One of the best ways to avoid getting into an ugly dispute involving a home purchase or sale is to be proactive. In order to do this, you need to be aware of the sorts of issues that can lead to disputes. By knowing what could possibly go wrong, you can prepare yourself to recognize a potential problem if it arises.
A common complaint that can end in a dispute is that the agent didn’t act in the best interests of the party being represented; that is, the buyer or seller. Real estate agents who represent buyers or sellers in a transaction owe their client a fiduciary duty to put their client’s interests above others in the transaction.
Buyers and sellers might be entitled to take legal action against agents who breached their fiduciary duty. But, why put yourself in a situation where you need to engage in a legal battle if you don’t have to?
Before you select an agent to represent you, make a careful search to find an agent who understands what it means to owe a fiduciary duty to you. You are looking for real estate agents who value the quality of service they provide. Select professionals to represent you who will put your interests first. Personal acquaintances are often good sources of real estate agent recommendations.
Some of the most serious disputes arise over material facts that should have been disclosed to the buyers, but weren’t. A material fact is something that might affect a buyer’s decision to buy or the price a buyer would pay. Disclosure laws vary from one state to another. But, generally, sellers are required to disclosure material facts when they sell.
HOUSE HUNTING TIPS: Sellers should take their disclosure requirements seriously. They not only protect the buyer, but they protect the seller from being sued after closing over something that should have been disclosed upfront. Consult with your real estate agent or real estate attorney if you have any questions about what you do and do not need to disclose.
Real estate agents are also required to disclose material facts about a property to buyers. Sometimes sellers don’t want to disclose facts about their home that they think might deter the sale. However, if you, or your agent, conceal a known material fact, a costly dispute could arise.
Disputes can arise over a failure of expectations. Clear and complete communication can usually keep these sorts of problems from arising. For example, let’s say you are the buyer and you plan to move into the home you’re buying the day the transaction closes. The seller is moving out the day before closing and is planning to leave the house broom swept and free of debris. If you are expecting carpets to be cleaned, floors polished and windows washed, you could be sorely disappointed.
To avoid a problem like this, ask your agent to find out if the seller is planning to have the house professionally cleaned before you move in. If not, and if this is not something required of the seller in your purchase agreement, make arrangements to have cleaners come in the morning of closing so that you aren’t disappointed, and so that your move is not delayed.
Disputes over who is entitled to the deposit if a deal doesn’t go through are all too common. The answer to these questions usually involves a legal opinion. So, before making a claim, get legal advice from a knowledgeable real estate attorney.
THE CLOSING: Even though you’re upset that the buyer is backing out, you may not be entitled to keep the buyer’s deposit, depending on the terms of the purchase agreement.
Dian Hymer is a nationally syndicated real estate columnist and author of "House Hunting, The Take-Along Workbook for Home Buyers" and "Starting Out, The Complete Home Buyer’s Guide," Chronicle Books.
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