THREE TIPS YOU CAN USE …
Don’t underestimate the importance of a land survey. If available, a realtor should provide the seller’s attorney with a copy of the most recent land survey that the seller possesses. If the sellers do not have a recent survey, you may want to advise them to get one, especially if they or their adjoining neighbors have erected any fences or done other improvements on the property since the last survey.
Why is this important? Because a land survey ensures the buyer’s protection in a real-estate transaction. It discloses the exact property lines and all of the improvements on the property.
Without a land survey, a real-estate transaction can run into many problems. These can be as minor as a fence slightly over the property line or as serious as a pool or deck encroaching onto the property. Other problems can affect an owner’s ability to even use his home. If a driveway crosses onto the neighbor’s property, for example, the buyer may have no legal right to ingress or egress to the home.
Similarly, a neighbor may have put up a fence that doesn’t travel exactly along the property line and may encroach onto the seller’s property. If the encroachment exceeds one foot, the title company very often will not fully insure the property, and the buyer’s mortgage company will often refuse to lend until the problem is resolved.
We represented a builder recently who, prior to retaining our firm, purchased a piece of real estate without first getting a survey. He built a very expensive home on the lot and found a buyer. The buyer’s survey revealed a huge encroachment of the neighbor’s fence onto his property by more than 17 feet. The fence had been up for almost 20 years and when we approached the neighbor, he refused to move the fence or sign a property line agreement recognizing the true line. The buyer’s mortgage company refused to lend unless the problem was resolved. This put a multi-million dollar transaction in jeopardy and caused huge delays in the closing due to protracted negotiations with the neighbor. If our builder client had gotten a survey before he purchased, he could have approached the neighbor beforehand and attempted to resolve the issue then or move on to a different piece of property.
Clear up title issues early. Some title problems can be resolved simply on the closing day. If there are unpaid property taxes, for instance, the escrow company will simply make that payment and deduct it from the seller’s sale proceeds.
But sometimes there are unwelcome surprises that are not as easy to rectify. They include IRS tax liens, judgments, contractor or mechanic’s liens, and encroachments, to name just a few. It can take an attorney a lot of time just to track down creditors from judgments that have been on title for years, and settling IRS or state income tax liens is likewise very time-consuming.
In order to avoid difficulties that may take a significant amount of time to resolve, it is best to proactively handle these issues early in the sale process. The best way to do that is to have your client provide the attorney with as much paperwork regarding the house as you possess, and for them to be honest with the attorney about any outstanding debt issues.
Very often a realtor will just send a deal sheet with the basic parameters of the deal. But if the seller’s attorney can be provided with a copy of the seller’s deed, original title policy, survey, recent property tax bill, HOA contact information, recent mortgage statements for any open mortgages, MLS listing, etc., this helps the attorney not only with the contract negotiation and with generally discussing the deal with the buyer’s attorney, but also with helping spot and clear any potentially problematic issues.
Share your engineer’s inspection with your attorney. Sellers can benefit by having their home inspected by a Licensed Professional Engineer home inspector prior to placing their home on the market. A home inspection by a competent home inspector provides the seller with useful information regarding the condition of their home and provides the seller with an opportunity to make repairs and improvements that will help the sale go smoothly and maximize their selling price.
In such an inspection, the major components that should be considered include the condition of the roof, the foundation (including basement and crawl space), the electrical system, the plumbing system, and the heating and cooling systems.
While bringing in an inspector isn’t mandatory, there are numerous advantages for a seller to do so, including:
• The ability to choose the inspector rather than be at the mercy of the buyer’s choice of inspector.
• The ability to schedule the inspection at the seller’s convenience.
• The opportunity to have the inspector correct any misstatements in the inspection report before it is generated.
• Securing a report that can help the seller realistically price the home if problems exist.
• Securing a report that can help the seller substantiate a higher asking price if problems don’t exist or have been corrected.
Most importantly, the seller needs to keep their attorney in the loop regarding the results of the inspection. If there are any issues that come up during the inspection, the seller needs to discuss those issues with their attorney who can then properly draft a contract to address either the seller’s or the buyer’s (or both) concerns.