This article first started where the last one left off. That one told of a bank-owned repossession, a commercial lot, burdened by a billboard easement. The person buying was new to the English language, and didn’t know that the easement, which I called a “blanket easement” prevented use of the entire property.
My first approach to a fix is to say to Realtors and closing agents, when presented with a chance to do something that’s not illegal, though morally wrong, is to just say, “No”. That’s a powerful response that gets everyone’s attention, and, if there are only two choices, we all know that’s the one that keeps this closing from smelling like last week’s cat litter.
“No” is a clean and powerful instruction, but anyone who thinks it’s effective, has never had teenagers. I remember telling ours, all together (there were four) in very clear language not to ever, ever, jump from the roof into the pool. Now I know that every kid in Rocky Bayou at one time or another found his way to our roof.
A doctor once made his way to a patient with a little black bag. In that bag was whatever he needed. Most of the time that, together with what he has in his head, was enough. Realtors do the same things, and lawyers and closing agents. We each have our statutes and rules, and whatever is our experience and personal ethics, we stuff those things together and we set up shop to ply our trade, making use of every talent we have. Our “black bag” that defines, always, who we are.
If you’re the agent in the closing we started with in this article, clearly you can say “Yes, there’s no legal reason we can’t close the deal”. As clearly, you shouldn’t close a deal where your client is buying something that you know he can never use. But how much more powerful would it have been to say, “wait, and let’s fix this before closing,” while everyone has a motive to solve the problem?
A good Realtor, closing agent, or even a good lawyer, can say “No” when asked to do something illegal or wrong. A dangerous one doesn’t have “no” in his vocabulary. But most people don’t set out to break the law or to hurt their clients. The best Realtor, closing agent, or lawyer will say, “let’s figure out how to fix this”, and then do it correctly.
There are some issues where you can’t get to “yes”. Jumping into the pool from the roof was one of them for me. Only after every child was gone from the house did I learn how effective my rule was.
The message here is not to always get to “yes”. The message is to earn your right to carry that black bag by stopping what’s being done wrong and making it right. If you can’t make it right, then stop. If you can’t legally charge for getting it right because it’s out of your license, send the problem out to be fixed. Then if you go on with your closing, you will have earned your right to carry the bag.
I can’t end this without exercising the right given me by being an old lawyer, by recounting what lawyers call a “war story”. Last week I sent a contractor out to install a sewer line in a place where he had a complete legal right to be. But in doing so he caught a neighbor totally by surprise, and the neighbor responded by pulling up all the utility line flags and parking a car over the easement. The contractor could go no further without a confrontation, which he had not signed up to do. The neighbor cost me money and time. I was fuming and weighing the additional time and money involved in an injunction, and specifically what damages a court would award against this unreasonable curmudgeon of a neighbor. After a day or so of being angry I decided on another tact. I did the hardest thing any one of us can do. I printed out the easement and the survey, and took it directly and personally to the neighbor. I stood at his front door, introduced myself, and apologized that I had not already explained to him what was about to happen and showed him why the contractor was there.
The result was far more magic, and frankly more personally satisfying, than a judge’s award of damages could ever have been. Turned out the curmudgeon was me, not the neighbor. My black bag of remedies now has one more tool, and I commend that tool to you.
What’s in your black bag?
Mike Chesser
President, Chesser & Barr, P.A.
President, Old South Land Title, Inc.
mike@chesserbarr.com
All articles are indexed and can be found online at: http://www.chesserbarr.com/blog/
