Does This Circumstance of "Oral Misrepresentation" Permit Buyer to Seek Redress

[Zippyman]

Originally Posted by willow wind

I'm guessing no sales contract because the whole gist of the OP's post is oral misrepresentation. The OP wouldn't be having the problem if everything was in writing.

The buyers thought they were getting barns full of equipment, a car, etc. When real estate agents write a contract and personal property is included is it not typically written into the contract ? If a seller is leaving behind a riding lawn mower, a dog pen, an above ground pool, etc. it would be be part of the written purchase agreement. Yes, no ?

Absolutely - further, it's "agent 101" clearly define what personal property is included (including serial#'s), and to assign a value of $0 to any such property in the contract, along with disclaiming any warranty on such property.

I got that there was a written contract in existence, and the terms differed significantly from the agent's oral description and common real-estate practices - (I.E. "we're taking the barn")..

Buyer heard what they *wanted* to hear, didn't bother to r.t.f.c and got burned, and now wants to blame the agent..

[jackmichigan]

Originally Posted by willow wind

I'm guessing no sales contract because the whole gist of the OP's post is oral misrepresentation. The OP wouldn't be having the problem if everything was in writing.

The buyers thought they were getting barns full of equipment, a car, etc. When real estate agents write a contract and personal property is included is it not typically written into the contract ? If a seller is leaving behind a riding lawn mower, a dog pen, an above ground pool, etc. it would be be part of the written purchase agreement. Yes, no ?

While anything is possible, I think it's highly unlikely that there wasn't a written contract--especially since a real estate brokerage was involved. In Michigan, many real estate closings are handled by title companies and they would clearly need a written contract to prepare the closing statements. Plus, I don't think a real estate broker would risk sanctions or fines by allowing a transfer to take place without a written contract.

But--playing devil's advocate--even if a landowner were to make a sale without a written contract, there would still need to be something in writing: the Deed. You can't transfer property without a written Deed which fully and accurately describes the property being transferred.

What you seem to have missed in this thread is that the issue appears to be that the land they thought they were buying (with the barn and out-buildings) is apparently not the land which actually conveyed. I suppose that people can continue to make assumptions and theorize about the conditions pertaining to this thread, but let's face it: the OP is probably not coming back.

[old_cold]

Originally Posted by jackmichigan

What you seem to have missed in this thread is that the issue appears to be that the land they thought they were buying (with the barn and out-buildings) is apparently not the land which actually conveyed..

It doesm't seem to be simple misunderstanding since the op said " ....around the premises and eventually through the relatively large barns beginning approx 75 ft behind the main house.:"
To me, this says the agent definitely misrepresented.

One question is( if the op ever comes back) was the property advertised in print somewhere?

[svejk]

Apologies to everyone that took an interest in this. I neglected the forum/thread for some time until I got notice in Gmail of a PM. JackMichigan asked me back to follow up a bit and it happens that this very afternoon there was some action on it. So I responded to Jack and reprint most of that here.

The house is about 1/8 mi from this intersection. I don't know the exact address. Property is within 1/8 mile of.....

Newcosta Ave & 104th St
Ensley, MI 49329
Newago county.
‎

Initially I'd agreed with my uncle and others' concerned that they hadn't a leg to stand on. Later I'd gathered the vernacular "oral misrepresentation" in a web search pertaining to recent case law in Michigan suggesting they might have cause after all.

So Uncle Bernie gets an appointment with atty via senior services locally and I accompany him there this afternoon. The atty first apprises us that yes, according to the contract signed at closing there is no recourse available to one neglecting due diligence to verify the lot boundaries via county records or private survey. Why that is not the responsibility of the agent/broker is a surprise to me, but I'm not schooled in real estate. So that is a dead end.

However the atty informs us that Michigan has laws protecting the buyer expressed as "Detrimental Reliance on Oral Representation". "Oral Misrepresentation" Pricked my ears. By this, the atty tells us that Michigan is a "minority state", by which I understand (didn't ask to clarify) that less than half of the country accommodates/protects the purchaser with such provision.

It happens to fit the situation well..... we back-and-forth some finer points.... and the the atty wraps up with a few suggestions.

First, he suggests that we try to get all parties involved across a table to agree to compensation. Thereby... avoid legal fees, presentation of liability before a judge, and detriment to the broker's reputation publicly (it's a very small town).

Failing this the atty would draw up a formal presentment of charges to the broker requiring address with hope that he would act on the clearer 'threat'.

Thirdly we could actually retain the atty with intent to bring this to trial. Worst of choices that would eat up this relatively small disputed loss with significant legal fees on both sides.

Uncle is pursuing the first option and it looks promising. The agent has admitted, verbally (unfortunately not in writing or email) remorse for misrepresentation. By all accounts (again, it's a very small town) he's a trustworthy and respected part of the business community.

I called him a few hours ago to let him know we had consulted an atty and had taken from it reasonable prospects for a claim. He is amenable to sitting down at the table with uncle and grand nephews to work something out. He sounds reasonable and earnest. If all goes well, a quick settlement will make this thread less useful for others interested if it lacks further rancor and legal involvement. How is it said..... We learn through trial?

Of course we're hoping it won't come to any further trial or "trial", but for the sake of anyone interested here I will stop back with the epilogue.

Thank you, sincerely, for the input.

[svejk]

And I would start out presuming the agent was dumb not devious.

This distinction gets to the crux of laws concerning misrepresentation from state to state. The majority of states require that the agent acted with intent to misinform. If agent was merely ignorant of facts then the onus is entirely upon the purchaser to verify. However Michigan is among a minority of states that recognizes both conditions in law. I can see where this point is contentious enough to split opinions. But the property is in Michigan and sufficient case law in recent years has made it a fairly robust defense for the purchaser. The agent has admitted his error to all parties and is insured to cover his liability so the odds of settling out of court are pretty good.

As arguments go for recognizing either or both ignorance/deceit this opportunity to settle seems to weigh in favor of recognizing misrepresentation based on ignorance. Does it offer better odds that contending parties can seek an amicable settlement out of court? Less time wasted, less stress on the courts, less damage to reputations, less monies spent? Intent to deceive almost insures a contention that requires a day in court and disinterested judgement. However a mutual agreement on honestly misrepresented facts seems* more easily reached out of court and realizing that the purchaser has legal ground to stand against him/her in this condition the agent may be inclined to settle as quickly and quietly as possible. Good all around. Except for the agent's insurance company and the local bar assoc.
Sorry, I've been trying to keep any cynicism in check

*That may only be my oversimplification taken from this experience.

Thanks again for the input here. It's been pretty interesting.

[svejk]

Seems like some of you showed interest in my response to this. Am I mistaken?

[lvoc]

I am following it very closely.

And I think the two nephews stepped into a field of four leaf clovers with this attorney....

And perhaps again with the agent.

So please keep it coming...

[willow wind]

I'm also following it. I still can't believe the brothers looked at a property, and decided to buy what they thought was a number of acres, including house, barn and personal property. Money changes hands and it turns out, after the fact, that they bought a couple of acres with a house, somehow losing the rest of the land and the barn and the personal property. .

There doesn't seem to have been an MLS listing, no survey, no written contract, no casual checking of a plat map to see what was being conveyed ? Most important, no title company doing a closing, searching the title and explaining what was closed upon ? An exceedingly strange event.

It almost sounds like the contract was handshake behind the barn and the closing consisted of a couple of guys handing a a paper bag full of money to a farmer along a road somewhere.

Please do let us know how it all turns out.