Original Article: 【任売物件を媒介する場合、買主にたいして説明する必要はありますか？】とある不動産業者からの質問
The number of foreclosures is on the decrease, and one of the reasons for this is the increase in the number of voluntary sales.
In contrast to an auction, in which an eviction order is issued and the owner is forced to move out, a voluntary sale allows the owner to adjust the time of delivery and has a higher possibility of selling the property at a higher price than an auction.
In addition, there is a possibility that the debt remaining after the sale can be reduced (depending on the negotiating ability of the person handling the property and other conditions), so even in the case of insolvency, the burden may be alleviated.
Also, depending on the amount of the remaining debt, you may be able to obtain a certain amount of money in surplus.
If we, as real estate agents, learn the “know-how” of negotiations with said services, we can sell the property at a lower than market price, and naturally, we can expect an quick sale.
Since the buyer can also purchase at a discount from the market price, a win-win transaction can truly be realized.
Although there are many people who do not have a very good impression of the “negative” image that resale has, the original author believes that real estate agents should actively conduct such sales as long as they are operated correctly with the view to helping those in need.
Because of these “thoughts,” the original authors has contributed several articles on the topic of “sales of real estate” to “The Real Estate Agency’s Mikata“.
We often receive questions and consultations from other companies in the same industry who have read these articles.
Just the other day, the author received the question “When mediating a voluntary sale, is it necessary to explain it to the buyer?”
Since the intention of the question was not clear at all, when the author asked the situation in detail, the buyer purchaser heard that “the sale is due to the fact that the repayment of the loan fell” through neighborhood rumors, and claimed that “if it was such an unlucky house, I would not have purchased it.” The buyer was told the property was for sale due to the defaulting on loan repayment.
Furthermore, they are having a hard time coping with the situation, claiming again and again that “the builder has not fulfilled its responsibility to explain important matters which affect the motive for purchase,” and that such a property is a “defective property.“
Now, let’s think about this. If we mediate a property for voluntary sale, as our customer is claiming, do we have the responsibility to explain it, and before that, is it our duty to explain the reason for the sale?
In this article, we would like to explain the pros and cons of what the customer is claiming.
Reason for Sale Does Not need to be Explained
It is a fact that there are many people in the world who are “genshikaruki” (to have a good luck), such as always starting from the left foot when going out of the house.
Even salespeople may decide to wear certain suits to important business meetings, or they may wear a red tie as a sign of good luck when the occasion calls for it, superstitions.
However, whether such “genshikaruki” is legally protected or not is a different story.
Even if you mediate a house which is “rumored to be haunted” and fail to explain this is “a breach of your duty to inform.” It would be the same level as saying, “That’s absurd …….
The reason of sale is different for each person as you the real estate agent would know.
It is only a problem pertaining to the seller’s privacy, and it is not directly related to the buyer. Since it is typically the buyer who is curious about the reason for the sale, “Why is the seller selling?” However, as a rule, it is not necessary to answer the question.
However, as a general rule, it is not necessary to answer.
If a reason is asked, it will be good if one answers, “The reason for sale includes information concerning the seller’s privacy, and above all, it is not obligatory for us real estate agents to explain the reason for sale.“
However, since a corner will be turned if one replies in such a straightforward manner, it will be necessary to soften the phrase a little more.
Note that you are not obligated or responsible to explain the reason for the sale to the buyer (or prospective buyer), but if you receive a request for sale, you should ask about the reason for the sale and be aware of it.
The purpose of this is not to disclose the reason for the sale to the buyer.
Why We Should Understand the Reasons for our Sale
In mediation real estate work, it is required to fulfill a series of steps without delay and without giving rise to any problems, starting from property assessment and various investigations, then from a contract conclusion to settlement (closing).
In order to coordinate the timing of delivery, it is necessary to know detailed information such as the reason for the sale, the amount of the remaining debt, and the expected destination of the relocation.
In addition, from the perspective of the Proceeds of Crime Prevention Law, it is necessary to confirm the purpose of the transaction as a matter of identity verification.
The purpose of obtaining these details is to ensure compliance with laws and regulations, and to facilitate a smooth transaction.
Therefore, the initial conversation will often include information regarding the seller’s or buyer’s personal information and privacy.
The reason the parties are willing to disclose this information is because they trust that their confidentiality obligations will be observed.
Article 45 of the Building Lots and Buildings Transaction Business Law stipulates the “obligation to maintain confidentiality,” and Article 75-3 of the same law stipulates the “obligation to maintain the confidentiality of employees, etc. of the building lots and buildings transaction business operator.“
A question from a buyer, “Why is the seller selling the property?” is not a justifiable reason for divulging a “secret” you have learned. If you carelessly divulge information, you will be in violation of the Building Lots and Buildings Transaction Business Law.
Have an Accurate Understanding of the Issues which Influence the Purchasing Decision
In the case consulted by the original author, the buyer “claims that he would not have purchased the house if it were such an unlucky house,” and further asserts that “the builder is responsible for explaining material matters which affect the motive for purchase.“
If the above reasons are rolled up in a strong tone, one might be tempted to think that this is somehow true, but let us recall the definition of “material matter” which influences the motive for purchase.
Article 47, Item 1 of the Building Lots and Buildings Business Law prohibits “the act of intentionally failing to state a fact or misrepresenting a fact.“
Furthermore, Article 47, Item 1 (d) of the same law limits the act to “matters concerning the financial resources or creditworthiness of the real estate agent or persons involved in the transaction that will have a material influence on the judgment of the counterparty of the real estate agent,” and prohibits intentionally failing to disclose facts or misrepresenting facts.
Customers are interpreting this provision in an expansive way, saying that “the builder has the responsibility to explain the contents that will have a material influence on the judgment,” but I would like to tell them to read the article properly.
It is true that the phrase “resources or credit” is used, but the reason for the sale does not fall into either of these categories.
Also, even if the sale was made by way of a voluntary sale, the mortgage (lien) was erased at the time of settlement, and the transfer of ownership could have taken place without incident, thus no impediment to the transaction in any way.
The buyer claimed that he/she would not have purchased the property if he/she had known about it, but the psychological defect refers to cases where an incident or suicide has occurred in the past, and does not include the fact that the property was sold by appointment.
If someone claims “bad luck,” you can simply counter with, “That’s your subjective opinion,” although it may sound like something you’ve heard somewhere else.
If it is Determined that Explaining the Reason for the Sale Will Result in an Earlier Contract
Although the legal interpretation and our responsibility for explanation have been explained in the past, it is a fact that there are many people in the world who “want to bring on good luck,” and it is inevitable that there are people who persistently want to know the reason for the sale.
Because of our duty of confidentiality, we cannot, on our own initiative, explain the property was listed after the seller was unable to repay the loan, but if we can obtain the seller’s consent, the story is different.
If we find that we are seriously considering purchasing the property, it would be one way to explain the situation to the seller and obtain his/her consent, if there is a possibility that explaining the reason for the sale will lead to a contract sooner.
In doing so, it is important to correctly convey information about the scope and content of disclosure, and to be prepared to avoid problems at a later date.
In this blog, we explained whether we are responsible for explaining to the buyer the reason for the sale, based on a case that was sent to the original author.
As you can see from the column, the conclusion is there is no responsibility to explain.
However, in order to close the transaction, there are cases in which it is better to disclose the reason under certain circumstances.
Although the seller’s consent is necessary, there is no basis to be denounced for not explaining it, thus making it necessary to make a calm judgment while trying to figure out the true intention of the other party who asks the question.
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