My Realtor Is Telling Me Not To Worry About Disclosing Too Much

If your real estate agent discourages you from making a full disclosure that is bad advice. Your response back to your agent should be to put it in writing. I’m going to guess when you ask for that advice in writing you won’t get it. Why? Because it’s the wrong advice and your agent doesn’t want to be sued along with you if at a later time the defect turns into a claim by the buyer.

Your obligation is to disclose defects and when you know one exists you simply need to accurately disclose the nature of that defect. 

One area I find troublesome is when a defect existed, was fixed by the homeowner and the fix really didn't correct the main problem. Recent Iowa Supreme Court cases don’t seem to allow sellers to just fix the problem and then not disclose its nature. If a problem existed in the past it could be the sign of a larger issue and as the seller under Iowa law you have to disclose it. I think you have to be careful about how you analyze how to correct a defect because if you miss something you will pay for it at a later date. 

For buyers this is an important point to understand. 

So just doing a home repair is usually not the answer or a defense against a later claim. And failing to disclose because you believe it will not invite higher offers is like playing Russian roulette.

My advice is to disclose the nature of the exact problem and if we can help you contact Katrina and I at the Lombardi Law Firm.

HOW TO CONTACT US

The Lombardi Law Firm

5000 Westown Parkway, Suite 440

West Des Moines, Iowa 50266

Telephone: 515-222-1110

Fax: 515-222-0718

Write to Steve or Katrina

Email: sdlombardi@aol.com or katrina.schaefer8@gmail.com

Is checking off “Yes” enough to protect you from a lawsuit?

The quick answer is “NO”.

Why?

Because when you say yes you are indicating there is a problem, but a monosyllabic response discloses nothing about the exact nature of the problem. While checking yes may invite an inquiry from the seller; as a seller you have no idea how that will be understood or explained by anyone. The seller is the one with the duty to disclose which means you have to disclose the problem not just that there is a problem.

From a legal standpoint if caveat emptor is dead then so is hiding the ball. Buyers have a right to know what they are buying and if you know there is a problem with your real estate then you have to disclose the nature of the problem.

What is caveat emptor? It means let the buyer beware. In law it means the buyer has the obligation to make sure the property doesn't have defects. Check out Wikipedia and Merriam Webster's definition.

Now let me tell you what the yes means to a lawyer.

Yes means you the seller know there is a problem so that is an admission by the sellers, but that answer fails to disclose the exact nature of the problem. So thanks for the admission; now get out your checkbook.

As the seller of property you have an obligation to fully disclose the nature of the problem as you understand it and just saying there are issues isn't enough to avoid later being sued.

So disclose the nature of the exact problem and if we can help you contact Katrina and I at the Lombardi Law Firm.

HOW TO CONTACT US

The Lombardi Law Firm

5000 Westown Parkway, Suite 440

West Des Moines, Iowa 50266

Telephone: 515-222-1110

Fax: 515-222-0718

Write to Steve or Katrina

Email: sdlombardi@aol.com or katrina.schaefer8@gmail.com

Are the terms of that offer in the sellers' best interest?

We need to stop trying to dumb-down what we do for a living. I mean it. Are we not in this business to service clients? We are aren't we? I am and I hope you are as well. So when you hand the client the offer, how do you know if the terms of this offer are in their best interest? Is price and whether it is cash versus a loan the only two things you look at? Assuming that is all you look at and we know that is true 99% of the time then is that really a professional grade service? 

If I can teach a college freshman to do your job as well as what I have just described, why isn't your salary nothing more than minimum wage? Are you hearing me?

You can buy a flat-screen TV and get more service than what I have just described, so why are you getting paid 6%? Why aren't we being paid like a TV sales clerk? Consumers probably know more about the warranty on a $600 flat-panel TV than they do the Offer & Acceptance Agreement costing them more than $100,000. Does that make any sense to you? Not to me it doesn't.

When you look at the offer to buy and consider what to tell your client think LARGE! Think legal review because for most of your clients this is the largest purchase they will ever make.

Consider these ten points:

1.    What in the offer isn't good for sellers?

2.    When your agent, yes your agent, hands you this written offer on a pre-printed form do you ever wonder if there are terms in the offer that are not in your best interest?

3.    Most sellers look first at the price and the then the finance contingencies. But what else is in the offer that can later be used against you?

4.    Which terms of the offer aren’t in the sellers’ best interest?

5.    Which terms can you delete?

6.    If you delete terms and the buyers walk then what?

7.    What pressure placed on you by a real estate agent is misplaced?

8.    What amount of pressure placed on you is just flat-out wrong?

9.    Who is protecting your legal interests?

10.  And lastly, who isn't?

As a seller you need to know the terms of the offer aren't going to come back later and encourage litigation. You can't give legal advice but you can stress the advice that the buyer needs legal advice and that my friend is a professional service. And maybe this deal stalls and doesn't go through, but so what if they tell all their friends about what a great real estate agent you are. 

So consider hiring our law firm to assist you with the sale. Because I realize what you want is some simple formula that I put down on paper, you follow it and bingo the sale goes through. But if what you do, what we do, is as simple as a formula why do they need to pay us 6% to do it? Why aren't we just getting paid $100 as if it were a new car sale? Now do you get my point? This isn't simple, it never was and never will be and that is why you get 6% to divide between the four of you. When you ignore the need for a lawyer you are oversimplifying the real estate business and when we dumb it down sooner or later the FISBO deal looks like a better way to buy and to sell real estate.

This area of the law is a mine field – so don’t be the one who steps on a landmine. Call us, contact the Lombardi Law Firm and ask for either Steve Lombardi or Katrina Schaefer.

HOW TO CONTACT US

The Lombardi Law Firm

5000 Westown Parkway, Suite 440

West Des Moines, Iowa 50266

Telephone: 515-222-1110

Fax: 515-222-0718

Write to Steve or Katrina

Email: sdlombardi@aol.com or katrina.schaefer8@gmail.com