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Old 07-21-2012, 01:06 PM
 
14,361 posts, read 16,276,263 times
Reputation: 12870

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Sounds like the attorney was the closing attorney and was only hired/paid to do the title work/closing prep/closing paperwork. The attorney was not hired to protect the buyer. There is a big difference here in what the attorney's responsibility was.

Buyer: the survey that you posted...that records the easements also, right? didn't you get the survey prior to closing and also review the survey ahead of time?

When is the new road going to be started? When is the new entrance going to be started? Maybe these will never happen?

Is there any disclosure paperwork that was given to you or SHOULD have been given to you on this matter? I think you should talk to a different attorney. The closing attorney is more worried about covering their rear.

For all future buyers. Make sure you read and understand survey AND title search documents prior to closing.
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Old 07-21-2012, 01:06 PM
 
Location: Virginia
629 posts, read 1,421,253 times
Reputation: 564
We looked back over our contract and on the disclosure their/our realtor left Yes/No blank where is asks about any known easements. So I feel like our realtor wasn't looking out for our best interest nor was our attorney as she never raised questions about the incomplete disclosure. Not sure what this means for us since it's blank but I feel like since they KNEW about the easements..they should have marked yes. First hurdle is finding a real estate attorney in this very small town that's not friends with or related to our attorney. We are going to approach ours as well to give her the chance to do the right thing..however..I'm not counting on that.
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Old 07-21-2012, 01:20 PM
 
14,361 posts, read 16,276,263 times
Reputation: 12870
Quote:
Originally Posted by ~Pajama mama~ View Post
We looked back over our contract and on the disclosure their/our realtor left Yes/No blank where is asks about any known easements. So I feel like our realtor wasn't looking out for our best interest nor was our attorney as she never raised questions about the incomplete disclosure. Not sure what this means for us since it's blank but I feel like since they KNEW about the easements..they should have marked yes. First hurdle is finding a real estate attorney in this very small town that's not friends with or related to our attorney. We are going to approach ours as well to give her the chance to do the right thing..however..I'm not counting on that.
don't stick this only on realtors. The seller should have chosen Y or N. The seller obviously knew about the easement, since the seller got paid for it. The seller chose to hide this and the realtors but their head in the sand to get the deal to close. they have blame too but in reality, the contracts have legal wording that CYAs the realtors. in fact, most realtor contracts have legal wording that forces you to mediate instead of sue. This is crazy and most folks sign away their right to a court of law if any disputes. Your contract might have this "mediate" clause, so read the details.

Anyway, who says you should get an attorney in the same town? You can go to a bigger city 30 miles away if you want. Usually try to stay in same county or same metro area. But there is no reason to stay in the same town.

If you had a case....1) can you sue and would it go to court or is medidation forced in the contract that you signed 2) what is the dollar value that you lost in property value due to everyone hiding the easement 3) did you get survey ahead of time ? If yes, this can work against you because the easement was on the survey, right? 4) see what closing paperwork you signed that agreed to you reading the titlework prior to signing. Even though they HANDED you the title search after closing, you might have signed paperwork that said you saw it ahead of time. this signature could be held against you and could mean you lose in court or mediation.

It might be best to sue to seller and maybe the realtors. But what is the dollar loss value to sue for? and did you get survey ahead of time and/or sign something that said you read titlesearch prior to closing. If both these are no/no, then easier chance to sue and get a settlement. It's only worth sueing, IMO, if greater than $8000 loss in value due to the easements. just my opinion.
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Old 07-21-2012, 01:47 PM
 
Location: Central Texas
19,879 posts, read 36,379,125 times
Reputation: 21298
FWIW, our contracts (listing agreements, buyer's rep agreements, purchase contracts) all have mediate language in them (there's a choice to mediate or not, but most folks choose it). Mediation does not remove your right to go to court, but it's a lot less expensive to mediate first and find out if the parties can come to an agreement that avoids going to court. Most mediation clauses that I've seen elsewhere are the same; you agree to mediate FIRST. I say this not just as a real estate agent but as a former legal assistant who can read legalese (though the language is pretty much in plain English), so I'm confident in saying your statement that they are "forced" to mediate rather than sue is inaccurate.

