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 Dear George: My husband and I found a duplex to rent through a REALTOR®'s ad. We turned in an application with an $800 deposit, were approved, and signed the lease. However, we didn't agree with some things in the lease and decided to back out of the contract. Now, we are being told that we cannot have our deposit back. It stated in the original application that the owner was allowed to keep the deposit and any other money collected if we backed out. Is this legal? Is there any way to get our money back?
Answer: Let's start with a few assumptions: The REALTOR® used the Texas Association of REALTORS® Residential Lease Application (form 2003) and the Agreement for Application Deposit and Hold on Property (form 2009), and you did not sign the Residential Lease (form 2001); therefore, you did not enter into a contract but merely rejected the terms and conditions of the landlord's lease agreement.
At the bottom of Page 2 of the Residential Lease Application under Fees, there are two checkboxes. If the second checkbox was marked, your $800 deposit was listed in the blank space, and the Agreement for Application Deposit and Hold on Property (form 2009) or a similar agreement was attached, then the agreement legally provides that by withdrawing your application and not signing the landlord's lease agreement you agree to the landlord keeping your $800 deposit. However, if the first checkbox was marked under Fees, your $800 deposit should be returned to you if you did not sign the lease.
There may be a way to get your money back. If the REALTOR® representing the landlord failed to point out to you the difference between the two checkboxes, he failed to treat you fairly and failed in the duty to convey accurate information to members of the public with whom he deals. If that occurred, call the Texas Association of REALTORS® at 800/873-9155 and ask to speak with someone regarding the association's free Ombudsman Program.
Dear George: Every time a house is sold in our neighborhood, a local real estate agent sends an e-mail notice of the address and the final sales price of that property to the neighborhood's residents. Is this a violation of the Texas real estate licensing regulations?
Answer: It is not a violation of either the Texas Real Estate License Act or the Texas Real Estate Commission Rules to send information regarding final sales prices of properties. However, if the real estate licensee obtained the sales prices through his local multiple listing service, there are other considerations. Belonging to the MLS requires membership in the local REALTOR® association, which in turn places certain limitations on how a REALTOR® uses the sold data. Call the Texas Association of REALTORS® at 800/873-9155 to find out how to get in touch with your local REALTOR® association. Your local REALTOR® organization can provide you with specifics about how its MLS data may be used.
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Dear George: My wife and I discovered some water damage to our exterior siding and interior wallboard that we are in the process of repairing. We will perform most of the repairs ourselves with assistance from her father, who is a general contractor. We had planned to put our house on the market before we discovered the damage, but now we're nervous about the sales process. We will, of course, make all the necessary repairs, but how will we disclose the water damage without scaring off potential buyers? Do seller's disclosures only require current issues to be listed, or will we have to disclose past issues as well?
Answer: There are two different seller disclosure notices in Texas: Texas Association of REALTORS® form 1406 and Texas Real Estate Commission form OP-H. Either form may be used, although the Texas Association of REALTORS® form provides the seller a more complete disclosure of the property's condition. Both forms ask about the condition of the property and of any problems of which the seller is aware. If you do not know an answer, say so. Answer each question truthfully. Only questions that encompass the entire time you have owned the property require answering.
Questions that do not encompass the past, only apply to existing conditions. For example, if a particular appliance does not work when you place the home on the market, you would disclose that it does not work. However, if you repair the appliance while the home is on the market, you would revise your disclosure. Previous repairs and/or replacements are not required to be disclosed unless the question is asked in such a way that it requires retroactive disclosure. Bottom line: If you do not know whether or not something should be disclosed, disclose it.
Dear George: If my house is foreclosed upon, do I still pay the property taxes?
Answer: You are not responsible for property taxes that were incurred after the foreclosure. However, if the taxing authority is dunning you, you still have liability during the time of your ownership. Additionally, your lender might be able to file a deficiency judgment against you if the lender had paid those property taxes.
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