The High Cost of Not Doing Your Due Diligence

In a recent case (Cooper v. Jordan, No. 14-0157) the Appeals Court of Iowa addressed a negligence claim by one heir against a sibling trustee who was also an heir. What I like about this case and why it is being added to the Iowa Real Estate Lawyer blog is to demonstrate another situation where doing due diligence would have revealed problems existing on the property which would likely have resulted in this heir’s property valuation being lowered with money being attributed to the deferred maintenance by or from the other heirs. In other words had the due diligence been performed it would have shown the problems in this farm house resulting in a lower value. When the other farms were transferred to the other three heirs, the equalization payments would have offset the repair costs of the home farm house.

Like many cases where due diligence has not been properly performed the costs to repair fall on the person who is buying the property. So keep this in mind as you read this case summary.

Attorney Lombardi says, This is an interesting case because it demonstrates the need to conduct thorough due diligence prior to agreeing on the equalization of valuations between the four farms. It is far better to be arguing about valuations than it is to be trying to prove the trustee was negligent. Due diligence applies not just to cases like this inherited property case, but also with any real estate transaction including home purchases. The buyer needs to fix the problems or be credited against the purchase price before closing! Not after.

COOPER v. JORDAN - Suit by trust beneficiaries

COOPER v. JORDAN No. 14-0157
            Appeal from the Iowa District Court for Jones County, Robert Sosalla, Judge.  Heard by Vogel, P.J., McDonald, J., and Scott, S.J.  Opinion by McDonald, J.  (12 pages)              Linda Cooper sued her sibling Lynnette (Sue) Jordan, successor trustee of their mother's trust, asserting claims for negligence and breach of trust.  Following a bench trial, the district court entered judgment in favor of Sue and dismissed Linda's petition.  The district court denied Linda's request for costs and expenses and granted Sue's request for the same.  OPINION HOLDS: Linda did not prove Sue was negligent or that the alleged negligence caused damage.  The court did not abuse its discretion in awarding Sue costs and expenses, except for the costs and expenses relating to depositions not used at trial. AFFIRMED IN PART AND REVERSED IN PART. 

Facts as recited by the Court

"Linda Cooper sued her sibling Lynnette (Sue) Jordan, successor trustee of their mother’s trust, asserting claims for negligence and breach of trust. Linda alleged Sue failed to keep in good and habitable condition two houses on the farmstead Linda received from the trust. Linda also alleged Sue engaged in self-dealing by using trust funds to enhance the value of the property Sue received from the trust. Following a bench trial, the district court entered judgment in favor of Sue and dismissed Linda’s petition. The district court denied Linda’s request for costs and expenses but granted Sue’s request for the same. Linda timely filed this appeal. 

At the time of her death on August 26, 2009, Dorothy DeMean was trustee of the Dorothy L. DeMean Revocable Trust. Dorothy’s daughter Sue was designated as the successor trustee. The trust instrument provided the trust property was to be distributed in equal one-quarter shares per stirpes to Dorothy’s four surviving children—Sue, Gene, Linda, and Leann. The trust corpus included four separate farms in Jones and Linn Counties, which the family referred to as the Home Farm, the Wyoming Farm, the Martelle Farm, and the Castle Grove Farm. The siblings agreed each was to receive one of the family farms with the understanding that equalization payments were to be made between and among them to reconcile the difference in value among the farms.

The four farms were transferred out of the trust to the four beneficiaries as tenants in common on February 18, 2011, eighteen months after Dorothy’s death. The exact cause or causes and the person or persons responsible for the delay between the time of Dorothy’s death and the time of transfer are disputed, but the delay generally arose out of conflict between Linda and the rest of the family with respect to the farm properties and the terms and conditions under which her son could farm one or more of the properties. Regardless of the exact nature of the dispute, on April 8, 2011, following a family agreement to partition the farms, the farms were deeded to the four siblings individually. Linda was deeded the Home Farm.

The Home Farm comprised one main house, where Dorothy lived until her death, and a smaller house. Linda’s family entered the main house on the Home Farm on April 9. They claimed the house was in a state of disrepair. Linda testified there was moisture and water in the basement. She testified the basement ceiling tiles had fallen down. She testified there was mold in the house. She testified raccoons had come into the house through the roof or a vent cover on the roof. Although no raccoons were found in the home, there were raccoon feces in the home. The water to the home had been shut off during the preceding winter. When Linda turned the water on, she discovered some of the water lines were broken. Linda claimed the smaller home on the Home Farm was in a similar state of disrepair. Linda then filed this suit for damages against the trustee."

