Selling a House in New Mexico

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 New Mexico, real estate agents may enter into a written agreement to represent a client as a seller's agent, a buyer's agent, or a dual agent, representing both the seller and the buyer in a real estate sales transaction. It is also possible for someone to enter into a client relationship with a real estate brokerage (a business offering services related to real estate sales transactions) without creating an agency relationship.

Real estate agents must disclose the existence of agency relationships to you. Real estate agents have what's called a "fiduciary duty" to the party who they are representing in a sales transaction, in this case, the seller. This means that the agents 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
• Full disclosure
• Obedience to lawful instructions
• Confidentiality
• Reasonable care
• Accounting for all money in the agent's control

You should disclose the following potential house defects:

• 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
• Lead paint (required under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 for homes built prior to 1978)
• 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 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 New Mexico 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 New Mexico, 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 New Mexico, liens on a piece of property may include:

• Mortgages
• 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 New Mexico, 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
• Attorney's fee
• Home inspections

Specific Performance

In New Mexico, 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.