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Preparing for a Real Estate Dispute - Documents To Bring To Your Attorney

When a dispute regarding a real estate transaction arises, you might need a lawyer's help. It's important that your attorney has an opportunity to review all the documentation relating to the matter. It will aid them in understanding the parties' positions and the chronology of events leading up to the dispute.

To prepare for a real estate dispute, there are things that you should and shouldn't do. The way you prepare also depends on the type of conflict you anticipate. Here is some general information about what you can expect leading up to your meeting with a lawyer.

What Not To Do Before the Consultation

It might be tempting to take things into your own hands. You might feel that some of the evidence for your case is less than flattering. You might also prefer to focus on certain documents over others. Emotions may be running high, and you may even feel compelled to start sending out phone calls and emails to those who may have wronged you.

Take a deep breath, remain calm, and don't do any of these things. The whole point of hiring an attorney is to avoid messing up your case. Since you witnessed the conflict personally, you might feel that you're the person most qualified to make decisions on how to resolve it. But sometimes, even the strongest cases can be tarnished when the wronged party determines that they can handle everything on their own.

Here are some things to avoid. You should NOT:

  • Speak to others about your case
  • Modify or destroy evidence relating to your case
  • Fabricate favorable information about your case
  • Get advice from non-attorneys on legal issues
  • Wrong the party who has wronged you (Two wrongs don't make a right!)
  • Continue to transact in a manner that increases your damages or violates the law

Here is an example scenario: You and your partner are excited homebuyers who have just put down a large down payment towards the purchase price. But it turns out that the selling homeowners misrepresented important information about the home. They told their real estate agent not to reveal some major issues they found out about the property. The sellers did their own home inspection and found lead-based paint, a health hazard that lowers the market value of the home. Since you have already signed a sales contract, the property owners argue that:

  1. You must either close out the real estate purchase agreement by finalizing the purchase; or
  2. Give up your nonrefundable earnest money deposit if you're not happy with the sale price

You might be tempted to do all kinds of things to get out of the purchase contract. You might feel justified in cheating the sellers back. After all, they were dishonest with you about important disclosures they should've made regarding the home purchase. It might even cross your mind to get rid of all evidence that a home sale was about to take place. But as emotional and stressed as you might feel, it's important to follow the law.

It's true that as potential buyers for the new home, you and your partner deserved transparency regarding the property. A title company might not provide title insurance or warranty for a home with material defects, even if they're happy with the title search. You might struggle to make your mortgage payments if you have to spend money remediating the health hazards in the property. With the closing date fast approaching, you now must decide between homeownership and backing out.

With your down payment still stuck in escrow, you're facing a dispute over the home's value. It is now a question of whether this conflict can be resolved in a transactional setting, or whether involving a court of law is necessary.

Transactional Disputes Versus Litigation

Not every case has to end up in court. In fact, most disputes are resolved before anyone has to file a lawsuit. When there is a legal conflict, you must consider whether the nature of the dispute is:

  • Transactional; or
  • Prone to litigation

A transactional issue is one that can be resolved without resorting to more drastic legal measures. A transactional lawyer doesn't go to court. They can fix your legal problem by literally talking it through. That might mean:

  • Writing letters
  • Drafting documents
  • Editing agreements
  • Making phone calls

On the other hand, your lawyer or the other side's attorney might not be able to resolve the problem amicably. Back-and-forth phone calls or letters might lead to nowhere. The parties might also be at a standstill regarding an agreement that they are trying to negotiate. This kind of situation may be prone to litigation. A litigation lawyer escalates a transactional issue by:

  • Preparing filings for court
  • Meeting with you to draft a court complaint
  • Gathering evidence, such as documents and testimonies, for use before a judge or jury
  • Preparing for discovery or exchange of information through writing and oral depositions (interviews)
  • Exploring alternative dispute resolution methods

In our example scenario above, it might be enough for your lawyer to write a letter to the sellers. Your lawyer can let the sellers know that they were obligated to make important disclosures about the home. They should have let you know that there were certain health hazards in the home that affected the home's value.

The issue might be resolved transactionally if the sellers agree to reduce the purchase price or allow you to back out of the home sale altogether. But what if they insist they made all of their legally required disclosures? Should you proceed with the purchase and pay out all the closing costs?

Conflicts You Can Resolve in Mediation or Arbitration

Two popular alternative dispute resolution mechanisms are:

  • Mediation
  • Arbitration

When you're preparing for your case, you have to consider how expensive it might be to litigate your dispute in court. Sometimes, a contract that you signed with the other party might actually require you to go to mediation or arbitration before you're able to sue. Sometimes, the option to sue in court is just not available because you may have signed away that right in an agreement. Whatever the case may be, your lawyer would be grateful if you could organize your thoughts and documents for use in mediation or arbitration.

