ARBITRATION CAN'T BE FORCED IF YOU DON'T AGREE

DEAR BOB: We recently bought our first home. It was handled by a local Realtor who represented the sellers. Shortly after moving in, we discovered the roof leaks around the skylights. Also, we learned from the neighbors the sellers had tried many times to fix those leaks. A reputable renovation contractor says there is extensive damage and the only way to correct the problem is to remove the four skylights, repair the rotted lumber, and install new flashing. His cost estimate is $4,850. The written defect disclosure provided to us by the seller before the closing said nothing about the prior problems with the skylights and the seller's apparent failures at attempting to eliminate the leaks. After our attorney contacted the listing agent and the seller, we were told any dispute about the sale must go to binding arbitration. However, we did not sign the arbitration clause in the sales contract. Can arbitration be forced on us without consent? --Beth W.

DEAR BETH: No. Unless you signed a written contract that provides for binding arbitration, you can sue the home seller (and listing agent if you can prove that person knew of the alleged non-disclosed defect) for damages, presumably the $4,850 cost of repairs.

If you are a regular reader of this column, you know I do not recommend signing a binding arbitration clause in a home-purchase contract. When buying a home, that is no time to give up your legal rights if a dispute later arises to a jury trial, court procedures and rules of evidence, and the right to appeal.

If a dispute arises after the sale, as in your situation, the parties can then agree to binding arbitration to save time and money if they both agree to give up their rights. For more details, please consult your attorney.

(For more information on Bob Bruss publications, visit his
Real Estate Center).

Copyright 2006 Inman News