But the contract says...
No matter what you do you can never cover all aspects of a purchase for real property. So, what happens when you have a properly drafted contract and the other party decides that this does not apply to them?
A common example is when you take possession of your new home, only to find the seller has removed shelves, mirrors, plumbing fixtures or other "securely attached" items leaving holes in the walls and a big paint and repair job for you.
For those buying and selling real estate, anything that is "securely attached" to the home is considered part of the home and is included in the sale of the home unless it is excluded from the sale in writing. Some things everyone understands are included like light and plumbing fixtures, or the furnace and hot water tank, others such as shelves or mirrors that are screwed into the wall are less clearly understood. If you are selling, and there is something you want to bring to your new home that is securely attached, the best thing to do is remove the items before you put the home on the market so there is no confusion and your deal worth hundreds of thousands of dollars is not sidetracked by a $15 trinket.
In a similar situation where this happened to a buyer of ours we were able to successfully work with the other agent and get some of the materials returned along with a cash settlement. This type of activity ruined what should have been a great experience for my clients.
What if sellers won't settle? Where do you go from there? The first step is to review the purchase contract and the potential areas of the contract that effect these aspects. In previous posts I have recommend you keep a transaction diary...You never know when you might need it.
If you've honestly tried to resolve the issue with the other party - the courts don't like people who go straight to court without trying to resolve things - your next option is to file for mediation or with small claims court. Having been through small claims court many times from the landlord side of things I have a few simple rules:
- Don't bring a lawyer (This is contrarion advice and my own personal belief of course professionally I recommend you use a legal professional at all times). I have witnessed the abuse of many lawyers in the small claims court where rules of justice are guarded and doled out by the kings of these fiefdoms. It is almost like they operate like quasi judicial panels where the rules of evidence are far more relaxed if you go it alone.
- Be prepared. You risk the wrath of a judge who will be judging your credibility by how you conduct yourself in his presence.
- Be respectful. I think this speaks for itself
- Don't ask for more than you are entitled. This is just my experience and if you do, you risk losing credibility with the judge.
- Be calm. The judge will ask both of you tough questions. They are trying to get to the bottom of things. It is rare to see them overtly play favorites. Remember Justice must not only be done but it must be perceived to be done.
Note: I am not an expert in legal matters or going to court, these are just my personal reflections based on my own experiences in small claims court.
Interesting. "Don't bring a lawyer [to a small claims court]" and why hire a Realtor in a residential property transaction?
No offense intended. Just trying to draw some parallels after the previous article.
Posted by: bunny | October 12, 2007 at 02:18 PM
bunny you are too smart for me to help you anyways. What I'm referring to and maybe incorrectly is my observation of the way a couple of judges have, in my opinion mis treated lawyers in small claims court. Depending on any claim I would of course engage my lawyer to get their advice, but they have told me a couple times to go unrepresented, that it would be in my best interest.
Posted by: Sheldon Johnston | October 13, 2007 at 11:17 AM