Q: My husband and I have found a wonderful home that's an FSBO — for sale by owner. We're not working with a real-estate agent. Must we have one to draw up an offer?
A: "The short answer is no," says attorney Richard T. Morse. As owner of the Escrow Network, Morse regularly drafts home purchase and sales documents or reviews those independently drafted by buyers and sellers. "Once they agree upon price and terms, if they're reasonable people, if they can talk to and trust each other, the FSBO process can work smoothly," he says. "If they have arrogance or anger-management problems, it doesn't work because they have no go-between."
People who get along still might encounter difficulties, because the store-bought legal forms they commonly use "are terrible," Morse says. "They'll address some of the necessary topics but are incomplete for others." Since these forms are legally binding contracts, the stage can be set for problems. He's seen cases where the contracts didn't spell out when contingencies — such as financing or inspection — would be removed, or which appliances stayed with the home and which didn't. "If people are clear about their responsibilities, they'll live up to them, but if they're ambiguous, they'll run," he's found.
That's why Morse says, "Good real-estate agents convey value." So you might want to consider retaining one. Alternately, you can use a real-estate attorney or escrow firm to draw up your paperwork. If you ultimately decide to craft the documents yourself, at least have a real-estate lawyer review them. And to insure you're really protected, write in "subject to review by an attorney" as one of your purchase contingencies.
Q: A property survey has revealed that our 35-year-old backyard fence is 4 inches inside our property line, and our neighbor's deck is 2 inches inside it. What are our rights?
A: There are a couple of ways a neighbor legally can claim part of your property. One is by establishing what's called a boundary by acquiescence, explains Ken Hart, a partner in the Seattle law firm of Larson Hart Shepherd. "It means a boundary has been recognized and treated as the true boundary, and people have made improvements in reliance upon that as the boundary for at least 10 years." So based solely on the facts supplied by you, Hart says, "I'd say the neighbors may have a good argument for a new boundary being established."
To fight this, you'd need to hire an attorney who might do a legal action called quiet title and ejectment to get the property returned to you and the deck reduced. But if your neighbors fight back, you could find yourself in an expensive legal war. Instead, you may want to spend your efforts on another issue — the possibility that your property's recorded, legal description may not match a fence-created property line. When time comes to sell your home, you'll have to disclose this. So you may want to talk with your surveyor now about recording a lot line adjustment. Since your neighbor appears to be the beneficiary, Hart says it would be reasonable to ask him to pay all or part of the cost.
