Dear George: "We just put a deposit on our first new home. It is in a development of 28 homes. The prices range from $400,000-$560,000 for 2200 to 3200 square feet. We have not signed any contracts. We just put a deposit to have the home saved for us. The builder increased the prices of the homes in phase 2 even though both phases will be built at the same time. They increased the price of our home even more than others ($55,000), because not only is it in the second phase but it also has a view of the canyon in back of the property. In the contract a clause states that "any view...is not intended as part of the value of the Property and is not guaranteed."

I also should mention that this is the smallest lot in the entire development. If they are not including the value of the view as part of the price of the home, then how can they charge $55,000 ($440k increased to 495k) more for it?

We are concerned that the housing market in our area has peaked. If that were true, we would be overpaying for this home. I feel like the builder is trying to take advantage of us. I would appreciate any advice that you could give us." -- Inexperienced

Dear Inexperienced: It appears from your e-mail that the builder is dealing in terms that seem to be more in the builder's favor than the yours. If I were you, I would locate a REALTOR whom I trust. Hire him or her to represent you as a buyer's agent. Under the buyer representation agreement, the real estate agent and the agent's broker are obligated to represent your best interests.

Also, as there is no signed agreement, how can the wording of any proposed contract apply? The wording has not been accepted.

Dear George: Do you know of any state or federal programs that will assist a first time homebuyer with a down payment and/or closing costs? -- Sweat Equity OK

Dear Sweat Equity OK: Go to http://www.hud.gov/local. Click on the office closest to you. Also, check your local Realtor association web site for information regarding "program loans."

Dear George: "My wife and I listed our home with an agent because she lives in our subdivision. She works for a real estate broker who allows her to office at home. I've noticed in several articles you imply that both the agent and the broker (or firm) represent the client. Our agent explained that it is she who represents us as the sellers. Her broker states that the only clients he represents are the Realtors associated with his firm. We thought you would appreciate this information. It is offered in the spirit of helping to clarify a rather complex process." -- Helpful

Dear Helpful: You are correct. Selling a home is a complex process. In many states your listing agent is incorrect regarding who actually represents you.

If her broker really states that his only "clients" are the associates affiliated with his firm, then he too is mistaken. It is the broker of record of the real estate agency who represents you -- the sellers -- as clients. Your listing agent in turn, represents the broker of record. Provided your communication is accurate, I'm surprised that your agent and her broker lack what I consider to be "basic" knowledge.

Dear George: "We bought a house in California during 2000. After 8 months we noticed water damage to the ceiling. The upstairs toilet was leaking. It also caused water damage to our floor. The plumber we hired told us the firm that installed the new floor for the previous owners failed to change the wax ring on the toilet. Our damage estimate is $1,700.

We called our real estate agent to find out what we should do. The agent will not return our calls. We cannot afford to hire a lawyer. What can we do?" -- Unlucky

Dear Unlucky: Sometimes people "think" they cannot afford to hire an attorney when in fact, they cannot afford "not to" hire an attorney.

Try California's Bar-Certified Lawyer Referral Service. Such referral services can help you determine what type of lawyer you need. Certification rules also encourage these services to offer free and low-cost legal help.

Dear George: "I was a first-time homebuyer. I failed to qualify for the loan by the settlement date. I was asked to sign a Termination and Release of Contract and Deposit Monies agreement. It was to be delivered to the escrow firm. I noticed that the form did not specify to whom the monies were to be released. Another real estate firm told me that information regarding who is to receive the monies does not need to be documented in this form. Is this correct?" -- Frustrated

Dear Frustrated: An escrow firm's primary function is to act as a neutral third party until the terms of the escrow instructions are satisfied. The escrow firm usually demands a written release signed by both parties. In addition, every escrow firm with whom I've ever dealt wants the release to contain specific instructions as to which party is to receive the refund.

What does the sale agreement say about who gets the deposit money if the transaction falls through under the terms you describe? An attorney can help you in this matter.

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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: January 11, 2002

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.