Construction Defects: Understanding Your Purchase Contract

construction defectBefore construction began on your new home, a purchase contract was established between you and the builder. The agreement specified the expectations for the construction of the home, closing of the purchase, and likely included plans or detailed specifications to be followed during the building process. What happens, however, if the builder fails to meet the terms of the contact or the home is found to have construction defects? While you may have grounds to file a lawsuit against the builder, it important to first examine your contractual agreement, as it may potentially limit your available courses of action.

Implied Warranty of Habitability

As a purchaser of new construction, you generally have the right to expect that the construction will be completed in compliance within industry standards. Illinois courts have established over time an Implied Warranty of Habitability that offers a level of protection to new home purchasers who find latent defects in the home’s construction and have no other legal recourse. The scope of the implied warranty, however, is fairly narrow and applies only to defects that make the home reasonably unsuited for its intended use.

Express Warranty Offered by the Builder

Your contract may be accompanied by a clearly-defined guarantee of workmanship and materials known as an express warranty. As a condition of this type of warranty, you may be asked to waive your rights under the Implied Warranty of Habitability. In its place, an express warranty can clearly specify all of the terms and conditions of the builder’s potential liability. It may include specific types of covered construction defects, non-covered defects, your responsibilities for maintenance, and the procedures for filing a claim. Additionally, an express warranty typically limits the timeframe in which the purchaser’s rights are guaranteed, often one year.

Binding Arbitration Requirement

It is important to read your contract and express warranty carefully and to have them reviewed by your attorney prior to agreeing to their terms. Either document may include a clause waiving your right to file suit in a jurisdictional court. Instead, if the builder fails remedy a construction defect claim made under your warranty, you may only take your case before an arbitrator. An arbitrator is a third party with industry expertise hired to resolve disputes between purchasers and builders, and is often named by the builder in the contract or express warranty. By signing such a document, you agree that the arbitrator’s decision will be binding and that avenues of additional recourse will not be available.

A DuPage County Real Estate Lawyer Can Help with Your Purchase Contract

If you considering a new construction purchase or have questions about filing a construction defect claim, contact an experienced real estate attorney in Wheaton. Our knowledgeable team can help you review contracts, negotiate terms, ensure your rights are protected throughout the process. Call 630-665-2500 for a confidential consultation today.

 

Sources:

https://www.americanbar.org/content/dam/aba/directories/construction_industry_knowledge_base/meetings/2015-annual/an15-wg-paper.pdf

http://legal-dictionary.thefreedictionary.com/Binding+arbitration

Dual Agency in Real Estate – What Every Home Buyer and Seller Should Know About Their Real Estate Agent’s Interests

Wheaton real estate lawyersPeople often assume that a real estate agent is there to represent them and their interests. Sadly, this is not always the case. Neither state or federal law prohibits a real estate agents from having conflicting interests, and some exploit that loophole to the fullest extent possible. Learn more about “dual agency” among real estate agents, including how it could affect your next real estate transaction, and discover how our seasoned Wheaton real estate attorneys can minimize the risks. 

Dual Agency in Real Estate – What It Is and Why It Matters

In an ideal world, a real estate agent would work with only the buyer or the seller – never both. Sadly, dual agency is extremely common among agents. In this scenario, the agent provides services to both the buyer and the seller, and that allows them to keep the entire commission. In short, the only interests they are representing are their own, and that can create all kinds of issues in a real estate transaction. 

As an example, consider a situation in which the seller informs the agent that they recently learned of some foundation issues with the house. Instead of disclosing the full extent of the details to potential buyers of the house, the agent may then downplay the severity of the issue. As a result, the buyer loses money on a house that is unfairly priced.

Avoiding Dual Agency in Your Next Real Estate Transaction 

The one key thing that buyers and sellers can do to protect themselves from the consequences of dual agency is to ensure they know whose interest their agent is serving. Ask them, point blank, if they are representing you exclusively, and if they have a fiduciary duty to do so. These are known as single agents. Other types of real estate agents – most of which you will want to avoid – include subagents, who work with the buyer but have a duty to the seller; transactional agents, who facilitate the transaction but have no responsibility to either party; and dual agents, who are somehow supposed to represent the interests of both parties in a real estate transaction. 

Our Wheaton Real Estate Lawyers Can Protect Your Interests in a Sale or Purchase 

Finding a single agent can be difficult, so not all buyers and sellers can rely solely on the ability to do so. Instead, know that there are other ways to protect your interests during the purchase or sale of a home. The seasoned DuPage County real estate lawyers at Stock, Carlson, Oldfield & McGrath, LLC can help. Call 630-655-2500 to schedule your consultation today.

Source:

https://www.chicagotribune.com/classified/realestate/ct-re-1223-kenneth-harney-20181223-story.html

 

Commercial Real Estate Leases – What Every CRE Investor Should Know Before Renting Out Their Property

Wheaton CRE investment attorneysWith more investors breaking into the commercial real estate sector, demand for reliable and comprehensive information on the selling and leasing of property increases. Granted, the information that one finds on the internet must be carefully vetted, and investors are highly encouraged to run all decisions and potential changes by their attorney, as this can help avoid the risk of lawsuits and financial loss. However, with a better understanding of the potential pitfalls, landlords can be better prepared, which can allow them to better plan for their future. 

Being Prepared for the Challenges in Commercial Leasing 

The stakes and risk of financial loss are far greater for the commercial landlord and tenant. There are also some nuanced issues in the CRE market that can significantly alter the needs and concerns of an investor. For example, there are different asset classes in the CRE market, and the challenges tend to vary for each one. In other words, the owner of a low-income apartment will have different needs than a hotel or casino owner. 

Negotiating – whether it be during the purchase or sale of a property, or while trying to re-negotiate a lease or establish a new one – is a skill, in and of itself. Most investors are not negotiators, though some do seem to have an innate ability. In either case, the negotiation process should never be done alone. There are different types of leases, and you can never be certain that you are getting a fair deal until all aspects of the sale have been carefully weighed and considered. An experienced commercial real estate investor can help. 

The safety and security of potential patrons may also be an issue for certain investors (but not all). Restaurant investors will likely need to account for the risk of fires and premises liability. Investors who focus their time and energy on office buildings or parking garages may be less likely to face these same issues. Instead, they may need to worry about things like crime on the premises, or whether they could be held liable for the damage of someone’s property. 

Thankfully, you do not have to understand all the exact nuances of your asset class or investment type. In fact, it is highly recommended that you resist the urge to manage your portfolio alone. The most successful people in the world probably got to where they are because they had a skilled and educated support team – and while the members of your team may change over the years, depending on your needs and goals, the one person you should never go without is a seasoned real estate attorney. 

Contact Our Wheaton CRE Investment Lawyers

Whether you are just starting out in the CRE market or a seasoned veteran, Stock, Carlson, Oldfield & McGrath, LLC is the firm to call for your legal real estate needs. Backed by over 40 years of knowledge and experience, our skilled DuPage County real estate lawyers can assist you with everything from performing your due diligence to successful commercial lease and purchase or sale agreements. Call 630-665-2500 to schedule your consultation today. 

Sources:

https://www.cnbc.com/2019/01/11/5-money-blunders-that-keep-you-from-getting-rich.html

https://www.forbes.com/sites/forbesrealestatecouncil/2018/12/11/how-to-prepare-commercial-real-estate-for-premises-liability/#86706b871248

https://www.bizjournals.com/birmingham/news/2018/06/01/expert-tips-for-negotiating-your-commercial-lease.html