For people selling properties, one of the biggest potential problems they face is the disclosure process. If you fail to disclose certain issues with a piece of real estate, a buyer may have grounds to either cancel the sale or demand monetary damages. In extreme cases of misrepresentations about the property, the seller may even face civil or criminal fraud charges.
Disclosures are a big deal. Here is a look at four areas where a real estate law firm can help you disclose everything about a property.
Avoiding Boilerplate Disclosures
Never use a basic disclosure form designed to be used universally. An attorney can help you draw up a set of disclosures that's specific to the issues a location might have. If you depend on a boilerplate disclosure, such as one you found on the internet, you can't expect it to be specific enough to protect your interests.
The attitude of buyer beware is not a legal defense. You can't just say the buyer should have had a property inspector check things out, either. Whatever you represent about a property or fail to disclose can be held against you in legal proceedings.
Sellers have a duty to disclose any material defects a location might have. For example, if you know the roof of your house has a leak that's compromising the foundation, you're obliged to disclose that.
An encumbrance is a legal or financial issue that will hang over the property after the seller is gone and the place has a new owner. For example, there might be a lien outstanding against the property from a mortgage. There's nothing amiss if the buyer agrees to assume payment of the mortgage, but you have to be crystal clear about what the implications are. Also, you should keep the bank informed on what's happening and make sure the buyer is legally recognized as the customer involved with the mortgage.
Other encumbrances include things like tax debts, court orders, and easements. Yes, it is sometimes acceptable for you to sell a property under such circumstances. However, the buyer must be aware of what they're getting into before they sign anything.
Warrantability and Liability
If you don't want to be on the hook for certain issues with a property, it's best to clearly disclose this from the beginning. Otherwise, the default assumption is that the warrantability of the property will be whatever your state's standard is. That means you might be held liable if the buyer discovers a problem down the road that you knew about.