Sellers: Don't withhold bad inspection report
Hiding unfavorable information can backfire, spark lawsuitBy Dian Hymer, Monday, March 24, 2008.
Inman News
Inspections are an important part of home buying, but the inspection process can be nerve-racking for both buyers and sellers. Both parties want the deal to go through without a hitch. However, sometimes problems surface that the buyers weren't aware of when they entered into contract.
All houses have defects, even new ones. So it should come as no surprise when defects are discovered. The pertinent issues are: Is there a problem? How serious is the problem? How much will it cost to repair?
A home inspector may have a contractor's license. But, few inspectors also are engineers, architects, and plumbing, heating, roofing, wood pest (termite) and drainage contractors. Nor are they pool, spa, sprinkler or security-alarm specialists. For this reason, most home inspection reports are loaded with disclaimers and recommendations to contact the appropriate specialist to evaluate the severity of a problem.
HOUSE HUNTING TIP: It's highly recommended that buyers follow up with further inspections, and get estimates to repair defects that are a concern before removing an inspection contingency. An inspection contingency protects the buyers, but only if they carry through and complete necessary inspections.
Don't be surprised if a second opinion confuses rather than clarifies an issue. For example, a home inspector might be concerned about the internal mechanics of an older furnace. And, he may not have the expertise necessary to say with confidence that there is no problem. So, he recommends that the buyers consult with a licensed heating contractor.
Just because an inspector suspects there might be a problem doesn't mean that one exists. Several years ago, buyers of an older home in the Oakland Hills east of San Francisco were advised to have a heating contractor check the furnace because the home inspector thought it might need replacing for safety reasons. A furnace with a cracked heat exchanger leaks carbon monoxide fumes that can be deadly.
The buyers called in a heating contractor who inspected the furnace and said that it needed replacing. The buyers were disappointed, but wanted to continue with the sale. So they asked the sellers to share in the expense of a new furnace.
The sellers weren't convinced that the furnace needed replacing. And they didn't want to contribute to the cost of a new one if it wasn't necessary. They contacted a second reputable furnace contractor who inspected the furnace and said it was fine and didn't need replacing.
To resolve the dispute, the buyers and sellers agreed to call in an inspector from the local utility company who would have red-tagged the furnace and put it out of commission if it was dangerous. The verdict was that the furnace was fine and had years of life left.
More and more, sellers are having their homes inspected by professionals before putting their homes on the market. This is done so that sellers have an opportunity to make repairs before marketing or for disclosure purposes.
It is risky for sellers to hide a bad report from buyers. There have been cases where sellers chose not to give the buyers a report they didn't like. Later, the buyers coincidentally called in the same contractor for an opinion who informed the buyers that they had already done a report on the house for the sellers.
Lawsuits have resulted from sellers withholding detrimental reports, although disclosure laws vary from state to state. Check with a knowledgeable real estate attorney for answers to questions about a seller's disclosure obligations.
THE CLOSING: Sellers who aren't pleased with a report should consider getting a second opinion and disclose both reports to the buyers.
Dian Hymer is author of "House Hunting, The Take-Along Workbook for Home Buyers" and "Starting Out, The Complete Home Buyer's Guide," Chronicle Books.
Jim W Hildreth
www.RealEstatemediation.org
***
Monday, March 24, 2008
Sunday, March 23, 2008
Mediation 98% Success Rate
Mediation program keeps Worcester cases out of court Effort has seen 98 percent success rate By Brian Shane Staff Writer
SNOW HILL -- Worcester County's mediation program has proven to be a categorical success, the county's top prosecutor says, with nearly every single case resolved without setting foot in a courtroom.
"It's really exceeded our expectations," said Worcester County State's Attorney Joel Todd, whose office runs the program. "Fifty percent of people lose in court every day. In mediation, everybody gets to win."
Mediation gives residents who have filed a criminal complaint an opportunity to resolve their legal issues by talking things through, instead of battling in court. Todd said it helps to unlock the underlying problem, so those involved won't continue to break the law or cause problems. And so far, he says, they haven't: Not one person who's participated in the program has gone on to commit another crime.
It's also saving the county thousands in tax dollars by keeping police, judges and prosecutors out of the courtroom -- people who otherwise would have to be paid for their time in court. Mediation also reduces clogged court dockets and frees police and prosecutors to handle more pressing cases. It also can be scheduled quickly, versus court cases which can take weeks or months to unfold.
Mediation Director Katharine Cropper said more than 360 cases have been referred to her office in the program's three-year history. Of the 218 cases that went to mediation, all but one was completely resolved, Cropper said.
