Am I Liable to Pay Back Property Taxes in A Seller Financed Home Sale?
Full Question:
Answer:
The failure of the owner to deliver a disclosure statement form to the buyer does not by itself invalidate a real estate transaction. Generally, the person named on the deed is liable to the state to pay te property taxes, but the deed owner may also have a contractual right to be reimbursed for the property taxes by a home buyer. The terms of the contract will govern whether you are liable to reimburse the seller for property taxes before the date of the purchase. If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:
Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.
An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.
Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.
Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.
Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.
Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.
Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.
Please see the following IN statutes:
IC 32-21-5-7 The Indiana real estate commission established by IC
25-34.1-2-1 shall adopt a specific disclosure form that contains....
The Indiana real estate commission established by IC 25-34.1-2-1 shall
adopt a specific disclosure form that contains the following:
(1) Disclosure by the owner of the known condition of the following:
(A) The foundation.
(B) The mechanical systems.
(C) The roof.
(D) The structure.
(E) The water and sewer systems.
(F) Additions that may require improvements to the sewage disposal
system.
(G) Other areas that the Indiana real estate commission determines are
appropriate.
(2) A notice to the prospective buyer that contains substantially the
following language:
"The prospective buyer and the owner may wish to obtain professional
advice or inspections of the property and provide for appropriate
provisions in a contract between them concerning any advice, inspections,
defects, or warranties obtained on the property.".
(3) A notice to the prospective buyer that contains substantially the
following language:
"The representations in this form are the representations of the owner
and are not the representations of the agent, if any. This information is
for disclosure only and is not intended to be a part of any contract
between the buyer and owner.".
(4) A disclosure by the owner that an airport is located within a
geographical distance from the property as determined by the Indiana real
estate commission. The commission may consider the differences between an
airport serving commercial airlines and an airport that does not serve
commercial airlines in determining the distance to be disclosed.
IC 32-21-5-10 (a) An owner must complete and sign a disclosure form....
(a) An owner must complete and sign a disclosure form and submit the form
to a prospective buyer before an offer for the sale of the residential real
estate is accepted.
(b) An appraiser retained to appraise the residential real estate for
which the disclosure form has been prepared shall be given a copy of the
form upon request. This subsection applies only to appraisals made for the
buyer or an entity from which the buyer is seeking financing.
(c) Before closing, an accepted offer is not enforceable against the
buyer until the owner and the prospective buyer have signed the disclosure
form. After closing, the failure of the owner to deliver a disclosure
statement form to the buyer does not by itself invalidate a real estate
transaction.
