I signed a contract for a property that was listed as 3bedroom, realtor showed it as 3bdr (windows covered).

Asked by Jt, 90265 Sat Jul 11, 2009

Visit 2 saw that one of the bedrooms did not have a window (there was a covering to make it look like there was a window), realtor insisted this did not matter, it was still a 3 bedroom. Appraiser said property is 2bdrm according to building code (every bedroom must have an exterior window). I have been told this was misrepresentation on the part of the seller and realtor. Also, I discovered an addition was added without the required permits. I do not want to purchase the property now. Sellers and agent want to sue me for breach of contract. What do I need to do?

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Spence Ralston’s answer
Spence Ralst…, Agent, Santa Fe, NM
Sat Jul 11, 2009
It sounds to me like this misrepresentation would allow you to back out of the contract without penalty. Good for you for doing your due diligence. Best advice would be to ask an attorney.
IF the building code in your area required that a room have a window in order for it to be considered a bedroom, (out here it doesn't - but it does require a closet), then the house was falsely advertised as a 3 BR house. I would pay a visit to your local board of Realtors and ask to speak with the chair of their Ethics Committee. It may be that the building code has some wiggle room.
0 votes
Mike "The Ma…, Agent, Malibu, CA
Sat Jul 11, 2009
Sometimes there is a big disclosure on the print media saying brokerage is not responsible for data...like this

2007 The Prudential Real Estate Affiliates, Inc. Prudential Real Estate brokerage services are offered through the network of franchisees of The Prudential Real Estate Affiliates, Inc., a Prudential company. Most franchisees are independently owned and operated. Equal Housing Opportunity. Equal Opportunity Employer. Prudential Malibu Realty does not guarantee the accuracy of square footage, lot size or other information concerning the condition or features of property provided by the seller or obtained from public records or other sources, and the buyer is advised to independently verify the accuracy of that information through personal inspection and with appropriate professionals.

If that was present it might be hard to work that angle.

If you have not removed your inspection contingency, and this was discovered during you inspections, then you can cancel or negotiate a reduced price. If you have removed all your contingencies then it can be a bit harder to get your deposit back. If they misrepresented the property, that's a dif. story all together and yes consult an attorney.
Another trick is to find out which broker handled the last transaction. There may be file in the current realtors office the is full of disclosures from the last transaction.

if the brokerage had knowledge in a file you might be able to argue the the agent should have disclosed what the brokerage knew about.

If they sue, youll counter sue, tying up the money in escrow, and I believe, tying up the house from being sold...something most sellers dont want.
1 vote
James Trapas…, Agent, Highlands, CA
Thu Apr 14, 2011
In this situation it becomes a legal battle. Most obvious choice is to counter sue. Ask a lawer who specializes in real estate contracts.
0 votes
Debra (Debbi…, Agent, Livingston, NJ
Sat Jul 11, 2009
Consumer fraud is not covered by any disclaimer a company may have posted, nor, as Joe mentioned, does E&O insurance cover it. . Anyone that is party to the transaction will be included in any potential lawsuit

I'll try this one last time.......and to the agents who mean well, but feel the need to say they aren't giving legal advice, and then proceed to give it........just tell Jt to consult A REAL ESTATE ATTORNEY! That's the only advice anyone should be giving him. And now, he has been given that advice a number of times - I think he gets the point.
0 votes
Jesse Sierra, , Chino Hills, CA
Sat Jul 11, 2009
Hi Jt
First of all I am not an attorney and this is just for information.


Are you within your inspection period?
If so, you can back out without loosing your good faith deposit.
Worst thing if you back out is that they will keep your good faith deposit.
Look at your purchase agreement contract on top of page 5 #16 is the clause for Liquid damages. And see how that is layed out.
As Bill noted, contact a real estate attorney, not a regular attorney but a "real estate attorney".
Have your real estate agent and manager work this out.

Best of luck,
Jes S.
0 votes
Joe Nernberg, , Calabasas, CA
Sat Jul 11, 2009
JT,

I can state confidently that a sleeping room (bedroom) must have a window for light, ventilation and egress. That building code APPLIES everywhere in the United States. New Mexico has no "wiggle room" in this regard.

Remind the listing agent that fraud is excluded from his/her E & O insurance. Find an attorney with teeth and bite them good!
0 votes
Bill Eckler, Agent, Venice, FL
Sat Jul 11, 2009
Jt,

We are sorry about your delema....our recommendation is to consult an attorney at your earliers convenience for their input.

Good luck
0 votes
Debra (Debbi…, Agent, Livingston, NJ
Sat Jul 11, 2009
Jt, let me sayt this one more time - please, do not accept legal advice from anyone other than an attorney. Call one!
0 votes
Joel Youngs, , Jacksonville, FL
Sat Jul 11, 2009
You can get out of it. You are the buyer and it's your choice. You might want to make a lower offer and see if they come down. If your deposit is small,just make sure you respond in writing to all the leagle questions.If your deposit is over $1,000 ,then you better get leagle help. But I've been where you are and as the buyer ,you will win.
0 votes
Debra (Debbi…, Agent, Livingston, NJ
Sat Jul 11, 2009
HI Jt

Obviously, my advice based on what is done in NJ, won't help you., I can advise you to do one thing, though, and do it right away..........call a real estate attorney !

Unless a room has egress in the event of an emergency (ie: a way to get out to the exterior, as in a window or door) it isn't counted as a bedroom by realtors or appraisers (again, I speak for my area), even with a closet.

In NJ, sellers usually fill out a full sellers disclosure form, and one of the questions asked is whether the seller put on any additions...and if so, were the proper permits and inspections obtained.

We also use attorneys in my area to handle all closings, so these kind of issues would have been addressed, and the attorney would already be part of the process to help protect your interests.

You need legal help at this point, especially if the seller is threatening to "sue" you.
Call someone right away - I am sure your agent can give you a few names if you need them.

By the way, did the house appraise out with the bedroom count being 2 instead of 3?

Best wishes.......
Debbie Rose
Prudential NJ Properties
0 votes
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