You have decided to sell your home. You contact Gulf Coastal Realtors (this site) and explain that you want to sell your home because you are moving to a smaller property. That large five-bedroom house near the beach in Bay St. Louis is just too much to maintain and the kids are all out of the house. Sounds simple, right? Are you legally protected in the transaction?

State governments have real estate commissions or agencies that regulate the sale of real property (earth and what is built on it). Government agencies are created specifically to care for the benefit of consumers. They have created rules about documentation and methods of offering property for sale and the closing process. Further, organizations of real estate agents have created standards of behavior and even standard contracts.

All states prohibit real estate agents from practicing law. In reality, much of the sales process is exactly that, a legal process. To facilitate the millions of sales, many states permit agents to use contracts that have been created by attorneys. As long as the agents follow the rules about how the standard agreements are used, they are considered not to be practicing law. Frankly, this is a gray area but it is necessary considering the volume of transactions.

Sellers have the most to risk legally. They must not pretend that problems with their property simply do not exist when they have first-hand knowledge of the problems. As an example, your house was flooded when a water heater broke. This caused you to replace carpet, flooring, and drywall. That happened a few years ago and the repairs look great.

You fail to disclose this and the new buyer finds mold growing on a part of the wall or floor where the contractors failed to treat. The buyers go back through their property disclosure and find that in fact, this problem was not listed. The new contractors tell the buyers that this was an old problem and they found signs of repairs. The buyers call their agent even though you sold the home a year ago and ask what the agent is going to do about it.

The selling agent (buyer agent) tells them that she and her firm are not liable because it was not visible and that the previous owner completed the property disclosure. She suggests that you contact the listing agent (your agent). They do and learn the same thing from the listing agent that the sellers may have forgotten to list the leak.

At this point, the buyers can try to reach you for reimbursement for repairs or they can contact an attorney. If I were the attorney that the buyers contacted, I would ask them to explain the entire process to me. I would also ask them if their children were getting sick more often or if any family member has experienced XXXX (any of the symptoms of toxic mold exposure).

Should their response be yes, I would investigate with their doctors. If I determined that there was an actual detrimental effect on their health, I would recommend that we make a claim not only for the repairs but for medical bills and potentially pain and suffering.

The point of this article is not to suggest that every seller should consult an attorney before they complete legal documents but that they consider that these documents that they are being asked to sign have the effect of law.

Suppose you provide incorrect information about your employment and/or financial condition during the mortgage application process. If you know you are providing incorrect information, you are violating the law. In most cases, this will never be discovered but if you fail to pay your mortgage and go into default, this may be discovered. If the loan is federally insured, you could be charged with a crime or at the least required to pay fees and penalties.

Once again, it is not my intent here to drive you to a law office before or during the sales or purchasing process. I want anyone contemplating the sale or purchase of real property to understand the potential minefields out there. To avoid legal trouble in the future, read everything you sign.

Disclose everything on the property disclosure form that you know of. Do not be concerned about for example the roof if you purchased the home a couple of years and have not done any repairs. Just because the previous buyer did repairs and did not tell you is not your fault.

Your real estate agent can not complete the property disclosure form for you. The disclosure form is just one of many legal documents you will be asked to sign. Do not remove any items attached to the home that were viewed in the original inspection without written agreement with the buyer. Your real estate agent can provide information to you that was prepared by attorneys including forms. There are articles on this blog site and at RetireCoast.com. You can also find articles on the FHA and HUD websites.

Of course, I am available if you have or suspect you have had issues with a sale or purchase of the real property. Another area where I often help clients is with property ownership. Before you attempt to sell the property be sure that all owners are capable of signing. This means that they are legally competent. This is an important area particularly if you are acting as a fiduciary for a relative such as a grandmother.

A good example is that a grandmother has just been moved to a hospice facility from her home for many decades. You have a grandson and you are working with the family to sell the property. There is no trust and perhaps no will. At this point, before you can put the property on the market, you need to consult an attorney to determine if your grandmother is mentally competent to sign sale documents. If she is not, a good attorney (such as myself), can work with you through the process which will eventually result in a sale of the property and appropriate distribution of the proceeds.

In closing, I would caution anyone involved with real estate transactions to learn all they can about what you are expected to sign and how you are expected to perform. Should you have questions that your real estate agent does not feel qualified to answer, contact an attorney.

About the author

Gerald (Tal) Braddock practices law throughout Mississippi from his primary office in Gulfport and satellite office in Hattiesburg. Tal has practiced law since graduating from Old Miss. Tal has achieved success in several areas of the law. Mr. Braddock keeps up to date with new case law and continually attends seminars to increase his knowledge of changing legal trends and court decisions. Visit https://www.Braddocklaw.com to learn more about Mr. Braddock’s areas of specialty including protection for real estate assets.