Ask Phyllis: a blog series of frequently asked real estate questions.
Dear Phyllis,
My husband passed, but he didn’t have a living trust. He purchased the home before we were married, and I was never put on the title. Therefore, the home had to go to the probate court, which took forever. My brother was ill, so I divided my time between his Glendale home and the La Crescenta home I had shared with my husband. Apparently, my real estate agent gave me limited disclosures since the home was probated. Two months after the buyer moved in, they contacted my agent and told them I failed to disclose a recent roof leak and repair.
My agent knew about the leak because he was the one who gave me the name of the roofer. He told me to contact a real estate attorney. My attorney told me that because I was living in the home, I should have completed all of the disclosures, including the Transfer Disclosure and Seller Property Questionnaire. He believes my agent was at fault and wants to write a demand letter for him to pay for the roof repairs demanded by the buyer. The Realtor is a family friend; I don’t want to do that. What are the probate disclosure requirements? Do you agree with my attorney?
CLM
Dear CLM,
I am sorry for the predicament you’re facing. As a real estate agent and not an attorney, I can only share my insights based on experience. If you hadn’t resided in the home for an extended period, it is likely that completing the Transfer Disclosure or Property Questionnaire would not have been necessary. However, considering your direct knowledge of the property, it would have been appropriate to fill out those forms.
Since this was a probate sale, the form you completed was the Exempt Seller Disclosure, which consists of eleven questions. However, the final question asks, “Any other material facts or defects affecting the property or material documents in Seller’s possession affecting the property not otherwise disclosed to the buyer.”
In my perspective, the roof repair would qualify as a “material fact.” Typically, I utilize the Receipt for Reports and attach all recent invoices and estimates as a disclosure to the buyer. Given that your agent was aware of the roof repair, they could have either had you include it as a material fact on the Exempt Seller Disclosure, utilized the Receipt for Reports, or had you complete the Seller’s Property Questionnaire. Employing any of these methods would likely have prevented the situation you currently find yourself in.
Likely, your Realtor used a Transaction Coordinator (T.C.). The T.C. knew this was a probate sale but was likely unaware that you had recently lived in the home. This is why I prefer handling my paperwork and not using a transaction coordinator. I can’t advise you on how to proceed with your Realtor, but I hope my answer helped clarify things for you.
