iowahomeloans

 

If you do have a dispute when you’re buying a home, who pays attorneys fees and costs? Sometimes, this is dictated by state law, but in other cases, the terms of your purchase and sale agreement can determine who pays costs. If you’re writing dispute resolution language into your contract, you may as well outline who is going to pay attorney fees and costs in the event of a dispute. However, be careful about the wording of the clause; some language can put you in an unpleasant position even if you “win” the legal action.

Loser Pays

Standard language governing attorney fees is included by default in many purchase and sale agreements. This language typically says something like:

“The prevailing party in any legal proceeding brought under with respect to the transaction described in this contract is entitled to recover from the non-prevailing party all costs of such proceeding and reasonable attorney fees.”

Underneath the legalese, this basically says that the loser pays the attorney fees and any costs associated with filing and pursuing the legal action. Unfortunately, this standard language has a little twist that the uninitiated may not expect.

Who is the “Prevailing Party?”

In theory, the prevailing party is the party that wins the dispute. However, through the course of litigation, both parties may file claims and counterclaims, or may give up these claims at various points. By the time a judgment is reached, one or both parties may have scored both wins and losses.

Financial outcome can determine “prevailing party,” even if the legal outcome implies otherwise. For example, you may claim $8,000 in environmental damages for an undisclosed leaking oil tank. Maybe the seller offers to settle for $5,000 in pretrial negotiations. You refuse, and you win a court award of $6,000.

While winning the court award may seem to make you the “prevailing party,” in some states, your financial outcome may be required to exceed the seller’s settlement offer by more than 25 percent. An award of $6,000 is less than 25 percent above $5,000, so you may not be regarded as the “prevailing party,” even though the award was in your favor. In this case, you could be required to pay attorney fees and costs. Be careful with this type of language in your contract.

 

One of the things to consider when you’re negotiating a purchase and sale agreement is who pays the costs associated with the transaction? Many costs will crop up throughout the transaction, including things like home inspection, loan origination fee, homeowners’  insurance, tax payments, survey fee and other costs associated with buying a home.

Some states specify who must pay what costs when it comes to some elements, while other costs are distributed between the buyer and seller based on tradition, or even used as a negotiating point in the deal. You can use fees and costs to your advantage in negotiation, or you may be able to get your fees and costs largely paid when you buy a home.

Getting the Seller to Pay Fees and Costs

If you’re cash-poor, you may be able to get the seller to pay most of your fees and costs. In some cases, you can negotiate for the seller to pay the majority of the fees in return for paying a higher purchase price, or offering another high-value concession. In other cases, motivated sellers may offer to pay the closing costs and other fees associated with the purchase in an attempt to lure buyers. Either way, keep in mind that in order to get the seller to pay fees and costs, you’re probably going to have to give him something he wants.

Paying the Fees Yourself

In terms of tax benefits, it behooves you to pay the fees and costs yourself. You can deduct fees and costs associated with borrowing money, while the sellers can’t. Consult a tax advisor to determine the full benefits of deducting home purchase fees on your taxes.

You can also gain valuable concessions by paying the fees yourself. By offering to pay the fees, you may be able to get a faster closing, earlier occupancy or more advantageous terms in the purchase and sale agreement. Fees and costs are a great negotiating point, and if you have the cash to pay them, you may be able to finagle some great concessions.

When you buy a new home, your property description may include four elements: site, buildings, fixtures and personal property. It’s vital to clearly define each of these sections in your purchase and sale agreement. If you provide an incomplete property description, you may not get what you think you’re getting when you buy a home. A thorough property description that details the site tells you exactly what you’re getting, and prevents the seller from making any last minute changes or substitutions. When you’re writing a property description for your home site, these are the things you need to consider: 

Legal Description

Every property has a legal description, by which it is recorded in the registry of deeds and assessed for land use. The legal description typically includes things like plot number, property address, current owner, and prior recording information.

 

Plot Plan

A copy of the plot plan can help you identify your property’s size and shape. What seems like a large tract of open land may in reality be only a small, oddly-shaped sliver of what you see; the plot plan will reveal that.

 

Site Dimensions and Boundaries

The site dimensions and boundaries are crucial when you’re considering buying a home. Again, you may think that what appears to be a large open space is a great buy, but you may actually be buying only a small portion of what you see. Site dimensions and boundaries can tell you if the fence belongs to you or your neighbor, and alert you to encroachment issues that can be quite costly down the road. If you’re worried about encroachment issues, have a survey done to get a real assessment of the site dimensions and boundaries.

 

Size

The size of the property is something you can derive from the site dimensions and boundaries, but it still helps to put it in writing. You may look at an ad that says the property is close to an acre, but the seller may be more accurate in the contract and you could discover that the property is only a third of an acre. Including size in the contract helps avoid disputes later.

 

Plantings

You may want to walk the property and take note of any plantings on the site. It’s not beyond some homeowners to remove valuable plants; some small trees and large bushes may be valued at hundreds of dollars. Don’t assume that the landscaping you see is what you’ll get; put it in writing in the site description.

Personal property is the most intangible and potentially contentious item in a purchase and sale agreement. In some cases, sellers may agree to throw in some personal property to sweeten a deal and make a buyer more interested in a home purchase. In other cases, a buyer may erroneously assume that personal property comes along with the property. In either case, it’s important to write into the contract a thorough, comprehensive description of any personal property that is included in the home purchase. Without a complete description, misunderstandings or outright deceit may arise.

What’s Included in Personal Property?

