Expert: Connie Wildasinn-Broker,GRI,Realtor® - 2/19/2009

Question
QUESTION: We put a bid in on a home in Northern NJ.  At the time the seller agent used an investor tactic which prompted my husband to verbally overbid.  After smacking him upside the head, we submitted it formally.  It was higher than the so called investor, but suddenly the seller agent is asserting that the court is dictating that the house must sell for $15,000.00 higher than our bid.  Meaning any counter we make less than $15,000.00 more will not be entertained.  We walked through the house a second time with disclosures in hand and found quite a few discrepancies.  The seller agent has been asked about these and no response has come back yet.  In addition, in my mind, if the court is dictating the selling price, there must be a court order and as such even though out bid did not meet the court rate, shouldn't it have been submitted to the court for rejection, counter or approval?  With the exception of our formal bid, nothing has been in writing.

So, can the court really set a specific dollar amount for the sale of a house that is not in foreclosure, not part of a divorce or death.  Owner is in nursing home, so there must be some court invovlement, but to actually dictate the selling price?

If the court can dictate the selling price, isn't the selling agent supposed to submit any bids for the courts final decision?

My husband and I are at odds at the moment because he is hooked, but my b.s. meter is going crazy.  If I'm way off base, I loke to know so I can make a rational decision.  Same goes if I am somewhat right...my husband needs facts, since I am only going on commonsense, not actual legal knowledge.

Thanks!

ANSWER: Hi Mary…

It sounds like the house is in possible conservatorship? Since the owner is in a nursing home and this is not a probate? …

FYI… Offer are not binding in a verbal format… the principals must be in writing… to the terms and conditions and accepted and signed off by all parties in order to be upheld in a court.  

I have a couple of questions? Are you working with a buyer’s agent or dealing with the listing agent only?  If you are dealing with the listing agent only get everything in writing… from any counter, to acceptance.  Keep in mind there may be an appraisal on the seller’s side that is not in line with your offer… that an attorney is taking as gospel…

I am not sure at this point why the court is involved? But do believe you have attornies in NJ and others to contend with….

Put all of your question and demands to the seller in writing, leave nothing to chance, be as specific to your concern and what you expect the other side to do, whether it be monetary or actual (ie: repairs)

Again I can’t respond at this time about the court order dictating the selling price.. but you do need to get your responses in writing from the sellers and their agent.

Your question on can the court set a price? Yes and No… it can be determined by certified appraisal, but in the end it truly is up to the buyer to see the value and pay for the property… if no buyer accepts that price, it is guaranteed at some point to be reduced… you must determine how the house fits your needs and wants and if it is ‘replaceable’ or unique ie: waterfront, view etc that would be hard pressed to duplicate and then decide how much you are willing to pay, keeping in mind to be fair market value.. because the ‘powers’ won’t likely let a fire sale go through at this point…. Even some REO (Bank owned) are selling for “Over” market value! Go figure!

Last recommendation, if you have not already done so… get yourself your own representation if you feel the listing agent is not being forthright with you on all levels!  There are many good listing agents who understand the aspect of a dual agency and many good selling (buyers) agents…. Check around and find the one you connect with…

Good luck…


---------- FOLLOW-UP ----------

QUESTION: Thank you so much and in a way it turns out my b.s. meter going crazy was for real.  First, we made a formal bid and signed the bid contract? don't have it in front of me so I forget the doc name.  From that point everything on the seller agents end has been verbal...the sudden involvement of the court, the "make a bid of $15,000 more and the house is yours" and "another investor made a bid $5,000 higher than yours".

Next, because we made a formal bid we received the disclosures.  We took a second look at the house with disclosures in hand and there were discrepencies.  I put all our questions in writing and emailed them to our agent who then forwarded them to the selling agent.  Three days later no response.

Just so happens last night my husband and I decided to outright withdraw our bid.  I want to do this writing, but we called our agent first to have her take care of it.  When she called the selling agent she was told that we "asked too many questions" and they will sell to the investor.

So they are selling to an investor for $10,000 less than the court is demanding?????  Interesting.

Sorry for the noval, but here are the questions that remain now...

Should I put our withdrawal in writing?

This next is just on a personal level because I'm feeling abused...lol.  But is there any recourse for us, since the seller definitely lied on the disclosure and because the selling agent is denying us the opportunity to purchase because we ask too many questions?

Thanks!

ANSWER: Hi Mary,

Sorry about your ordeal, my best advise is to move on... No one can force a seller to sell to any one party, and they have a right to take the offer they want, even if the dollars are less... it could be that the investor is a cash deal, close in 10 days etc... Unless the property was a probate, and then there is a thing called 'court overbid' which move on a graduated dollar amount upwards, of course still depending on if anyone else show up to bid... you are most likely better to move on to a new location.

Use your agent to lean about your local market, what is standard what is off the mark...and then make your decisions as to whether or not you want the property badly enough... I have gone through many a hoop for the right property and walked away from others...

keep the faith, and Good luck

PS. on the 'seller lied - recourse' very hard to prove fraud in court... intentions are not always out and out fraud, sellers disclosure is not the bible...and your monetary damages will be hard to collect... my advise ... Move On..

PSS without an accepted contract, you didn't even have a deal... just because disclosures were sent to you, they still chose the other buyer... for many sellers a picky buyer will mean problems during the entire transaction... ease of mind on both sides is the goal.... you will find the right home, just keep looking...

---------- FOLLOW-UP ----------

QUESTION: No more questions, just a heartfelt thank you.  Well, actually I do have more questions...and I guess this explains the problem.  Am I wrong to question things?  Should I just keep my lips zipped until we get to the inspection stage?  Again, thank you very much for all the help.

Answer
Hi Mary,

You most certainly are not wrong in questioning things... you are getting ready to purchase the most expensive item you may ever buy... nothing wrong in asking... sometimes it is in the delivery and the staging of the question.... keep in mind that with many sellers they view their home like children, so if you don't like something or disagree it is like throwing out the baby with the bath water... keep in mind you are not buying their decorating style, their furnishings,or even paint... those can all be changed.. look for the area #1 consideration always!, floor plan layout... much less expensive if you can work with in the current footprint than to expand or go up .... that will cost considerable amounts of money... and again get a good buyers agent you feel confident with that they will guide you through the process...

I often say, I don't do your job for a living, and I would not more step into your office and assume to know how to do your job, let the buyers agent work for you... that is what we earn our commissions for.  And a good buyers agent, will help you to get into a quick learning curve with the market... because it really makes no difference what next year brings, I hope you are buying to hold for some duration, as the market will be in flux for some time to come, but pricing is great and money is still available ... and unless you are a cash buyer ... the credit crunch is causing more headache than anything else I see in the market...

Good luck and keep asking and learning! You will know the right property the second you step foot into it! with a personal residence it never fails, because that is one area that it is not just an investment ... it is a life style and place to grow memories... just make sure you have done your homework ahead of time...that way when the right home show up... you will really, really, really know it in your heart!

Have fun!