Real estate! Sheeesh!!

Unless you know exactly what you are doing, it pays to go through a real estate agent or, if for sale by owner, make use of the services of an attorney. Making absolutely sure that all documentation is legal and binding and make sure that whoever you are dealing with fully understands that. This can save you a huge amount of grief. Barbara and I learned this through bitter, lengthy, and expensive experience.

We live in a cooperative apartment. Our apartment was very nice, but we needed more space. In 1996 we started house-hunting. Since I'm in a wheelchair, we needed to find someplace that was accessible, and ADA notwithstanding, they're not easy to find. We'd find someplace with only one or two steps up—easy enough to equip with a ramp—but then inside, the halls and/or the doors would be too narrow. Or they would be wide enough for me to travel straight down, but I couldn't make a right-angle turn into, say, the bathroom. Or the bathroom(s) would be too small or badly set up to maneuver a wheelchair in. We looked at close to fifty houses and still didn't find anything that wouldn't need some pretty major remodeling.

In 1997, our neighbor across the hall heard we were looking for a bigger place. He said that he and his wife and kids were doing the same, and asked us if we would be interested in their apartment. It was on the same floor and right across the hall. It was practically a mirror image of ours, except that it extended further back in the building, making room for a much larger kitchen and two extra rooms, and two bathrooms, one of which could be set up for use with a wheelchair. And all the doors were wide, like the apartment we were currently in. Bingo!

We all agreed that we could do the deal ourselves and save real estate fees. We agreed on a price, then to keep it official, we drew up a written agreement, I typed it on the computer and printed it out, and we all signed it. They were moving into their new apartment, currently being remodeled, on October 15th of 1997, so we wrote that in as the date of transfer. All saucered and blowed, right?

As Oct. 15th approached, our neighbor (I'll call him Max) said that their contractor had run into problems and their new apartment wouldn't be ready in time. Could we postpone the transfer until November 15th? Sure, we said, no sweat. Some time later, he came to us again and said, "More delays! Would you mind moving it up to December 15th?" Barbara said that she didn't really want to move in the middle of the holidays, so how about the first of the year? First weekend in January, say? Fine, says Max.

The first of January rolled around. Max was out of town. Then on about the middle of January Max returned. He came over one evening to see us. He hemmed and hawed around for awhile, avoiding meeting our eyes, then he said that his wife (who had signed the agreement—all four of us had signed it) wanted more money. $50,000 more, in fact. I reminded Max that we had already agreed on a price, and that we—his wife included—had signed a written agreement to that effect. He dismissed it, saying that he didn't think it was a legal contract. We told him we'd check on it and get back to him.

We checked with three different attorneys: one free legal clinic, one real estate attorney we were acquainted with, and a high-powered attorney who goes to our church. They all made the same comment: "It's brief and doesn't waste any words, but it contains all of the terms necessary for a legal contract." Max seemed to be out of town again, and his wife didn't' answer the phone or the doorbell, so we wrote them a letter explaining what the attorneys had told us. No response.

We really wanted that apartment. So we contacted an attorney officially. His cordial but firm letter got no response either. So he filed suit on our behalf. "They are so patently in the wrong," our attorney said, "that they'll probably just fold." Not so. They got an attorney of their own. Our attorney filed for a summary judgment and we got it. The judge ruled in our favor. Max appealed. Nearly a year passed before the case came up, and when it did, the appellate court reversed the summary judgment. We lost. Our attorney was stunned and appalled, but he left the decision up to us. Barbara and I discussed it, and feeling that we were really being screwed over by Max and his greedy wife, and not wanting to go house-hunting again, instruct him to take it to the next level. Washington State Supreme Court. Again, we had to wait for many months before the case came up.

The bone of contention was that the agreement we had all signed did indeed have everything necessary for a general legal contract, but a real estate contract requires a legal description of the property, i.e., township, tract number, lot number, and all that, which we hadn't included. Just the address and apartment number. Hence, despite the fact that there was no doubt in anyone's mind as to the location and nature of the apartment in question, our agreement was not legally binding for a real estate transaction because it didn't contain the proper syntax.

