When a seller first lists a property, often they unintentionally, or intentionally, fail to disclose all facts to their own Realtor. This can cause a huge problem later which could even cause legal proceedings against the Seller and the unknowing Realtor. Follow these real estate tips for sellers to alleviate some potential problems.
Who holds the property title?
Sadly there is nothing in NAR or TR rules concerning the agent having to determine the owner of record for the real property being conveyed. Often the Seller might believe he or she has marketable title to the property when, in fact, at some point down the line there was no probate proceeding done, no filing of a Divorce Decree, or even an un-filed Contract for Deed purchasing the property which a Seller failed to disclose to the Agent.
Although the Agent is usually protected since the TR listing agreement indicates a seller representing having good and marketable title, often this does not get discovered until the property is subsequently under contract. The Title Company discovers it during the title search and sometimes the problem is not even correctable so the sale not only never occurs but there can be liability upon the seller and even the Realtor if they had any idea of such a situation. And, as for a contract for deed, if not filed of record then it can be as easy as filing same. Also, Realtors, whether required to or not, can do a quick search at least of the appraisal district or tax records to insure the seller actually has record title to the property. If not, the Realtor needs to question the Seller to obtain proof of ownership prior to ending up in a possibly bad situation.
Always provide relevant documentation to the Realtor
Of course having a copy of your deed, latest tax statement, any liens or judgments against you (and also attaching to the property), and other information can be helpful. It is even helpful to provide some past utility bills and other bills concerning the house ie. lease of water softener, propane or gas, and of course electric and water. Also, any relevant Home Owners Association (HOA) information.
Disclose any undefined road on the property
If there is a undefined road on your property, or running across any portion of your property (of course mostly a rural property deal) please tell your Realtor what the road is and who owns it. Better yet, provide all documentation on that. If it is not discussed, it can lead to legal issues of which I’ve been personally involved in my legal capacity.
Sellers Disclosure: completed by the Seller – not the Realtor
Sec. 5.008, Texas Property Code mandates a Seller of a single family dwelling provide a sellers disclosure with some limited exceptions like post-foreclosure, in an Estate or Trust, Bankruptcy, and sales to an immediate family member. If there is a question on the need to fill it out, at least look at the law and decide. Failure to provide the Seller’s Disclosure Notice can allow a buyer to walk – the law says a buyer has 7 days after receipt of the sellers disclosure aside from other legal or contractual outs. Having personally been in a suit where this was the issue, the Seller lost the sale and the earnest money since a buyer can then back out right up to closing. TREC has a promulgated version available on its site (all forms on that site are available for public use). And, make sure the Seller, not the Realtor, completes it. Even if a seller is not an onsite owner or even has not seen the property in years (ie. out of State owner and rented out) it is the Seller and NOT THE REALTOR swearing to the information contained in it. The Realtor can possibly send photos for a seller’s recollection but it is better for the seller to say they don’t know than put down what the Realtor says. If the Realtor completes it and something is later found not to be accurately disclosed, the Realtor can get successfully sued. Let it be the Seller completing this one.
Get a survey if not done recently
When selling property that has not been surveyed in a long time or there is no survey available, the seller should consider getting a survey done. This will give a buyer an accurate picture of what is being bought and, especially if rural property, prevent a seller from inaccurately marketing the acreage being conveyed – this could be actionable if a seller is way off and the correct information does not come to light before closing (nobody orders a survey – cash deal for example). Shortages in acreage can be costly, so just do it Sellers since buyers really want to optically be able to see what they are buying.
Sellers disclose unseen major issues
Sellers should disclose any major issues repaired on the Property, especially as to the improvements themselves. (yes this overlaps with the Sellers Disclosure requirement above and refers to latent conditions – unable to be readily seen or discerned without either destructive testing or later finding out from records, contractors, etc.) The best example is foundation repairs – you fail to disclose and later a repair is needed and the same company ironically comes out. Of course they disclose the prior repair and you, the seller, get sued. The Realtor can be sued too if that individual knew and also failed to disclose. Other matters, a death on the property caused by a condition of the property, a major fire or flood, and mold that had to be remediated. These are huge and can usually be discovered by a buyer asking (best during the option period) their insurance agent for a CLUE report on the property – shows all claims for prior 5 years. If a seller is caught on failing to disclose such a latent defect, the damages could be big using the Texas DTPA for deceptive trade entitling one to up to 3 times the amount of actual damages plus court costs and attorney’s fees.
Leave utilities on for inspections pending closing
Leave the utilities on for inspections pending closing. It is not only now stated in the preprinted earnest money contract but has ample case law and rules to back this up. The only exception is if the terms of sale are ‘as is’ usually in a foreclosure or bankruptcy with no occupants and basically abandoned properties. These are usually clearly indicated in marketing materials that one is on their own.
John Goehrs, Attorney and Real Estate Broker, is a professional licensed to practice law and conduct real estate transactions. He handles a variety of legal matters and has over 28 years of real estate experience in the Austin, Texas area.