Answers general questions about residential real estate in Florida. More specific answers for the southwest area of Florida - Naples, Bonita Springs, and Estero Florida - Collier and Lee Counties. Will not answer any questions about commercial real estate or business brokerage.
Experience
Experience in the area: I have held a Florida real estate license since 1995 and Florida mortgage broker license since 1996. I have specializes in the residential real estate market as a full-time REALTOR since 1996. Currently a member of the Legal Resources Committee of the Naples Area Board of Realtors.
Organizations Naples Area Board of Realtors, Lake Placid Board of Realtors, Florida Association of Realtors, National Association of Realtors
Publications Have been interviewed by the local NBC, ABC, and FOX affiliates about correcting erroneous information on credit reports, local real estate market conditions, and foreclosures. Glenn authors Naples Real Estate Blog
Education/Credentials Bachelor of Science Degree in Accounting from Bentley College, Waltham, Mass.
Post graduate courses at Nova University.
Awards and Honors 2007 Best in Client Satisfaction - Real Estate Agent by Gulfshore Magazine.
2006 Best in Client Satisfaction - Real Estate Agent by Gulfshore Magazine.
Expert: Glenn Ginsburg Date: 1/30/2008 Subject: Sellers and Seller's agents
Question Dear Glenn, We recently terminated a purchase contract for the sale of residential property in Naples due to the Seller's refusal to issue a credit for defective home inspection items. The Seller's agent sent me an email that said that because the house was being sold as a "short sale" and was AS IS, they were unable by law to issue a credit.
This would have been fine except for the background of the transaction.
The Seller's agent and the Seller himself insisted that this was not a short sale (In fact, I requested, and they refused, to use NABOR short sale addendum to the real estate contract. I should also add that nowhere in the MLS listing or in the contract, is there any mention that the house is being sold AS IS. We elected the home inspection contingency in the contract (and again, in the seller's acceptance of the offer there was no mention that it was being sold AS IS).
I was leery about this being a short sale because the seller owed about 200k more on the property than what our purchase price was. He had requested that we put a "contingency" in the contract stating that the contract was "contingent upon his two banks' approval" and that this contingency would expire within 30 days of the acceptance date. Thirty days came and went and he asked for an extension for this contingency, and we said no (simply because we did not want to be tied up in this transaction indefinitely). We stated we would be willing to terminate the contract or he could waive the contingency. He chose to waive the contingency (in writing). I informed him that I was going to start expending money for the home inspection and other surveys and that if he did not have the right to sell the property, speak up now! He stated (verbally) that he did have the means to cover the difference, and we would take the inspection items “as they came.”
So, as a recap, the Seller waived his bank contingency clause after 30 days (because he did not hear from the banks), again offering more "proof" that this was not a short sale. His waiving this contingency started the ball rolling with inspections.
We had the home and termite inspection done at a cost of $460. Then, after requesting a credit for defective items, the realtor emails me saying that they will not issue a credit because the house is a short sale and is being sold AS IS. I told the realtor that she intentionally misrepresented the listing (along with the Seller), and I wanted reimbursement for the inspections. We would not have entered into a contract that was AS IS unless we were going to tear the house down (which we were not planning to do). Now, I know that the seller always has the option to refuse a home inspection credit request and the contract then terminates if the buyer elects this. However, I believe they were acting in bad faith here, never intending to pay one cent for defective inspection items, and withholding information about the house truly being a short sale and AS IS. Their misrepresentations caused me damages in the amount of $460. My question is, does the Seller’s realtor have any duty to tell the buyer the truth? Considering that I specifically asked the question to the seller’s agent, is it acceptable in the real estate practice for an agent to lie to a buyer?
Do you think I have a leg to stand on? I was planning to file in small claims court against the agent, the seller, and perhaps the broker, to recover the $460.
Answer Dear Karen,
Thank you for your question.
The first question that arises in this situation is - did you use a real estate agent in this transaction? If so, you should be consulting with that agent or his/her broker regarding this issue as they will have all the documentation available to them.
Hopefully, you had a real estate agent representing you. Under one of the three types of real estate brokerage relationships, a real estate agent is to deal fairly and honestly with you. If you did not have a real estate agent that you were working with, you should have signed a real estate brokerage relationship with the listing real estate agent.
It escapes me why buyers do not select a real estate agent to work with them when they purchase as a single agent or buyer's agent. In most cases it does not cost you any extra.
One important item to mention is that not all real estate agents are REALTORS.
An aspect you mentioned was that you requested the use of the short sale addendum from NABOR, but you agreed to an addendum stating that the sale was contingent upon the acceptance by both of the seller's lenders, as well as knowing that the seller owed more than $200,000 than you were paying for the property. This may suggest that you have a greater understanding of the short sale than the average person and would be aware that short sales and/or foreclosures are "as-is" sales. In addition, as a matter of standard practice, a buyer should have all inspections they can have with a property they are acquiring. With foreclosures, pre-foreclosures, and potential short sales, usually an addendum is attached giving the buyer the right to inspect and terminate the contract for any reason.
In our society has the right to enter a suit if they feel they have been harmed or injured as a result of someone else's actions.
I can not say if you have a leg to stand on, as I am not licensed to practice law.
