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Buyer Beware: Roof and Furnace Certifications

Real Estate Property Law and Family Law Blog(Vol I.4)

by Craig Franklin Chambers, Esq. The Littleton Lawyer.

In my role as a real estate and divorce attorney in Littleton, Highlands Ranch, Denver and the surrounding areas, there are real estate terms I think could be better explained. “Certification” is one of them.

The Colorado Real Estate Commission-approved  contract for the purchase of a home allows the buyer to conduct a home inspection. Under the residential real estate contract, a buyer can have as many types of inspections as the buyer feels are appropriate given the age and condition of the home.

In a residential real estate transaction, it is important to know what you are buying. A professional, experienced, and detached set of eyes is useful in determining if the buyer should proceed with the transaction. If the home fails inspection, the buyer’s recourse is to terminate the contract, waive the inspection defect, or renegotiate the real estate transaction.

If there is doubt as to the condition and the future longevity  of a component of a home–usually the roof or the furnace–a home inspector will suggest –or a lender, as a condition of the appraisal–will require–a  five year “certification” of that component.  The five year certification requirement is the general practice of lenders to require that a roof or a furnace have five years of life remaining in order to give the buyer a loan.

Licensed contractors charge to inspect either the roof or the furnace and certify that it has five years of life remaining.  The problem is that buyers are often misled to believe the certification is a warranty. While the buyer believes the “cert” is a warranty, the lender and the real estate brokers treat the certification as just another form for the file.

A certification is not a warranty. It is an opinion by a licensed contractor for a fee that the component is functioning properly on the day of inspection. Although the “certification” is for five years, the buyer has no recourse against the contractor should the component fail within five years.

The buyer should be aware that if a certification is required or suggested, the component is likely towards the end of its lifespan; the roof or furnace is probable, if not certain, to fail in the near future. The five year rule is merely a lender guideline.  A buyer is certainly free to re-negotiate with the seller for a new roof or furnace regardless of whether a contractor opines the roof has a remaining life of five years.

At the very least, the buyer should conduct further investigation and not rely on the certification as any type of warranty. And the buyer should go into a residential real estate transaction eyes open, fulling understanding all the terms of the real estate transaction.

The Cinemark Shooting — Premises Liability Cases

Divorce Law and Real Estate Attorney Blog(Vol.I.3)

by Craig Franklin Chambers, Esq. The Littleton Lawyer.

In my role as a real estate and  family law attorney in Littleton, Highlands Ranch, Denver, and the surrounding areas,  I often take on other types of  cases, including, as one example, premises liability cases.  

The Colorado premises liability statute replaces all negligence claims for relief and are the only civil claims available for the victims of the Cinemark shooting incident that occurred last July at the Century theater in Aurora. 

I am familiar with Cinemark. I represented a Plaintiff in a premises liability case against Cinemark in Aurora several years ago. Civil suits against the movie theater where a patron is injured are premises liability cases.

The Premises Liability Statute establishes three distinctive categories with different standards of care for the owner of the theater depending on the relationship between the cinema and the person injured at the cinema. These three categories are  trespasser, social guest, or invitee. The patrons at the cinema would be invitees; invitees are owed the highest duty of care of the three categories.

One significant issue in the context of these civil cases will be  forseeability.  The question is whether this terrible event was forseeable. If it was, the cinema’s failure to protect the patrons against the shooter could and should result in liability. This  is a question for the judge upon a motion for summary judgment and upon Defendant’s motion for a directed verdict at the end of the Plaintiff’s case.

Ultimately,  if a civil case goes that far, this is a question for the jury.

Cinemark will use every trick of the trade to deny any recovery because a recovery will result in Cinemark funding substantially more expensive security measures for all of its theaters. Even without an award to the shooting victims, the theater’s security measures will have to re-evaluated because now  future incidents like this are foreseeable.

Just as one terrorist on a plane with a shoe bomb has resulted with everyone being asked to removed their shoes for inspection at the airport before a flight, the movies will no longer be considered as safe as they were without additional security measures before this terrible event.


