It's All in the Clause

Bruss is away. These questions are taken from previous columns.

Q: DEAR BOB: We are buying an older home in a great neighborhood with outstanding public schools. As you often suggest, we insisted on a professional inspection contingency clause in our purchase offer. We also accompanied the inspector to discuss the problems he discovered. Two defects the seller did not disclose are that the roof is leaking water into the attic and that the foundation is sinking slightly in one corner, probably because of poor drainage, which can be corrected. But the roof will cost at least $12,000 to replace. How can we get the seller to pay for the repairs?-- Josh R.

A: DEAR JOSH: Although the seller made a good-faith effort to disclose known defects, perhaps he was not aware of the roof leaks and the foundation problem.

The best approach is to reopen negotiations and ask the seller to give you a "repair credit" for the leaky roof and the foundation repairs. This is better than asking the seller to install a new roof and fix the foundation because most sellers will hire the cheapest contractors who might not do a quality job.

A repair credit usually doesn't affect your mortgage eligibility amount or the appraised market value. If your seller refuses to give you a repair credit, you can always walk away.

In today's slowing home sales market, you can be sure the listing agent will help with negotiations. But don't be unreasonable. It's a good deal for both parties if the seller agrees to credit you with half the cost of a new roof.

DEAR BOB: My wife and I own a two-thirds interest in a nice house with a pool. The other third belongs to the occupant, who is not taking care of the property, is on food stamps, and is not likely to repay us or buy us out. How can we sell our interest in this house without a partition lawsuit? Private investors suggest paying him off to get him out. They offered us only a fraction of full-market value. -- John L.

DEAR JOHN: You were very lucky to find anyone who would buy a two-thirds interest in a house. Without a partition lawsuit, you can't force the occupant to sell.

I suggest that you remind the other owner that if he sells, he will receive one-third of the net sales proceeds.

If I were an investor interested in that property, I would make you a lowball offer. After taking title to your two-thirds interest, I would bring a partition lawsuit to force the sale of the property at full market value, thus making a profit.

DEAR BOB: We had a contract to sell our house. The buyer was supposed to pay a deposit into a trust account with the realty office representing the buyer. We expected to close with no problem. But a few days after the scheduled closing date, the buyer's agent told us the buyer is a "fraud" and passed forged checks for the deposit and the down payment. The agent cannot locate the buyer. Does the buyer's agency have any obligation to us to pay the deposit, which was supposed to be in a trust account? -- Charles S.

DEAR CHARLES: That dishonest buyer's agent should be reported to both the state real estate commissioner (for possible license revocation) and the local Realtors association (for discipline) due to breach of fiduciary duty to you.