There is a lot of available information explaining the recent NAR settlement effecting the residential home buying process. Many of the explanations have been offered by brokerages, social media from those in the industry, and state or local realtor estate associations. I found the explanation offered by Tanya Monestier a contract Law Professor from Buffalo, New York, or in other words, someone without “skin in the game,” to be a neutral explanation providing good advice. As with anything these days, there is a lot of information available, as well as misinformation. It’s quite simple actually…you simply need to understand what you are signing and negotiate the best deal that works for you. As always, Bergmann Law is here to help with your real estate questions.
As I sit in Court, waiting for my client’s case to be called, observing the cases on the docket in front of me, wouldn’t you know it, the next one is a homeowner/Buyer (“Plaintiff”) suing the former homeowner/Seller (“Defendant”) for post-closing inspection issues. This case is dead on arrival, but it should at least be interesting.
The story is the usual one. Seller and Buyer enter into a standard contract for the purchase and sale of a home. Buyer has a home inspection and plumbing issues are discovered. Major, water running down the walls, type of plumbing issues. Buyer makes plumbing repair requests and Seller says no. Buyer is a tenant and feeling pressure to close anyway because she’s already given her landlord notice. She has spent money on inspections and appraisals. She feels like she has no choice, so she closes anyway. Without the plumbing repairs and water still running down the walls.
Why?
Her agent told her she could just sue the Seller, post-closing.
Wow.
Agents and brokerages were named, but only the Buyer was in the Courtroom and she was clearly shocked the “legal advice” from her agent was completely wrong. The Judge was patient. He was kind. He very gently told her she had no case as he read a large portion of the contract back to her and into the record. The Judge then ever so gently, entered judgement in favor of the Seller.
And by the way, what did the Seller have to say in his defense? Nothing. Absolutely nothing. It wasn’t necessary. He didn’t even appear in Court, nor had he filed an answer to the complaint. He just sent in his lawyer and as it turns out, that was all he needed to do for absolution. Judgment in his favor, and nothing for the Buyer.
So, what is the moral of the story? Representation in the largest financial transaction you will likely make – or the advice and a chance to walk away from it – is always a good idea.
Call us before you close. Better yet, call us when you make your offer. Post-closing issues are rarely resolved to the satisfaction of a Buyer once you leave the closing table.
Don’t be that post-closing, unhappy homeowner. Protect yourself, your investment and your piece of mind.
If you are in the hunt for a house, or likewise selling your own, the topic of dual agency will (or should) come up for discussion with your agent. Most people give consent for their agent to act as a dual agent if the opportunity arises, but do you really know what that consent means?
Under New Jersey law a disclosed dual agent works for both the Buyer and Seller. To work as a dual agent, a brokerage firm must first obtain the informed written consent of their client. It is not necessary that the agent representing both Buyer and Seller be the same person, rather dual agency runs to the brokerage firm. This means if your agent is with one of the handful of large brokerage firms in the area, it is more likely that your transaction will be one in which dual agency applies.
The agent affiliated with a brokerage working as a disclosed dual agent must carefully explain to each party that, in addition to working as their agent, the brokerage firm will also work as the agent for the other party. The agent must also explain what effect working as a disclosed dual agent will have on the fiduciary duties their brokerage firm owes to both the Buyer and Seller.
Dual agency gets tricky in a transaction when the agent is aware of confidential information that would benefit one party and negatively impact the other. A brokerage firm must have the express written permission prior to disclosing confidential information of one client, to the other.
Examples of confidential information includes the highest price a Buyer can afford to pay and the lowest price a Seller will accept. It also includes either party’s motivation to buy or sell. Remember, a brokerage firm acting as a disclosed dual agent will not be able to place one party’s interests ahead of those of the other party and cannot advise or counsel either party on how to gain an advantage at the expense of the other party because of such confidential information.
So why should you care? Well, it’s not likely you’ll be able to avoid a dual agency relationship, and you should not necessarily try to do so. If your agent is a dual agent, it means perhaps it was internal advertising that brought a Buyer to you for your home; but, it does mean you should strongly consider being represented by an attorney in a dual agency transaction. It is the only way to ensure you have an advocate protecting your interests up to and at the time of settlement.
Bergmann Law LLC 