Your Buyers Agent fell down on the job. Period. (Listing Agent and or) Seller misrepresented. Period. Review your contract with a very good attorney for your remedies. Choose carefully with a Buyers Agent.

Dale,
Thanks for replying. I guess I wasn't very clear in my explanation. Actually the owner is the builder. He built the house for himself, but couldn't afford it, so it went into pre-forclosure via short sale. The whole deal has been strange, because the short sale isn't through his mortgage company, it's his ex-wife. She put a lien againt him for back child support. I also contacted his mortgage company to find out if they appraised it as waterfront. They said it was. Naturally they were surprised to find out that it isn't. I have now put calls into my agent and mortgage company, so I'll just wait and see what they come back with.

If you have a builder involved, you were probably talking to the builders rep, not the builder. The builder's rep is there to protect his interests, not yours. Builders right now are having a great deal of difficulty because they have too much money invested in land inventory and homes under construction and homes already built but not closed on yet on hand and are trying desperately to get things sold. BUT, they will charge a premium for lots that are waterfront vs lots that are just waterviews. Read through everything to make sure that the papers don't say that it is a waterfront community, rather than waterfront homes. There are many waterfront communities were very few of the homes are on the water. You will need to document that their paperwork said that all the homes were waterfront homes, not that it was a waterfront community.

They should have walked you out to the building site as well as shown it to you on a builders map of the community before you signed the contract and put down any money. Typically they have you sign a copy of the plot map indicating which plot you are buying. If you signed one and it shows that you do not have waterfront access, you don't have a case, unless you can prove that you didn't understand what you were signing.

Your Realtor, your Realtor's manager and you need to go sit down with the builder's rep (and the builder's rep's manager if possible) and talk about the situation. Bring with you everything they gave you that says on it that you bought a lot that was a WATERFRONT property. Bring with you everything they gave you and that is in any of their marketing materials (Sunday newspaper inserts, at the grocery store, flyers in the complex, etc, that talks about the community and what waterfront means vs waterview means. Then tell them that you are extremely displeased, you had understood that you were buying waterfront property and now you are being told that your property is really waterview and once the other individual finishes building and landscaping it may not even be that, and you want XXXXX - be prepared to tell them what you want. DO you want a different lot that is waterfront, do you want your money back, do you want to keep that lot but have a lower price, you are going to have to negotiate. Hopefully your Realtor and her Broker will be there for you. I would also tell them that your next step will be to return with your lawyer, then do so. Meanwhile I would file a complaint with the Better Business Bureau to start things off. If they have not broken ground, you are more likely to get your money back, then if they have. Good luck.

All,
Thanks so much for the advise. We are working with a buyers agent. The word "waterfront" (not "water views") was specifically stated on the listing, along with pictures of the lake, so naturally we thought we would have lake usage rights. (The seller is also the builder, so I find it very hard to believe he didn't know about the property lines.) Our agent even thought so at the time we signed the contract. We told her that we are looking at cancelling the contract, but she told us her manager doesn't believe we can do that. Personally, I do not believe our agent is working in our best interest, but I'm not sure what we can do at this point.

A home can be on the waterfront without owning any portion of the waterfront, but having "scenic views". It should be clearly stated however, in the description, in the sellers' disclosure and in the survey that you paid for.

Did you have a Realtor representing YOU, or were you using a) the seller's Realtor (in which case they were representing the seller and by LAW were responsible for protecting the sellers' financial interests, not yours) or b) a transaction agent (in which case they were only responsible for drawing up the contract and were not responsible for protecting anyone's financial interests) or c) a buyer's agent who was legally responsible for protecting YOUR financial interests?

What do you mean by contract was radified? Typically the contract is accepted, then you do your inspections, while the seller does his inspections, the title company does there work, the mortgage company finalizes your loan and a survey is done to ensure that the property is properly represented and then you close and you own the property. In some areas the buyer pays for the survey, in other areas the seller pays for it, but YOUR Realtor should have gotten a copy of the survey and gone over it with you before closing, to ensure that there were no problems. EVERYTHING however has definate timelines that you must notify the seller within if there are any difficulties or problems that would cause you to back out of the contract. It is part of your Realtor's responsibility to monitor and watch and what they are being paid to do as your representative in the transaction. If your time line is already passed to back out of the contract due to the survey, you may not be able to back out, without being sued by the seller.

Now, your agent and the listing agent, in all honesty may not have known. The listing agent is responsible for putting an accurate description of the property and other pertinent information in the MLS and in their marketing of the property. However, there are times when the owner lies to the listing agent (there are also times when the owner quite frankly doesn't know). In most cases, the listing agent, only has the information that is provided by the owner. The agent may, in some cases, be able to find out other information from county or city records, but those records aren't always updated or online where the information is easily available to the agents.

At the moment, your first step should be to talk to a Real Estate attorney. He or she needs to review the contract and tell you if you can legally break the contract or not at this point and if anyone can be sued for damages.

Good luck!

Susie,
Always use your own agent when purchasing real estate. Go back to the listing agent and tell him you want to cancel the contract. You may want to consult a lawyer.
Michael Doyle Realtor

Susie,
Did you use a buyer's agent? If not have you spoken with the listing agent or whomever drew up the contract? It sounds like a very grey area. My best recommendation is to first speak to the agents involved and if no satisfaction there then consult a good real estate attorney in the area and take your documentation with you.

Larry Story
Coldwell Banker Triad