be sold in conjunction with the proceedings now before the Court. Pursuant to Rule 95(g), Arizona Rules of Family Law Procedure, and the applicable Administrative Order(s) of the Superior Court in Maricopa County, and for good cause appearing,

IT IS ORDERED:

1. APPOINTMENT. (Name) is appointed Real Estate Special Commissioner (hereinafter Special Commissioner). If the Special Commissioner is unable or unwilling to accept this appointment, he or she must notify the Court and all parties and attorneys of record, in writing, within 5 business days of receiving said appointment.
   
   
2. PROPERTY: The Special Commissioner shall market and sell the real Property (the “Property”) at:
   (Address)
   According to the terms and conditions herein.
   
   
3. CONTACT: The contact information for the Special Commissioner is: (Name, phone, email address, Broker.) The parties shall contact the Special Commissioner to provide their contact information, including telephone numbers and email address within 3 business days of the entry of this order. The Court shall immediately email the Order to the Special Commissioner. The Special Commissioner may also contact the assigned Judge’s division to obtain contact information for pro per parties.
   
   
4. E&O INSURANCE: The Special Commissioner shall maintain a policy of Errors and Omissions Insurance to cover any transaction that is the subject of this order, in an amount of at least $1,000,000.
   
   
5. RESIDENTIAL POSSESSION OF PROPERTY. If one or both of the parties reside in the Property, he or she shall, at all times, maintain the Property in a clean, debris-free, and market-ready condition. Any domestic animals shall be crated or otherwise contained for any showings or removed from the Property.
   
   
6. PRODUCTION, COMPLETION, AND EXECUTION OF REQUIRED DOCUMENTS. The parties must timely cooperate with the production, completion, and execution of all documentation requested by the Special Commissioner, related to the Property and reasonably necessary to facilitate the marketing and sale of said Property. Such documentation includes, but is not limited to, the listing agreement, change orders regarding listing price, responses or counter offers to purchase offers, contracts, sellers’ disclosures, BINSR repair requests/review of inspections, escrow opening and closing documents required by the title company, and approval of escrow instructions for distribution of proceeds.
   
   
7. ACCESS AND SHOWINGS. The parties shall cooperate in good faith in providing access to the Property by the Special Commissioner, and in facilitating showings, inspections, and appraisals of the Property, at reasonable times. A key to access the Property shall be provided to the Special Commissioner within 48 hours of request. The Special Commissioner shall give reasonable notice to the parties before accessing the Property. The parties shall permit placement of a lockbox to allow access to the Property for a minimum of five hours daily. The parties shall follow the Special Commissioner’s recommendations regarding marketing, including, but not limited to open houses, and signage.
   
   
8. REPAIRS, MAINTENANCE AND STAGING. Each party shall cooperate in facilitating the agreed upon recommendations of the Special Commissioner regarding repairs, maintenance, and staging. Each shall be responsible for arranging for timely removal all personal property that he or she has been awarded pursuant to agreement or Court order.
   
   
9. MARKET ANALYSIS AND APPRAISAL. The Special Commissioner shall, within 5 business days of being granted access to the Property, cause a market analysis of said Property to be made, and shall deliver copies of the market analysis to the parties via email. The parties shall have 5 business days to object in writing to the market analysis. Either party may request an appraisal of the Property as part of their objection to the market analysis. If the parties cannot agree on an appraiser, the Special Commissioner shall select an independent appraiser. The costs for the appraisal shall be paid by the party requesting same.
   
   
10. LISTING. The parties shall execute and deliver a listing agreement substantially consistent with the standard Residential Listing Contract (Exclusive Right to Sell) within three (3) business days of presentation by the Special Commissioner. The property shall be listed in a commercially reasonable manner. As used in this Order, the term “commercially reasonable manner” includes, but is not limited to [a] listing the Property on a Multiple Listing Service (hereinafter, MLS) in the Active status, unless otherwise agreed upon by all parties, [b] stating a fair description of the properties’ features, and [c] a statement of terms that the sellers will, or will not, consider. If either party fails or refuses to execute the listing agreement within 3 working days of presentation, the Special Commissioner may sign on behalf of a party. The listing shall contain a provision that “the sale may be subject to Court approval.”
    
