Dear George: "My wife and I purchased a resale home recently. Our first night in the house the roof leaked. We later discovered it had been repaired twice. Other serious problems regarding the seller's disclosure have also surfaced. Do you think we have a case of concealment? If so, how do we proceed?" -- Defrauded

Dear Defrauded: Did a real estate firm represent you? Did you communicate with that firm or any other real estate firm involved in the transaction? Was there a home inspection before you bought? What did the seller disclosure form say? These are some of the questions you should discuss with an attorney or legal clinic.

Dear George: "I own a home that was built in 1972. The entire house is covered with asbestos siding. I am concerned that when I decide to sell my house the new buyer will have trouble obtaining a loan because of the siding. I currently owner finance so I did not have any trouble. Do mortgage lenders avoid homes with asbestos siding? If so, should I install vinyl siding to cover it up? Will that make any difference? The asbestos siding is in good condition. I would prefer to not invest in vinyl siding because of the cost." -- Concerned

Dear Concerned: Even if you installed vinyl siding over the asbestos siding you will still be required to disclose that fact to a prospective purchaser. The State Certified Appraiser I use tells me that as long as the asbestos siding is in good shape (not flaking) it will not affect the appraisal. Lenders regularly make such loans. When the siding does shows signs of wear, "in place management" is the current recommendation.

Dear George: "I have seen a number of articles on sharing real estate agent commissions. I am currently looking to buy a house in a new development. The builder has an in-house real estate agent. She informed me that if I had a real estate agent or an attorney representing me, she would have to split the commission with either of them. If I were an attorney or real estate agent, would she be required to split the commission with me? Is this 'benefit' available for other occupations too?" -- Eager To Share

Dear Eager: Texas Real Estate Licensees may not split real estate commissions or fees with unlicensed persons. That includes attorneys unless the attorney also holds a real estate broker or salesman license. Principals in a transaction, such as the buyer and seller, are not included in this caveat. Any fees, discounts, or rebates paid to a principal are not construed to be "real estate commissions" as defined in the Texas License Act. The rules in other states may vary.

Dear George: "We are selling our house. It has a pool. Our listing agreement with the broker says the seller agrees to employ a pool maintenance company. Does that mean we should hire a pool maintenance contractor? Or can our real estate agent put water and chemicals in the pool?

He has been doing this for us. I am wondering if this is a breach of contract on our part even though he volunteered to do it. He lives in the neighborhood. We offered to get a pool service, but he said, 'Not to bother. It's not a problem.' Do you think we should get a pool service? -- Anxious Owner

Dear Anxious: Your particular listing agreement states that the seller agrees to "maintain any pool and all required enclosures in compliance with all applicable laws and ordinances." My concern would be whether your agent has the necessary permits and/or licenses to perform this service in the community where your home is located. His intentions appear to be helpful. They appear to be a sincere attempt to deliver service "above and beyond" what one would expect from a listing agent.

However, it is possible that your agent might be taking on some liabilities and unintentionally exposing you to some too. If you hire a pool service firm to maintain the pool, you and your agent are both on "firmer ground" in my opinion. That is certainly what I, as a real estate broker, would recommend to any seller whose home (with a pool) was listed with my firm.

For more articles by George Stephens, please press here.

George Stephens welcomes your questions by e-mail. Because of the volume of mail received, questions cannot be answered individually. Mr. Stephens is not a lawyer and this column does not contain legal advice. If you wish to obtain legal advice, please consult with an attorney or legal clinic.

Published: November 9, 2001

Use of this article without permission is a violation of federal copyright laws.

George C. Stephens, CRB is the Broker of deRaat Stephens, Inc. dba ERA Stephens Properties and the Director of Compliance for eRealty, Inc. Stephens served as 1998 Chairman of the 13,000+ member Houston Association of REALTORS® and is the Vice Chairman of HAR’s wholly owned subsidiary, e-Har, Inc. He is the 2001 Secretary/Treasurer of the 50,000+ member Texas Association of REALTORS® and TAR’s 2002 Chairman-Elect. Stephens holds a Texas Real Estate Broker license as well as a Texas Mortgage Broker License.