The point I am making seems so simple. Of course, my seller owns the home he or she is listing. Why else would the person be speaking with me and going through a listing agreement, and seller statement and countless open houses and execution of an offer and purchase agreement if the person did not own the home.

The cold hard facts are that there is a recent Massachusetts case where the putative seller had placed the property in a trust, where he was the trustee, prior to listing the home. As an individual, he did not own the home. The relevant documents were signed, the buyer applied, and was committed for, a mortgage. The title examination revealed an owner other than the person listed as seller on the purchase agreement. The transaction did not close.

This may seem totally ludicrous to most ActiveRainers. It didn’t strike me as properly defensible either. The buyer certainly had rights against the seller for fraud and deceit. He did not, however, have the right to compel a conveyance from the seller. Each piece of property is, on its face, unique and specific performance could not be granted against a non-owner.

There are ways to guard against this heinous result as follows:

     1. Prior to taking a listing, the listing agent can do a simple owner search. In most states, this can be done online from your computer. If you don’t know how to access your registry online, ask you title company or title attorney to teach you. You can find out from the jump whether you are dealing with the proper owner.

     2. After the initial documents are sign, the buyer  agent can ask his or her attorney, or title company, to confirm the ownership of the property right away. This is a relatively simple process, but it can save heartache and expense in the future.

There is nothing more frustrating in law than having a right without a remedy. Being able to sue a seller for deception is one thing, but it doesn’t get the buyer the property he or she has set their sights on. Go the extra mile to make sure that the record title is in the name of the seller. Anything short of that is not acceptable.