It's a conflict resolution success rate of 98 percent.
"That's unheard of," Todd said.
Cropper doesn't run a large office -- it's a one-woman staff. But she's earned plenty of accolades all on her own. Todd said many clients note how Cropper immediately makes people feel at ease in mediation, and that she genuinely cares about the outcome of their case.
"She has the ideal personality for this job," Todd said. "She's just the perfect fit."
Naturally, every case is different, and takes its own time to be settled, Cropper said. Everyone's name is kept confidential, and everything said is entirely off the record. She said people are very responsive to a laid-back, face-to-face environment, instead of an intimidating courtroom setting. She's also received a host of positive feedback from participants -- but that's confidential, too.
However, not just anyone can waltz into the free sessions, she said. Parties must be Worcester County residents, and cases must qualify as a misdemeanor. Those include disputes between neighbors or businesses, or cases of assault, harassment, trespassing, theft, disorderly conduct or phone misuse. All cases get reviewed by the State's Attorney's Office before moving to mediation.
The program has been funded by a three-year, $35,000 grant from the Maryland Mediation and Conflict Resolution Office, but that grant expires this year. Todd plans to ask the Worcester County Commissioners next month for funding to make it a permanent program on the basis that it saves the county a lot of money. He also has the support of several county judges.
Many mediation issues are between neighbors, said Rachel Wohl, executive director of the Maryland Mediation and Conflict Resolution Office. The mediator will try to get the parties to see the issues, not the people, as problems. Mediation can stop conflicts from escalating to the point where people hurt or even kill each other, she said.
"Many times, it's just the tip of the iceberg of a dispute," she said. "In mediation, if they can come to their own understanding and reach their own agreement with each other, they're more likely to follow it and get to the root of the problem."
Cropper said she loves her job, and the satisfaction of helping people work out their differences.
"There's nothing more gratifying than when a family comes in and they're not even speaking to each other -- and when they leave they're smiling," she said.
SNOW HILL -- Worcester County's mediation program has proven to be a categorical success, the county's top prosecutor says, with nearly every single case resolved without setting foot in a courtroom.
"It's really exceeded our expectations," said Worcester County State's Attorney Joel Todd, whose office runs the program. "Fifty percent of people lose in court every day. In mediation, everybody gets to win."
Mediation gives residents who have filed a criminal complaint an opportunity to resolve their legal issues by talking things through, instead of battling in court. Todd said it helps to unlock the underlying problem, so those involved won't continue to break the law or cause problems. And so far, he says, they haven't: Not one person who's participated in the program has gone on to commit another crime.
It's also saving the county thousands in tax dollars by keeping police, judges and prosecutors out of the courtroom -- people who otherwise would have to be paid for their time in court. Mediation also reduces clogged court dockets and frees police and prosecutors to handle more pressing cases. It also can be scheduled quickly, versus court cases which can take weeks or months to unfold.
Mediation Director Katharine Cropper said more than 360 cases have been referred to her office in the program's three-year history. Of the 218 cases that went to mediation, all but one was completely resolved, Cropper said.
It's a conflict resolution success rate of 98 percent.
"That's unheard of," Todd said.
Cropper doesn't run a large office -- it's a one-woman staff. But she's earned plenty of accolades all on her own. Todd said many clients note how Cropper immediately makes people feel at ease in mediation, and that she genuinely cares about the outcome of their case.
"She has the ideal personality for this job," Todd said. "She's just the perfect fit."
Naturally, every case is different, and takes its own time to be settled, Cropper said. Everyone's name is kept confidential, and everything said is entirely off the record. She said people are very responsive to a laid-back, face-to-face environment, instead of an intimidating courtroom setting. She's also received a host of positive feedback from participants -- but that's confidential, too.
However, not just anyone can waltz into the free sessions, she said. Parties must be Worcester County residents, and cases must qualify as a misdemeanor. Those include disputes between neighbors or businesses, or cases of assault, harassment, trespassing, theft, disorderly conduct or phone misuse. All cases get reviewed by the State's Attorney's Office before moving to mediation.
The program has been funded by a three-year, $35,000 grant from the Maryland Mediation and Conflict Resolution Office, but that grant expires this year. Todd plans to ask the Worcester County Commissioners next month for funding to make it a permanent program on the basis that it saves the county a lot of money. He also has the support of several county judges.
Many mediation issues are between neighbors, said Rachel Wohl, executive director of the Maryland Mediation and Conflict Resolution Office. The mediator will try to get the parties to see the issues, not the people, as problems. Mediation can stop conflicts from escalating to the point where people hurt or even kill each other, she said.
"Many times, it's just the tip of the iceberg of a dispute," she said. "In mediation, if they can come to their own understanding and reach their own agreement with each other, they're more likely to follow it and get to the root of the problem."
Cropper said she loves her job, and the satisfaction of helping people work out their differences.
"There's nothing more gratifying than when a family comes in and they're not even speaking to each other -- and when they leave they're smiling," she said.
Saturday, March 22, 2008
Marin County Superior Courts embrace Mediation
Mediation a key part of Marin courts
Staff Report
Article Launched: 03/21/2008 12:07:30 AM PDT
Verna Adams and Kim Turner
MEDIATION IS A form of alternative dispute resolution that aims to assist two (or more) disputants in reaching an agreement, according to Wikipedia. The conditions of that agreement is what the parties determine, rather than accepting terms imposed by a judge or other third party.
In Marin, our court offers many opportunities for mediation as an alternative to litigation. Assisted by volunteer attorneys, mental health professionals, accountants and others, people with disputes are brought together and solutions found. Disputes that can be mediated may involve just about anyone. Government agencies, businesses, local groups and individuals often elect to use mediation, rather than the more adversarial approaches in traditional court hearings.
In our court system, all civil, probate and family law disputes can be mediated. Such matters include child custody and visitation, neighborhood conflicts (everything from property lines to barking dogs), inheritance issues, landlord-tenant disagreements and more. We are proud to report that mediation in Marin is a stunning success.
In 2007, our Family Court Services division offered mediation to families with custody and visitation issues in 544 cases. Many were settled at that point, without ever going before a judicial officer. For cases that did not settle, the court offered further custody and visitation mediation, staffed by a judicial officer and volunteer mediators and mental health professionals.
Ninety-eight percent of those cases settled.
Mediation long has been part of our civil court system in Marin. Because of its success, recently we expanded these services to probate proceedings so parties involved in litigation relating to probate or will contests can work toward solutions that are beneficial to all. These mediation conferences are conducted by a judicial officer and two volunteer, experienced probate attorneys.
Mediation is also part of the juvenile criminal justice system. For nonviolent offenders, volunteers help bring the victim and the offender together so that restitution can be made and the young offender rehabilitated. This approach, called restorative justice, offers a proven strategy to redirect the behavior of youthful offenders who often do not consider that their crimes cause harm to real victims. It may be our best opportunity to dissuade juvenile offenders from engaging in more serious criminal activities.
These programs would not be possible without the generous participation of hundreds of volunteers. At the Marin County Bar Association meeting on Wednesday, we will recognize 146 attorneys who have volunteered their services to those who cannot afford representation during the past year. The court has a panel of 358 attorneys who serve on our mediation panels.
As a result of this work, few civil, probate or family law cases go to trial. Instead, the parties find a mutually agreeable compromise in a process that is cheaper, quicker and much less stressful than litigation.
In addition to the mediation work that takes place inside the courthouse, other agencies provide mediation services:
- Marin Mediation Services, 30 N. San Pedro Road, San Rafael (499-7454).
- Marin County Bar Association Lawyer Referral Service, 30 N. San Pedro Road, San Rafael (499-1314).
- Marin District Attorney's Office, Consumer Protection Unit (499-6450).
- Legal Self-Help Center of Marin, 30 N. San Pedro Road, San Rafael (492-1111).
- Department of Consumer Affairs, http://www.dca.ca.gov/ (916-574-822).
A Texas Law Review article, "A glass half full," may have said it best. Mediation is "better (than litigation) ... more accessible and understandable to the layperson, less adversarial, expensive and time-consuming, and more likely to produce an outcome that matches the interests of the disputants."
The Judicial Council of California has declared March 17 to 24 to be Mediation Week. Join us in saluting the hundreds of volunteers who work tirelessly and effectively to assist the people of Marin with all their problems, large and small.
Verna Adams is presiding judge and Kim Turner is executive officer of Marin County Superior Court.
Jim W Hildreth
Mediating Real Estate Disputes
http://www.realestatemediation.org/
Staff Report
Article Launched: 03/21/2008 12:07:30 AM PDT
Verna Adams and Kim Turner
MEDIATION IS A form of alternative dispute resolution that aims to assist two (or more) disputants in reaching an agreement, according to Wikipedia. The conditions of that agreement is what the parties determine, rather than accepting terms imposed by a judge or other third party.
In Marin, our court offers many opportunities for mediation as an alternative to litigation. Assisted by volunteer attorneys, mental health professionals, accountants and others, people with disputes are brought together and solutions found. Disputes that can be mediated may involve just about anyone. Government agencies, businesses, local groups and individuals often elect to use mediation, rather than the more adversarial approaches in traditional court hearings.
In our court system, all civil, probate and family law disputes can be mediated. Such matters include child custody and visitation, neighborhood conflicts (everything from property lines to barking dogs), inheritance issues, landlord-tenant disagreements and more. We are proud to report that mediation in Marin is a stunning success.
In 2007, our Family Court Services division offered mediation to families with custody and visitation issues in 544 cases. Many were settled at that point, without ever going before a judicial officer. For cases that did not settle, the court offered further custody and visitation mediation, staffed by a judicial officer and volunteer mediators and mental health professionals.
Ninety-eight percent of those cases settled.
Mediation long has been part of our civil court system in Marin. Because of its success, recently we expanded these services to probate proceedings so parties involved in litigation relating to probate or will contests can work toward solutions that are beneficial to all. These mediation conferences are conducted by a judicial officer and two volunteer, experienced probate attorneys.
Mediation is also part of the juvenile criminal justice system. For nonviolent offenders, volunteers help bring the victim and the offender together so that restitution can be made and the young offender rehabilitated. This approach, called restorative justice, offers a proven strategy to redirect the behavior of youthful offenders who often do not consider that their crimes cause harm to real victims. It may be our best opportunity to dissuade juvenile offenders from engaging in more serious criminal activities.
These programs would not be possible without the generous participation of hundreds of volunteers. At the Marin County Bar Association meeting on Wednesday, we will recognize 146 attorneys who have volunteered their services to those who cannot afford representation during the past year. The court has a panel of 358 attorneys who serve on our mediation panels.
As a result of this work, few civil, probate or family law cases go to trial. Instead, the parties find a mutually agreeable compromise in a process that is cheaper, quicker and much less stressful than litigation.
In addition to the mediation work that takes place inside the courthouse, other agencies provide mediation services:
- Marin Mediation Services, 30 N. San Pedro Road, San Rafael (499-7454).
- Marin County Bar Association Lawyer Referral Service, 30 N. San Pedro Road, San Rafael (499-1314).
- Marin District Attorney's Office, Consumer Protection Unit (499-6450).
- Legal Self-Help Center of Marin, 30 N. San Pedro Road, San Rafael (492-1111).
- Department of Consumer Affairs, http://www.dca.ca.gov/ (916-574-822).
A Texas Law Review article, "A glass half full," may have said it best. Mediation is "better (than litigation) ... more accessible and understandable to the layperson, less adversarial, expensive and time-consuming, and more likely to produce an outcome that matches the interests of the disputants."
The Judicial Council of California has declared March 17 to 24 to be Mediation Week. Join us in saluting the hundreds of volunteers who work tirelessly and effectively to assist the people of Marin with all their problems, large and small.
Verna Adams is presiding judge and Kim Turner is executive officer of Marin County Superior Court.
Jim W Hildreth
Mediating Real Estate Disputes
http://www.realestatemediation.org/
The Love of Real Estate
We love our homes, our investments as each of us have dreams.
Sometimes a dispute will occur, such as a partnership dispute, non-disclosure issues, a buyer-seller conflict or issues with agents.
Jim W Hildreth is a trained & experienced Real Estate Mediator www.RealEstateMediation.org
that can assist and guide the parties in resolving a conflict or dispute.
Why Litigate, when you can Mediate.
Serving the San Francisco Bay Area, the Central Valley & The Mother Lode.
Jim W Hildreth
Real Estate Dispute?
Are you involved in a Real Estate Dispute? Looking for a trained "Neutral"?
Jim W Hildreth is a certified Mediator who's specialty is conflicts and disputes with real property issues.
Serving the Bay Area, the Central Valley and the California Mother Lode.
Experienced and dedicated at resolving conflicts and treating each party with respect, dignity with open lines of communication.
Jim W Hildreth
Mediation Best For Real Estate Disputes
Mediation best for real estate disputes
Robert Bruss
Sunday, November 20, 2005
Q: In September, we bought an older house, which had recently been remodeled. It has a flat roof. Our professional home inspector said the roof appeared to have been repaired recently.
During a moderate rain about a month after we moved in, it leaked in several spots. When we called the realty agent and the seller, they both said the roof didn't leak when the house was sold to us so they have no liability. We talked with two roofers who agreed the roof is shot and needs complete replacement. One roofer bid $12,500 and the other bid $14,850.
