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 Dear George: We sold our home of 10 years in November 2005 and disclosed that we had an ongoing problem with leaks in the patio roof. Before the sale, we had it repaired as we had in the past. The new owners allege that the patio roof leaks in eight places, more than we ever witnessed. Their insurance company inspected the leaks and determined that the roof on the main house is causing the problem. We never had a problem with the roof on the main house, which was replaced six years ago. The roof has a lifetime warranty, however, the roofing company went out of business. The new owners want us to pay for replacing a significant portion of the roof on the main house and have suggested mediation. We feel that we disclosed the problem and gave them the opportunity to inspect it before they bought the house. Are we responsible for this?
Answer: Recent cases seem to hold that once a disclosure is made of a defect, the burden shifts to the buyer to investigate. In this case, however, the buyer might allege that not enough was disclosed. In Paragraph 7D of the TREC form One To Four Family Residential Contract (Resale), the buyer is taking the property in its present condition. This may waive his cause of action against you, the seller. As always, however, these disputes are very fact-specific. The problem is in order to get the answer there could be court time, which is expensive.
In Paragraph 16 of the contract, dealing with mediation, we’re assuming that the checkbox in front of "will" was checked indicating that contractually you agreed to submit to mediation "any dispute between Seller and Buyer related to this contract which is not resolved through informal discussion... ." The good news is that you and the buyer agreed to split the cost of mediation and to bear the mediation costs equally. Since you did disclose the water-penetration problem as having occurred in the past and you resolved it as you had before, you stand a decent chance of prevailing in the mediation outcome. Provided you kept the roofing repair company's invoices or records of having performed the previous repair work or can obtain them from the now defunct company, present them as evidence in the mediation, or in the informal discussions you might have with the new owners.
If the alleged defect can be fixed for a reasonable amount of money, put your money there instead of in legal fees. Also, contact your insurance carrier to see if you have coverage that would apply to your sale.
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| Dear George: A company called John and Jane Doe Real Estate is advertising a lot for sale in a local subdivision. The recorded message that picks up when you dial the listed phone number states, "This is John and Jane Doe Real Estate," and gives two names, a husband and wife. Neither are licensed real estate agents in Texas. Can they legally called themselves John and Jane Doe Real Estate?
Answer: Yes, oddly enough, if John and Jane Doe own real estate, it can be called John and Jane Doe Real Estate. However, Mr. and Mrs. Doe cannot hold themselves out to be Texas-licensed brokers or agents, and can't perform any of the actions that require licensure (see Section 1101.002, Definitions, of the Real Estate License Act.
Dear George: My neighbor replaced part of his fence and extended a section of it. The fence now encroaches on my property by four inches. I asked him to move the fence; he refused and told me to take him to court. Can I remove the fence and sue him for the costs?
Answer: Do not remove the fence. Under the circumstances you described, the best solution is to file a complaint against your neighbor in small claims court. You won't need an attorney to represent you, but you will need to have a survey as evidence before you go to court.
Dear George: What should a buyer do if during the final walk-through, he discovers that the seller has removed items that were supposed to convey according to the contract? Would it be advisable not to close until those items are returned to the property?
Answer: If you are represented by a real estate agent, have him contact the seller or his agent. If you are not represented by an agent, contact the seller or his agent. If the missing items are deal-breakers, do not close but do show up at the closing ready, willing, and able to close—only if the items are restored as specified in the contract. If the items would be nice to have but not absolutely necessary, go ahead and close but mention to the closer that the seller made off with the items and that you would appreciate it if they were returned to you.
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