Our attorney contended that this was not about an exchange of real estate, it was an exchange of shares in a cooperative apartment. One cannot sell a unit in a cooperative apartment building because one does not own it. It is owned by those who collectively own the building. One can sell one's share in the building, but not the apartment per se. No real estate is actually being sold, only the right to occupy that real estate. Hence, the usual stipulations of a real estate contract are not only unnecessary, they could lead to the possibility of fraud by allowing the purchaser of the share in the coop to believe that they are buying more than they really were.

It turned out that this was enough of a pot-boiler among the umpteen coop apartment associations in Washington State that a bunch of them got together, hired an attorney, and submitted an amicus brief supporting our position. If a transfer of a unit in a coop apartment building was declared the same as a sale of real estate, then there would be no difference between a coop and a condominium. The whole coop apartment arrangement would collapse and there would be no way of knowing who owned what. A real legal tangle that could go on for decades. Helluva mess!

Not to worry. The Washington State Supreme Court ruled in our favor. We made some actual case law. Check it out.

But it wasn't over yet! The Supreme Court ruled on the matter of coop ownership. But Max's attorney had filed a second defense. He maintained that we could not produce proof that we had a loan sufficient to cover the agreed-upon price. No, we hadn't signed for a loan, but we did have a deal with the National Coop Bank. We had been approved for a loan, but on the NCB's advice, we didn't take it out until we knew for sure when Max and his wife would be moving out. We didn't want to be paying interest on a loan until we actually needed it. We were all set up, and all it would take would be a phone call and Barbara's and my signatures. But Max's attorney tried to maintain that the reason we didn't throw Max and his wife out bodily on October 15, 1997 was because we didn't have the money and couldn't get a loan. The Supreme Court dealt with the ownership issue and remanded the "failure to perform" defense back to the appellate court.

This was ridiculous, because on the day Max and his wife actually moved out, we handed a check to Max's attorney for the full amount we had originally agreed upon. The attorney deposited the check in a locked account; sort of like escrow, but different. A month of so later we sold our apartment and paid off the loan in one whack. Duck soup!

Nearly a year went by as we waited for Max to make his next move, which would have been to ask for a decision from the appellate court. But nothing kept happening. If we asked for our check back, that meant we were giving up and Max could have his apartment back. If Max ask for the check, that meant he was giving up and abiding by the deal we had made six bloody years ago. In the meantime, if we wanted to sell this apartment (which we don't), we couldn't. Because, despite the Supreme Court decision, who had the right to dispose of the apartment (who owned the share) was still undecided. Max is loaded, but his wife seemed to regard this apartment as hers, and she wanted what she wanted. So we figured that they knew they would lose if they actually took it back to the appellate court (the fact that we "performed" when called upon proved that their argument that we had "failed to perform" was pretty lame), but they were holding on out of spite.

But about two weeks ago, we got a phone call from our attorney informing us that Max's attorney had called him and asked us to sign off on the locked account. Max wanted his money (or she decided she wanted her money).

We won. After six years, this apartment is ours. Owned, of course, by the coop association to which we belong, but we have the usual lease allowing us to occupy it for as long as we wish, and if we want to move, we can sell our share in the building. But we're here now, officially, and we're gonna stay awhile!

When our attorney called us to tell us that Max wanted the money, I can't describe the feeling of weight that was suddenly lifted off my shoulders. And when Barbara came home from work, I told her, and she practically collapsed. We're still sort of getting used to the idea. I guess we hadn't fully realized how much strain we had been living under these past six years. But it's gone now! We're free! We're home!

I'm sorry to have gone on like this. But consider it a detailed cautionary tale. Make sure your have all your ducks in a row, get expert advice to triple check everything, and—sadly enough—don't take anybody's word for anything. Don't just get it in writing, have a qualified attorney review that writing. You just never know. . . .

Don Firth

P.S: Financially we came out okay, because we had a good, motivated attorney. He charged plenty, but nowhere near what some attorneys would have charged because he likes going to bat for people he feels are getting screwed. Max jacked up the price by $50,000, then when the appellate court ruled in his favor, he raised it from $50,000 to $70,000. All our legal fees and court costs came to less than $10,000, and we may get some of that back. Our attorney is negotiating with Max's attorney.

P.P.S: And I learned a helluva lot more than I ever wanted to know about the workings of the court system. Anybody ever read Dickens' Bleak House? That's about the way it works. Slo-o-o-o-ow. And the real question is not "is it right?" It's "is it legal?" I didn't know until we got involved in this that they are not the same thing!