I bought a property in southcentral Missouri about a year ago for the purpose of opening a small arts and crafts store. The Realtor was quite aware of what I was looking for which was a residence with a building out of which I could run my business. It took me 8 months to actually relocate and now that I'm ready to start my business, I found out from the city that I am not zoned properly. I petitioned the zoning council for a variance, but was subsequently denied. I have spent my life savings to get this place, and have not been able to find employment, meaning I undoubtedly will not qualify for financing if I could sell this place and find a suitable business location. 20/20 hindsight tells me I never should have trusted the real estate agent; I should have checked into all of this myself, but honestly, back then, it just never occurred to me. I had all I could manage dealing with selling my other home, arranging financing, planning the move, and just plain dealing with life.

I have attempted to contact several lawyers in adjacent towns. I'm afraid to talk to a local lawyer, because the broker also owns at least two other businesses and several commercial properties in town. So far, the lawyers have either not returned my calls, or told me they don't handle real estate matters, or they are just too busy.

I feel like my dreams have just been washed down the river! Please, any advice, anyone?

-- Dawn Ricklefs (papermaker76@bigfoot.com), August 23, 2001

Answers

have a year round yard sale

-- stan (sopal@net-port.com), August 23, 2001.

Good idea stan!!! Ah, Dawn, real estate people can be as nasty as used car salesmen, and lie twice as much!

You need to find a lawyer that does handle real estate matters, in the county you reside in, lawyers "in county" all know each other, and unbeknownst to you, will "broker" a settlement amongst themselves to your satisfaction. Yes, it's a bit crooked and unfair, but that's how the game is played, especially so in small counties and towns. Our small town lawyers, two different ones that we had retained over the years, explained this to us.

At least the lawyer will be able to tell you if you have a case, hopefully it will not be a matter of "buyer beware" and the responsibility all fall on you.

-- Annie Miller in SE OH (annie@1st.net), August 23, 2001.

Your average agent is trained and qualified to search the listings, schedule viewings of properties and fill out purchase and sale agreements and the related forms. They are not trained or qualified to make representations about the property or its suitability to your purposes. Every offer should be made contingent on a feasibility study and inspection. It is then the buyers responsibility to investigate what it is they are buying. You will likely not be able to get any satisfation from the agent or the seller unless you have evidence to charge them with fraud, which is unlikely. The agent sold you a residence and as long as you are able to live in it, then they are free of liability. It would become a matter of your word against theirs. I personally would focus on two different fronts: one, try for the variance and two, start looking for another location that allows you to do what you want. You will take a loss by selling and relocating so soon, but it sounds like you have no income now and little prospects so it may be better to cut your losses. I think you need to find a real estate/financial expert (not a real estate agent) and get some professional advice. Try starting with the local title insurance company.

-- Skip in Western WA (sundaycreek@gnrac.net), August 23, 2001.

Did the seller market it in writing as "a great property with potential for running a business out of it", or some such words to that effect, or was it in the written listing? Was it on a sales flyer? If your state has disclosure laws, or other laws concerning fraudulent representation of property, you might have a case against the seller.

Usually if property is being sold as business property, the seller has gone to all the trouble of rezoning.

As to the real estate agent, he should have known, especially if he has been in the business for years, so you might also have a case against him. Unfortunately, if he pays the dues and is a Realtor it is very difficult to go after them. Their own boards won't go after them, so of course it will be extra difficult to go to court. You can try going after him in court, but if you have any disclosure laws at all, you are probably better off going after the seller, and best case would probably recission of the sale, and maybe a refund of your moving expenses. Forget about damages, real estate cases rarely net damages.

Is there any other way to run your business? Mail Order or Web sales? Many places have a "don't want to see it, hear it, or smell it," attitude towards home business--if you don't have customers or delivery trucks all day, you probably could still do it. For some neighbors, one UPS truck might be too much, and what you might want to do is keep track of how many times they go out. Those soccer Mom trips add up, and I know plenty of businesses run out of homes that are quieter than your average family with all their trips and multiple kids and cars.

Good Luck

-- GT (nospam@nospam.com), August 23, 2001.

Dawn, I am sorry to hear about your issue. A couple of questions did you hire a Relator or just call around and ask to find property. In many state the realator has not relation ship with you unless you specificly hire them. No selling fee's dont count as payment. The realator represents the seller in most cases.

these use issue should have been fully outlined in any sales contracts.

-- Gary (gws@redbird.net), August 23, 2001.

Look at a copy of your MLS listing on the property. Most include a line for zoning. If it says RES or Residential, I doubt you have any recourse. However, even here the realtor will generally include a statement "Information Not Warranted" to hold themselves harmless in case of errors.

-- Ken S. in WC TN (scharabo@aol.com), August 24, 2001.

