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Get Help with Common Real Estate Disputes:An Interview with Charles W. Pollard IV of Clair Law Offices

By Charles Pollard

Tell us a little bit about your firm and the areas of law that you practice?

Clair Law Offices, S.C. is currently the longest established legal practice in Delavan, Wisconsin, serving Walworth County and the surrounding area for over 50 years. Our firm focuses on Real Estate, Land Use and Development, Litigation, Banking and Finance, Business and Corporate Law, and Wills, Trusts, and Estates.

What are the most common real estate disputes that you handle regarding the purchase and sale of homes in Walworth County, Wisconsin?

We deal with a variety of real estate disputes including but not limited to contract terms, contract contingencies, legal descriptions, and oral agreements and a variety of other matters. However, one of the more common disputes we have encountered recently concerns the Real Estate Condition Report.

Can you briefly describe what a nondisclosure case is?

Nondisclosure cases involve a Seller's failure to disclose known defects in the property when selling to a buyer. The disclosures are generally made under what's known as a Real Estate Condition Report (RECR). A large amount of litigation has occurred from these disclosures as courts have found seller's lack of disclosure to constitute fraudulent inducement or misrepresentation.

Although many Sellers are told that they are "required by law" to fill out and sign a RECR the relevant statute provides a number of exceptions. For instance, "personal representatives, trustees, conservators, and fiduciaries who are appointed by, or subject to the supervision of, a court" are excepted from RECR's. (Wis. Stat. § 709.01(2)).

Moreover, even if you are just a standard seller, you may be excepted from filling out a RECR. For example, the statute provides that if the buyer signs a written waiver, then you do not have to fill out the RECR. (Wis. Stat. § 709.08). Similarly, if the buyer proceeds to closing without receiving the RECR, the buyer can no longer rescind the contract because of the lack of an RECR. (Wis. Stat. § 709.08).

How does an attorney help home buyers when the seller failed to disclose a defect in the house or property that was sold?

If the buyer's attorney is made aware that a seller has failed to disclose a known defect, then the buyer has several contractual remedies, including rescission of the contract or bringing an action against the seller for breach of contract, misrepresentation, or fraud. It is very important for the buyer's attorney to be made aware of any failure of the seller to disclose defects as soon as the buyer is aware of the seller's failure because the buyer must raise objections before closing or the objections may be waived.

Are there circumstances when a buyer can terminate an existing contract for the purchase and sale of residential property?

Yes, depending on the terms of the signed Offer to Purchase. For instance, many Offers to Purchase contain an "Attorney Approval Contingency." Such a contingency provides an attorney with the opportunity to object to certain limited provisions in the Offer to Purchase. Specifically, it provides the attorney with an opportunity to protect the client when either deleted certain contract language; re-stating certain contract language; or adding contract terms for the protection of the client. Setting forth the appropriate language and contingencies in a real estate contract should allow the client to terminate the contract if certain adverse issues arise in the contingencies and notifications are conducted and provided on a timely basis.

However, as a note of caution, real estate agents often use this contingency to get buyer and seller to sign a contract prior to attorney review. We strongly discourage the use of these clauses because they limit what your attorney can object to. We recommend that an attorney review the contract prior to you signing any document.

Are there circumstances when a seller can terminate a contract for the sale of residential property?

Yes, most commonly and importantly, the seller may terminate a contract if the buyer fails to provide the contractual cash amount at the time scheduled for closing. This can happen for any number of reasons including failure to receive financing, failure to provide wire instructions as required by the title company, etc. There are also a number of seller's contingencies that can be included in the Offer to Purchase to protect the seller's interests and allow them the opportunity to terminate the contract if necessary.

What would you recommend that a home buyer should do to assist herself/himself to resolve a real estate dispute?

Consult with an experienced real estate attorney as soon as possible. We know that the urge for the home buyer will be to attempt to work it out on their own, but by doing so you never know what liabilities you may be creating for yourself or what opportunities you may be foregoing by attempting to resolve a real estate dispute on your own.

In the best of scenarios, the home buyer would have contacted an attorney before signing an Offer to Purchase, thereby allowing the attorney an opportunity to address critical contract language or to insert critical contingencies in a Real Estate Offer to Purchase for the benefit of the client.

What's the best way for people to reach your firm?

We can be contacted by telephone at 262-728-9196. For more information concerning Clair Law Offices, S.C., please visit our website at /www.clairlawoffices.com. For more information concerning RECR's, visit our NEWS section: www.clairlawoffices.com/news.

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