Personal property includes many items that you see when you attend an open-house and fall in love with your new home. Some items of personal property are obvious; things like area rugs, furniture, door mats and lawn equipment. But other items of personal property often come into dispute in home purchases, such as appliances, blinds, draperies and even what appears to be permanent fixtures.

One home buyer was angry when the seller removed a $5,000 bar from the finished basement. The buyer asserted that the bar was a permanent fixture and it was part of what made the home seem so attractive. But the seller claimed that it was personal property, and it wasn’t in the contract, so the seller was legally permitted to take the bar.

By making a complete list of all personal property that is included in the sale, you can avoid these types of disputes.

List a Complete Description of all Personal Property in the Sale

If you and the seller agree to include items of personal property in the sale, document them very carefully. Include complete descriptions, and pictures when possible. Descriptions should include serial numbers where applicable. If you have complete descriptions in the contract, you can take legal action if these items vanish during the move. But without good descriptions, it can be impossible to recover any personal property that you believe should have been sold with the home

 

Another important element of your property description is fixtures. When you buy a home, you assume that certain elements are being included in the property. In many cases, it’s understood that things like fireplaces, bannisters and crown moulding are being sold along with the home, as these are permanent fixtures that are attached to the house itself. But fixtures may not always be as permanent as they appear, and some homeowners have even been known to unbolt fixtures to take them when they sell a home. Make sure you include a thorough description of all property fixtures so you can ensure that everything is there when you move into your new home.

Fixtures Include Permanent Attachments

Generally speaking, fixtures include anything that is permanently attached to the home. Things like light fixtures, chandeliers, sinks, cabinetry, mail-boxes, ceiling fans, garage door openers, built-in window or wall AC units, wall-to-wall carpeting and storm windows all fall under the fixture category. If you don’t specify every fixture that is included in your home purchase, there’s nothing to stop the seller from taking these fixtures with them. And sometimes the things that seem to be permanently attached aren’t really as permanent as they look.

Sometimes Permanent Attachments – Aren’t

Some petty-minded sellers take everything; light bulbs, mini-blinds, curtain rods. In other cases, fixtures may be worth a substantial amount of money or may represent a substantial investment, and the sellers understandably want the fixture to go with them. If a seller has room for a $10,000 chandelier in their new home, he or she would almost seem silly not to take it. So it’s important to define what is permanently attached and going to be sold with the home, and what the sellers can take with them when they move out.

 

It doesn’t matter what the seller tells you when you’re shopping for a home; the property description that goes into the contract is the one that is enforceable. You may think that the shed or other outbuilding on the property is included in the home purchase, but you could be in for a surprise when you show up after closing to find that the seller removed the extra buildings to take to the new home. Make sure your purchase and sale agreement includes an accurate description of all buildings that will be included in the transaction, and include this item on your pre-closing checklist.

Assertions about the Building

Some sellers will say a lot to attract a buyer; particularly in a competitive housing market. Your seller may tell you that the building was designed by a famous architect. You may believe the building to be made from certain materials or constructed in a specific manner and building technique. The seller may claim the house is a certain square footage, or is energy efficient.

Ask to have any and all property assertions about the building included in the property description. It may be difficult to prosecute a seller for fraud for verbal representations, but if the seller misrepresents the property in the contract, you may have grounds for legal action later. Listing all of these facts in the contract is an easy way to get peace-of-mind, and may reveal something you didn’t know about the property.

Outbuildings, Sheds and Other Considerations

Don’t assume that outbuildings, garden sheds, tool sheds, barns, greenhouses and other separate buildings on the property are included in the home purchase. In some cases, the sellers may write the contract in such a way that they retain ownership of some of these buildings. Even by virtue of leaving outbuildings out of a contract, the seller may be justified in taking or demolishing these features. By including these outbuildings in the legal description, you have a reliable account of what you’re purchasing, and can take legal action if you don’t get what you think you’re getting.

For much of the country, it’s been a long, cold winter. You might not realize it, but hard winters like the one we just had take a big toll on your home. If you’re trying to sell your home in the spring market, you might want to examine your home for any damage caused by the harsh winter. Fixing these problems can be helpful before a buyer notices them during inspection and asks for a costly discount. Alternately, if you’re a buyer, take a close look at any home that you’re considering and look for signs of winter damage.

Sellers, Knowing about Issues is a Mixed Blessing

If you’re trying to sell your home, knowing about potential issues with the home is a mixed blessing. Many states have now put real estate disclosure laws in place to protect buyers in a real estate transaction. These laws basically state that if you’re aware of certain types of problems with a home, you have to tell the buyer about them. In this case, ignorance is bliss – if you don’t know about a particular issue, you can’t be required to disclose it.

On the other hand, savvy buyers will order a thorough home inspection – and if they uncover an issue, it could jeopardize your sale. Buyers may request concessions, including a discount on the price. If the problem is bad enough, it may scare buyers away. If you’re aware of these issues, you can go into your home sale with the right strategy – or fix the issue before you list your home.

Buyers – Be Alert for Weather-Related Issues!
For buyers, it’s important going into this spring season to be alert for weather-related issues. A good inspection should uncover most problems you’re likely to face when you look at a potential home. Even so, if you live in an area that has been hard-hit, look out for things like issues with the plumbing, damage to the roof, signs of flooding in the house, problems with rain gutters and downspouts, and other weather-related issues. Ask your home inspector to be alert for these issues, and be prepared to negotiate with the seller if you find signs of these problems.

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