When we talked to our attorney, she reviewed our sales contract, which says we agreed to mediate any dispute that arises with the seller, but if that doesn't work we have to go to binding arbitration. When we signed our purchase offer, the Realtor pushed us to agree to arbitrate any disputes. Is that good or bad?
Vickie R.
Berkeley
A: Mediation of real estate sales disputes is fine, and I highly recommend it as a way to resolve buyer-seller disputes at very low expense.
When your attorney notifies the seller that you feel the house was misrepresented because the roof leaked badly in the first moderate rain after purchase, she will remind the seller of the contract obligation to mediate disputes.
The parties, with the help of their attorneys, will then choose a neutral mediator who has real estate experience. In a simple matter like this, mediation shouldn't take more than one day. Each party presents its evidence, such as your estimates. The parties usually split the fee of the mediator. If he or she is really good, the result will usually be a compromise of some type.
However, if mediation fails, because both buyer and seller agreed to binding arbitration for any sales disputes, you and the seller will choose an arbitrator who will hear the evidence and render a binding decision. That decision is then presented to the local court for confirmation so it becomes the equivalent of a judgment.
The big drawback of binding arbitration is there is no appeal, even if the arbitrator made a mistake.
When I buy or sell real estate, I never agree in the sales contract to binding arbitration of future disputes. My philosophy is that's not the time to give up my legal rights to a jury trial if a dispute arises.
Jim W Hildreth
www.RealEstateMediation.org
Robert Bruss
Sunday, November 20, 2005
Q: In September, we bought an older house, which had recently been remodeled. It has a flat roof. Our professional home inspector said the roof appeared to have been repaired recently.
During a moderate rain about a month after we moved in, it leaked in several spots. When we called the realty agent and the seller, they both said the roof didn't leak when the house was sold to us so they have no liability. We talked with two roofers who agreed the roof is shot and needs complete replacement. One roofer bid $12,500 and the other bid $14,850.
When we talked to our attorney, she reviewed our sales contract, which says we agreed to mediate any dispute that arises with the seller, but if that doesn't work we have to go to binding arbitration. When we signed our purchase offer, the Realtor pushed us to agree to arbitrate any disputes. Is that good or bad?
Vickie R.
Berkeley
A: Mediation of real estate sales disputes is fine, and I highly recommend it as a way to resolve buyer-seller disputes at very low expense.
When your attorney notifies the seller that you feel the house was misrepresented because the roof leaked badly in the first moderate rain after purchase, she will remind the seller of the contract obligation to mediate disputes.
The parties, with the help of their attorneys, will then choose a neutral mediator who has real estate experience. In a simple matter like this, mediation shouldn't take more than one day. Each party presents its evidence, such as your estimates. The parties usually split the fee of the mediator. If he or she is really good, the result will usually be a compromise of some type.
However, if mediation fails, because both buyer and seller agreed to binding arbitration for any sales disputes, you and the seller will choose an arbitrator who will hear the evidence and render a binding decision. That decision is then presented to the local court for confirmation so it becomes the equivalent of a judgment.
The big drawback of binding arbitration is there is no appeal, even if the arbitrator made a mistake.
When I buy or sell real estate, I never agree in the sales contract to binding arbitration of future disputes. My philosophy is that's not the time to give up my legal rights to a jury trial if a dispute arises.
Jim W Hildreth
www.RealEstateMediation.org
Friday, March 21, 2008
Acreage Purchase Leads to Dispute
After a year in escrow the seller & buyer became frustrated and the dream of owning 10 acres in the country began to fade.
Both parties had invested time, money and improvements were made.
In the end the buyer wanted out and the seller wanted damages.
Discussion of litigation, arbitation and using a California Real Estate Land Purchase agreement the contract spelled out for Mediation.
The parties along with agents met with Real Estate Mediator Jim W Hildreth and within 4 hours a written settlement was produced.
Litigation & Arbitration would have been costly and Mediation turned out to be productive in this land dispute.
Jim W Hildreth
www.RealEstateMediation.org
Both parties had invested time, money and improvements were made.
In the end the buyer wanted out and the seller wanted damages.
Discussion of litigation, arbitation and using a California Real Estate Land Purchase agreement the contract spelled out for Mediation.
The parties along with agents met with Real Estate Mediator Jim W Hildreth and within 4 hours a written settlement was produced.
Litigation & Arbitration would have been costly and Mediation turned out to be productive in this land dispute.
Jim W Hildreth
www.RealEstateMediation.org
Subscribe to:
Posts (Atom)
