Halpin & Mostowy assist home buyers and sellers with residential closings for homes, condos, apartments, land or other buildings. We work closely with all individuals involved, including agents or brokers, mortgage brokers, lenders or banks to facilitate your real estate sale and assist buyers, people selling a piece of property and individuals who are refinancing. If you need assistance with a real estate matter, please feel free to contact us.
At Halpin & Mostowy, we will facilitate the preparation of the required paperwork, resolve and provide guidance on any issues that may arise, and coordinate an informed closing. We will work with you to resolve any inspection issues, will review the title search, and provide title insurance. We make ourselves available at all times, and timely respond to any issues that may need to be addressed. Buying a house is an important decision, and you are entitled to proper representation.
We also offer services to individuals that must appear before a Planning & Zoning Commission. We have served as a planning and zoning commissioner, and understand that a successful zoning application depends on a thorough presentation of evidence, maps and diagrams illustrating that the request complies with the applicable regulations. We also will assist with hearings before a zoning board of appeals.
We accept matters from across Connecticut, including clients from Avon, Barkhamsted, Bristol, Burlington, Canton, Farmington, Hartford, Harwinton, Litchfield, New Britain, Plainville, Terryville, Torrington, Southington, Unionville, Waterbury, West Hartford, and Wolcott.
Recently a realtor was with a buyer searching for a home. During the search the buyer asked the seller’s realtor a question pertaining to a retaining wall. The seller’s realtor responded, “There is nothing to worry about, the wall is structurally sound.” Yet, what if I told you that the realtor knew it was a lie. Can a lawsuit easily follow? Yes, realtors can face lawsuits for:
• Breach of Duty
• Breach of Contract
• Negligence such as Bodily Injury or Property Damage
• Escrow Disputes
In terms of a realtor lying, possible lawsuits are:
• Fraud and/ or violation of the
• Consumer Protection Act
In Provost v. Miller, the judge stated that, “Real estate brokers and agents are marketing agents not structural engineers or contractors. They have no duty to verify independently representations made by a seller unless they are aware of facts that tend to indicate that such representations are false.” Therefore, as long as a realtor can prove that the representations made to the buyer were based off of the information provided by others, there is no liability ---absent contrary knowledge.
Yet, a realtor is not always protected. The Department of Consumer Protection regulation 20-328-5(a) states that, “A licensee shall not misrepresent or conceal any material facts in any transaction.” Section 20-328-5a(c) states that, “A real estate broker shall exercise diligence at all times in obtaining and presenting accurate information in the broker’s advertising and representations to the public.” Hence, if a realtor hides material facts such as property acreage, price, taxes, etc. they could be held liable as seen in Kramer v. Petisi. In Kramer, a realtor misrepresented the property boundary lines. A lawsuit followed and concluded with a jury verdict. The jury found the realtor 40% at fault. However, due to a legal technicality finding that the plaintiff was 60% at fault for lack of diligence, the realtor ‘got lucky’ and was able to avoid paying damages. (note, plaintiff must be less than 50% at fault to win.)
As a piece of advice for buyers, be careful as to what information you rely on from a realtor. Realtors, be careful not to inform buyers of information without a factual basis. It’s better to leave the dice unrolled when a jury can decide your outcome! Who knows, next time the jury may find the percentage of fault differently and force a realtor to pay.
Don’t list your house for sale before knowing that you will accept the proposed price in the listing agreement. It sometimes happens that a seller gets cold feet after signing a listing agreement. But at that point in time it could be too late to back out of paying the realtor commission.
What sellers might not know is that if their realtor produces and able and willing buyer, a service fee/commission may be owed despite that a seller rejects the sale to the potential buyer. When “seller’s remorse” occurs, it does not matter that one refuses to sign the contract to sell the house. What does matter is if seller’s listing agreement with their own realtor calls for a commission to be paid.
Many Connecticut listing contracts state the following: “I/we (sellers) will pay you a service fee of 6% of the agreed upon sale price if and when: (b) During the term of this Contract, I/We, you or anyone else finds a buyer ready, willing and able to buy the LISTED PROPERTY for no less than the LISTED PRICE or for any other terms acceptable to me/us.” What this language means is that even if you reject a potential buyers offer to purchase, this listing agreement with your realtor might entitle him/her to a service fee/commission. There has been litigation over this issue, and the results are a mixed bag. As lawyers we try to peak around corners to determine why results become a mixed bag. The “guideposts” suggest that if your realtor puts forth worthy efforts to sell over a period of time and delivers a near final sale without conditions, and the seller “unilaterally” rejects for an invalid reason, the service fee (commission) is owed. The other guidepost is that if there is any imperfection with the realtor’s ready, able, and willing buyer, the Court will not Order the commission paid.
Compare the following: In William Raveis Real Estate, Inc. v. Stawski, the Court Order the seller to pay the commission. The seller rejected the sale after meaningful work toward closing had occurred and conditions had been removed. This Stawski Order stands for the assertion that if all conditions are removed and seller unilaterally rejects, the commission is owed. To the opposite, in the case of R. Zemper and Associates v. Scozzafava, the Judge declined to Order the commission paid when seller refused to sell a business one month after listing it for sale. The Judge simply stated there was insufficient proof the buyer would have completed the deal.
So my recommendation is that if you are unsure whether you would like to sell you house, don’t sign a listing agreement with a realtor. Because if you sign a listing agreement with the above quoted language, the realtor’s commission might be Ordered paid even without a sale occurring.
Leading up to real estate transactions clients often wonder what to write on the Residential Property Disclosure Report and/or Mold and Mold Forming Condition Disclosure report. Should they put everything in, or just enough to get by? What if they “forget” something? Each case is different and the answer is it depends. Every home inspection problem has an opposite fix if it is known and disclosed. But problems never addressed may return to haunt a seller.
In the recent case of Yacono v. Gordon ---not mine-, the Seller indicated that there were no known issues with a condominium. After closing, Buyer found out about incidents of water penetration, flooding, excessive moisture, and water backup that had occurred. Buyer tracked down and discovered Seller had made these water complaints to the condominium association.
So what happens next, Buyer sues Seller of course.
Perhaps somewhere a seller will get away with one. But this Seller did not, and it will cost much more after the fact than if the problem was addressed beforehand.
So when making this type of disclosure decision, ask yourself if you would prefer to deal with a known problem beforehand when the cost to do so is controllable. Or, are you the type to chance that you must deal with the problem after the fact when the cost becomes higher as the fix still needs to occur, and litigation, including attorney fees, must be resolved too. My advice is always to let a buyer know, and to provide the buyer with a solution to the problem. If the buyer likes the home, the solution will achieve the sale. If not, there is always another buyer to be found.
And for you realtors out there, know that seller’s realtor was sued too. The seller claims the realtor mislead him as to the proper disclosures that are required.
The final resolution of this case remains pending at this time. The facts of this case created two lawsuits, involve one plaintiff, six defendants, and four law firms.
When purchasing a house you buy title insurance. Clients wonder why, is title insurance an unnecessary expense? Title insurance protects from claims against ownership, including liens. In a recent case ---not mine-, a bank sought to foreclose a judgment lien against a home. Prior to closing, buyer’s attorney was made aware of a lien by the attorney for the seller. The lien, however, did not appear in a search of the land records. So buyer’s attorney elected to ignore it and proceed. It was later learned the lien did not appear because of a misspelling in the land records. Now the buyer of the house faces a foreclosure from the lien. The buyer/homeowner in that case should be protected, including by title insurance. So when presented with title insurance, know the cost is very low in comparison to the purchase price of your home. And when these problems arise, know insurance is in place in the event it is needed.