Surely the work would tend to be less than normal when buyer and seller have already connected and the deal is done in a week.
That’s what we all hope for. But in real life, the time it takes to see a deal thru to the bitter end makes it much less rewarding. There are tests to be monitored (soil, water, inspection, etc.) and each one may require renegotiation. What if the financing doesn’t come thru as expected? What if an inspection uncovers something neither party knew about (defects in the foundation, water damage in the attic)? What if a title search turns up liens or a survey reveals encroachments? What if a lender requires repairs before close? A deal can fall apart very quickly, even one that looked perfect at the start.
It’s not the foreseen events that keep me busy, but the unforeseen ones.
While everything you say is absolutely true, my realtor tells me that it’s typically very easy to prove that racism is a factor because she has seen a lot of the time the seller will actually put into writing to their selling agent words like “…but don’t show my house to any jungle monkeys, kikes, or wetbacks!” Nonetheless, she has also never heard of anyone who wanted to get into a messy court drama and actually report it, especially when it’s the strongest buyer’s market in history and if the Grand High Kleagle won’t sell his 3-bedroom ranch, there are 500 other people welcoming you with open arms.
With respect to the racist and other provisions in HOA covenants - I’ve posted on this before several times. The most ludicrous case was a local HOA which 1) still had several racist covenants “officially” on the HOA agreement, but 2) they would never put it up for a vote to remove them out of fear that the HOA members would refuse to do so, and it would become a media firestorm.
But, on average, isn’t a buyer who’s already selected the house he’s interested in and makes an offer that’s accepted within a week less work than one who takes weeks to look at a bunch of different houses? Aren’t unforeseen problems at least as likely in the second case as the first?
Put another way: other things being equal, would an agent given the choice between these two potential customers not consistently choose the former?
Any Realtor[sup]TM[/sup] who would accept a listing with that provision attached would be violating professional ethics and be vulnerable to censuring by their state Board. Stupid, too, because our Board warns us the state (feds?) send out “testers” who try to trap agents into this kind of thing.
It’s not what the parties know that is the problem. It’s what they don’t know.
In my neighborhood, there are properties with shared wells, shared septics, violations of property lines (one guy found out his propane tank was on the neighbor’s property, another found out his was on a town road), and liens can be placed on a property and stay there for decades without the owner knowing about it.
Much of this kind of stuff comes to light if a property is listed with an agent, but if it was never listed, the discovery often reveals a multitude of sins, sometimes innocently caused.
No, a buyer might not have looked at other properties first, and even if he does, it doesn’t reveal potential problems with one he selects, especially if it isn’t already listed.
I didn’t say it was in an official listing, I’m saying that it’s in the form of an e-mail, of which when you work with a realtor there are thousands of such during the house buying/selling process. Nor did I say my realtor actually acted on said provision; on the contrary, she ignored it and told them she wouldn’t follow it.
What I’m saying is that in some cases it is in fact easy to prove the seller is a racist or bigot because they leave a paper trail and are somewhat unapologetic about it.
No it is not mandatory to have a real estate agent, despite the best efforts of the profession to make you think so. As in the UK, a lawyer is not required either. But I would strongly advise that anyone selling their house include at least either a lawyer or a agent during the process to make sure there are no legal issues. Also remember that a lawyer will only charge per hour, while an agent takes a percentage of the sale price.
Doesn’t all enforcement involve the state? For example, if I had a policy of not allowing Jewish people in my personal residence, that would be completely legal, no?
But what if one refused to leave and I called the police and wanted him removed for trespass? Wouldn’t the state then be enforcing my private discrimination? What’s the difference between this and Shelley?
Was he a guest or an intruder? Anyway, if he was an invitee but then determined he was not welcome because of his religion, he then becomes a trespasser - regardless of the reason. The Shelley case involved a restrictive covenant in a deed and is not even relevant to your question. A trespasser is breaking the law.
Title VIII of the Civil Rights Act of 1968 is more relevant. When the Shelley case was decided, that Act was not then the law. If it were the law then, the Court may have determined that such covenants are void, not merely unenforceable.
