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posted: 1/28/2012 9:00 AM

Is disclosure necessary when selling 'as is?'

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Q. I have a modest home. Similar houses in my neighborhood in much better condition are selling for twice what I paid for mine in 1980.

I want to sell the house, but it has numerous problems. Disclosing them to a buyer would greatly lower the home's value -- or scare the buyers off completely. I'd be happy just to recover the original cost.

As I understand it, if I sold the house at auction or if I sold through a Realtor but "as is," I would not legally have to disclose anything about its condition. Is my understanding correct, and if so, which method would give me the best price for my house?

A. "As is" doesn't mean the seller needn't disclose the property's condition. Quite the opposite. It means the buyer agrees to take the known problems along with the property and won't come back at you about conditions you've disclosed. An as-is sale wouldn't protect you against later claims about a deliberately concealed defect.

You'll be happy to learn that some buyers are looking for bargain properties that need work. Your broker could even advertise your place with those words.

Q. I am a tax preparer and enrolled agent with 10 years of experience, and I believe you made a mistake in your advice in a recent column to the woman who was buying a house for her son. You said that even if the son paid the property taxes, he wouldn't be able to claim them as a deduction on his income tax because he wasn't legally liable for them.

The son might have what is known as equitable ownership of the house and would be able to deduct the property taxes he pays and any mortgage interest (subject to the usual limitations) he pays. The son has equitable ownership if he "assumes the benefits and burdens of ownership," such as: occupying the house (where the mother does not); making any mortgage payments; paying for all repairs, improvements and insurance; and paying the taxes.

A. Thanks for taking the time and trouble to send the information.

Q. I'm interested in building a new home. My question is this: How do I find out if a town has vacant land that might be open to development or if anyone will be building anywhere soon?

A. Read the builder ads in the local newspaper. Also, take the question to real estate brokers in the town that interests you. They'll know what's available.

Q. My house was listed several months ago, and I received a non-contingent offer within six days. The buyer had a home inspection done, and I had all items fixed. As we approached the closing, my attorney was unable to get updates on the status. Then I was informed the buyer needed an additional 10 days and was having difficulty getting mortgage approval. I've since been told the deal has fallen through.

My agent says I'm unable to keep the buyer's deposit, as the contract was contingent upon mortgage approval. Do I have any recourse? I don't want to go to small claims court, but I have not lived in this house for months and still have to pay mortgage, taxes, utilities and upkeep.

A. You're working with a lawyer, so why not seek an opinion from him or her? Or perhaps you already have and are just hoping I'll say something different. At any rate, you say you received a non-contingent offer, but it sounds as if it was indeed contingent -- on the buyers obtaining the necessary financing. If that's true, and if they made a good-faith attempt to secure a loan, then you probably have no recourse.

Next time, investigate the buyers' financial situation before you accept an offer. Better yet, hold out for buyers who are preapproved (not just prequalified) for a loan. And if it appears the deal is shaky, start showing the property again right away. You can always accept a backup offer from another buyer, which would take effect only in the event of "nonperformance" of the existing contract.

Q. In response to a question about reverse mortgages, I found a lot more information on the AARP website. They have a booklet about 40 pages long detailing the pros and cons of the reverse mortgage.

A. Thanks for the information.

• Edith Lank will respond to questions sent to her at 240 Hemingway Drive, Rochester, N.Y. 14620 (include a stamped return envelope), or readers may email her through askedith.com.

2011, Creators Syndicate Inc.

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