Legal Hotline 2011: The more things change…

I have answered Legal HotLine calls from PAR members for over 20 years. I now field calls from the kids and grandkids of former callers. You would think I’ve heard it all — and maybe I have.

Jim Goldsmith, Esq.

The stream of questions is a familiar one; it meanders but the old questions never get too far out of sight. By now, these are familiar waters. Sure, there is the environmental plague of the day. Fears of poisoning from urea formaldehyde foam insulation were replaced by fears of radon (only if over four picocuries per liter, mind you) and mold joined radon as yet another naturally occurring biohazard striking fear in all homebuyers . . . except those who don’t care. Different fear, same issues.

Then there are those issues arising out of the economy of the moment. Callers lost in short sales once asked questions about multiple offers. These too will recycle.

So what can I predict will be new in 2011? If my first day on the HotLine in 2011 is any indication, not much.

Caller Number One complained how the published square footage of a home was inflated from what was reported by the appraiser. This is so yesteryear! But then, the New York Times ended 2010 with an article in its Sunday edition having to do with measurement problems in the real estate industry.  I am proud to say that I scooped the New York Times because my article on the same subject appeared in this publication on December 11, 2009.

Okay, so Caller Number One didn’t read the Times — or my article for that matter — and so I found myself once again talking about the lack of a universally accepted standard for measuring square footage and how one should not provide square footage without clearly indicating that the measurement is an “approximation” and that depending upon the rooms and other areas included in the calculations, “variations” may be expected.  Just as I had told callers years ago, I told Caller Number One that as a buyer agent she should never let her purchaser make a decision presuming that the measurements are accurate and that, as part of a buyer’s home inspection, measurements can be taken pursuant to the standards that the buyer and inspector can agree upon.

Caller Number Two of 2011, nearly in tears, wondered if she was in trouble for having slandered a mortgage lender.  Nope, not a new issue; also the subject of a previous article. These disparagement or slander claims involve a common thread of facts.  A listing agent takes an offer and in the presence of the buyer’s agent groans when he reads the name of the buyer’s mortgage lender. This is then followed by an offhand comment about how horrible that lender is. Even when the seller rejects the offer for other reasons, word gets back to the buyer and lender that the offer was rejected because the listing agent had a bad experience with the lender or didn’t like the lender or for any other misconceived explanation.

Listing agents, why?  What’s the need to badmouth even a horrible lender?  Reserve your comments for when you meet with your seller behind closed doors.  There is no need to offer your opinion, nor are you required to state why an offer is rejected.  “Because the seller said so” is enough.

Callers Number Three, Four and Five of my New HotLine Year had questions that fell into the age-old category on which we could pin any number of names: the sloppy agent, the lazy agent, the escrow dispute …; you get the picture.  One call involved an Agreement of Sale that did not indicate a settlement date — where the date should have been, there was a blank line.  The call after that involved a seller disclosure statement where four easily answered questions were not.  As you no doubt understand, the sloppiness category involves errors and omissions made by clients and agents. Regardless, any error or omission by a client should be caught by the agent, the professional in the transaction.

I guess what I am saying is that I don’t really anticipate that 2011 is going to challenge the Legal Hotline with new and exciting legal issues. So, while you are sitting around waiting for a listing or buyer to come your way — or while you are enjoying your status as a limited function referral agent — here is a chance to brush-up on the old skills.  I bet you can find the answer to your next Legal HotLine question in the archived articles you will find under “Legal Issues.”

Just in case you don’t, like the Maytag repairman, we’re here, ready and delighted to hear from you. Happy New Year!