Attorney Lombardi's Comment: This is an interesting case because it demonstrates the need to conduct thorough due diligence prior to agreeing on the equalization of valuations between the four farms. It is far better to be arguing about valuations than it is to be trying to prove the trustee was negligent. And this applies equally to home buyers. Evaluate the properties condition to identify deferred maintenance. Then negotiate a lower price before the purchase. And if you aren't able to get a lower price, then walk away from the deal.

Why you should pay for a lot line survey.

What is a lot line survey? A lot line survey is a service that exactly measures the location of the lot-lines for a piece of land. The lot lines are the boundaries where you land ends and your neighbor’s begins. Knowing where your lot ends and theirs begins is just a part of being a good neighbor.

In the city or suburbs a surveyor can cost somewhere between $400 and $1,000; but like everything in life the cost is negotiable, so shop around. For that price they will stake out the lot lines and corners of your property with wood stakes and metal survey pins. Always ask for the surveyor to place the survey pins in each corner and then add cement around the top of each pin. You can buy the cement at any hardware store and mix it on a small piece of plywood.

You might wonder, why spend the money?

Because it can save you a lot of money knowing where your ownership begins and ends. 

What can possibly go wrong?

I will give you three examples of how not having a survey can get your embroiled with the legal system and lawyers. And remember where there are lawyers there are legal fees and an uncertain outcome. 

Example 1: I bought a cabin in Northern Minnesota. My neighbors and I all got along wonderfully. We fished and barbecued fish and steaks together. We still today have a great relationship, but when I went to sell my cabin the buyers conditioned the sale on a lot line survey. The survey showed my neighbor’s garage was over the lot line. The buyers wanted it removed and the neighbor balked, but I had another idea, which the offending neighbor wasn't too happy about, but accepted to avoid having to tear down a four stall garage and boat house. We moved the lot line at the shoreline by ten feet and then wiggled the lot line around his offending garage. That way my buyer got ten feet more of shoreline and the neighbor got to keep his garage. 

RESULT: The offending garage owner had to pay for the legal work to make it all legal and he had to give up some land.

Example 2: My home is in a nice neighborhood. My second wife wanted to build a swimming pool. I ordered a survey and discovered the neighbor to our south had his swimming pool fence, landscaping and drainage slurry over the lot line and into my yard. The litigation has been ongoing for over ten years. There is no end in sight. The offending owner sold his home to a new owner and they understand less than the previous owners did. 

RESULT: No resolution.

Example 3: This story is an example of even with a survey, mistakes can be made, but at least you have someone to sue when it does. My son who attends Creighton School of Law sent me this story out of Florida. These folks in Missouri wanted to build their dream home in Florida. They hired a builder who built the 5,300 square foot beach house, but on the wrong lot. Ouch! You surveyors best get out your checkbooks. 

RESULT: No resolution at the time the story was reported in 2014.

My advice before buying or building, get the survey and then read it.

Who is Steve Lombardi? Steve Lombardi is a lawyer and a real estate broker in Iowa. He represents a limited number of buyers for the sheer pleasure of helping people find just the right home for a good price. His business is not about quantity, but quality. His clients stay involved in the search using the Internet to scout out just the right home and at a fair price. He is a lawyer and a real estate broker and so you get the full package for half what it would otherwise cost you. If you would like his help in finding the right home and want to do some of your own research, then contact him. If he isn't helping someone already then you are in luck. 

A recent case involving rescission of the sale of a 200-year-old house based on a claim by buyers of fraudulent inducement by the seller. 

 Justia Opinion Summary

In 2005, Donald Devine and his wife Nancy Devine acquired ownership of Rock Hall, a 200-year-old house. In 2007, Charles Buki and Kimberly Marsho signed a contract agreeing to purchase Rock Hall. Later that year, Buki and Marsho (together, Plaintiffs) brought suit against Donald and Nancy (together Defendants), alleging that Defendants fraudulently induced them to enter into the real estate contract and to close on Rock Hall by misrepresenting and concealing the true condition of the house. The trial court concluded that Nancy had committed no wrong but nonetheless granted rescission of the real estate contract against both Donald and Nancy, concluding that Nancy should be “responsible jointly and severally with her husband for the payment of the purchase price” of Rock Hall. The Supreme Court reversed, holding that because there was no evidence of any wrongdoing on the part of Nancy, the trial court had no basis for awarding any remedy, including rescission, against Nancy.

