Ask an Attorney - Q&A

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The following questions were questions posed to Picket Fence Preview, which were then referred to interested attorneys. Disclaimer: The following answers are not intended as, and cannot be taken as, legal advice on any particular transaction. Seek advice specific to your situation.

Q1.  Is there any legal reason I can't advertise my property after I've taken a contract?

A. No, as long as any other prospective purchaser is told that another party has a prior contractual interest. The notice should be in any "back-up" purchase and sale agreement.  I often recommend that back-up offers be solicited in instances where the sale is contingent upon the sale of the buyer's property, for example. Rarely do (buyer's) brokers want to bother, however, and rarely do back-up contracts materialize.

Q2.  Can I choose not to show my house to someone? Or is that discrimination?

A. This is a tough one.  Generally, you have the right to decline to do business with a person for any reason or no reason at all.  But, frankly, I don't know why someone who wants to sell real estate and move on, would care who s/he does business with.

Q3.  As a seller, I don't need an attorney, do I? The buyer already has one, who will be doing the closing.

A. Yes, a seller needs an attorney to draft an acceptable deed, draft and file the transfer tax return, and in Vermont, perhaps get a Commissioner's Certificate out of the Department of Taxes. The buyer's attorney cannot ethically represent both the buyer and seller.

Q4.  I have a buyer for my house. Is it okay if the buyer's agent holds on to the buyer's deposit? I told her I felt more comfortable with my attorney holding it in his escrow account but she was insistent.

A. Yes, it's okay, but not optimal. It would be best if your attorney acted as escrow agent, but if the broker is licensed, s/he risks losing that license if s/he engages in any monkey business.

Q5.  My buyers found my house through Picket Fences, but had a prior arrangement with a buyer's agent who is now insisting that she is to be paid 6% for her role. Am I correct in thinking it's illegal for her to demand a full commission in a FSBO sale?

A. It's not "illegal" per se, but such a demand is not enforceable.  Don't give in; if the broker is owed anything by anyone, it's the buyer, not you.

Q6. Are there any legal differences between Vermont and New Hampshire that would effect the buyer? For example, any additional taxes or fees required? Capital gains tax differences?

A. I could go on at considerable length on this one, but I won't.  Buyers who are concerned about this matter should seek professional advice from a lawyer or tax accountant regarding their particular circumstances.