Let’s assume he is an invited guest who refuses to leave and is therefore a trespasser. Under the reasoning in Shelley, I have a right to be discriminatory in my private life, including who I allow in my home, but when I ask the state to step in (such as calling the police to eject the trespasser) then the state is now enforcing my bigotry (like enforcing private restrictive covenants) and is therefore in violation of the 14th amendment.
Or not? How are the two cases different? They each contemplate:
- Legal discriminatory private action
- Enforced by state action
Why can the state eject the Jewish trespasser, but not uphold a private real estate covenant?
A church I used to attend was unable to legally expand on their current location so they decided to sell the building and build a new one from scratch farther out in the suburbs. The old property was in a highly desirable location and this was before the real estate bubble burst, but they absolutely refused to entertain offers from developers. The church had been at that site for 50 years, they waited until an offer came from another church so they wouldn’t see it knocked down for townhouses.
As it turned out, when church B moved into the old location of church A, church C moved to the old church B location. Church C sold their old property to devlopers and it was knocked down for townhouses. (Although the old church C building was much, much smaller than the church A building and was in a lousy location for a church, hidden in a residential neighborhood).
Well, the simplest answer is that it is bad public policy to insist that homeowners take the law into their own hands and remove the trespassers themselves. Vigilantism undermines the law, so having a policy of demanding it just doesn’t work.
But if legalese is what you’re looking for, a court could differentiate based on the difference between civil and criminal law, or simply based on the fact that the person isn’t being removed based on any other reason than their refusal to leave.
Also note that the Fair Housing Act has anti-discrimination portions that prevent the refusal to rent or sell to protected classes, but there are exceptions to that requirement.
http://www.housingrights.org/askhri/faqs.htm#ho
Some exceptions revolve around old age communities or preferential treatment by religious organizations for its members. Other “small-fry” exceptions are meant to allow things as simple as a college woman renting out her spare room only to another woman (no boys allowed).
So, as you can see, there is wiggle room. Certainly enough to permit the enforcement of basic criminal law.
I think the big difference is that in the trespassing case, you are one of the parties directly involved and requesting state action, whereas in a convenant case, it would be a third party - neither the seller nor the buyer - who is requesting state action. If a seller refuses to sell to a protected class, regardless of the presence/absence of a covenant, there’s no state action required, since the seller merely has to refuse to accept the offer. So it’s the next door neighbor who says “Hey - our covenant says no Jews - I’m taking you to court to block the sale!” which Shelley applies to.
Presumably, if your next door neighbor tried to have one of your guests removed because he’s a Jew, the police would likewise refuse to act.
Well, I don’t have the detailed legal reasoning, caselaw, etc. at hand, but here’s the basic idea:
When you’re having guests over, you’re just a private citizen. When you’re selling your house on the open market, you’re acting like a store or other public accomodation. Remember, if you were running a grocery store, you wouldn’t be allowed to kick people out for being Jewish, etc. Similarly, you’re not allowed to refuse to sell your house to someone just because they’re Armenian (again, this is assuming your house is on the market. You can always decide to sell it to a particular person without putting it on the market).
A seller of his house is a private party. If SCOTUS adopted your theory, it would have held the covenant invalid. It did not do so. Muldoonthief has the better explanation, IMHO.
A home seller may refuse the sale of a home UNLESS the prospective buyer is black or jewish or some other protected class. If they are a protected class, you WILL be sued and have to prove that you did not refuse the sale because of racism. IF the court rules in their favor, the home will belong to them, for free. Don’t ya just love the Civil Rights Act?!
It’s true in SDMB-traditional nitpicky fashion that such agreements were not invalidated per se – so long as the parties contracting to the agreement all remain willing to abide by it, it remains a private contractual agreement. But it seems to me a distinction without a difference to draw a line separating an invalidated contractual clause from one which, valid as between willing entrants into the contract, is unenforceable through the courts as being against public policy. What makes a contractual provision worth more than an equal amount of wind is its enforceability through the courts. As long as you give me $50 for a bushel of tomatoes, we’re good. But it’s when you bounce the check, or I attempt to cheat you with half the bushel being rotten, that the contract becomes worth our while – you and I each have an expectation, spelled out in law-school language, of what the other is expected to provide, and the courts are willing to enforce that contract in a lawsuit. That’s the key to the importance of the decision in my mind.
And where exactly did youy get this?