The evidence failed to show the wife took part in any of the fraudulent acts as alleged. The trial court seemed bothered by what was described in the opinion as "reaped the benefit" of the sale of Rock Hall and allowed rescission. But the higher court overturned that ruling finding no basis for awarding any remedy against the innocent wife. 

Reversed and remanded for further proceedings consistent with the opinion. 

Devine v Buki, Record No. 140305, Justice Powell for the Circuit Court of Northumberland County, Virginia. 

An interesting legal claim was asserted under the Virginia Consumer Protection Act ("VCPA"), Code Section 59.1-196, et seq. 

 Justia Opinion Summary

In 2005, Donald Devine and his wife Nancy Devine acquired ownership of Rock Hall, a 200-year-old house. In 2007, Charles Buki and Kimberly Marsho signed a contract agreeing to purchase Rock Hall. Later that year, Buki and Marsho (together, Plaintiffs) brought suit against Donald and Nancy (together Defendants), alleging that Defendants fraudulently induced them to enter into the real estate contract and to close on Rock Hall by misrepresenting and concealing the true condition of the house. The trial court concluded that Plaintiffs were entitled to rescission of the contract where David, but not Nancy, committed fraud. The court awarded consequential damages and attorney’s fees. The Supreme Court affirmed in part and reversed in part, holding that the trial court (1) did not err in granting rescission of the real estate contract based on Donald’s fraudulent concealment of the true state of the house and did not err in awarding attorney’s fees; (2) did not abuse its discretion in refusing to award punitive damages; and (3) erred in awarding consequential damages and prejudgment interest.

These are companion cases with the likely citation of, Devine, Jr. v Buki, et al., __ Va. __ S.E.2d __ (2015)

I have spoken from time to time about the buyers' due diligence, but did you know the sellers should also engage in due diligence? Due diligence is a period of time where you have an obligation to act in some way. When due diligence is applied to residential real estate (a home) it means a period of time where either the buyers or the sellers should be doing something to making decisions about the property that will be for sale.

According to Investopedia "due diligence” is defined as follows:

1. An investigation or audit of a potential investment. Due diligence serves to confirm all material facts in regards to a sale. 2. Generally, due diligence refers to the care a reasonable person should take before entering into an agreement or a transaction with another party.

What should you, the sellers be doing during your due diligence time period? The good news for sellers is they control the time frame surrounding the sellers’ due diligence time period. Theoretically you can set the period whenever you wish, but from a practical standpoint the seasons set the parameters along with your level of desire to sell. As an example more listings take place in the spring than in the winter, but more contractors are probably looking for work in late fall to early winter than will be available in the spring. Of course replacing the front door in winter has its own hidden cost, a higher energy bill for one.

Think about the due diligence period as the time for you to act proactively in getting your home ready for staging and then for-sale.

How should you prepare for the sellers' due diligence? Well, for starters you need to decide when you would like to sell your home. Depending on how much work will be involved in getting the home ready to list you may need a month or as many as twelve months. It all depends on the extent of work you believe needs to be performed to get the house ship-shape.

1. Decide on the listing date.
2. Sit down and divide the house into sections. (Main area, upper level, lower level, exterior, garage, landscaping, swimming pool area, patios, decks, driveways, etc.)
3. Have each section of the home evaluated for major renovations. (Discuss what you can afford to do and what you can't afford to do. Discuss with a real estate agent those renovations that will add the most bang for the buck.)
4. Have each section of the home evaluated for minor renovations. (These are probably things you can do like painting, wiping down, staining, replacing electrical plates, etc.)
5. Have the home evaluated for staging. (Keep in mind just because you like it doesn't mean buyers will find it appealing.)
6. Create a list of all things in the home that you will not want to move to a new home, because you are going to sell these items.
7. Take photographs of the household possessions you will sell and locate user manuals and purchase receipts. (Place all paperwork inside a clear expandable or large Tupperware container. This way everyone knows where to find the right documents when a buyer shows up for a look-see.)
8. List these items on CraigsList and/or get ready for a weekend garage sale.
9. Whatever you don’t sell then either donate it or toss it out.
10. I have heard it said everyone has at least $2,000 of things they don't use stored in their garages, basements and attics.

