The problem begins after the buyers move in to their new home and discover problems that were not disclosed to them. Depending on what the problem is and how much it will cost to repair, the buyers contact their real estate attorney for help. Many real estate attorneys do not get involved with litigation, and so they refer their buyers to an attorney who has experience litigating these kinds of disputes.
The easiest and least expensive way to get the problem resolved is for the attorney to write a letter to the sellers describing what’s wrong and asking for money. If the sellers refuse, the next step is to decide who to sue and what to ask for.
WHO TO FILE A LAWSUIT AGAINST
The obvious answer is the sellers. However, depending on the facts, it sometimes is appropriate to include the real estate agents and the buyer’s home inspector in the lawsuit.
WHAT TO ASK FOR
In most cases, the purpose of the lawsuit is to recover enough money so the buyers can pay to get the problem repaired. In some cases, however, money is not an adequate remedy, and so the buyers ask for rescission. If rescission is ordered by the Court, the buyers give the house back to the sellers, and the sellers return to the buyers the money the buyers paid for the house.
CLAIMS OF FRAUD
Fraud can arise from fraudulent concealment or fraudulent misrepresentation.
To prove fraudulent concealment, the buyer has to show that the seller took action intended to prevent (and which actually did prevent) the buyer from discovering the damage. This can occur when the seller takes action to conceal the defect. However, it can also occur when the seller takes action to dissuade or prevent the buyer from making an investigation that a buyer would have made and which would have disclosed the defect.
To prove fraudulent misrepresentation, the buyers must show the following 5 things:
(1) the seller made a substantial, material misrepresentation
(2) the representation was false
(3) the seller must have known it was false
(4) the seller made the representation with the intention of inducing the buyer to act upon it
(5) the buyer did act in reliance on the statement and was harmed as a result.
If you believe you’ve been the victim of fraud in connection with the purchase of your home, contact a Delaware real estate attorney to discuss your options.
Your divorce attorney who is 100% sympathetic to your case and your situation would be just as enthusiastically representing your ex-wife if she paid him first.
It’s not a matter of “right or wrong” for any lawyer, for a fee, will take either side of any case…for, in the end, the opposing attorneys are looking for compromise and a way that both of their clients can walk away thinking they won something.
Representing yourself in civil matters (if you know how) is the only way to guarantee a win.
…if you are lucky. If you are unlucky, opposing attorneys are on the golf course together discussing (in code) how long your case might go on and how many billable hours they might squeeze out of it.
Attorneys are in a hopeless conflict of interest.
I’ve come up with a system (sliding-rate formula) for InterNACHI (but which doesn’t work for a smaller business)… and that is to pre-agree to a certain number of billable hours for the year whereby the attorneys are incentivized (financially) to do enough legal work to exhaust their retainers yet dis-incentivized (financially) to exceed them.
**Fraud can arise from fraudulent concealment or fraudulent misrepresentation. **
Disclosure laws are supposed to help mitigate issues where fraud is alleged. Unfortunately, fraud is something that is a bit more difficult to prove than any lawyer would like to admit.
For instance, why would a seller need to disclose every repair he/she ever made to a home? If a downspout was mis-configured and caused some water intrusion which wet the wallboard and you replaced the damaged material, but some unseen mold had sytarted to grow in a damp area… would the act of not telling the buyer of something you repaired 6 months prior be fraud? I think not.
If stored material was piled into a room and the inspector and client could not enter to see a defect, would it be a fraudulent act or misrepresentation?
If you think your home is the best on the block, despite some things needing repair, would you disclose this in the MLS add? IF so, then shouldnt virtually ALL homes be listed as being is soome state of disrepair or in need of TLC? If you fail to characterize it as less than perfect, arent you misrepresenting the dwelling?
Unfortunately, the guide to lawsuits as outlined in this thread was likely written by an attorney.