Q: We moved into a home we purchased under multiple-offer circumstances in November. Our offer was noncontingent to achieve a winning position. It is not a negotiation tactic we took lightly. Despite our concerns, we made a nonrefundable offer based on assurances from the buyer’s agent and the seller’s agent that we could turn the carport into a garage. In December, we followed the city permit guidelines by drawing a simple garage conversion proposal, the lot schematic and the existing carport location. This morning, a city building official was here to inspect another improvement we started. We asked him about the plans we submitted online about the garage conversion. He took our paperwork, examined the carport and called his office from his car. The inspector then met us on our front lawn and asserted that the carport is noncompliant. After explaining why it was illegal, he added that we would be responsible for demolishing the carport.
Today, the seller’s agent appears to be ignoring our calls and emails. The buyer’s agent who represented us says she has to talk to her manager, who is out of town. We would not have bought the house without a garage or carport. Based on the events, are the agents, or we as homebuyers, responsible for this mess?
A: I’m not an attorney, but by now, I could play one on TV. After interviewing real estate attorneys hundreds of times and attending more than 100 of their seminars, the acts and scenes in your upcoming storyline seem predictable. The agents and the brokerage firms will lawyer up after you do. The licensees involved will be notifying their Errors and Omissions (E&O) insurance companies that a potential claim is imminent. (Our E&O insurance is equivalent to malpractice insurance for doctors.) Your real estate attorney will request and review all your communication, text messages, paperwork and timeline. When, where and how you were told the carport is convertible, and by whom, and how often, will be paramount.
If the real estate professionals and the E&O carriers want to fight the claim, they will point to the nature of a noncontingent offer. Their real estate attorneys will rely upon the bevy of paperwork and advisories you signed warning that the nature of noncontingent offers is fraught with risk. Your real estate attorney might claim the agents breached their duty of honest and fair responsibilities and acted with fraudulent intent “to make a sale.” In layman’s terms, the agents are the professionals who took advantage of consumers seeking a safe home during a pandemic. Additionally, your real estate attorney might suggest the home sale be rescinded in writing or court. That rescission gambit is usually so problematic that the agents, the brokerage firms and the E&O carriers will often join forces to provide a settlement.
In the meantime, check the preeminent records at the tax assessor’s office to ensure the carport is not legal. If not, seek costs and procedures to tear down the old carport and legally add a garage. Since everyone likes a good story, please write back and share your narrative’s conclusion. We’ll all be hoping for an excellent ending.
Questions? Realtor Pat Kapowich is a career-long consumer protection advocate and Certified Real Estate Brokerage Manager. 408-245-7700 Pat@SiliconValleyBroker.com DRE# 00979413 www.SiliconValleyBroker.com YouTube.com/PatKapowich
