LITIGATION AVOIDANCE STRATEGIES
(Clear all disclosure techniques with your attorney.)
1. ALWAYS QUOTE THE SOURCE
When representing the seller, make sure you clearly note in writing that the information they have passed on to you regarding property condition repairs has come from them. For example, a disclosure might read "There is a stain on the dining room ceiling. The seller has stated that it is the result of a second-floor bathroom leak that was repaired last year." Be an "innocent conduit of information" by being sure to quote your source.
2. DO NOT CHARACTERIZE OR DIAGNOSE
Provide written disclosures that omit your opinions regarding the "red flag" and its cause. For example, instead of writing "Five large settling cracks noted in living room wall above fireplace.".......drop the characterizations of "five" and "large" and also the diagnostic term "settling." You end up with "Cracks noted in living room wall above fireplace." Go for "pure disclosure" by dropping your characterizations and diagnostic opinions.
3. DEFER TO A QUALIFIED SPECIALIST
Transfer liability away from you by consistently deferring to others when confronted with most property condition questions. Verbally, get in the habit of responding to property condition questions, rather than answering them. For example, when asked "Why is there such a large crack in the backyard patio?".....don't make guesses regarding tree roots or settling or earthquakes; leave that to the appropriate experts. Say instead "That's a good question - be sure to ask the home inspector who will be here next Tuesday afternoon. I'll make a note to remind you - maybe he can shed some light on what might be happening."
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