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Selling Your Home Legally: What You Need to Know


Navigating the legal complexities of selling your home can be overwhelming. Whether you're a first-time Seller or have been through the process before, understanding the legalities is crucial for a smooth transaction. This comprehensive guide, brought to you by Sherwood Law Group, will explore key legal considerations, including disclosure statements, the negotiation process, and tax implications.

Understanding the Power of Disclosure Statements in Home Sales

A disclosure statement is a critical document in the home selling process. It's where sellers list known issues with their property, which can range from structural defects to a history of pest infestations. The purpose of these statements is not only to inform Buyers but also to protect Sellers from future legal action. In many states, failure to disclose certain information can lead to lawsuits for fraud, negligence, or breach of contract.

Types of Disclosures:
  • Material Defects: These include physical defects like a leaky roof or a cracked foundation.
  • Hazards: This covers issues like lead paint or asbestos.
  • Illegal Additions or Installations: If renovations or additions were made without proper permits they need to be disclosed.
For further reading on disclosure requirements, check out this informative article.

Negotiating an Offer within Legal Requirements

Negotiating the sale of a home is not just about agreeing on a price. It's about creating a legally binding agreement that complies with all local regulations and laws.
  • Fair Housing Laws: Sellers must understand that it's illegal to discriminate against potential buyers based on race, religion, gender, national origin, disability, or familial status.
  • Written Agreements: All agreements should be documented in writing. Oral agreements in real estate transactions are typically unenforceable.
  • Earnest Money Regulations: This is a deposit made by the buyer, showing their commitment to the transaction. The handling of this money is subject to specific local rules.

Tax Implications of Selling a Home Under the Law

Understanding the tax implications of selling your home is essential. The key tax consideration is capital gains tax, which is a tax on the profit made from the sale.
  • Capital Gains Tax Exclusion: Homeowners can exclude up to $250,000 of the gain from their income ($500,000 for married couples filing jointly) if they owned and used the home as their primary residence for two (2) out of the last five (5) years.
  • Reporting the Sale: Even if you qualify for an exclusion, you must report the sale if you receive a Form 1099-S or if you do not qualify for the exclusion.
  • Deductible Selling Expenses: Certain selling expenses can reduce your taxable gain, such as real estate agent commissions, legal fees, and any costs associated with selling the home.
For detailed tax advice, visit the IRS guidelines on selling your home.

Preparing Your Home for Sale: Legal Tips

Preparing your home for sale goes beyond just making it look appealing. Legally, you need to ensure everything is in order.
  • Home Inspections: Consider getting a pre-sale home inspection to uncover any potential issues that could affect the sale.
  • Compliance with Local Laws: Ensure your home complies with local building codes and regulations.
  • Resolving Any Legal Issues: Clear up any legal issues, like disputes over property lines or outstanding liens, before listing your home.

The Role of a Real Estate Lawyer

A real estate lawyer can be an invaluable asset in the home selling process. They can help:
  • Draft and Review Agreements: Ensuring contracts are legally enforceable and protect your interests.
  • Handle Complex Legal Issues: Especially useful if you're selling a property that's part of an estate, trust, or has abnormal disclosure or inspection complications.
  • Closing Assistance: They can guide you through the closing process, ensuring all legal requirements are met, explain the documents, and ensure proper allocation of monies associated with the transaction.

Frequently Asked Questions

Do I need a real estate lawyer to sell my home?
In our opinion, absolutely. It is highly common in many states and while not always legally required, having a lawyer will protect you from future litigation and ensure a legally compliant transaction.

What happens if I don’t disclose a known defect?
Failing to disclose can lead to legal action against you by the buyer.

How do I determine if I owe capital gains tax?
Calculate the difference between the selling price and your adjusted basis (the original purchase price plus improvements and minus depreciation).


Selling your home is a significant legal undertaking. Understanding the power of disclosure statements, negotiating within the legal frameworks, and being aware of tax implications are key to ensuring a successful and legal home sale. Sherwood Law Group is here to help you navigate these complexities! For expert legal advice, call us at 312-627-1650 or submit an inquiry for a free consultation here.
Categories: real estate