Why You Need a Real Estate Attorney When Buying or Selling a Home

 Posted on April 30, 2019 in Real Estate

Purchasing a new home is an exciting endeavor that represents the beginning of a new chapter in the lives of both the buyer and seller. However, in any major transaction, there are dangers present. Sometimes, the seller of a home is not entirely forthcoming regarding the defects present in the home. At other times, the buyer of a home might wrongfully claim that the house sold to them was defective. The risk of fraud or meritless claims is often a significant reason why some families avoid entering the home buying or selling process at all. Thankfully, Illinois state laws and court rulings provide clear guidelines on how to resolve these situations.

The Illinois Real Estate Disclosure Act

Under the Illinois Real Estate Disclosure Act (765 ILCS 77), the seller of residential property has to fill out the Residential Real Property Disclosure form and provide it to any potential buyer. On this form, the seller is required to list any material defects with the property. This is to encourage honesty during price negotiations and ensures that the house is sold at an appropriate price. If the seller knowingly fails to list any defect with the house, this is considered fraud. Section 55 of the statute specifies that if fraud occurs, the seller “shall be liable in the amount of actual damages and court costs, and the court may award reasonable attorney fees incurred by the prevailing party.”

Court Rulings

As with most statutes, court rulings have provided additional clarifications on these matters. To protect sellers from meritless claims, the courts have set a very high standard for proving fraud. In a 2014 ruling, an appellate court found that the plaintiff has to bring “clear and convincing” evidence to prove fraud. The court also noted that the statute does not specify that the attorney fees may be awarded only to the plaintiff. However, if the claim made by the plaintiff is determined to be meritless, then the defendant can be awarded attorney fees as compensation.

For years after this ruling, attorney fees were calculated based on the current market value, and the plaintiff did not have to provide hard evidence of how much their attorney costs were. This resulted in some plaintiffs claiming more than what they were paying their lawyer. In 2019, another appellate court ruled that the defendant and the plaintiff must provide evidence of how much they paid their attorneys through documentation, such as an invoice.

Contact a Lake County Real Estate Attorney

Purchasing or selling a home can be an exciting but perilous adventure. To ensure that everything goes smoothly, you need an experienced Waukegan real estate attorney who can ensure that your rights are protected and that all outstanding issues are resolved. Contact us today at 847-549-0000 to schedule a free phone consultation.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2152

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/1stDistrict/1181392.pdf