No, not that Oprah! This article addresses a powerful tool used by both lawyers and laymen. When lawyers say “OPRA request,” what we mean is a request for specific information made to a public state entity under the “Open Public Records Act,” N.J.S.A. 47:1A-1.
So why do we make these requests? Lawyers make OPRA requests any time they need information in the possession of a public entity. This may include records related to real estate ownership, such as permits that were pulled (or not pulled) and violations on the property. We will often make an OPRA request not just directly related to our client’s property or potential property, but to neighboring property as well. This is particularly so in boundary disputes where a fence may be mislocated or installed without permits, or there may be steep slope with misdirected drainage impacting the neighbor and grade.
Oftentimes, real estate purchasers will rely on written seller disclosures in which sellers enumerate certain repairs and improvements they’ve made or problems of which they are aware. Sellers are also typically asked a question regarding whether permits were pulled and closed out properly. As you can imagine, not everyone answers these questions with full candor. For example, we had a family making a home purchase which was to be multigenerational – the adult kids would live upstairs and the senior parents who desired one-floor living were to live in the newly improved basement. Unfortunately, our OPRA request for all permits disclosed that certain critical permits were never pulled and others were never closed, making the basement an impermissible living space. When the sellers refused to address it, our clients walked away from the deal and avoided a situation that could have been incredibly costly down the road.
Another helpful example in a real estate purchase involved our buyer clients who were assured that all was in order and, in particular, that a buried underground oil tank had been properly remediated by the seller over a decade earlier. The OPRA request revealed the tank pulling permit with the work “FAILED” written across it by the town official – meaning the tank was a leaker! Because that permit had been pulled so long ago and not closed/passed, seller was required to properly close it out by retaining an environmental company to test the soil and apply to NJDEP for resolution of the matter. Luckily, this deal had a happy ending without too much delay and with no future liability for our clients. This could have been a disaster as New Jersey’s laws on this type of contamination make an owner strictly liable for any discharge and those cleanups are often costly. We find it is also helpful to our Sellers to issue an OPRA request to identify any potential problems and address them so as not to delay their closing.
No matter which firm you hire for your real estate matters, make sure they are using all of the tools they have to protect your significant investment!