Contracts gone awry

Created by:

Date: February 28, 2008, Number of Replies: 10

I realise all states have different versions of a real estate contract but I would like some help/comments please.I am in FL
My first time buyer offered on a home.In the offer I stated "that anything not specifically excluded will be included." and nothing was marked as excluded by seller. except in the MLS.The seller is excluding the d/washer refrigerator,washer and dryer 1 day before close.(only the stove was offered in the MLS) What is your take on this.

During the month while under contract the tenant damaged the property and the seller filed criminal charges.The seller is only offering to pay the $250 limited by the home inspection.The damage is $3000+ How would you respond ?
I

To Top

Quote

Reply

Lindy Hall Licensed Real Estate Agent, Houston, TX

Date: February 29, 2008

Gail, you may have a good case for demanding the DW, if it was built-in... but the W/D/ref you don't get... they are considered personal property (non-realty items) and not only was your wording too vague, in most states those items have to be listed on a separate addendum. Lenders will even kick those back with "get them out of the contract".... the W/D/ref do not become part of the loan.
Even if your state doesn't have the appropriate addendum, you can't just ask for anything not nailed down, you have to be very specific.

Now, as far as the damage caused by tenants... Seller pressed charges... yup, see how far that goes.... Buyers always take a risk buying a rented property, a tenant can turn hostile or create problems, and, as in your case, do damage, at the drop of a hat.
This part may have to be settled by attorneys, as there are good arguments for both sides. Presuming it wasn't outright vandalism, and presuming that there was no homeowners' insurance to cover it.... I'd suggest a compromise of 50/50.... otherwise, you'll be tangled up with attorneys or one of the parties will simply refuse to close. Which would you choose?

I'd be sure to let the Buyers know that you'll stand by them, even if they decide to back out.... let's them not feel pressured, and knowing that they have that option, it tends to make them more willing to think about other solutions. Depending on what the damage is (??), it could be resolved, and repaired or credited. (Does Seller have a Realtor?) Since the Seller is being a hard-ass..... unless that house is a jewel or unique in some way, why put up with that? Tell them you're going to gather up all your marbles and go find another house. Then after about 48hrs, the Seller might wake up, and agree to fix the damage. (But still you lose on the W/D/ref.... because you did not specifically ask for them. When we look at an offer, we look at specifics.

Also, FYI, just because the stove was offered in MLS, does NOT mean you get it.... if your offer was not a 100% full-price offer, you don't get the stove, unless you specifically ask for it in the contract.

Lindy in Houston

To Top

Quote

Reply

Gail Hoffmann Licensed Real Estate Agent, cape canaveral, FL

Date: February 29, 2008

Thanks however all these items are included in the contract and are ONLY excluded by crossing them off the contract or excluding them specifically, that is why i mention I am in Fl and adhere to a FL contract

Something that really bother me however is that the broker whoI was sellers agent is no longer handling the contract and that an agent who is supporting the seller postion is now dealing with this,how would you see this in ight of COE ?

To Top

Quote

Reply

Judi Bryan Licensed Real Estate Broker, Carol Stream, IL

Date: February 29, 2008

<gail@gailhomesales.com> writes:

I realise all states have different versions of a real estate contract but I would like some help/comments please.I am in FL
My first time buyer offered on a home.In the offer I stated "that anything not specifically excluded will be included." and nothing was marked as excluded by seller. except in the MLS.The seller is excluding the d/washer refrigerator,washer and dryer 1 day before close.(only the stove was offered in the MLS) What is your take on this.

During the month while under contract the tenant damaged the property and the seller filed criminal charges.The seller is only offering to pay the $250 limited by the home inspection.The damage is $3000+ How would you respond ?

========================

I don't know what your contract looks like (if it specifically LISTS items of personal property....ours lists about 50 things, including washer, dryer, double oven, range, refrigerator, ceiling fans, garage door openers, etc.), but the contract itself, rather than the MLS "offerings", is what expresses what is agreed. If items WERE listed in the offer, and it was AGREED DURING NEGOTIATIONS BY THE SELLER that they would remain, sounds to me as though the seller must leave them with the home.

I've been taking interior photos of the homes my buyers purchase for years now (usually do it during the home inspection...we're there for a very long time!). According to our contract, the home is to be conveyed in essentially the same condition as it was when the buyer contracted to purchase. If it's not, it seems you have to have some sort of DOCUMENTATION that it's not to add credibility to a buyer's claim that the seller is not living up to their part of the bargain. Photos of what it DID look like could be a great help in that regard. I also attend final walk-thru with my buyers and I bring my camera. If there is ANYTHING the buyer is concerned with regarding condition or items that were supposed to remain, I take photos of those things to bring to closing. If final walk-thru is done a day or two prior to closing, I email the photos to buyer's attorney as well.

