Selling a House in Montana

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 Montana, real estate agents may act as an agent for the seller, the buyer or both parties to a sales transaction as a dual agent. A real estate agent must disclose an agency relationship with one party to a sale to the other party to the sale as well. Real estate agents have what's called a "fiduciary duty" to the party who they are legally representing in the transaction, in this case, the seller. This means that the agents held by law to owe specific duties to the seller.

In addition to duties or obligations that are stated in a listing agreement or other contract, a fiduciary's duties include:

• Loyalty
• Obedience
• Disclosure
• Confidentiality
• Reasonable care
• Diligence
• Accounting

You should disclose the following potential house defects to the buyer:

• Plumbing and sewage problems
• Water leakage of any type, including in basements
• Termites or other infestations
• Roof defects
• Heating or air conditioning system problems
• Property drainage problems
• Foundation instabilities or cracks
• Problems with title to the property
• Hazardous materials
• Substantial additions or alterations made without a building permit
• Potential for mold and prior testing for mold
• Radon
• Lead paint (required under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 for homes built prior to 1978)
• 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 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 Montana 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 Montana, 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 accesssing 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 owed by the current owner of the property. A lien encumbers property as long as it exists and has been recorded in the public records.

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

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

Closing Costs

In Montana, 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 Montana, 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.