Selling a House in Virginia

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 Virginia, real estate agents may represent the seller, the buyer, or act as a dual agent, representing both the seller and the buyer in a real estate sales transaction. When a real estate agent has substantive contact with you about a property or properties, you are to be given a written disclosure form, which informs you of the agent's relationship with others who are parties to the sale.

It is also possible to work with a real estate agent as a customer, not a client, but this means that the real estate agent will not represent you, and will not owe "fiduciary duties" to you, which refers to the duties owed by the agent to the client, in this case, the seller, under Virginia law.

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

• Loyalty
• Disclosure
• Confidentiality
• Accounting for funds
• Reasonable care and diligence
• Obedience to lawful instruction

Real estate agents, regardless of whether they represent a seller or a buyer, must treat the other party to the sale with honesty, and can't knowingly give them false information.

Under Virginia's Residential Property Disclosure Act, you must give the buyer a disclosure statement or form; the form states that you do not make any representations or warranties as to the condition of the property and its improvements, and the buyer is advised to take whatever steps he feels are necessary in buying the home, including obtaining a certified home inspection. However, the Residential Lead-Based Paint Hazard Reduction Act of 1992 which applies for homes built prior to 1978, requires disclosures related to the presence of lead paint on the property.

Offers to Purchase and Agreements of Sale

When you've got a serious buyer, you'll receive a written offer to purchase your home, sometimes called a "contract of purchase", "binder," "offer to purchase" or "purchase agreement."

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

If you accept the offer, you and the buyer will sign an agreement of sale. The agreement of sale is a contract in which you agree to sell and a buyer agrees to buy, under certain specific terms and conditions spelled out in writing and signed by both parties.

Legal Title Issues

Your Virginia 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 Virginia, 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 of the property. A lien encumbers property as long as it exists and has been recorded in the public records.

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

• Mortgages
• Construction or mechanics' liens
• Judgment liens
• Unpaid taxes

Closing Costs

In Virginia, 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 Virginia, 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.