If you can point to a real estate contract with language that precludes later legal action if mediation does not work, I'd love a link to it so that I can read it for myself.
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Old 07-21-2012, 02:01 PM
 
Location: El Dorado Hills, CA
3,670 posts, read 7,972,766 times
Reputation: 3748
CAR form RPA Section 26B. If agreed and initialed by both parties, includes "...you are giving up any rights you might possess to have the dispute litigated in a court or jury trial..." - this is an optional section (not required when signing the purchase agreement, but most buyers sign it.
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Old 07-21-2012, 02:08 PM
 
Location: Central Texas
19,879 posts, read 36,379,125 times
Reputation: 21298
That's in California? Amazing.
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Old 07-21-2012, 02:21 PM
 
Location: Virginia
629 posts, read 1,421,253 times
Reputation: 564
Quote:
Originally Posted by sware2cod View Post
don't stick this only on realtors. The seller should have chosen Y or N. The seller obviously knew about the easement, since the seller got paid for it. The seller chose to hide this and the realtors but their head in the sand to get the deal to close. they have blame too but in reality, the contracts have legal wording that CYAs the realtors. in fact, most realtor contracts have legal wording that forces you to mediate instead of sue. This is crazy and most folks sign away their right to a court of law if any disputes. Your contract might have this "mediate" clause, so read the details.

Anyway, who says you should get an attorney in the same town? You can go to a bigger city 30 miles away if you want. Usually try to stay in same county or same metro area. But there is no reason to stay in the same town.

If you had a case....1) can you sue and would it go to court or is medidation forced in the contract that you signed 2) what is the dollar value that you lost in property value due to everyone hiding the easement 3) did you get survey ahead of time ? If yes, this can work against you because the easement was on the survey, right? 4) see what closing paperwork you signed that agreed to you reading the titlework prior to signing. Even though they HANDED you the title search after closing, you might have signed paperwork that said you saw it ahead of time. this signature could be held against you and could mean you lose in court or mediation.

It might be best to sue to seller and maybe the realtors. But what is the dollar loss value to sue for? and did you get survey ahead of time and/or sign something that said you read titlesearch prior to closing. If both these are no/no, then easier chance to sue and get a settlement. It's only worth sueing, IMO, if greater than $8000 loss in value due to the easements. just my opinion.
There is verbiage in our contract that mediation must occur before any legal proceedings can be filed.

We were given a plat by the realtor..with a marker highlighting the lot. Nothing else was on it. We didn't have a survey. We may have very well signed something saying we saw it..however we weren't given a copy of it if we did. We were on a time crunch and waiting on the title work until the last minute..it was holding up setting the closing date. I specifically asked our paralegal if there were any issues with the title search (which if I remember correctly) the day before closing. She said that there were several judgments and liens..but that was expected and would be paid at closing..and that everything was fine. I did not know to ask about easements. So..we may be on the hook because the paralegal told us that and not the attorney. We know the bank received $40k in compensation for the easements..guess that's where we would start.

It's very rural..going to the closest large town for an attorney will take us out of this county. Which we may still end up doing.
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Old 07-21-2012, 02:22 PM
 
Location: Virginia
629 posts, read 1,421,253 times
Reputation: 564
Quote:
Originally Posted by TexasHorseLady View Post
FWIW, our contracts (listing agreements, buyer's rep agreements, purchase contracts) all have mediate language in them (there's a choice to mediate or not, but most folks choose it). Mediation does not remove your right to go to court, but it's a lot less expensive to mediate first and find out if the parties can come to an agreement that avoids going to court. Most mediation clauses that I've seen elsewhere are the same; you agree to mediate FIRST. I say this not just as a real estate agent but as a former legal assistant who can read legalese (though the language is pretty much in plain English), so I'm confident in saying your statement that they are "forced" to mediate rather than sue is inaccurate.

If you can point to a real estate contract with language that precludes later legal action if mediation does not work, I'd love a link to it so that I can read it for myself.
This would be correct regarding our contract. We just have to attempt mediation first..before filing a lawsuit.
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Old 07-21-2012, 03:14 PM
 
Location: NJ
17,579 posts, read 38,288,152 times
Reputation: 16098
Quote:
Originally Posted by ~Pajama mama~ View Post
We looked back over our contract and on the disclosure their/our realtor left Yes/No blank where is asks about any known easements.
I'm sure I will sound like a jerk, but shouldn't this have been a red flag for you? Any item on a disclosure left blank certainly warrants some digging in to. I agree that people need to trust the people they hire, but on the flip side people need to do some due diligence on the biggest purchase of their life.
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Old 07-21-2012, 03:22 PM
 
Location: Virginia
629 posts, read 1,421,253 times
Reputation: 564
Quote:
Originally Posted by manderly6 View Post
I'm sure I will sound like a jerk, but shouldn't this have been a red flag for you? Any item on a disclosure left blank certainly warrants some digging in to. I agree that people need to trust the people they hire, but on the flip side people need to do some due diligence on the biggest purchase of their life.
Well many items were left blank as it was a foreclosure so no it didn't raise any flags. My feelings are it should not have been left blank indicating unknown..as it surely was.
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