Monday, March 2, 2009

Foreclosure Disclosure in Minnesota—Despite Regulations, It is Still Buyer Beware!



Wise men say; only fools rush in…Wait a sec. I know that classic song is about falling in love. But since many home buyers do “fall in love” with a home and become a bit foolish, it applies.

A few weeks ago, I was with a couple who went a bit gaga over a bank-owned foreclosure listed by one of those agents specializing in REO homes. I’ll admit, this was an amazing home: Nice floor plan….Picture perfect condition…Terrific View…And a “just reduced” price tag that put the home in the category of phenomenal deal!

These buyers were not first time buyers, having bought and sold several times before, my clients were a bit savvy and wanted to write an offer on the spot. As their buyer’s representative, I advised them that the instructions from the listing agent required any interested parties email for instructions on how to write the offer. Offers not following the specific instructions would not be presented or accepted.

I sent off the email to the listing agent and momentarily received a return email with a 15 pages attachment with step-by-step instructions as to how the buyer’s agent was to fill out the purchase agreement so buyers could, among other things, sign away all of their rights to disclosures.

Some of the instructions were just plain crazy! For instance, the buyer could inspect the home but not turn on the water if the home has been winterized. How can a home be properly inspected without water? This home was on city water and sewer, but had the home had been on a private sewer system with a well, we are talking about some big ticket, critical components of a property, without a disclosure or ability to inspect.

As it turned out, I didn’t have to write an offer for this particular REO home. I did not have to explain to my clients how all the restrictions for an acceptable offer on this home would be slanted totally in the banks favor while put them as buyers at serious risk . Paraphrasing another musical classic, “you can’t always get what you want but sometimes you get what you need”; we received an email that another offer had been accepted. It was a solid, cash offer and no backups were being accepted.

Long story short…First priority was finding my disappointed buyers another home. My philosophy: There is ALWAYS another home. And sometimes the second home is much better. Within days, another better home was found.

But for me, the memory of the 15 pages of instruction manual remained. In fact, this was so alarming to me I kept the printout. I have sold other foreclosed homes where the agent did not spoon-feed the directions on how to write the purchase agreement. In other cases, the buyers requested the water be turned on prior to the inspection contingency timeframe counting. As my buyer’s representative, I discussed the specific terms as we wrote up the agreement and though a few standard instructions were indicated, like a special warranty deed is required and personal property cannot be part of the agreement, it is not always required with a litany of instructions to completely slant the sale to where the buyer must take an incredible risk.

Since 2002 there has been a mandatory seller’s disclosure statement in Minnesota requiring sellers to share all pertinent information to buyers of a home. The disclosure must be made in good faith and include all material facts pertaining to the adverse physical condition of which the sellers are aware that could adversely and significantly affect an ordinary purchaser’s use and enjoyment of the property and any intended use of the property which the seller is aware. The law does provide alternatives to the disclosure for those sellers who have not lived at the property like when the home is bank owned or is part of an estate. Sellers can have an inspector view the home and provide a written report of the condition. Or they can ask a buyer to sign a waiver that says the seller is unaware of the condition of the property and that they buyers waive their rights to the disclosure.

When buying an REO or bank owned home a buyer must be prepared to waive their rights to disclosures.

There are additional federal, state and municipal laws that require sellers to disclose the condition of the property prior to the purchase agreement. Homes built prior to 1978 require a lead based paint disclosure. The existence and condition of wells and private sewer or septic systems must be disclosed in Minnesota. Some septic systems will require additional inspections at a county or local level. Also it must be disclosed if the home has ever been used in the production of methamphetamine. It is important for a buyer to understand they have rights and to be very careful when waiving them away. It may not be the best decision to buy a foreclosed home without the assistance of an experienced professional REALTOR representing your interests. As tempting as it may be to buy that “picture perfect” home at the amazing price, it could end up costing thousands more without proper disclosures and inspections.


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