Market Wise Column

The lessons to learn from a shady home sale 

January 13, 2019  
By Pat Kapowich for the Bay Area News Group (BANG), the largest publisher of daily and weekly newspapers in the San Francisco Bay Area, including its flagship The Mercury News. 
Q: I read your interesting MarketWise articles in my East Bay Times Sunday newspaper and have been saving each one for many weeks as I’m educating myself for my upcoming selling and buying. Question No. 1: Does the homebuyer have any recourse from a faulty, incomplete or fraudulent disclosure about a dwelling after the sale has been made … other than spending thousands on a lawsuit?

Question No. 2 of 2: I always read and enjoy your Mercury News MarketWise columns. The Jan. 6, 2019, article “Disclosure issues can gnaw away at the sale process” spoke to the duties and responsibilities of the owner to disclose known defects in the property, but you said nothing about the same as to the seller’s broker. Yes, the sellers can be sued, but I believe the broker should lose his license. 

A: In last week’s column, the home seller and listing agent failed to disclose an active termite infestation. Question No. 1 asks if the homebuyer can be “made whole” after the close of escrow without hiring a real estate attorney. Sure, but it is difficult taking a seller who moves out of the area to small claims court. It’s best to refuse to close escrow until the remediation of the termite issue is completed. Second best gambit without legal representation is to have the cost of the termite remediation credited to the buyer in escrow. The third approach, the seller leaves a check from the escrow account made out directly to the termite company. 

Question No. 2 revolves around the listing agent’s complicity of silence intended to gain an advantage for his seller client. The failure of a licensee to disclose all known facts could cost him or her a small “fortune.” Real estate commissioners will revoke the licenses of double-dealing agents. The Errors & Omissions policy bought by agents does not insure acts of fraud or misrepresentation, leaving sued licensees personally responsible for judgments, settlements, their attorneys’ fees, as well as the plaintiffs’ fees. This is irrefutable proof to agents the honesty policy isn’t just free — it’s freeing.

Have a question? Need a Realtor? In his three-decade career, broker Pat Kapowich has been providing clients and attorneys turnkey services including relocation, property prep, staging, market analysis, and strategic planning. 

Call 408-245-7700 or email:

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