    
11. LISTING PRICE AND PRICE ADJUSTMENTS. The Property shall be listed for sale at the value agreed upon by the parties. If the parties do not agree the Property shall be listed at a price recommended by the Special Commissioner based upon a market analysis or, if applicable, appraised value. From time to time, the Special Commissioner may recommend adjustments to the list price. If the parties do not agree with such recommendations, they shall provide written notice to the Special Commissioner within two (2) business days. Any unresolved disputes may be presented to the Court for determination.
    
    
12. COMPENSATION. Upon close of escrow or transfer of title, whichever occurs first, the Special Commissioner and the selling broker shall be entitled to, and paid compensation. The Special Commissioner shall receive compensation that is commercially reasonable for brokerage fees in the market and for the specific property type. The Special Commissioner may not unilaterally establish a fee for their services, and such fee shall be as agreed to by the parties or set by the Court Order if the parties cannot agree. If the Special Commissioner advances any costs agreed by the parties, he or she shall be entitled to reimbursement.
    
    
13. MARKETIG SERVICE REPORTS. The Special Commissioner shall report, in writing, the efforts made to sell the Property by delivery of copies of the report to both parties no less than every 30 days. Said report may include recommendations, if any, for changes to the offering terms. The reports shall not be filed directly with the Court, however either party, or the Special Commissioner, may submit any or all reports for the Court’s consideration in further proceedings.
    
    
14. OFFERS AND RESPONSES. All offers shall be obtained and transmitted to the parties in writing. The parties shall timely consider all written offers, counteroffers, addenda, and BINSR or repair requests. Responses to the terms shall not be unreasonably withheld; approval, rejection, or counteroffers shall be made in a timely manner, and in the manner necessary to consummate an arms-length real property transaction. Failure to timely respond shall constitute rejection. In the event either party refuses to sign an offer/counteroffer, the Special Commissioner may petition the Court to sign these or other contract and/or closing documentation, in accordance with Section 16 of this order.
    
    
15. CHANGES. The Special Commissioner may, from time to time, determine if reasonable changes are necessary to the terms of listing the Property for sale if the Property remains unsold. As applied herein, “unsold” means the parties have not accepted a written offer for sale. The Special Commissioner shall make any recommendations in writing to the parties and to their attorneys as needed. If one party fails, neglects, or refuses to deliver a written approval to/of changes to the terms of listing recommended by the Special Commissioner, the Special Commissioner shall request a Court hearing in writing. Until the Court rules otherwise, no changes shall be made to the listing absent a subsequent agreement of the parties. If both parties are in agreement with one another, but disagree with the recommendations of the Special Commissioner, there shall be no hearing requested, and no change to the listing shall occur.
    
    
16. COURT APPROVAL. If the Special Commissioner receives a written offer to purchase the Property that either party rejects, the Special Commissioner shall make a written request to the Court for an expedited hearing for consideration of the offer. If, after expedited hearing, the Court determines the offer should be accepted, or that a counteroffer be made, the Court may direct the Special Commissioner or the Clerk of Court, pursuant to Rule 89, to make, execute and deliver the appropriate documents. If the Special Commissioner receives a written offer to purchase the Property that both parties reject, or if both parties wish to put forth the same terms of a counteroffer, the Special Commissioner shall adhere to the agreement of the parties.
    
    
17. PROCEEDS. The parties’ proceeds of sale shall be held by the title company engaged, a designated attorney, or the Court registry, until there is a written agreement of the parties or Order of the Court.
    
    

18. PURCHASE BY PARTY OR SETTLEMENT BETWEEN THE PARTIES. In the event either party wishes to purchase the subject real property, the purchasing party shall submit a bona fide, fair market offer to the other party in writing along with a financial pre-qualification statement and provide a copy to the Special Commissioner. No party shall reject an offer unless that party can make a factual showing as to a reasonable basis for the rejection. All such offers that are rejected may be submitted to the Court for approval upon request of either party or the Special Commissioner. In the event of an owner purchase or property withdrawal from sale based upon an agreement of the parties, Special Commissioner compensation shall be paid as follows:
     a. Offers Made Before Listing and Marketing the Property: Offers made and accepted by a party prior to listing and marketing and any third-party offer being made shall result in a reasonable fee for the time spent, including preparation of the market analysis, plus any reasonably incurred out-of-pocket costs or expenses incurred by the Special Commissioner.

