this is a followup to the post from 3 months ago. it looks like I will be in court.
in summary. I purchased a townhome (w/ attached single car garage) but also came with DETACHED GARAGE (across the street). BUT, the property in the mls listing only listed ONE PARCEL ID. I purchased the townhome but got kicked out of the external garage 6 weeks in.
my agent researched this and it looks like the FIRST townhome owner (I am the THIRD townhome owner) did have in his real estate contract that he would receive external garage #10 with his townhome purchase. but for some reason the deed to the external garage was never deeded over (from the builder) to the first townhome owner. it may be that the title company assumed the external garage did not have it's own separate parcel ID (which my agent said is often the case) so nothing was deeded over. the separate parcel ID for the garage may have forgot to have been included on the original real estate contract). so there have been quite a few real estate transactions (3) for this townhome where the external garage was included (according to the MLS listing) but no parcel ID was ever listed therefore no deed was transferred (the deed had always been in the developers name). and all the other townhome owners freely used the garage once they purchased the townhome so they did have every reason to believe they owned it.
but what appears to have happened is the builder only sold one of two detached garages in the beginning (11 years ago) (there is about 40 detached garages on the HOA property). I think they did this and then realized they weren't getting the ADDED VALUE in the sale they expected so they just kept the detached garages and rented them out (or let people freely use them as there wasn't really enough tenants on the HOA property that wanted to rent them out). but after 11 years, they finally decided to sell ALL the external garages to to a corporation (who is now renting them out). and they had no record they had already sold one (to the first townhome owner) so they sold it again except this time the deed was transferred to the corporation.
so my question is, who do I sue? the reason I asked is I have talked to quite a few real estate lawyers and they have not all given me the same answer (I know that is probably a shocker). but, many of them do think I have a strong case.
1) LISTING AGENT (one lawyer recommended this) - on it's surface, I would of thought the LISTING AGENT was most liable and that this specific instance is exactly what ERRORS AND OMISSIONS INSURANCE SHOULD COVER. as he/she clearly didn't screen the property for errors (check the county platt map to ensure the external garage didn't have it's own separate parcel ID). instead, he/she went my previous sales of the townhome (which only showed one parcel ID) and by what the seller told them. but another lawyer tell me, I did not sign a contract with them so the argument is weak.
2) SELLER and MY AGENT (2 lawyers recommended this) - according to one lawyer, the parties I signed a CONTRACT with is the SELLER (real estate contract) and MY AGENT/BROKER (buyer/broker agreement) and they are the ones I have the STRONGEST CASE against (negligence against my agent and misrepresentation against the seller). the lawyer said if the SELLER LOST IN COURT, they would have a STRONG CASE against their agent (LISTING AGENT) because they had a contract with the listing agent. of course my agent says he is not liability for anything. he has a RIGHT TO ASSUME the listing has correct accurate information (the listing agent did their job). he also says this unrecorded deed gives all realtors in this sale IMMUNITY from liability (he didn't say that exactly but it's obvious from talking to him many times that is his position). however, everything I have read tells me the only party (or parties) that can be liable for my loss must be part of my real estate transaction (therefore the original title company and developer are out). I cant' sue someone from 2 or 3 real estate deals ago even if they seemed to lite the match that started everything.
3) both LISTING AGENT and MY AGENT (one lawyer recommended this) -
of course, if my agent's argument that "hey, I have a right to assume the listing is correct" IS VALID, then the listing agent will just argue "hey, I have a right to assume the previous real estate sales for this townhome have correct information therefore I do not need to check anything (such as a platt map to ensure the external garage does not have it's own separate parcel ID)." in fact, my agent has already made that argument to me. and the listing agent will argue "it was the responsibility of YOUR AGENT to screen the property.....he represented YOU (NOT ME). how can you expect us to catch this error but not your own agent who represents you."
MY OPINION - both agents should of checked to ensure the external garage did not have it's separate tax ID (their just lazy). isn't that there job as REAL ESTATE PROFESSIONALS? I thought that was what they got paid for. sure you can go by what was in a previous MLS listing. but you will NEVER CATCH AN ERROR if you do that (that is probably why this error was never caught over 3 different real estate transactions). and I would think that is both the listing agent and my agent's PRECISE JOB (use there expertise to screen an MLS listing for errors (and this was a BIG ERROR)). I didn't even know what a PLAT MAP or a PARCEL ID was until this all happened. but if they argue that, then I don't think they can argue I am liable because I did not do my due diligence (as written in as a provision in the real estate contract). my agent can't then say "hey, you should of checked the platt map to make sure the external garage did not have a separate tax ID." checking PLATT MAPS isn't something a typical real estate buyer would every think about when making a real estate purchase.
any thoughts? maybe this could go any which way in court (I will be in small claims court). some lawyers did tell me small claims is a crapshoot (anything can happen) but many of them thought I would at least get something if I took this to small claims court and made my argument. those judges do try and help those that have been harmed if they can.