Many of our readers are aware of the recent college admissions cheating scandal. Credentials of proposed candidates were misrepresented in an effort to obtain admission to prestigious colleges. Parties to real estate transactions in New York may also misrepresent financial qualifications and property conditions in an effort to close the sale of a property. This post will address the types of misrepresentations that may occur in real estate transactions and the remedies if such misrepresentation is discovered.
From the prospective of a purchaser, misrepresentation can take the following forms. It is not unusual for a contract to purchase a house to contain a provision that the purchaser represents that she has adequate funds to close, has not filed bankruptcy during the past seven years, and is not aware of any judgments filed against her. The purpose of this clause is to deter a seller from entering a contract, taking the property off the market and later discovering that the purchaser cannot obtain cooperative board approval or obtain a loan commitment due to facts that the purchaser knew at the outset of the transaction.
Purchasers also are often required to represent that a loan application will be pursued with diligence. A purchaser may falsely elevate financial details on his mortgage application in an effort to qualify for a mortgage for which he is not otherwise qualified. Lenders protect themselves as to this potential form of misrepresentation by requiring proposed borrowers (and applicants for short sale approval) to deliver a signed IRS form 4506-T. This document allows the lender to obtain tax returns directly from the IRS, in case the borrower falsified tax returns delivered to the lender in an effort to look more favorable as a borrower. In addition, lenders typically contact the borrower’s employer immediately before the closing to confirm continued employment and salary awarded. Cooperative applications commonly contain personal and business letters of reference. Due diligence may dictate that the authors of such letters be contacted to confirm that they did indeed write and submit such letters as part of the board application.