Incorrect details on MLS listing, misrepresentation?

Question

I am my own real estate agent and I recently got a property under contract. The description the selling agent added on the MLS said the property was rentable via Airbnb. When I asked for the bi-laws he dragged his feet. I had to do a bunch of work to get the HOA bilaws on my end, the manager of the HOA has a phone that has been disconnected, turned out the treasurer was running things for the most part and she provided bi laws after the discovery window (though these were requested within the window).

I was paying a premium because the listing was advertised as AirBnB friendly, now the property does not make sense at that price and they are not open to renegotiate. I explained to the selling agent that had they not advertised it as such, or been more helpful during discovery we wouldn't be in this situation.

The selling agent says because the GAR (my MLS board) states in the contract that:

Section B. Paragraph 10. c. "Disclaimer: Buyer and Seller have not relied upon any advice or representations of Brokers other than what is included in this Agreement."

He is totally absolved of the fact that he described the property incorrectly. Is that true? My inclination is to take him to small claims court the $2,000 deposit plus the $535 appraisal fee.

Any advice would be greatly appreciated!

Answer 1

TL;DNR: Ouch! Real estate law, including condo law, is different in every state. To find out if you have a case, you need to talk to a lawyer who knows Georgia real estate law. Do not rely on anonymous wise-guys on the internet. And for sure do not rely on the selling agent.

It looks like you are out of luck on condo law:

In many states, owners selling condos have to give buyers a "resale certificate," a packet of detailed information about the HOA. That packet usually includes a copy of the by-laws. If they take too long getting the certificate to you, you get to reconsider your offer. Unfortunately, it looks like Georgia does not require the seller to give you a resale certificate. You should definitely double check, but it seems unlikely you will be able to use Georgia condo law to get your money back.

You might have other legal recourse

Despite the disclaimers, you might have a case against the broker, listing/selling agent or the MLS. To find out if you do, you can't just look at the general principles of contract law, or read the Georgia statutes or the contracts. In many states, buyers have rights created by court decisions interpreting the statutes and contracts. The only way to find out if Georgia courts have interpreted Georgia laws to give Georgia buyers extra rights, is to talk to a Georgia real estate lawyer who deals with these sorts of issues.

A word to the wise: Nobody wants to go to court

Remember: A good lawyer knows the law; a great lawyer knows how to avoid using it. Nobody wants to go to court or get a bad Yelp review. It's a hassle, it's messy and it might cost money and reputation. When you look for a lawyer, look for one who knows how to settle these disputes to everyone's benefit without going to court.

Dale is right: Next time, read the contracts and pay attention to the deadlines!

PS Who knows what your by-laws mean for Airbnb? From my experience, and from talking to other people with condos, my sense is that this is one of those areas where "law-as-written" can be very different from "law-as-practiced."

Answer 2

Contract law

The written contract represents the final agreement reached after negotiations. Parties may adopt and abandon, remember and misremember many positions during negotiations so, in the interest of clarity, the final document is taken by the law to be what the parties actually agreed to.

Misrepresentation

The seller of a property is not required to make any representations about it but if they choose to do so such representations must be true. There are various remedies for misrepresentation.

However, you have a specific clause disclaiming any representations by the agents. Such disclaimers clauses are generally enforceable. So it’s unlikely you have any claim on the seller and would not be entitled to void the contract.

But, you may have a claim on the agent. You don’t have a contract with the agent and therefore no disclaimer.