The last thing you should do is the most important. Ask your real estate agent for a copy of the sellers’ real estate disclosure statement. Read it and make sure your appliances and home systems work properly.

If done right selling a home takes work and some money. If sellers do not do their due diligence then buyers expect to pay less than top dollar. And so do your due diligence, ignoring it will not make it go away.

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

What is due diligence and why is it important to the buyers?

French Fries get to do nothing, as buyers you don't.

Due diligence is an opportunity to act. Many buyers after their offer is accepted truly believe their job is done and now they have only to wait and move in. But that my friends could not be farther from the truth. Right after the offer is accepted your job as the buyers has just begun. And if your real estate agent isn’t pushing you to act, then you have made a huge mistake in who you selected as your agent. Remember an agent, like in baseball, is the professional who is supposed to represent your interests. With the privilege of representation comes a duty to ‘A-C-T’; meaning something besides waiting needs to happen.

I previously posted a blog about due diligence: Iowa Residential Real Estate: What is due diligence? So what should you be doing? Well, before we talk about what you should do, you need to understand why you even get a due diligence period.

As buyers you have probably been inside the house a total of maybe five times. During any one of those visits your ability to poke and prod has been extremely limited. Any inspection made was quite cursory, meaning you were only allowed to scratch the surface. This due diligence period is intended to allow you time and opportunity to hire professionals to make sure the building systems are working as you expect them to work. A good example is the furnace. If you are buying the home in June the furnace is not likely to be operating. If you buy in December it is doubtful the AC unit is running. So how would you know they work properly? Well, you hire an HVAC professional to do an inspection during the due diligence period.

I personally use a guy by the name of Dave Michael. Dave is a contractor we use to build out commercial space or when we buy a home he inspects the home systems to bring out attention to problems we might be unaware. Now granted these home inspections are not one hundred percent, meaning they will probably not uncover some problems, but whatever he finds is important to us as buyers.

Why should you carefully read the home inspector report?

What Dave’s report does is tell me if we need to act and how to act. The “Dave Report” can tell me if we need to get additional inspections, renegotiate the terms of the purchase agreement, require the sellers to make repairs, make further disclosures, change the price, hold money in escrow or terminate the purchase agreement. In other words this Dave Report can save me the headache of buying a lemon when I think I’m buying the Taj Mahal. Barbara and I do not hesitate to ask Dave questions about what is in his report. After all we paid for it.

The weeks following the acceptance of your offer to purchase, is not the time for the buyers to go to sleep. It is time to get busy evaluating what you may have just bought to see if it makes sense to move ahead to the close.  As potential buyers it is time to evaluate your assumptions about the property. Are they all accurate or were you as potential buyers mistaken about the property? Is this a good buy or is this a 'money pit'? Let's look at where to focus your attention.

I asked Dave Michael if he would give me permission to add his contact information along with why he believes a home inspection is worth the money. Here is what he said.

- Buying a home for most people is the most expensive investment they will ever make. While some people feel an inspection is another expensive check they have to write, I see it as an opportunity to have a professional find those things the seller might be hiding or don't know about in the first place. Everything a third party inspector can find, is one less thing that can cost a homeowner money or worse, them or their loved ones their life. Dave Michael, Michael Contracting Services, LLC

• Dave MichaelMichael Contracting Services, LLC.
• 5462 Pine Valley DrivePleasant Hill, Ia 50327
• 515-202-6520
• David@Michael-Contracting.com
• Michael-Contracting.com 

Here is how to think about the buyers' due diligence period:

• ·         To act
• ·         To investigate
• ·         To inspect
• ·         To ask questions
• ·         To read
• ·         To evaluate
• ·         To decide
• ·         To seek further disclosure from the sellers
• ·         To renegotiate the price and conditions
• ·         To buy more time to decide if this is the right deal for you
• ·         To reexamine your emotions and why you like this home
• ·         To repair
• ·         To rehabilitate
• ·         To reject
• ·         To walk away the “money pit”
• ·         To not make the biggest mistake of your lives
• ·         To reenter the market for a better home and at a better price

If you don’t understand why a due diligence period is important then you are probably not being properly represented. If your agent is pushing you to schedule inspections, then listen to what they are saying and why. After all they are your agent and before you possibly make the biggest mistake of your life, do all of the above. And in the end if you aren’t sure, terminate the purchase agreement and keep looking. After all, your objective should be to buy quality, not just any house quickly.