     b. Offers Made After Listing the Property: If, after Special Commissioner has actively listed and marketed the Property for sale, the parties reach an agreement to resolve the disposition of the Property, the Property will be deemed “purchased” by the party for the amount of the purchase price, and the purchasing party shall pay the Special Commissioner’s commission, which shall be calculated at 40% of the full rate in the listing agreement, as agreed by the parties and the Special Commissioner, or as established by the Court.

     c. Offers Made After Any Third-Party Offer: If, after the Special Commissioner has actively listed and marketed the Property for sale, and the Special Commissioner receives a bona fide offer to purchase the Property from a third party, either party, who is pre-qualified for financing at the time, makes a written offer to purchase the Property, which offer is accepted by the other party or approved by the Court, the purchasing party shall pay the Special Commissioner’s commission, which shall be calculated at 50% of the full rate in the listing agreement. In the event the purchasing party engages a third-party broker, the purchasing party shall pay the third-party broker directly, in addition to the Special Commissioner’s commission, as set forth in this section. A “bona fide offer” means an offer from a qualified purchaser presenting commercially reasonable terms. The commission shall be paid prior to the transfer of title, unless the Court orders otherwise.

19. SANCTIONS. The Court may sanction a party for unreasonable behavior under this order, or the failing to cooperate with the Special Commissioner as required. These sanctions may include but are not limited to the following: (a) adding an additional one percent (1%) of the selling price as compensation for extraordinary services rendered as Special Commissioner, over and above the fee negotiated for by the parties in the listing agreement; (b) a contempt finding; (c) an award of attorney’s fees; (d) removal from the Property; (e) daily monetary fines for delaying the close of escrow; (f) holding a disobedient party liable for the Special Commissioner’s time and costs incurred in obtaining compliance and/or requesting a hearing with the Court. If the Special Commissioner or one of the parties feels sanctions are warranted, they may request a hearing. The Court may also order that an act be done at a disobedient party’s expense by another person appointed by the Court as provided in Rule 89, Arizona Rules of Family Law Procedure.
    
    
20. HEARINGS. In addition to the provisions regarding requesting hearings otherwise listed herein, if either party feels aggrieved because of action or inaction by the Special Commissioner, he or she may request a hearing with the Court. Prior to filing with the Court, a party shall provide written explanation of the concern to the Special Commissioner who shall have 5 business days to provide a written response. If the matter cannot be resolved in this fashion, the hearing may be requested.
    
    
21. TERMINATION.
    a. The expiration of a listing agreement shall operate only to terminate the immediate contractual agreement between the parties and the Special Commissioner. This order shall remain in full force and effect until amended by the Court. The parties may renegotiate the listing with the Special Commissioner or return to the Court for appointment of a new Special Commissioner. The Court shall not be obligated to change Special Commissioners, and any consideration for changing Special Commissioners shall be predicated upon consideration of the quality of the services rendered by the Special Commissioner, and their marketing efforts expended in furthering the sale of the Property. The Court may consider compensation for the Special Commissioner’s time, services and costs afforded to the Court and the parties.

b. By acceptance of the appointment herein, and by signing the listing agreement between the parties, the Special Commissioner agrees to be bound by the terms of this order and the further authority and orders of the Court in this matter. The Court may, for good cause shown, alter or amend the terms of this order, or terminate the services of the Special Commissioner without further compensation or remuneration, however, the Court shall not terminate the Special Commissioner without hearing and consideration of the Special Commissioner’s time and services afforded to the Court and the parties. The Special Commissioner may make written request of the Court to be released from this appointment at any time.

(A text box in the Court’s widget allows for additional orders here. If you need to customize the order, it can be done here, or with an addendum to the order.)

22. CONTACT INFORMATION UPDATES. All parties representing themselves must keep the Court and Special Commissioner updated with changes to address, telephone number, and/or email. A form may be downloaded at:

https://superiorcourt.maricopa.gov/llrc/family-court-forms/