JudiB
Judi Bryan, Broker. . . . . . . . . . . email: Judi@HomesLady.com
RE/MAX Accord . . . . . . . . . . . . Direct: (630) 605-8902
On the web: www.HomesLady.com e-PRO® Certified Internet Professional
Transforming the Real Estate Landscape ... One ACRE® at a Time!
ACRE® Accredited Consultant in Real Estate ACRE® is a RealTown Approved Vendor and has its Seal of Approval

To Top

Quote

Reply

Gary Anderson Licensed Real Estate Agent, Fort Lauderdale, FL

Date: February 29, 2008

Gail if you were using the FAR contract or any of the standard residential contracts in FL that I have seen, they require the seller to maintain the property in the condition that it was at the time of contract. They also say the seller is responsible for all damages up to a certain amount or percentage. If damages exceed the specified amount the seller has the option of doing the repairs, giving credit or canceling the contract. As for the appliances that was discussed in a recent thread on RealTalk. I don't want to sound critical but you have to be careful in regards to anything that can be easily removed or changed. There have been many cases where sellers have changed out expensive appliances with lesser models. I don't know if "that anything not specifically excluded will be included." will be strong enough to pass a legal challenge but your buyer should consult with an attorney if these issues can't be resolved otherwise. As for the repairs I think your on solid ground. Review your contract and best wishes.

Gary Anderson
The Keyes Co./ Realtors
e-Pro/ Internet Specialist
Ft. Lauderdale, Fl.
mobile 954 253 8281
office 954 467 0105 x237
garyand1@bellsouth.net
www.fortlauderdalesbesthomes.com

To Top

Quote

Reply

Melba Starling

Date: February 29, 2008

Hi Gail, If you are using the FAR/BAR AS IS Contract to Purchase, then read line 262, X . Property Maintenance: Which states the Seller must maintain the prioperty as requiredx by the AS IS Standard.

If using the regular FAR Contract to Purchase, The Standard Paragraphs has a similiar worded paragraph.

Melba Starling, Broker, GRI
A Star Realty Services, Inc. Lake Placid FL 33852
Ph: 863-465-1011 Fx: 863-465-101
m.starling@embarqmail.com
www.lakeplacidfl.com

To Top

Quote

Reply

Reginald Potts Licensed Real Estate Broker, Richmond, VA

Date: February 29, 2008

Gail writes:

“I realise all states have different versions of a real estate contract but I would like some help/comments please.I am in FL
My first time buyer offered on a home.In the offer I stated "that anything not specifically excluded will be included." and nothing was marked as excluded by seller. except in the MLS.The seller is excluding the d/washer refrigerator,washer and dryer 1 day before close.(only the stove was offered in the MLS) What is your take on this.

During the month while under contract the tenant damaged the property and the seller filed criminal charges. The seller is only offering to pay the $250 limited by the home inspection. The damage is $3000+ How would you respond ?”

Reg responds:

Gail, I don’t know the real estate laws of FL, however in Virginia, we are a “caveat emptor” (buyer beware) state.

1) My take on your offer is that there was a misunderstanding (a rather large gulf) between what you and your buyer thought versus what the seller’s agent and seller thought regarding personal property. And… it did not show up until the final walkthrough. The MLS says “stove conveys”. That’s most likely what the seller intended based on the listing, also what some loans require at a minimum. You and the seller’s agent would have discussed any other personal property in which your buyers had an interest if it had been addressed specifically in your purchase offer (however, it was not). Working as a buyer’s representative, I would strongly recommend never leave anything open to misunderstandings in a purchase offer. Always specify either in the purchase offer or bill of sale any personal property in which the buyer has an interest and negotiate from there. This will serve to minimize any surprises at the final walkthrough.

2) Assuming that case 1 above is the same as the tenant case. As far as the tenant damage, I’m assuming you have an inspection contingency in your purchase offer. If this is the case, then seller must, at least return the property to the condition at the time the offer was ratified or possibly offer a credit back or you may even be able to walk from the contract. I recommend you discuss your situation with your broker and a real estate attorney to determine your options.

Good Luck!

Regards,

Reg Potts

Reginald Potts, REALTOR®, ABR, GRI, CHMS, e-PRO

Century 21 Signature Realty, 2800 Buford Road, Suite 204, Richmond, VA 23235
(c) 804-536-1319, (o) 804-330-4222, (f) 866-233-2093
Reg@ReginaldPotts.com, www.ReginaldPotts.com

"Your Trusted Agent Serving All Your Real Estate Needs!"

