Special Real Estate Commissioners are licensed real estate agents and/or brokers appointed by a court to “initiate and complete the sale of real property” with court oversight. There are a number of scenarios in state and local court settings in which a special commissioner is called upon to oversee real estate transactions.
In Family Law matters, a Special Commissioner is appointed pursuant to the Arizona Rules of Family Law Procedure, Rule 95G. For Probate matters, a Special Real Estate Commissioner is appointed under Arizona Revised Statutes (A.R.S.) §14-3911. And, in Partition matters, a Special Real Estate Commissioner is appointed under ARS §12-1218. There are a number of scenarios in state court settings in which a Special Commissioner would be called upon to oversee real estate matters. Where parties are at loggerheads over the division, sale, or disposition of real property, the appointment of a Special Real Estate Commissioner may be beneficial. Where income-producing properties such as apartment complexes, industrial buildings, office buildings, hotels, mini-storage, or mobile home parks are involved, the appointment of a Receiver may be most appropriate. These are different solutions for different types of properties and circumstances.
To properly understand why and how the court appoints a Special Real Estate Commissioner to oversee the disposition of real estate jointly held by contested parties, let us look at both the processes, as well as the benefits of Special Commissioner Appointments.
Process and Protocols
There are several methods for requesting the appointment of a special real estate commissioner available at various points throughout the duration of a court case.
During the initial phase of a divorce proceeding, the contesting parties will attempt to work out as many disputes as possible during a pre-trial settlement conference. At this time, when filling out consent decree forms, parties may elect to request the appointment of a real estate agent or Realtor ® as a special real estate commissioner. The Special Real Estate Commissioner can provide procedural assistance to transactional real estate matters, should parties reach a disagreement on the sale or division of community real property.
When parties are unable to come to an agreement during the early stage in the process, parties may file a post-decree petition to the presiding superior court, requesting the appointment of a Special Real Estate Commissioner to conduct a sale of community Residential or Commercial real estate. It is important to note that petitions to the court, even when granted, may be appealed by a contesting party, and/or later vacated by the court.
Throughout the post-decree phase, if either party becomes delinquent in their responsibilities, with either of access or care and maintenance of a real property asset, the opportunity exists for any party with equitable interest to file an Order for Appointment of Special Commissioner for Sale of Real Property. The order provides, in detail, the duties and obligations of both the parties to the case, as well as the Special Commissioner.
A few particularly relevant sections of the standard order which facilitate access, valuation, marketing, and sale include:
Section 3 – Cooperation and Access – This section requires the party in possession of the property to contact the Special Commissioner within ten (10) working days of the filing date. It also mandates that the party in possession provide a key to the property within 48 hours of the request. This section is especially important for resolving long-standing disputes between parties where the individual with possession of the property is refusing to comply with court orders.
Section 4 – Market Analysis and Appraisal – This section accelerates the timeline by requiring the Special Real Estate Commissioner to provide a market analysis to the parties and their attorneys within ten (10) days of initial access.
Section 5 – Listing – This section also helps accelerate the timeline with instructions such that a property be listed for sale, according to the order, “in a commercially reasonable manner,” at a value consistent with the Real Estate Special Commissioner’s broker price opinion (BPO).
Section 6 – Reports – This section facilitates communications with the requirement for Special Commissioner to report regularly to the parties, their attorneys, and sometimes directly to the court.
Section 13 –Sanctions – This section provides for sanctions for poor or uncooperative behavior in the form of financial penalties, contempt, an award of attorney’s fees, or removal from the premises. This, too, will facilitate the process, and can often accelerate the timeline.
Benefits of Appointing a Special Commissioner
There are several benefits to keep in mind if you are contemplating petitioning the court to appoint a Special Real Estate Commissioner. The primary benefit to all parties involved relates to the speed with which a Special Real Estate Commissioner can conduct a real estate sale. Through a carefully crafted order, the Special Commissioner can take control of the marketing and sales process, requiring that the property be in market-ready condition, in short order. By controlling the condition of the property and the marketing and sales process, the Special Commissioner can significantly shorten the length of time necessary to market and sell a property. As a result, a qualified Special Real Estate Commissioner may help you reduce your legal fees.
Another great benefit to enlisting the services of a Special Real Estate Commissioner is the impartial approach to contentious, and often intensely personal, scenarios. Situations that arise in Arizona superior courts where multiple parties may be forced, either by circumstance or by the court, to dissolve their relationship with one another often feel confused, vulnerable, sad, and angry. It would constitute an undue burden to expect them to be able to navigate the unpredictable terrain of a complex real estate transaction at the same time as their lives are likely in some degree of upheaval. Special Real Estate Commissioners provide a much-needed impartial counterweight to the emotionally-charged environment of a divorce proceeding.
Appoint Someone You Trust
If you are involved in a court case involving real estate assets, it is important to identify the people and professionals who can help you through a difficult process.