The Benefits of “For Sale by Owner”

By Anita Suson on June 23, 2022

Selling your home directly without the involvement of a real estate agent/broker may seem like a daunting task, but it’s actually quite achievable. A “for sale by owner” (FSBO) transaction can be accomplished with the assistance of a Texas licensed real estate attorney quickly, efficiently, and most often at a cost savings.

When in Texas

Customarily in Texas, the seller pays all commissions; both the listing commission for the seller’s agent/broker and the buyer’s agent/broker’s commission, which typically aggregate to 6% of the total sales price of the home. While commission percentages are negotiable, the typical approximate cost in commissions is $6,000 per $100,000 of home value.
In a FSBO sale, legal fees to complete the transaction are significantly lower – ranging between $3,500 and $10,000 depending upon the complexity of the transaction. A key difference between a FSBO and a traditional brokered sale is that legal fees don’t increase based on the value of the home, therefore if the home is valued at $166,667 or more, the legal fees represent a better value over a traditional transaction.

The Art of The Deal

In a typical seller-broker-buyer home sale, the listing agent uses MLS (Multiple Listing Service) to advertise a home. A FSBO requires that the seller advertise the home themselves on alternative marketing channels such as community websites; business and charity-oriented clubs such as the local Rotary or Lions clubs; or to faith-based organizations to which the seller may belong. These avenues are often just as effective as a traditional MLS listing.
Real estate agents/brokers must use the standard contracts promulgated by the Texas Real Estate Commission (“TREC”) in their transactions. They are only permitted to complete the blanks in a TREC form — they aren’t permitted to alter any form as it constitutes “the unauthorized practice of law,” which is prohibited by TREC. Real estate attorneys however, have much more flexibility in preparing a contract and can redact (delete provisions, add language, and amend) the TREC forms in substantive ways to better protect the seller.

Protecting the Seller

Selling a house is complex territory and protecting yourself should always be a priority. A home seller can seek the guidance of Texas real estate attorney to shield them from many potential exposures, including:

Specific Performance. The remedies section of TREC contracts includes specific performance, which means a seller is forced to sell the property if the buyer sues to enforce this remedy. Most sellers assume that if they default under a signed contract they can walk away from the deal after returning the buyer’s earnest money deposit, however, in the standard TREC contract that assumption is invalid. A real estate attorney can alter the TREC form to delete specific performance and limit a seller’s risk as desired.

Special Warranty Deed. A real estate attorney can also change the type of deed prepared to a special warranty deed instead of the TREC-required general warranty deed. A general warranty deed leaves a seller exposed to potential lawsuits if a title issue arises, while a special warranty deed essentially limits a buyer’s remedy to a lawsuit against only the title company under the title policy.

Seller Addendum A seller addendum prepared by a real estate attorneys can alter numerous provisions of the TREC forms adding additional protections such as requiring buyer representations and making clear that the sale, if for resale, is “AS, IS, WITH ALL FAULTS.”

Seller’s Disclosure Notice A seller must always complete a Seller’s Disclosure Notice even when a home is being sold in its present condition (whether the home has ever been occupied) to meet minimum standards required by the Texas Property Code. Completing the form with the assistance of a real estate attorney can protect a seller from significant potential liability for treble damages for misrepresentations under the Texas Deceptive Trade Practice Act.

Real estate attorneys also have significant experience handling unusual circumstances that real estate agents/brokers are not permitted to address such as handling estate sales with multiple heirs in title, with or without a will; resolving tax or other liens; access issues; and oil and gas mineral rights surface lien waivers. They also have the ability to prepare all addenda required in connection with the transaction by searching public real property records for proper legal descriptions; confirming the tax payment status on the property; informing buyer of any mandatory property owners’ association membership fees; disclosing any municipal utility district or similar fees; determining any necessity for lead paint disclosures for homes built prior to 1978; and limiting the buyer’s conditional options to terminate the contract in connection with third-party financing.

The TREC forms advise parties to “CONSULT AN ATTORNEY” before signing the contract, and that’s excellent advice. Utilizing a real estate attorney can minimize a seller’s costs to sell his/her home and create a less risky transaction and a smoother sale.

For information on how a Texas real estate attorney can help you with your FSBO or any other real estate matter, visit McGarvey PLLC at mcgarveypllc.com or contact Cassie McGarvey at cmcgarvey@mcgarveypllc.com.

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