Does your local zoning office offer a conditional use permit? If so, this may be a way of getting around the variance denial. Our township does not issue variances for legal reasons in most cases, and just how this comes about I'd have to have the township guidelines in hand to tell you. But they do offer conditional use permits that require a fee and a hearing to see if adjacent neighbors, or anyone else in the township protests. It might pay to have a look see at the local statutes to see if you have any wiggle room.

-- Sandra Nelson (Magin@starband.net), August 24, 2001.

I read a book a while back about marketing crafts. One of the things it suggested was to consider doing a weekend "holiday boutique" out of your home, limiting it to one or two rooms but moving your furniture out and packing the rooms to the rafters. You could research the local zoning laws to determine what was permitted in the way of yard sales, in-home Tupperware type parties, private lessons, etc. And then maybe you could make your things up and have few sales per year. I know someone who tried this and it worked quite well for her, but she did have to promote it really heavily. She did one pre- Spring/Easter, one pre-Summer/Memorial Day, one in early September with Fall items, and one in early November for Christmas and New Years. I asked her about it and she suggested you also consider doing a few craft fairs each quarter to round it out. She also recommended you offer private group craft lessons in your home where you could also sell all the supplies and have several nice samples already made up so people could make one for themselves and buy some for gifts.

All of that might not be what you had in mind, but it might get you enough income and a little time to fight the zoning laws or look for another alternative.

-- Lori in SE Ohio (klnprice@yahoo.com), August 24, 2001.

If you truly feel that the real estate agent "tricked" you, then write to the real estate "policing" agency in that state, giving names and dates and all details. Here in Illinois, I believe it's called the Department of Banks and Real Estate (or something to that effect) - a lawyer or another real estate broker or perhaps even a library should be able to supply an address or phone number. Illinois is diligent in policing real estate agents, and sometimes we get sent a long list of people who have lost their licenses and/or been fined for infractions of laws/ethics (I guess to scare us so that we don't do the same thing).

I'm terribly sorry to hear of your dilemma - the purchase agreement should have had written in, "This contract contingent upon the ability to have a (whatever kind) business on the premises". That would have forced the SELLER to provide proof that you COULD have a business, or he/she would have lost the sale.

-- Bonnie (chilton@stateline-isp.com), August 24, 2001.

get an out-of-county lawyer that deals in land issues and see if he or she will take your case on a consignment basis...in other words...sue the real estate agent...

also, find out if there is a local newspaper there...or a newspaper nearby...if you've have this problem somebody else may have had it too and it would make a good article...if you've contacted the real estate agent and he is being a butt-hole he has likely alientated others also....some of our TV stations in larger cities also have "on Your side" segments where they will go to bat for folks who have found themselves dealt such blows about their homes, businesses, etc...(I am a newspaper reporter and we've done human interest type articles and ivnestigative reports on this kind of thing)

hang in there! determination and spirit can work wonders! please post and let us know what happens! suzy

-- Suzy in Bama (slgt@yahoo.com), August 24, 2001.

Dawn, we have a State Board of Realtors that is maned just to deal with sales and problems like yours. In fact, your taxes pay for this office. Tell them the absolute truth, they will find out anyway, and then turn the mess over to them, you will then know if you have a case to then find a good lawyer or not. Good luck, I am sorry this happened to you. E-mail me if you would like to talk. Maureen

-- Maureen Stevenson (maureen@mtaonline.net), August 24, 2001.

First, let me say one thing most people do NOT know. The person you describe as 'your' Realtor probably wasn't. Unless you hired and paid him to find you a property, that Realtor was a subagent of the seller. You didn't have an agent in the transaction at all.

Here's how it works. The seller lists property for sale with Broker A who puts it into a Multiple Listing Service so other Realtor members can show and sell the property. Broker B does just that. Broker B shows it to you, lauds it's finer points, discusses it with you, maybe even takes you to lunch. He even helps you prepare your offer, etc. He's your buddy, right? And, of course, everything he says and does makes you think B is 'your' agent. He is not.

Since he is being paid by the seller through the seller's agent (Broker A), Broker B is a subagent of the seller and has a legal, moral, ethical and fiduciary obligation to that seller to help that seller obtain the best price and terms possible. His only obligation to you is to "be fair." Kind of an eye-opener, isn't it?

While this is no help to you now, I'll share something that may help you or someone else in the future. If you're buying property for a specific use, include in your offer a clause like "Buyer's intended use of property is for (whatever you intend, residential, multi- family residential, agricultural, operating a dog kennel, etc.). If at the time of closing this use is not permitted by applicable zoning laws, buyer may terminate this agreement." Be very specific and inclusive there. Better to list too much than too little.

For example, let's say you're buying a house with a "mother-in-law suite" with a separate outside entrance and a door adjoining it to the rest of the house. It's zoned residential now and has been used as such with that suite used for an aging parent. You look at it and think by just closing off that one doorway, you can rent that suite out as an apartment for a couple hundred a month. Nice deal, right?

