Real Estate & Construction Lawyer
Frequently Asked Real Estate & Construction Dispute Questions
Short answer: yes! Long answer: you are not required in the vast majority of down-state counties in Illinois to use a lawyer when entering into a real estate transaction. Your realtor may even tell you not to worry about obtaining a lawyer. But at the same time, many real estate agents represent both the buyer and the seller in a transaction. Wouldn’t it make sense to work with a lawyer who will only represent you? Further, a lawyer decreases the chances of post-closing litigation. And a lawyer isn’t even very expensive for a real estate closing. For what is typically ends up costing $1,000 or less, working with a lawyer when purchasing a home is a no-brainer.
My real estate agent told me that if I back out of my contract, I will get sued. Is my agent correct?
If your real estate agent has told you that you will get sued for backing out of a contract, you need to speak with a real estate lawyer immediately. Your agent might be completely correct, but at the same time, a real estate agent is not a real estate lawyer. Plus, your real estate agent’s fee is tied to a successful completion of the transaction, so of course they want you to continue with the contract. In short, regardless of whether you’re selling or buying, always, always, always, talk to a real estate lawyer if you are considering backing out of a real estate deal.
In Illinois, a law exists called the Residential Real Property Disclosure Act. The Act generally requires that a seller of real estate has to disclose known issues. If you purchase a home and believe the seller may have not disclosed something that they should have disclosed, you need to speak with a real estate lawyer. But you need to be sure to speak with a real estate lawyer quickly as the Act generally requires that a lawsuit be brought against the seller within one year of closing.
If you purchase a home and need to sue the seller for failure to disclose a known issue (such as a leaky basement), it is best to try to sue the seller within one year from the date of purchase. If you are able to sue within one year from the date of purchase, you can bring a claim under the Illinois Residential Real Property Disclosure Act which may allow you to recover any fees you spend on an attorney. If you need to sue outside the one year period, that is generally acceptable too under a common law fraud or breach of contract theory, but you likely will not be able to recover any money you spend on an attorney.
All sorts of disputes arise from construction projects which necessitate the need to work with a construction lawyer. Some construction disputes involve personal injuries, such as when a malfunctioning tool causes an injury or a worker falls from a ladder. Other construction disputes involve a homeowner suing a contractor for poor workmanship. Another common construction issue occurs when a mechanics lien is placed on a construction project.
Mechanics liens in Illinois are governed by the Illinois Mechanics Lien Act. The purpose of the Act is to ensure that general and subcontractors who provide labor, material, fixtures, or machinery to improve real estate receives payment for their services and materials. Mechanic lien disputes are generally complex: if a contractor has placed a mechanics lien on a property you own or if you are a contractor who needs to place a mechanics lien, do yourself a favor and begin working with a construction lawyer immediately.
Many construction cases originate because of alleged poor workmanship. The general rule is that a contractor is only obligated to substantially perform. This basically means that a contractor is not obligated to perform with surgical precision. Instead, contractors only need to perform the “honest and faithful performance of the material and substantial parts of the contract with no willful departure from or omission of the essential terms of the contract.”
If that standard sounds confusing to you, you’re not alone. From a practical perspective, whether a contractor has performed “poorly” or met their standard of “substantial performance” is a factual question decided by a Judge. As a result, it is almost always worthwhile to work with a construction lawyer when poor workmanship is alleged.
The attorney fees you will pay will depend entirely on the facts of the case and the underlying issue. Fortunately, it is sometimes possible to recover attorney fees from the opposing party. For example, if you purchase a home and successfully prove that the seller violated the Illinois Residential Real Property Disclosure Act by not disclosing an issue with your home, you may be entitled to damages because of the violation as well as reimbursement of attorney fees.