Who is Steve Lombardi? Steve Lombardi is a lawyer and a real estate broker in West Des Moines, Iowa. He represents a limited number of buyers for the pleasure of helping people find just the right home for a good price. His business is not about quantity, but quality. His clients stay involved in the search using the Internet to scout out just the right home and at a fair price. As a lawyer and a real estate broker and so you get the full package for half what it would otherwise cost you to hire two professionals with his expertise. If you would like his help in finding the right home and want to do some of your own research, then contact him. If he isn't helping someone already then you are in luck.

Why should the seller buy a home warranty for the buyer?

Aloha! Maui, Hawaii

A home warranty, if you don’t know, is a very basic insurance policy covering appliances and systems like the heating system, water heater, plumbing, AC, the oven and range, microwave, washer/dryer, well pump, septic tank pump and system, the refrigerator and some parts of the electrical system. 

A home is an intricate collection of systems that keep you warm or cool, dry and when working these systems allow you to live a whole more comfortable than if you were living in a cave or mud hut. 

When buyers negotiate they are buying all the home systems, and sometimes the seller’s appliances already in the home. These items are all used. But for buyers they're motivated to save the expense of having to buy appliances after the sale is completed.

In Iowa sellers have a duty to disclose their knowledge of the condition of every major system in the home and if they sell the appliances those conditions as well. It is this duty to disclose that imposes a risk to the sellers. Because if the actual condition of the system or appliance ends up being incorrect, liability may attach. What I mean by this is you can be successfully sued when the furnace you said was in mint condition turns out to be a lemon. So if you don't work on furnaces for a living perhaps your declarations about the furnace are simply a guess.

Very few sellers have the knowledge to know what they are talking about when filling out the disclosure form. And real estate agents will not help you with filling out this form. That’s because they don’t know anything about your home’s systems and have limited knowledge of plumbing, heating, electrical, sewer, septic, roofs and all the other systems that make a house work. When you ask for help and they say “Just do your best.”; and then walk away, they are trying to tell you no way are they going to get involved with the duty to disclose. And they won’t tell you to sit down with a lawyer because then you will clearly understand the fancy car and nice clothes are just window dressing.

So what should you do? How can the seller protect themselves from this imperfect world of real estate?

It is the warranty. The warranty is your backup plan; it is your insurance against an imperfect world. If the buyers can’t or won’t, then you (the sellers) should buy the warranty. A $500 home warranty policy is a hell of a lot cheaper than a lawyer charging $375 per hour. 

Now do you get why the sellers should buy the warranty?

Who is Steve Lombardi? Steve Lombardi is a lawyer and a real estate broker in Iowa. He represents a limited number of buyers for the sheer pleasure of helping people find just the right home for a good price. His business is not about quantity, but quality. His clients stay involved in the search using the Internet to scout out just the right home and at a fair price. He works only with exclusive agreements to represent, so if you don't want to commit yourself to him, he won't to you. He is a lawyer and a real estate broker and so you get the full package for half what it would otherwise cost you. If you would like his help in finding the right home and want to do some of your own research, then contact him. If he isn't helping someone already then you are in luck. 

The buyer's agent

Why do you need a buyer’s agent?

1. The listing agent represents the seller, not the buyer. The listing agreement contract binds the agent to the seller, not you, the buyer. Your interests are not being protected.

2. I am an attorney with over 30 years’ experience, AND I am a broker and a real estate agent in Iowa. I focus on central Iowa and specifically buyers who are willing to commit themselves to me as much as I do to them.
3. I represent only one set of buyers at a time who are looking in Polk, Madison, Dallas and Warren Counties.
4. I represent committed buyers who sign an exclusive agreement of representation meaning I commit to you as my clients and you commit to me, as your agent. Together we focus on getting you exactly what you want and at a price that makes sense to you.
5. This exclusive representation insures the elimination of agent conflicts with the sellers’ agent.

6. If you are ready to buy a new home that exceeds $300,000, let’s talk. I give my clients personal attention and I handle only a limited number of clients at a time.

Call 515-222-1110 to set up an appointment and talk with Steve Lombardi to see if he can help you buy the right house.