Selling a House in Idaho

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 Idaho, unless you enter into an agency agreement with a real estate brokerage, the brokerage will not act as your agent in a real estate sales transaction. In Idaho, real estate agents may represent sellers, buyers or both, under a "dual agency" situation.

If a real estate agent is representing you as a seller, the agent will have a "fiduciary duty" to you, and will be held by law to owe specific duties to you. In addition to duties or obligations that are stated in a listing agreement or other contract, a fiduciary's duties include:

• Loyalty
• Obedience
• Full disclosure
• Skill, care and diligence
• Confidentiality
• Accounting

Idaho law requires that you complete a property condition disclosure form. On that form, you should disclose the following conditions and information concerning the property:

• Whether the property is subject to annexation by the city
• All appliances and service systems that are included in sale
• Any problems with basement water, foundation, roof condition, well, septic system, plumbing, drainage, electrical or heating
• Any conditions that may affect your ability to clear title
• Hazardous materials or pest infestations
• Substantial additions or alterations made without a building permit
• Any other problems

Purchase Agreements

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

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 Idaho 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 Idaho, 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 Idaho, liens on a piece of property may include:

• Mortgages
• Deeds of trust
• Land sale contracts
• Involuntary liens (includes mechanics' liens, liens for unpaid taxes and liens filed by creditors holding judgments against the owner)

Closing Costs

In Idaho, 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

Specific Performance

In Idaho, 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.