To Top

Quote

Reply

Mitzi Romiti Licensed Real Estate Broker, Falls Church, VA

Date: February 29, 2008

On Fri, 29 Feb 2008 13:06:33 -0800 RealTalk <tx-lindy@comcast.net> writes:

>> Gail, you may have a good case for demanding the DW, if it was built-in... but the W/D/ref you don't get... they are

considered personal property (non-realty items) and not only was your wording too vague, in most states those items have to be listed on a separate addendum. Lenders will even kick those back with "get them out of the contract".... the W/D/ref do not become part of the loan. <<

This is another incidence of real estate being local. In Northern Virginia, all of the appliances, including the washer and

dryer are commonly included in the contract. I've never heard of a lender asking they be removed unless it's a special

Virginia Housing contract, and I believe they're on a separate addendum for a dollar. I always remember to tell out of town buyers that they don't need to bring their appliances when they move to this area.

Mitzi

       Mitzi Romiti, Associate Broker, REALTOR®, GRI®, e-PRO®
                 Working with Jobin Realty in Northern Virginia
               Direct:703-241-7935 Mailto:MitziRomiti@juno.com
www.NVaRealEstateSales.com www.Northern-Virginia-Real-Estate.com
         Available homes in real time www.HomesDataBase.com/Mitzi

.

To Top

Quote

Reply

dianevarni@comcast.net

Date: February 29, 2008

Look at your contract – ours states clearly that the condition is set at contract writing unless otherwise agreed. This means any damage (tenants, acts of god, vandalism what ever – is the sellers responsibility.) We do list all appliances specifically, but if thery were not listed and were not excluded; but where there at time of contract then they should stay.

<gail@gailhomesales.com> writes:

I realise all states have different versions of a real estate contract but I would like some help/comments please.I am in FL
My first time buyer offered on a home.In the offer I stated "that anything not specifically excluded will be included." and nothing was marked as excluded by seller. except in the MLS.The seller is excluding the d/washer refrigerator,washer and dryer 1 day before close.(only the stove was offered in the MLS) What is your take on this.

During the month while under contract the tenant damaged the property and the seller filed criminal charges.The seller is only offering to pay the $250 limited by the home inspection.The damage is $3000+ How would you respond ?

========================

I don't know what your contract looks like (if it specifically LISTS items of personal property....ours lists about 50 things, including washer, dryer, double oven, range, refrigerator, ceiling fans, garage door openers, etc.), but the contract itself, rather than the MLS "offerings", is what expresses what is agreed. If items WERE listed in the offer, and it was AGREED DURING NEGOTIATIONS BY THE SELLER that they would remain, sounds to me as though the seller must leave them with the home.

I've been taking interior photos of the homes my buyers purchase for years now (usually do it during the home inspection...we're there for a very long time!). According to our contract, the home is to be conveyed in essentially the same condition as it was when the buyer contracted to purchase. If it's not, it seems you have to have some sort of DOCUMENTATION that it's not to add credibility to a buyer's claim that the seller is not living up to their part of the bargain. Photos of what it DID look like could be a great help in that regard. I also attend final walk-thru with my buyers and I bring my camera. If there is ANYTHING the buyer is concerned with regarding condition or items that were supposed to remain, I take photos of those things to bring to closing. If final walk-thru is done a day or two prior to closing, I email the photos to buyer's attorney as well.

JudiB
Judi Bryan, Broker. . . . . . . . . . . email: Judi@HomesLady.com

To Top

Quote

Reply

Paula Bean Licensed Real Estate Agent, Orlando, FL

Date: February 29, 2008

<<<<<In the offer I stated "that anything not specifically excluded will be included." and nothing was marked as excluded by seller. except in the MLS.The seller is excluding the d/washer refrigerator,washer and dryer 1 day before close.(only the stove was offered in the MLS) What is your take on this.>>>>

Gail, I can help you with this, since I've sold real estate in FL for almost 30 yrs.

My first question would be, WHICH contract did you use? The FAR/BAR or the other one? Yes, guys, we have TWO contracts that say different things, we are a Transaction Brokerage State, and all other wierd things ;-)

Absent seeing your contract, or knowing WHICH one you used, here is my .02. GO TO YOUR BROKER or manager for help! That is what they are there for.

My other .02 is that you write the offer up the way the buyer wants it. I don't care if the MLS said blah, blah, blah.....your buyer can say I will offer you THIS, BUT - I want yada, yada, yada. THEN, you wouldn't have this issue ;-)

Lastly, your buyer can tell the seller "love you - buy" BUT, again, that depends on what contract you used, and what you said in it........

I HIGHLY advise you to get your Broker and/or Manager involved in this as I can see an E&O issue coming in the very near future ;-)

Hope this helps (somewhat).

Paula Bean, REALTOR®
A Premier Class Realty, Orlando, FL
e-PRO® Certified Technology Expert
ACRE® Accredited Consultant in Real Estate
Native born Realtor helping people move for 30 yrs
How can an Accredited Consultant Help YOU?
Click here to find out! ACRE

To Top

Quote

Reply

Username
Password
Login to:
Remember Me

RealTown's RealTalk

Contracts gone awry

Reply to Discussion: