Hopefully, your real estate transaction will go smoothly. You’ll move in to your new home and you won’t be disappointed. If you’re selling, the transaction will close uneventfully, and there will be no nasty surprises after closing.
But, occasionally residential real estate transactions don’t work out as planned. Consider the following scenario:
The buyers move in. Then they become chummy with a neighbor who tells them something about their new home, or the neighborhood, that they think should have been disclosed to them at a point in the transaction when they still had a chance to decide whether or not to proceed.
What should the buyers do next if they think they’ve been deceived by the seller or the seller’s agent? The first step is to determine if, in fact, they were misled. Many states, such as California, have seller disclosure requirements that call for sellers to disclose known material facts to the buyers before closing. A material fact is something that would affect the buyers’ decision to buy or the price they would pay.
It’s not uncommon for buyers to overlook items in the sellers’ disclosures that don’t seem to be a problem at the time they make an offer. Later, they may not recall that the item was pointed out to them in advance. In this case, the buyers would have only themselves to blame for not completing their due diligence inspections before going ahead with the transaction. Check the seller’s disclosures before jumping to conclusions.
Some sellers, however, are less than candid with their disclosures. For whatever reason — often fear or ignorance — they don’t disclose something that could affect the buyer’s purchase decision. Omitting a material disclosure can have serious consequences.
HOUSE HUNTING TIP: Even so, it’s usually less time consuming and certainly less costly to settle such matters outside of a courtroom. Buyers might start by sending a letter to the seller stating the problem and asking the sellers to remedy the situation. Or, they might enlist the aid of their real estate agent. If neither avenue brings about an acceptable solution, the buyers should seek the aid of a knowledgeable real estate attorney.
In some states, real estate attorneys are an integral part of the home purchase transaction. If this is the case, the buyers should call their attorney for assistance. Otherwise, they should ask friends and associates or their real estate agent for recommendations.
It’s not always clear who is at fault when a problem arises before or after the closing. For example, who is entitled to the buyers’ deposit money if they back out of the contract?
The real estate agents involved can’t be expected to provide the legal answers. Unless real estate agents are also attorneys, they can’t give legal advice. In fact, serious problems can develop when agents attempt to solve problems that lie outside of their area of expertise.
Some buyers and sellers have an aversion to seeking the help of an attorney, usually because they fear it will end up costing too much money. However, acting on the advice from someone who isn’t legally qualified may lead you into legal problems that can cost more in the long run.
Before talking to an attorney, find out the cost for a consultation. If you feel comfortable hiring the attorney, make sure you understand how much it will cost to resolve the problem.
THE CLOSING: The purchase contract should specify a remedy for dispute resolution. Even if the buyers are required to mediate or arbitrate, it may behoove them to consult with a real estate attorney in order to be sure they understand the legality of the situation.
Dian Hymer is author of “House Hunting, The Take-Along Workbook for Home Buyers” and “Starting Out, The Complete Home Buyer’s Guide,” Chronicle Books.