The number one question asked of real estate lawyers is probably something like, “Hey, I’m not getting cheated here, am I?” It may not be phrased exactly like that but it almost always has something to do with a purchase/sale contract for a house, condo, or timeshare agreement.
Don’t get me wrong: you should have a lawyer look at the contract. Always. No exceptions. Having said that, there are “red flags” an average buyer can use to eliminate a property without having to pay a lawyer in order to confirm that it’s probably a bad deal.
Maybe the first thing to consider is whether the piece of paper in your hand is a standard “FAR-BAR” contract. This is one approved by the Florida Bar Association in cooperation with the Florida Association of Realtors. An experienced realtor or lawyer can tell at a glance whether it has gone through any serious alterations. If it has, read every word. (You should anyway.)
There should be general fairness in the contract to the buyer and seller as far as rights of inspection, binders, return of the binder if a party backs-out of the deal, and who pays for what inspections and other necessary costs of the sale. If the seller is paying all of the expenses, that’s a red flag. As the purchaser, you should ask yourself why the seller is being so generous. It may be a distraction so the buyer doesn’t notice a material defect.
All “material facts” affecting the property value should be disclosed by the seller, no matter what the “as is” rider may say. “Material facts” are defined in Florida case law as, among other things, any hidden defects in the property or structure itself that are known to the seller but would not be readily apparent to the average buyer; even one who makes a ‘reasonable’ inspection of the property.
In practice, examples of such hidden defects that should be disclosed by the seller would be things like:
a) the fact that the lower floor floods every time it rains or even every other time it rains;
b) the foundation footings were poured without the requisite reinforcing steel bars;
c) Godzilla previously nested in the backyard and her eggs are still incubating somewhere under the snapdragons.
These serious hidden defects could affect a potential buyers’ decision and they should be disclosed. Also, a seller cannot make a FALSE claim about a property (of a material fact) and expect the “as is” clause to limit their liability for such things as fraud, fraudulent misrepresentation, breach of contract and the usual gamut of charges that can arise from lying about something significant. (Not that anyone would do such a thing: just pointing it out.)
No clause that I am aware of can relieve a person of responsibility when that person has intentionally lied and their lie caused some harm to another. This is one of the great things about the law, in general.
It may offer some confidence to a home buyer, but it still is no substitute for getting those independent inspections done and, by all means, hiring a lawyer to look at the contract.
That’s just in case you are looking out into the backyard one day and start yelling at your wife, ”Hey! Was that FIRE I just saw coming out of that baby lizard’s mouth, or what?!”
