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from Local Attorney, Michael H. Wasserman

Thursday, March 6, 2008

Lawyering - Its Not Always as Easy as It Looks!

Nothing should be simpler than a real estate transaction. The buyer giver the seller some money. The seller gives the buyer a deed and some keys. Everyone shakes hands and goes home. Seldom is life so simple. Take for example what is going on with my clients Brigham and Leslie, and how careful lawyering will save them from near disaster.

This delightful couple is trying to buy a one million dollar home from a bank. The bank, sorry to say, owns the house because it foreclosed the former owner’s mortgage. After weeks and weeks of negotiations and preparation, we are supposed to close this week, tomorrow, actually. Only we won’t. Not yet anyway.

In foreclosure cases, the Banks tend to call all of the shots. They require buyers to sign special contract riders that limit the Bank’s liabilities. Buyers take these properties “as is.” The Banks refuse to pay certain customary seller charges. They impose penalties on Buyers who are not ready to close on the appointed date, and then more often than not, closings are delayed when the bank’s representatives are slow to sign or return paperwork their lawyers need to convey title.
Brigham and Leslie love the house and they have been very patient with the Bank, knowing that in the end they will get this dream home. I am not as patient, but I have been doing this long enough to know that eventually, just like blind squirrels finding acorns, bank rep.s sign and return paperwork.

So, in this case, the bank refused to pay for a survey of the property. Surveys are two dimensional line drawings that represent any given parcel of land. The surveyor compares a home’s street address against its “Legal Description” as it is set out in the title report and then measures all of the lot dimensions and improvements on the land. This helps assure us that, for example, there are no encroachments and helps to assure that the buyers are getting what they pay for. The bank did not want to incur the expense. Few buyers want to either. But I insisted that Brigham and Leslie get their own survey. Happily, they took my advise and allowed me to arrange for one.

The bank’s title report came to us late, so the surveyor not get started on this until this week. They completed their field work yesterday. The closing is tomorrow.

This morning I called the surveyor to make sure everything was alright. This gang is rock solid. My surveyors-of-choice. On time, On budget. Accurate. Pleasant. Never a disappointment or a surprise. Until this morning.

It was the WRONG PROPERTY!!!


They went to the address we asked them to. Seems that the title report legal description is really for an adjacent property. My clients nearly bought a set of million dollar keys - to the house next door to the one they would have ended up owning.

That means, of course, that the bank loaned money to their former borrower and secured it against the wrong property too; And that poor fellow bought and lost the wrong house; And for that matter, who that the folks who think they own the other house actually own the house we thought we were going to buy -that Brigham and Leslie would almost have moved into. But for that survey, none of this would have been revealed. Score one for the good guys!

In time, all of this is going to be worked out and I am confident that my clients will receive exactly what they set out for. In the mean time, hooray for MM Surveying Company, and for due diligence in even the “simple” transactions.