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Legal Mistakes to Avoid When Buying or Selling a Home

When you're buying or selling a home, there are many important legal issues, large and small, that you should be aware of. To begin with, residential real estate is not an uncomplicated process. When such a major investment is transferred from one party to another, even the subtle legal details need to be taken care of. If not they can turn into major problems if not handled correctly.

It is essential to be as informed as possible in order to properly protect yourself in the process of buying or selling a home. There are several issues that will certainly cost you if you are not properly informed. In this report, we identify 3 of the most common of these issues. Because there are many legal issues to consider, your first step is to consider choosing reputable and experienced professionals to represent your interests.

When selecting your real estate sales person, ensure you find someone who has extensive experience with the process. They should also refer you to a local real estate lawyer who can ensure your interests are protected.

Following are 3 common examples of legal clauses that can work to your disadvantage if not worded correctly:

1. Survey Clause
Homebuyers have the right to have a survey clause added to the real estate contract on the home they wish to purchase. Today, most buyers purchase title insurance instead of a survey but if you feel there is a need to have a survey included in the agreement of purchase and sale it is your right to have it added, keeping in mind the questions about who, ultimately, will pay for it and the amount of time needed to obtain and review the survey before the date of completion of the sale.

Homeowners, if you are selling and have a survey, it may no longer be up-to-date if you had a swimming pool built, an addition added or too much time has passed since the survey was prepared. If your survey is not up-to-date, the buyer may request an updated survey and you may be required to bear the cost to have a new survey prepared. The cost for this process typically runs anywhere from $700 to $1,000. This is $700-$1,000 less that you will net for your home but it might be the issue that decides the success or failure of sale. It is up to the buyer and the buyer’s lawyer to decide if the survey is acceptable.

Your real estate sales person should be able to advise you appropriately when dealing with this issue, but if you or your sales person are unsure, you have the right to consult your lawyer before you sign the offer. Don't be afraid to take this important step, as thousands of dollars could be riding on the decisions you make at this point. 

2. Home Inspection Clause
Some real estate transactions have fallen through because of the wording of the inspection clause. This clause previously stated that the buyer has the right to rescind their offer if they were dissatisfied with the outcome of a home inspection. In some cases, this was used unfairly against the seller when a minor repair issue would give a buyer a legal loophole to their change of heart. Meanwhile, the seller lost both time and money because of this technicality.

First, they may have declined other offers (offers which may now be lost forever) in favor of the one which has now fallen through, and missed the opportunity for other offers which might have come through during the current negotiations.

Second, their home may have been unfairly labeled as a "problem house" which could cost them in terms of the dollar amount of subsequent offers. And third, they then found themselves back on the market, incurring the inconvenience and additional carrying costs of having to market their property for a longer period of time.

This clause should read that the seller has the option to fix any items that the home inspection flags. This wording protects both the buyer and the seller. The buyer is assured that the home they are buying meets objective structural standards, and the seller is protected against the whim of a buyer who changes his/her mind. Not all contracts will be written in this way.

This of course, is a point of negotiation and how the clause is written reflects the interests of the one who is offering. It is important that both parties consider the significance of accepting the offer or changing the clause at the risk that other party may reject the change and end the offer.

Make sure you are working with a lawyer experienced in real estate matters to ensure your interests are protected.

3. Swimming Pool Clause
If the home you are buying or selling has a swimming pool, there should be a specific legal clause which addresses this costly item. Some contracts are written to provide a warranty to the pool to survive closing. The broadness of this wording protects buyers, but is not necessarily in the best interest of sellers who might instead request that the clause be worded to indicate that, at the time of closing, they believe the pool to be in good working condition.

The existence of a pool in any home negotiation is certainly reason enough to ensure that you seek advice from a real estate professional so that your interests are represented properly. By being aware of these and other legal issues, and by seeking advice from an experienced real estate professional and obtaining legal counsel, you can protect yourself against unnecessary cost and potential hardship.

Sellers, if you think there is a possibility that your home will be sold after your pool is closed and before it is opened for the next season, you may want to invest in an inspection and closing by a professional pool company. This way you will have an objective, third party opinion of the condition of the pool that can be provided to the buyer. Don’t forget to take lots of photos before the pool is closed. 

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