After the buyers move into your home, sooner or later they will discover a problem. And it will be one they didn't anticipate. And I'm sure at least one will exceed their budget. At that point they will probably review what was disclosed and then let the blame-game begin. Agents are at least partly to blame for this blame-game environment, because agents believe it's better to "put nothing in writing". So they don't. Word gets passed between agents and like the childhood game "Chinese Whispers" the story at the end is never the same as the one started.
Agents want to give up none of the commission and at the same time aren't lawyers so they offer no advice with the exception of saying, "I'm not a lawyer, I can't give advice." Wow, while I appreciate this is necessary to say, it is not very helpful. But let's get back to the real estate agent as messenger, because that's where a fight will begin.
Since the agents were the messengers they are the ones who lawyers will later consider as having passed on the message incorrectly. Give this point your attention and serious consideration. There is nothing in writing because real estate agents don't communicate with correspondence. Maybe email, but probably not because agents are trained to put nothing in writing. So when we reach the he-said, she-said stage the first question is who delivered the message and what did they say? The key question will be, did you pass it on incorrectly or did you filter the message? Or did you massage the message to move the sale to the closing? Either way it's not looking good and faced with hiring their own lawyers your seller is not longer willing to play patty cake with the selling agent. And at that point you get out your E&O policy and hunker down for depositions and long waits in a lawyer's office.
To clients they are just angry. After all the agents to justify thousands of dollars in commissions held themselves out as professionals AND remember you have malpractice insurance; SO you are the most likely targets who first hear from the now disgruntled buyers and then the sellers. I suspect this is not something you don't already know.
And if the buyers' agent thinks they are safe, well, God help you if the buyers and sellers get together and decide the agents weren't accurate as messengers. "Hey that isn't what I said to my agent."
Agents want to give up none of the commission and at the same time aren't lawyers so they offer no advice with the exception of saying, "I'm not a lawyer, I can't give advice." Wow, while I appreciate this is necessary to say, it is not very helpful. But let's get back to the real estate agent as messenger, because that's where a fight will begin.
Since the agents were the messengers they are the ones who lawyers will later consider as having passed on the message incorrectly. Give this point your attention and serious consideration. There is nothing in writing because real estate agents don't communicate with correspondence. Maybe email, but probably not because agents are trained to put nothing in writing. So when we reach the he-said, she-said stage the first question is who delivered the message and what did they say? The key question will be, did you pass it on incorrectly or did you filter the message? Or did you massage the message to move the sale to the closing? Either way it's not looking good and faced with hiring their own lawyers your seller is not longer willing to play patty cake with the selling agent. And at that point you get out your E&O policy and hunker down for depositions and long waits in a lawyer's office.
To clients they are just angry. After all the agents to justify thousands of dollars in commissions held themselves out as professionals AND remember you have malpractice insurance; SO you are the most likely targets who first hear from the now disgruntled buyers and then the sellers. I suspect this is not something you don't already know.
And if the buyers' agent thinks they are safe, well, God help you if the buyers and sellers get together and decide the agents weren't accurate as messengers. "Hey that isn't what I said to my agent."
Everything the agents said or didn't say becomes the
possible basis for a claim. Did you do everything just right? Did you leave any loose ends? Is all the paperwork exactly as it should be? Where is the written record of the actual message? I guess will will find out what everyone recalls you said. It is pretty clear this can develop into a bigger problem over time. Which is why handing the sellers off to someone such as myself is a better way to avoid being drug into a post-sale argument about disclosures.
Do otherwise and it is clear what will happen. Time, your time, becomes the biggest thing that is now going to be wasted and uncompensated. As an agent all you want to do is move on to the next deal, but that’s not going to happen when post-sale issues creep into the deal. And when the lawyers get involved your time will be consumed with meetings, depositions and filling out lawsuit paperwork.
Now I don't tell you this to scare you; I'm explaining this to you because the way business is being conducted is old school and really needs to change. The days of caveat emptor really are dead and gone. This is why I'm saying allow the sellers the opportunity to sit down with an attorney who can advise them about the right way to fill out the disclosure statement.
Do otherwise and it is clear what will happen. Time, your time, becomes the biggest thing that is now going to be wasted and uncompensated. As an agent all you want to do is move on to the next deal, but that’s not going to happen when post-sale issues creep into the deal. And when the lawyers get involved your time will be consumed with meetings, depositions and filling out lawsuit paperwork.
Now I don't tell you this to scare you; I'm explaining this to you because the way business is being conducted is old school and really needs to change. The days of caveat emptor really are dead and gone. This is why I'm saying allow the sellers the opportunity to sit down with an attorney who can advise them about the right way to fill out the disclosure statement.
Under the principle of caveat emptor, the buyer could not recover damages from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud.
I've litigated for over 30 years and can tell you what you should do; but what you do, is really up to you. If you think taking the
risk of future litigation is minimal then don’t encourage your client to spend
the $250. If you do want to reduce the future risks of the problems that creep
in over inaccurate seller disclosure statements, then by all means have your
seller contact us. We offer this service to keep the closing clean and to help eliminate post-sale legal problems.
This
area of the law is a mine field – so don’t delay.
Call us, contact the Lombardi Law Firm and ask for either Steve Lombardi or
Katrina Schaefer.
HOW TO CONTACT US
1300
– 37th Street, Suite 4
West
Des Moines, Iowa 50266
Telephone:
515-222-1110
Fax:
515-222-0718
Write
to Steve or Katrina
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