Private sale of heritage home done without lawyers
KELLY SINOSKI
Sun
CRANBROOK A couple who sold their Cranbrook heritage house in a botched sale- by- owner transaction say they did so because “ lawyers were more trouble than than they were worth.”
But Alan Chislett and his wife Judith Voigt have found themselves in a legal mess after striking the private sale with Todd and Erin Eberwein in April 2003.
A Supreme Court judge last week enforced the sale agreement, which Voigt said has “ devastated” her and Chislett. They are appealing the decision, claiming the Eberweins breached the agreement with late mortgage payments and bounced cheques.
The Eberweins couldn’t be reached for comment.
But lawyers and real estate agents say the ruling underscores the need for property buyers and sellers to get professional advice before signing.
Even those who promote sale- byowner transactions say it’s rare for participants to bypass lawyers because so many things can go wrong.
“ As soon as you start signing contracts on your own, without a lawyer . . . problems can arise,” said Ron Verrier, franchise manager of ComFree, which lists homes for private sale.
“ You don’t know what you’re signing. Selling by owner or selling privately does not mean you do everything on your own.”
The issue arose after Chislett and Voigt posted a sale- by- owner sign for two lots, one that included a heritage home for $ 169,900 and the other a garage- cum- cottage for $ 49,000.
Citing they were “ anxious” vendors, they offered to sell the lots separately or provide a deal for both.
They would take a small investment trade, five to 10 per cent down and offer vendor- assisted financing, the ad said.
Todd Eberwein and his thenfiance, who wanted to turn the first floor of the house into a hair salon, agreed to buy. The contract was signed on April 23, 2003 before a notary public, who gave the parties no legal advice.
” The parties believed that could handle it themselves,” Justice Robert Bauman ruled last week. ” They were wrong.”
The relationship quickly soured. In February 2004, Voigt said Eberwein had called her at her Enderby home, offering her $ 170,000 for the two parcels and saying “ take it or leave it.”
She took the ultimatum to believe he no longer wanted the main house. By May 14, 2004, Chislett and Voigt sought to cancel the agreement for alleged breaches, namely the late payments, and said they doubted the couple were willing or able to close the transaction on May 31.
They also ordered the Eberweins, who had already started renovations on the home, to leave the property.
This didn’t happen, and by July 2004, the Eberweins had stopped their monthly payments. That same month, Chislett and Voigt’s two mortgages on the property were in default.
In his ruling, Justice Bauman said the couple was the “ primary authors of this misfortune.” He ruled that although Eberwein was “ less than frank,” Voigt was also an unsatisfactory witness.
John Fraser, a partner with law firm Lawson Lundell, said the cases raises the question of why Voigt and Chislett wouldn’t be willing to pay $ 500 for a lawyer to conduct what is “ for most people, the largest transaction they will make in their lives.”
“ Often times people just get a little greedy without stepping back and look at everything,” he said.
Dave Watt, vice- president of the Real Estate Board of Greater Vancouver, agreed. “ The complexity of the transaction is so monumental; you wonder why they wouldn’t hire a realtor to handle it.”