Contractor Referrals

Real Estate Lawyer and Family Law Lawyer Blog(Vol I.2)

by Craig Franklin Chambers, Esq. The Littleton Lawyer.

In my job as a family law lawyer, real estate lawyer and real estate broker servicing Littleton and Denver,  I sometimes run across issues  that are too complex–like tax and estate planning issues–and require someone who specializes in them–or simply handles them less expensively.

The trend for real estate brokers used to be to give three names of potential vendors to assist in a real estate transaction. Three lenders, for example; three accountants; or three home inspectors. The broker’s  concern is being sued for “Negligent Referral.”

The current trend is to give no assistance to a buyer or a seller in areas outside of the competence of the real estate broker.  Some real estate pundits have gone so far as to state that a real estate broker should not even attend the buyer’s home inspection  to prevent  the real  estate broker from giving improper advice  or negligent referrals..

I disagree with the this trend. A good real estate broker sells enough houses to repeatedly come upon incarnations of various problems with taxes issues, easements and encroachments, mold or sewer scope concerns, for example.  A seasoned real estate broker has past experiences with local professionals, many of whom have performed well for similar problems in the past.

Unless the real estate broker refers the contractor in bad faith, or does not use reasonable care in the referral, the duty is on the referred vender to fulfill his obligations to the client.  A real estate broker is more than a chauffeur. It is part of my job to be a resource to clients, and to pass those trusted names on to clients who may need more arcane advice.

A real estate transaction needs to be transparent. The buyer and seller need to go into the transaction eyes open, knowing all the risks of the transaction including the range of value of the home, the terms of the loan, and the condition of the property.  The more people to help with this the better.

And of course, as with any financial transaction, every material financial term for the transaction needs to be fully disclosed on the settlement statement or the HUD.

My Legal Opinion

Real Estate Lawyer and Family Law Lawyer Blog (Vol I.1)

by Craig Franklin Chambers, Esq. The Littleton Lawyer.

Many of my real estate and law clients have called me or e-mailed me and asked me why I didn’t have a blog. After considering the idea, I have redesigned my website to include one. This is my first entry. My subject is, naturally, the purpose of my blog.

The advisors  I have spoken to–and it is important in any field, especially real estate or law–to have knowledgeable and competent advisors— approved of the idea of blog with a few caveats. They came up with several guidelines.

Don’t write the blog yourself, they chimed;  don’t use real names; and don’t give opinions. Their idea of the blog is to write neutral content.  Not even to write it, but to purchase it from another source and publish it on their website. I looked at some other websites, and sure enough, most of the lawyers did not even write their own blogs.

I don’t think there should be rules about blogs. There shouldn’t be rules about writing, and a blog  really is just a newspaper column without an editor, without a newspaper, and without a reader. The only rule for writing anything should be that if it works, it works. That’s the rule.

My idea of a blog–and it is true I may not know what a blog is–is to give my opinions about real estate law, real estate sales and family law in no particular order. My blog will never be free of politics because opinions and politics are intertwined with the subjects I choose to include in my blog and in the word choices made in writing the blog. My blog will come from real conflicts.  I’ve been to closings, I’ve been to court, I’ve won cases, I’ve lost cases, that is source of my blog.

My blog will be opinionated, to be sure. I do understand (begrudgingly) that you may not be interested in my political positions or movie critiques, but these critiques will be expressed if relevant to a blog subject of which I know a little something professionally— real estate brokerage, real estate law and family in Denver, Littleton,  Highlands Ranch,  and the surrounding areas.

Both lawyers and real estate brokers  are sought for their opinions, real estate brokers for their market value assessments and lawyers for their legal opinions after developing the facts and researching the applicable law. If an advisor can’t advise, what good is he? If a blog merely takes up space, why bother? It is my goal that if anyone reads this blog,  they may gain insight into these subjects, and just as important, that I might gain insight by writing about them.

As for using peoples real names, I would like to thank Jabez for his good advice (which I did not follow)  and Mary Janiczek for redesigning my website.

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