Buying or selling a home in Indiana can be a nerve-wracking event. You need to understand things you probably don’t come across regularly—home inspections, zoning matters, financing, and purchase agreements, to name just a few. Getting professional help is a good idea. Real estate agents understand the housing market and what neighborhoods might best fit your needs, but they can’t advise you on the legal matters that arise. Working with an Indiana real estate lawyer is the best way to protect yourself from Indiana home sale disputes.
Common Indiana Home Sale Disputes: When You Need an Attorney
The purchase or sale of a home is a significant financial event that can involve a considerable emotional investment, too. It’s no wonder then that Indiana home sale disputes can arise, putting your financial and emotional investment at risk.
While every home sale is different, certain types of disputes are more common. As in other states, Indiana home sale disputes often arise in these areas:
- Contract disputes;
- Disclosure disputes; and
- Real estate title issues.
Each of these areas involves legal matters a realtor may not have experience with. Even when realtors are familiar with an issue, the law prohibits them from giving legal advice. Consulting an Indiana real estate lawyer before buying or selling a home is the best way to take steps to avoid a dispute and to deal with any dispute that might arise before or after closing.
Indiana Home Sale Disputes: Contract Quarrels
The Indiana statute of frauds requires contracts for the sale of land to be in writing, so the purchase or sale of a home necessarily involves written contracts. Making sure your contract is accurate and enforceable is key to a smooth transaction.
The use of lawyer-reviewed and approved forms for Indiana real estate contracts is common but not necessarily a saving grace. The approved language or the language inserted into those contracts can be the basis for later disputes.
For example, real estate purchase agreements often contain a clause allowing the buyer to terminate the agreement if an independent inspection finds a major defect in the home. In Fischer v. Heymann, the buyers’ independent home inspection listed as a “Major Concern” that two electrical outlets in the condominium were not working. The buyers eventually asked to be released from the purchase agreement, relying on the “major defect” language in the purchase agreement. The problem was fixed merely by pushing the GFI reset button, and the seller filed suit against the buyers.
On appeal, the majority of a divided court held that the electrical problem was not a “Major Defect” contemplated in the purchase agreement because it was remedied simply. One appellate judge disagreed with the outcome in Fischer on different contract law terms.
This disagreement illustrates the difficulty in predicting how contract language might be interpreted. An Indiana real estate lawyer is in the best position to help you understand the language in your Indiana real estate contract and related documentation, such as the sales disclosure form, title work, and deed.
The Indiana Sales Disclosure Form Doesn’t Eliminate Indiana Home Sales Disputes
Indiana attempts to prevent disputes about the condition of the property by requiring the seller to disclose known defects or harmful conditions before the closing. Anyone selling residential real estate in Indiana must file an Indiana Sales Disclosure form. Indiana Code § 32-21-5-10 requires the seller of residential property to complete the disclosure form and provide it to the potential buyer before the buyer accepts an offer to purchase. The seller’s disclosure obligation extends to the following areas:
- Structures on the property;
- Fixtures; and
- Governance by a homeowners association.
The seller must also disclose any contamination by the manufacture or dumping of waste from the manufacture of a controlled substance on the property.
A seller who fails to disclose conditions in these areas may be liable to the buyer for fraud if the conditions were known or reasonably could have been obtained from a third party.
While courts previously placed the burden on the buyer to investigate the condition of the property, often by obtaining an inspection, more recent cases demonstrate a shift in the burden to the seller to provide honest and complete disclosure. An Indiana real estate lawyer can review the circumstances of your transaction and help you determine your rights and obligations as a seller completing a sales disclosure form or the extent to which you can rely on those disclosures as a buyer.
Real Estate Title Issues: Boundaries, Easements, and Encroachment
Most real estate transactions include the research and preparation of a title report. This report includes the physical boundaries of the property, any rights non-owners may have to use indicated parts of the property, and any restrictions regarding the use of the property.
Accurately identifying the property for sale and non-owners’ use of the property is key to avoiding later disputes. But, sometimes, even with surveys and title reports, real estate title issues can arise. For example, a property owner might misread the survey and erect a structure or make another type of improvement that crosses the boundary onto an adjacent property. The affected property owner may file suit over the encroachment.
Similarly, the title report may indicate an easement, giving a non-owner the right to use part of the property under Indiana easement law. Permission for a nearby property owner’s driveway to cross the property in question is one example. Additionally, the property may be subject to land use restrictions such as from zoning ordinances or a homeowners association, limiting the ways the owner may use the property.
An Indiana real estate lawyer can help the parties understand the exact boundaries of the property, whether and to what extent the property is subject to use by others under Indiana easement law, and the source and extent of land use restrictions. And if real estate title issues arise, your attorney can advise you on the legal options available.
How to Avoid Home Buying Mistakes in Indiana
Working with an Indiana real estate lawyer from early in the process of buying or selling a home is key to avoiding Indiana home sale disputes. Corey Meridew at Camden & Meridew, P.C. is an experienced real estate attorney who can walk you through the purchase or sale of your home. For a consultation, call us at 317-770-0000 or complete our online contact form.