Leaderboard 728 X 90

Monday, March 17, 2008

Buyer Beware in Alabama

A number of readers have been kind enough to praise my layman's efforts to report on legal and justice issues. Some have noted that I've obviously made a serious effort to research the law.

I appreciate those kind words, but the truth is this: I had to get serious about research because I was so ignorant of the law when my legal travails began about nine years ago.

Just how dense was I when the Legal Schnauzer story was born? Well, I couldn't have told you the difference between real property and personal property. Think I've finally got that one figured out. Real property is land and the things that are attached to land, as in real estate. (This sounds like that great scene from Trading Places, where the old dudes are trying to explain the commodities market to Eddie Murphy by using a bacon, lettuce, and tomato sandwich as an illustration.) Personal property is the other stuff we own--wallets, cars, cash, toothpicks, you name it.

Real property is at the heart of our Legal Schnauzer story. After all, our little tale began because of efforts by my wife and me, under the law, to protect our real-property rights. One of the ideas that separates the United States and other democracies from "state" governments is that our real property is supposed to be private. And if you intrude on someone else's private property without being licensed, privileged, or invited to be there, you are committing criminal trespass. And if your intrusion involves a thing--say a fence or some other structure you have placed on someone else's property--that is a civil trespass.

The idea of private property evidently was a new one to Mike McGarity, the new neighbor we acquired in December 1998. Given his extensive criminal record, you would think McGarity would be familiar with the law. But he wasn't. And when we sought to use the justice system to protect our private-property rights, we discovered that judges in Shelby County, Alabama--all avowed Republicans and conservatives--evidently were not familiar with real-property law either. I guess they are conservative Marxists; didn't know there was such a thing.

Repeated unlawful rulings by said judges--and they committed federal crimes in the process--took my wife and me on a most unpleasant and distressing journey, one that led to the blog you are now reading.

Part of my goal with the blog is to educate folks about issues connected to real property. I hope other people won't be as dense I was a few years back. So let's take a look at a few property-related stories that have been in the news lately:

An article in the Mobile Press-Register shows just how dangerous it is to buy a house in Alabama.

Our fair state is one of only six states that don't require sellers to tell potential purchasers of problems with a house that could hurt its sales-worthiness or desirability, according to a spokesman for the National Association of Realtors. The only cases where a seller might be held accountable under the law is for flaws that involve health or safety concerns.

"In this state, the buyer better beware," said Leonard Zumpano, a real-estate professor at the University of Alabama. The law in Alabama is summed up by the term "caveat emptor," Latin for buyer beware.

What the state needs is a "mandatory property condition disclosure" law. But Gene Marsh, a consumer law professor at the University of Alabama, says he is not surprised that the state does not have one. "We have been on the trailing edge of every major consumer protection initiative in the country," Marsh said. Gee, that's a surprise.

The Alabama Supreme Court has upheld the caveat emptor doctrine. But Marsh says, "There's nothing to stop the Legislature from changing the law or making a new law."

"Until that day arrives," reporter Sean Reilly writes, "the burden is on prospective buyers to make sure that their castle isn't in reality a financial sinkhole."

Reilly builds his story around Vinnie Orene Fennell, a 65-year-old Chickasaw, Alabama, woman who has spend thousands of dollars in repairs on a house she bought in 2005. Fennell's advice? "Have an inspector come out."

Fennell says a realtor falsely assured her that the house already had been inspected, so Fennell went ahead and closed on the purchase. She then discovered rotted flooring, a leaky roof, and faulty wiring.

This story hits home here at Legal Schnauzer because I've long suspected that Mike McGarity, my new neighbor in 1998, might have been unhappy with something about his house, leading to major legal headaches for my wife and me. I know the house had problems with water coming in the basement before McGarity bought it. The previous owner had a B-Dry System installed in an effort to address the problem, but I wonder if it was truly fixed.

Evidence in the discovery process of the bogus lawsuit McGarity filed against me indicated that he had neither an inspection nor a survey performed on the house prior to purchase. As the real-estate expert notes above, that is just asking for trouble in Alabama--buyer beware!

If water still was coming in the basement when McGarity bought it, would that qualify as a health or safety issue that could expose the seller to major liability? I think a good lawyer might have been able to make that case. In other words, I think McGarity might have had a legitimate case against the seller. But it seems someone steered him toward becoming angry at, and eventually suing, me--someone he most definitely did not have a case against.

What did this accomplish? If my theory is correct, it protected the seller, who was Fred Yancey, football coach at Briarwood Christian School, a ministry of Briarwood Presbyterian Church. We already have noted the strong ties that key figures in McGarity's lawsuit against me have to Briarwood. And we have noted Briarwood's involvement in seeing that the real-estate transaction with McGarity was done quickly--and possibly recklessly.

Is it possible that Briarwood faced serious liability had McGarity sued them for structural problems with his house? That question remains unclear. But this much is clear: He never had a case against me, but his lawyer and a Shelby County judge let the case unlawfully go on anyway.

Wonder why that was? Stay tuned.

No comments: