Wednesday, February 3, 2016

The Wonderful World Of Seller Financing

I recently defended a foreclosure lawsuit, but not one brought by a bank or mortgage lender.  In this case, my clients were sued by the couple who sold them their home and were financing their purchase of that home.  Welcome to the wonderful world of seller financing!

My clients and their sellers both signed the State Bar of Wisconsin Form 11-2003, which is otherwise known as the Land Contract.  Buyers and sellers of residential real estate enter into the Land Contract when the buyers cannot pay cash and cannot obtain financing.  In some transactions, the Land Contract is the only contract that the parties sign.  In other transactions, the parties enter into a WB-11 Residential Offer To Purchase and enter into the Land Contract in the event that financing is not available on the terms stated in the offer and the seller agrees to finance the transaction pursuant to lines 250-56 of the offer.

In my case, my clients stopped paying on the Land Contract and abandoned the property after they discovered some serious property defects (including fire and water damage) that the sellers failed to disclose to them.  My clients' best defense was that the Land Contract was induced by misrepresentation.  Trouble is, the sellers made no written representations to them about the property's condition, such as providing them with a Real Estate Condition Report or even making the representations contained in lines 159-62 of the WB-11 Residential Offer.

Based on my clients' experience, I strongly advise all buyers to use the WB-11 Residential Offer even if they doubt that they will be unable to obtain financing.  All buyers need the protection that the WB-11 Residential Offer provides, including property condition representations by the sellers; title insurance; and the right to have the property appraised, inspected, and tested.  The State Bar Land Contract lacks these basic protections and also makes the buyers responsible for the sellers' costs, expenses, and attorneys' fees in the event that the buyers cannot make their payments and the sellers foreclose or sue them for the amount owed.

Please email me at rudolphkuss@stevensandkuss.com if you or your clients need an attorney to protect their interests in the purchase of residential real estate or the financing of that purchase.