In mediation, a neutral third party, known as a mediator, will look at the evidence from both sides and try to give an opinion about how the matter can be resolved. A mediator's decision is generally not binding. This means that the parties are free to ignore the mediator if they are not happy with the mediator's opinion.

Arbitration is a more serious matter. Even though the parties are not yet in court, the arbitrator's decision is binding. That means it's legally enforceable, like a court's judgment. An arbitrator is usually an experienced lawyer or retired judge who has knowledge about the legal field relating to the dispute. For example, an arbitrator with experience in the construction and real estate industry might be selected to arbitrate a dispute over a home purchase agreement.

In our hypothetical scenario above, the sellers might insist that they made all legally required disclosures about the property. In mediation or arbitration, the property owners will argue that the law didn't require them to give you their inspection results. Your lawyer may present a different legal argument that would compel the sellers otherwise. If you've organized your documents with a checklist and you have proof about what was and wasn't disclosed to you, you would have a stronger chance of winning your case. If you prevail, you may be allowed to back out of the sale or purchase the home for a lower price.

Checklist of Important Items

Ultimately, your issue may not be resolved transactionally or even through mediation or arbitration. No matter the stage of your case, there is a checklist of crucial items that you need to gather. The list covers evidence related to key facts in your case. Depending on the law and the unique facts involved in your case, having an organized list of evidence might be the difference between prevailing or losing out in court.

Here's a checklist for you to use in gathering documents for your attorney:

  • Summons and Complaint, if any – These two documents form the backbone of a lawsuit. When you escalate the dispute to court, you must submit a complaint containing all the facts and legal allegations against the other party. The summons attaches to the complaint to let the defendant know that they have been sued
  • Files from previous litigation or previous attorneys, if any – Lawyers don't like to have “too many cooks in the kitchen," but if you had another legal professional look at your case or do work for you previously, it's very important for your next attorney to have access to that information
  • Your general files regarding the other party
  • Your general files regarding the property
  • Your correspondence with or regarding the other party
  • Your correspondence regarding the property
  • Phone logs and message pads
  • Contracts with the other party
  • Listing agreements
  • Representation agreements
  • Closing documents
  • Title documents and policies
  • Inspections and environmental reports
  • Bids and/or offers
  • Property tax statements
  • Leases and easements, if any
  • E-mails
  • Canceled checks
  • Receipts
  • Any advertisements that led you to buy or bid on the property
  • Promotional materials given you by the realtor

Here is one more scenario that can help you understand why and how the above checklist can be very important for your case:

Suppose that you are a landlord who is forced to sell your property because you're facing foreclosure. Your mortgage lender isn't allowing you to refinance, and you have a short period of time remaining to come up with your mortgage loan payment. You've already given your tenant a lease-purchase agreement or a rent-to-own agreement. That means you charged them an option fee so that they may have the exclusive right to purchase the rental property from you at the end of the lease term.

The lease period is now coming to a close. Having paid their monthly rents on time, the renters are considering exercising the right to buy the property pursuant to their lease option agreement. Because this is a rental income property (rather than your primary residence), your lender has been unwilling to be patient with you. As you have missed your last few monthly payments, they are very serious about foreclosure. You promise the bank that you will fork over the most recent rent payments. You plead with them to allow you to sell the property on your own so you can pay off the loan before it gets forced into a foreclosure sale.

If the mortgage lender is unwilling to work with you and insists that the property might be foreclosed, you may need to explore your options by collecting important evidence about the dispute. Maybe your loan agreement had a provision allowing you to transfer the property to your tenants. Maybe the mortgage lender failed to make the required legal disclosures before giving you the loan in the first place. You might find a way to get out of foreclosure and rescue your credit score without even having to directly tackle the problem of being behind on your mortgage payment.

Here, having a checklist of important evidence to share with your attorney might allow them to find a creative way to get you out of this problem and sell the property to your tenants before your property is foreclosed.

Contacting the Right Lawyer

Not every dispute has to end up in court. But just about every legal conflict can benefit from the advice of a good attorney. It might be enough for you to consult with a transactional attorney who can give you advice on certain paperwork. On the other hand, you might need the help of a litigator if you feel that your dispute won't be resolved with letters and phone calls alone.

Once you've gathered all of your evidence, reach out to a real estate attorney for next steps. From California to New York, the laws can vary across the country. So, make sure you're reaching out to someone local to the property.

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