This question comes up regularly from both current and potential clients, especially during the short summer season when the real estate market becomes extremely busy in this part of the country. For most of us, buying a home is the most expensive proposition in our lifetimes. For that reason alone, we always recommend the client consider hiring an attorney, if nothing more than to review documents before they are signed.
Review the Disclosures. Up until 2003, the status of the law in Minnesota was purely “buyer beware.” Other than limited disclosure requirements for septic systems and wells, there was no statutory requirement for a seller to disclose items a buyer would like to know. All of that changed in 2003, however, and that, in turn, led to extensive forms created both by realtors as well as the Minnesota State Bar Association for completion by sellers. A buyer entering the market should take time to review the disclosures (no matter how lengthy) before signing anything.
In addition to disclosures, if a buyer decides to proceed with a purchase, that can be contingent on an inspection by a qualified home inspector. I often recommend that all of the seller’s disclosure forms be provided to the inspector so he/she can review same with the buyer, and that the buyer be present for all stages of any inspections.
If problems are found with the home during the inspection, a contingency should allow for either further negotiations or for the buyer to remove himself/herself from the agreement, and receive a refund of any earnest money paid.
Include the Right Contingencies. In addition to an inspection contingency, a buyer should include such contingencies for financing, the sale of the buyer’s own home, as well as an inspection of the well and/or septic system.
Other matters may arise which may cause a buyer to include contingencies for other issues such as the detection of radon gases, lead based paint, or other environmental issues. With the proper language, a buyer should be able to avoid the agreement entirely if such problems are discovered during the course of a transaction, and should include a refund of any earnest money paid.
Know What You’re Signing. We are often contacted by parties requesting that we review their agreement, only to later discover that nothing can be done. This may be because the buyer/client already waived the right to seek recourse against the seller in a court of law by signing certain documents, without understanding the implications of same. We recommend, unequivocally, that a buyer avoid signing a purchase agreement or other documents until they have been reviewed by an attorney. Such documents are legally enforceable, and if a buyer attempts to avoid performing under the agreement, a seller can commence a lawsuit to require the buyer’s performance.
As a practical matter, it can be difficult for a seller to force a buyer to purchase a home (courts have a difficult time enforcing such an agreement). However, even if a seller’s remedy is difficult to enforce by starting a lawsuit, our experience is that this, or any litigation, can be extremely stressful for a buyer, not to mention the significant expense incurred.
All of this can be avoided if documentation is properly reviewed, advice provided, and contingencies added as necessary so that, if problems arise during the course of a transaction, the buyer can legally avoid the purchase.