Selling a House in Utah

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 Utah, real estate agents may act as a seller's agent, a buyer's agent or as a dual agent, representing both parties in a real estate sales transaction. A real estate agent must disclose to you the options for agency relationships and the agency relationships he has with the parties to your real estate sales transaction.

Real estate agents have what's called a "fiduciary duty" to the party who they are representing, in this case, the seller. This means that the agents are held by law to owe specific duties to the seller.

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

• Loyalty
• Obedience
• Disclosure
• Confidentiality
• Reasonable care and diligence
• Accounting in dealings with the seller

Utah law requires sellers to disclose to buyers material defects with the property, or those defects that affect the property's value or would affect the buyer's decision to purchase the property, and that cannot be discovered by the buyer with reasonable care. If you fail to disclose material defects, the buyer could try to sue you for nondisclosure or fraud.

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
• Substantial additions or alterations made without a building permit
• Hazardous materials
• 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 Utah 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 Utah, 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 owed by the current owner. A lien encumbers property as long as it exists and has been recorded in the public records.

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

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

Closing Costs

In Utah, 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 Utah, 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.