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I filled out a Black Hills Association Sellers Property

I filled out a...

I filled out a Black Hills Association Sellers Property Condition Disclosure Statement. Where a leak was disclosed in 2013. Another leak Appeared in 2014 and was guaranteed to be fixed, but was not amended for that form. Can I be sued for that

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state this is in?

South Dakota

Lawyer's Assistant: Has any paperwork been filed?

Yes

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We have a stus hearing on the 29th of month. I had an attorney, but the judge told him he could not represent me unless he did more for me. I could not afford more

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Answered in 1 hour by:
3/12/2018
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,337
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Welcome and thank you for your question. I will be the professional that will be assisting you. Are you saying that you did not disclose both leaks?

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Customer reply replied 1 month ago
The first leak was disclosed. The second leak was guaranteed by the contractor to be repaired and fixed to whoever would be living in the house. The guarantee was sent to the realtor and the purchaser, but was never amended on that form

Even if there was a warranty or guarantee the leak needed to be disclosed. Do you have a copy of the guarantee?

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Can you attach a copy? Was this provided to the purchaser?

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"According to South Dakota Stat. § 43-4-42, a seller who makes misrepresentations or omissions on a disclosure statement “is liable to the buyer for the amount of the actual damages and repairs suffered by the buyer as a result of the violation or failure.” Not only that, but “In any court action pursuant to this section, the court may award costs and attorney fees to the prevailing party.” In plain English, this means that not only would you need to reimburse the buyer for the costs of remediation, but you could also end up paying your buyer’s attorney if your buyer successfully sues you! Legal fees can be significant, and serve as a warning and punishment to sellers who attempt to act in bad faith.

By the same token, the legislature has protected you from liability for any defect that you disclose. South Dakota Stat. § 43-4-40 states that: “a seller is not liable for a defect or other condition in the residential real property being transferred if the seller truthfully completes the disclosure statement.” The legislators are serious about your truthfulness, though, and require sellers to “make each disclosure in good faith.” https://www.nolo.com/legal-encyclopedia/selling-south-dakota-home-what-are-my-disclosure-obligations.html

The listing agent would have the duty to disclose and update your disclosure statement. Can you prove the purchaser received a copy?

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Customer reply replied 1 month ago
I do not know how to send a copy to you. The buyer was provided with a hand written guarantee. We have a typed guarantee that was received from our realtor once this lawsuit was started

You can attach the document using the paper clip icon.

The leak needed to be disclosed. If the listing agent knew they had a duty to notify the purchaser as well have you modify the disclosure. If you can prove that the Purchaser had notice they would have a hard time prevailing in a lawsuit.

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Customer reply replied 1 month ago
We are not sure we can prove they got it or not. We left it for them. I guess my only question now is: Do you know any cases in reference to that law that you quoted above?

I provided the disclosure law above. South Dakota Stat. § 43-4-40

I can provide the listing agent's duties if that would help?

Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,337
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified
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Customer reply replied 1 month ago
That might help. Thanx for insight

"The legal basis for South Dakota's disclosure requirement is South Dakota Stat. § 43-4-37 et seq., which broadly covers disclosure statements. The law states: “The seller of residential real property shall furnish to a buyer a completed copy of the disclosure statement before the buyer makes a written offer.” Moreover, if you (the seller) become aware of any other conditions requiring disclosure between when you give the buyer the statement and when you close on the transaction, you must make an amendment to the statement.

In some states, real estate agents and attorneys are left to their own devices to draft disclosure forms that fit the requirements of the legislation. In South Dakota, the legislature has done this work already, codifying the entire disclosure form in South Dakota Stat. § 43-4-44. (To state the obvious, this means that your disclosures to potential buyers cannot be oral; you must actually give the written disclosure form, as provided in this statute).

Keep in mind, the buyer can terminate the sale within three days of receipt of the disclosure statement or amendment, under South Dakota Stat. § 43-4-39. https://www.nolo.com/legal-encyclopedia/selling-south-dakota-home-what-are-my-disclosure-obligations.html

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"36-21A-132. Duties and obligations of licensee representing seller or landlord.

Any licensee representing a seller or landlord has the following duties and obligations:

(1) To perform the terms of the written agreement made with the client;

(2) To exercise reasonable skill and care for the client;

(3) To promote the interest of the client with the utmost good faith, loyalty, and fidelity, including:

(a) Seeking a price and terms which are acceptable to the client. However, the licensee is not obligated to seek additional offers to purchase the property while the property is subject to a contract for sale or to seek additional offers to lease the property while the property is subject to a lease or letter of intent to lease;

(b) Presenting all written offers to and from the client in a timely manner regardless of whether the property is subject to a contract for sale or lease or a letter of intent to lease;

(c) Disclosing to the client all adverse material facts actually known by the licensee; and

(d) Advising the client to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;

(4) To account in a timely manner for all money and property received; and

(5) To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances, including fair housing and civil rights statutes, or regulations." https://dlr.sd.gov/realestate/publications/license_law_book.pdf

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