Commercial Real Estate Litigation

The growth of southeastern North Carolina has resulted in a local real estate boom never before seen in the area. 2005 surpassed all previous records for real estate sales in the Wilmington area. An unfortunate side effect of the dramatic increase in both real estate transactions and property values has been a corresponding explosion in Real Estate Litigation. As the decision to buy or sell a home is one of the biggest financial decisions a person can make, it is important to consult an experienced real estate litigation attorney if you have any questions or concerns about a potential real estate transaction.

The real estate contract is the basic document that sets forth the rights and obligations of the parties. To be enforceable, a contract for the sale of land must be in writing and unambiguous, and must contain certain information about the transaction, such as the parties, the purchase price, and a specific description of the property being sold.

Even though most real estate contracts contain a closing deadline, a party generally cannot terminate the contract for failure to close by the deadline unless the contract has a “time is of the essence” clause. If the contract does not contain a “time is of the essence” clause, both parties have a reasonable time after the stated deadline within which to close. Nevertheless, a delay in closing may subject the delaying party to a claim for damages for reasonably foreseeable damages caused by the delay.

If a buyer or seller breaches a contract for the sale of real property, the non-breaching party can sue for either monetary damages or “specific performance” of the contract. Because each piece of property is unique, courts have the authority to order a breaching party to specifically perform under the contract – i.e., make a buyer buy or a seller sell.

Many Real Estate Litigation deal with the non-disclosure of material facts regarding the property. A fact is “material” if it is likely to influence the decision of a potential buyer, such as the square footage of a house, any hidden construction defects, or flooding problems. For pre-existing homes, sellers generally are required by law to provide a disclosure statement providing information regarding known problems or conditions with the house. Sellers of raw land and newly constructed homes are exempt from having to provide a disclosure statement.

A seller has a duty to disclose all material facts to a prospective purchaser. Nevertheless, as North Carolina is essentially a “buyer beware” state, a seller generally will not be liable for failure to disclose a material fact if the undisclosed information could have been discovered by the buyer through reasonable investigation, unless the seller engaged in some deception designed to make the buyer forego further investigation. Buyers who purchase a new home directly from a builder have additional rights by virtue of being the first purchaser of the house.

In many instances, especially when moving from another area, a buyer may engage a buyer’s broker to locate a desirable home and conduct the “due diligence” required for a real estate transaction. A buyer’s broker has a duty to disclose to his client all material facts actually known or discoverable by him or her through reasonable diligence. Engaging a buyer’s broker generally relieves the buyer from the responsibility of making an independent investigation of the property, as the duty to investigate falls to the agent.

If you are in a real estate dispute, or have a question about a potential transaction, Hodges Coxe Potter & Phillips, LLP has the expertise to guide you through the complex issues surrounding real estate transactions and make sure your rights are protected. If necessary, we have the experience and resources to aggressively litigate any real estate dispute, whether against a seller, buyer, or real estate agents.


Practicing in this Field

Bradley A. Coxe

Partner, Attorney at Law

C. Wes Hodges, II

Partner, Attorney at Law

Samuel B. Potter

Partner, Attorney at Law

Rob Solano

Attorney at Law

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Commercial Real Estate Litigation