Selling a House in Illinois

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 Illinois, real estate agents are considered to be representing the consumer they are working with as a designated agent for the consumer unless there is a written agreement providing for a different relationship, or the agent is only performing routine tasks for the consumer that are related to the real estate transaction.

In Illinois, a real estate agent has a "fiduciary duty" to the consumer he represents, and if representing the home seller, the agent is held by law to owe specific duties to the seller, in addition to any duties that are stated in a listing agreement between the agent and the seller. A seller's agent works with loyalty and fidelity as the seller's advocate and negotiator. The specific duties include:

• Loyalty
• Obedience
• Disclosure
• Confidentiality
• Reasonable care and diligence
• Accounting

In Illinois, the Residential Real Property Disclosure Act requires that when a seller signs the standard purchase agreement, he or she must attach a disclosure document. This document must disclose to the buyer any material defects, which are known hazards or problems with the structure or the heating, plumbing, mechanical, or electrical system. Problems listed on this statement are not required to be repaired but the buyer may want to either request that the seller repair these items or offer a price break.

A seller should disclose the following potential house defects:

• Plumbing and sewage problems
• Water leakage of any type, including in basements
• Termites or other insect infestations
• Roof defects
• Heating or air conditioning system problems
• Property drainage problems
• Foundation instabilities or cracks
• Problems with title to the property
• Neighbor issues that aren't obvious
• Unsafe concentrations of radon or asbestos on the property, in addition to providing the buyer with the state-approved radon disclosure pamphlet under the Illinois Radon Awareness Act
• Lead paint (required under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 for homes built prior to 1978)

Purchase Agreements

When you've got a serious buyer, you'll receive a written offer to purchase your home, sometimes called an "earnest money" or "residential purchase agreement."

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 Illinois 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 Illinois, for example, an implied easement may be present when a use of property continues for a certain period of time. For example, if a neighbor has been crossing the corner of a property for years, the neighbor may have acquired a prescriptive easement to continue to cross the property in the same manner. Under Illinois law, two types of implied easements are recognized: the easement by necessity and the easement implied by a preexisting use. Both types of easements arise from an inference of the intention of the parties to a conveyance of land.

The property you're interested in may also be subject to a "lien," a charge on the property to satisfy a debt or other obligation owed by the current owner of the property. A lien is a charge against property that provides security for a debt or obligation of the property owner. The lien holder does not own the property. Some liens are voluntary, such as when the owner of property takes out a mortgage. Other liens may be imposed. One of the most common liens is the mechanics lien. A mechanic's lien arises when someone furnishes labor or materials to improve a piece of property.

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

• Construction liens
• Tax liens
• Mechanics lien
• Unpaid federal and state tax liens
• Unpaid child support

Closing Costs

In Illinois, you may need to pay for the following charges - called "closing costs"-at the time you sell your home:

• Cost of Survey
• Title Insurance
• Recorded Release of Mortgage
• Broker's Commission
• Appraisal Fee
• Credit Report
• Property Transfer Tax
• Attorney's Fee
• Certificate of Compliance with Building Codes
• Home Inspections (pest and radon)
• Correcting Problems Noticed during Home Inspection
• Notary Fee

Specific Performance

In Illinois, 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." If you have second thoughts on a particular sale, you'll want to immediately contact an attorney.