Could be, but residential zoning may not work for you. You may well need multi-family zoning. If you list residential as intended use, it won't cover your intended use of splitting off that apartment. If you list residential as your intended use, you'll own the property but won't necessarily be able to subdivide it as you planned. There goes your two hundred bucks a month.

In my opinion, any decent MLS offer form would have a clause like I describe already on it (with a blank line to fill in the intended use). It protects the buyer and puts the onus of obtaining whatever zoning is necessary on the seller if they accept your offer. Unfortunately, as you learned the hard way, the goal of Realtors is not so much protecting a buyer so much as it is closing sales. A clause like this may mean a deal that would otherwise close won't and the Realtor members of the Multiple Listing Service won't be paid... and they'd hate to see that happen.

-- Gary in Indiana (gk6854@aol.com), August 24, 2001.

If the broker/agent did anything wrong you do not need a lawyer. You need to file a written complaint with the state agency that issiues his license. They will investigate for free, that is what they are there for.

It looks to me like the broker did his job. It is the job of the broker to bring buyer and seller together. That sounds like what happened here, to me. The condition of title, including the zoning restrictions go along with the title to the property. Checking this out is the responsibility of the buyer. That is why we have things like title searches. They do cost extra money, and often the buyer attempts to save a few bucks by skipping the search. Probably a lesson learned here.

Some other posts mention Realtors, which is the name of a trade organization and has nothing to do with licensing or enforcement. They do lobby for the purpose of law making/changing. The MLS is an information service of this private trade organization, and also has nothing to do with the laws concerning the licensing of real estate brokers and agents.

There will be a next time, this is not the end of the world. So next time check things out for yourself, and do the proper searching. One more thing that has happened to a lot of us is zoning changes after we have purchased property, sometimes this can be a problem as well.

-- Ed Copp (OH) (edcopp@yahoo.com), August 25, 2001.

Most real estate agents are quite accomplished at closing the deal which will enable them to collect their fee. Expecting them to have your best interests at heart, well, you gotta be kidding. If you read the fine print on most contracts it enables them to pass the buck for most problems. We learned a long time ago to go to the court house and research things ourselves. You'd be surprised at how helpful most county employees are at helping you find things. We have closed most real estate deals without the aid of a middle man and found it much easier. If a problem might arise, a real estate lawyer can usually be had a heck of a lot cheaper and provide more expertise than most r e agents. ( I can't believe i'm recommending lawyers) Hope things work out for you Dawn and it doesn't prove to be too expensive of a lesson.

-- jz (oz49us@yahoo.com), August 25, 2001.

Dawn, Do you know any of your local politicians. Sorry I had to say the word. If you do, or if you don't, get with them, and tell them about your problem. Ask them to help with a variance. Go carefully. In small towns like ours (Paris, MO pop 1400) the family trees are often interwoven with the government and business people. You may find one that will help.

-- Rickstir (rpowell@email.ccis.edu), August 26, 2001.

Just to tack onto what Gary said--there are such things as Buyer's Agents, but make sure you get one that works for a flat fee, not hourly (although it might work if you know EXACTLY what you want, and the agent is very efficient), and definitely NOT commissioned based on price of the house--at that point there is no incentive to get you the best (lowest) price. The agent who says he is a buyer's agent but is paid by the seller is not your agent. A true buyer's agent contract will say that they are your agent (and probably the same thing about being fair to all parties).

That said, an honest agent who is bringing you in as a buyer knows that if you aren't happy, he is NOT going to get repeat business from you or referrals for new business. I don't think a buyer's agent is necessary for everyone, you can do fine with a regular selling agent, as long as you write up the conditions in the contract offer correctly.

You also can find some agents who prefer to do one or the other-- listing only, OR selling (driving the buyers around). Obviously they can do both, but we had an excellent agent where we used to live that preferred to work with buyers only (still as a subagent of the seller as Gary was talking about) and would list your house for sale only if you were a previous client.

And along with what Ed said, you CAN go to the Board of Realtors--they have some enforcement power, but if the agent you used is the top moneymaker, they probably won't help you, no matter what he did. On the other hand, they could boot him for a violation of their code of ethics or whatever they have. There is one, don't laugh. It is an option, however.

Can you rent out part of your property in the meantime, like for storage or something until you can find something else? It would get you some money coming in until you could sell.

-- GT (nospam@nospam.com), August 26, 2001.

Thanks everyone for your advice and encouragement. Although we cannot get a zoning variance, and I believe we are pretty well screwed as far as legal action goes, your letters were enough to get me off the self-pity bandwagon, and back into a mindset of hope, focusing on alternative opportunities rather than obstacles. I came away with some feasible ideas and will let you know how things go. If I can find the time, I'd like to write an article for the magazine about our journey. I'm just kinda waiting for a happy ending.

God bless all of you! I don't know any of you personally, but you are the best friends I have right now. You're the only people I know who don't think I'm absolute out of my mind for going after my dreams.

Thanks again!

-- Dawn R - SC Missouri (papermaker76@bigfoot.com), August 29, 2001.