As a Real Estate Attorney in San
Antonio, Tx, I am experienced at litigating real estate fraud and nondisclosure
suits arising from the purchase, sale, transfer and exchange of real property.
Fraud in a Real Estate Transaction
(irrespective of whether the real property in question is residential or
commercial), occurs when:
•
there is a false statement or
material misrepresentation of facts related to real property (whether made by
the Seller or his agent). In some cases, it is not even necessary for the person
to know that the statement is false at the time it is made;
•
concealment or nondisclosure of material facts related to real
property; and/or
•
there is a breach of fiduciary duty
by a real estate agent, real estate broker, title company, escrow officer or
attorney. The agent may represent either the Buyer or the Seller.
I file/prosecute and defend claims
and lawsuits based on fraud or concealment in a real estate transaction,
including cases involving a Seller's non-disclosure of facts (the existence of
an undisclosed easement, prior problems or repairs, prior flooding, title
clouds, competing ownership claims, size/acreage discrepancies, etc.). We also
handle and defend cases against real estate professionals (brokers and agents)
concerning fraud, professional misconduct and breaches of fiduciary duty.
When evaluating the feasibility of
a real estate fraud case, several factors are considered, including the
following:
1) Was the Fraudulent
Activity “Affirmative,” or a “Misrepresentation by Non-Disclosure?”
Affirmative fraud generally arises when a seller or his realtor knowingly makes
a false statement or misrepresentation of material fact with an intent that the
Buyer relies on the false statement. By contrast, Fraud by Non-Disclosure (also
referred to as “fraudulent concealment”) generally occurs when the Seller or
his real estate agent fails to disclose a material fact about the property,
including known defects and title issues, with an intent to effect the Buyer’s
decision concerning whether to purchase the property, and at what price.
2) Was the Seller's
Real Estate Agent Aware of the Fraud? If a seller's broker has
knowledge of material facts, not known to the buyer, the seller's broker is
under a duty of disclosure and may be held liable for mere nondisclosure since
his/her conduct in the transaction amounts to a representation of the
nonexistence of the facts, which he has failed to disclose.
3) Is the Real Estate
Transaction Implicated by "As-Is" or Other Contractual Nuances? Sellers and their real estate brokers are always under a duty
to disclose concealed or known material facts that are not known or observable
by the buyer. A property sold "As-Is" may limit the Seller’s
disclosure duties, but an "As Is" provision will not relieve the
Seller or Seller's Agent fraud liability arising from purposeful nondisclosure
or concealment.
4) Does the Fraudster have
Insurance or the Resources to Satisfy a Judgment? A sometimes sad and frequently frustrating reality of
litigation (particularly unfortunate in lawsuits arising from fraud) is that
the costs and burdens of filing a lawsuit must be economically feasible. In
other words, before pursuing a claim, the claimant/fraud victim should have
reasonable assurances that the opposing party can pay money to settle the claim
or satisfy a Judgment in the event that the case goes to trial. In instances
where the party engaging in fraud has no resources, no non-exempt assets, and
no insurance policy available to satisfy a claim, it frequently doesn't
make "financial sense" to spend the time, money and energy
to pursue a civil lawsuit for money damages. While alternate remedies may
exist when the fraudster lacks resources (rescission of sale, criminal charges,
etc.), the victim sometimes has to make a tough decision of whether to risk
"throwing good money after bad." However, where the party engaging in
fraud has a professional liability insurance policy, financial
resources and/or non-exempt property, the "economically
feasible" consideration is more easily resolved.
