Selling a House in Georgia

Selling a house is one of the most significant legal transactions you'll ever participate in. It's important to know your legal rights and understand the process.

Working With a Real Estate Agent

In Georgia, real estate agents have what's called a "fiduciary duty" to the home seller, if they are representing the seller in a transaction, and not the buyer. In Georgia, this means that the agents are held by law to owe specific duties to the person who they are representing, in this case, the seller. In addition to duties or obligations that are stated in a listing agreement or other contract, a fiduciary's duties include:

• Loyalty
• Disclosure
• Confidentiality
• Account for funds
• Reasonable care and diligence
• Obedience to lawful instruction

Under state law, you must disclose the following potential house defects:

• Defects in the roof
• Defects in the electrical system
• Defects in plumbing system
• Defects in the heating and air conditioning system
• Defects in the septic system
• Fuel storage tanks located above or underground on property
• Defects in basement or foundation
• Disclosure that property is located in a flood plain, wetland or shoreline zoning area
• Defects in structure
• Defects in mechanical equipment included in sale
• Boundary line disputes, encroachments or encumbrances
• Radon, radium in water, lead in paint, lead in soil, lead in water supplies or plumbing system
• Asbestos-containing materials on the premises
• Pest infestations
• Defects in stove or fireplace

To protect families from exposure to lead from paint, dust, and soil, Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992. Under this law, anyone selling a house that was built before 1978 must notify potential buyers of a possible lead problem.

Purchase Agreements

When you've got a serious buyer, you'll receive a written offer to purchase your home, sometimes called a " purchase agreement," which states the finalized terms and conditions for the transfer of real estate.

You won't have very long to decide whether or not to take the offer or propose a counteroffer so it's important to be informed ahead of time.

Common counter-proposal items include:

• A higher purchase price
• A higher deposit
• Giving buyer less time to remove contingencies
• Excluding certain items from the sale
• Providing you move in time to vacate the house after the sale is closed
• A clause making it a contingency that your attorney approve the contract
• A "liquidated damages clause" that details how much money the buyer will owe you if the buyer backs out of the deal for reasons other than the contingencies listed in the contract

Legal Title Issues

Your Georgia real estate lawyer or title company will investigate the legal title of the property you want to sell, and may find issues you'll need to understand.

In Georgia, for example, an implied easement may be present where a person grants lands to which there is no accessible right-of-way except over her or his land or retains land that is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of accessing the property, and it is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

Your property may also be subject to a "lien," which is a charge on the property to satisfy a debt or other obligation. A lien encumbers property as long as it exists and has been recorded in the public records.

In Georgia, liens on a piece of property may include:

• Mortgages
• Construction or mechanics' liens
• Judgment liens
• Unpaid taxes
• Unpaid municipal utilities (water and sewer)
• Past due support
• Liens on divorced couple's property to be paid at time of sale

Closing Costs

In Georgia, you can expect to pay for some or all of the following charges - called "closing costs"-at the time you sell your home:

• Broker's commission
• Survey
• Title insurance
• Recorded release of mortgage
• Transfer taxes
• Attorney's fee
• Home inspections

Many times buyers and sellers may negotiate who pays which costs as part of the final terms of the purchase agreement.

Specific Performance

In Georgia, a seller who agrees to sell a particular property must do so unless the buyer fails to meet all the terms of the purchase agreement. This is called "specific performance," which is a legal action to compel performance of a contract. For this contract remedy, a court can order the parties to complete the contract. The buyer must then deliver the purchase price and the seller must then deliver the deed. If you have second thoughts on a particular sale, you'll want to immediately contact an attorney.