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Should you demand repairs after a home inspection?

Insisting on Repairs

This is a follow up to our most recent post concerning Home Inspections. OK, so the buyer elects to have a Home Inspection. The inspector goes through and notes a number of items, some of which might be costly repairs and some of which might be what agents refer to as “Mickey Mouse “items. Which ones MUST the seller address? This is where we can sometimes run into a bizarro world of misinformation.  I cannot tell you how many times I have heard smart agents, who are tremendously productive, quote what has become almost a mantra for them. They boldly state with total self assurance that “The Seller is obligated to address any (all) health and safety issues.” So let’s speak to this point right now. THIS IS ABSOLUTELY 100% PATENTLY FALSE!

The last time I looked, the stars and stripes were still flying outside my window and anyone that owned Real Estate had the freedom to do whatever they wanted to do with their property. Of course, they have to comply with local laws and ordinances or suffer the consequences, but in a transaction, if the seller refuses to dance to your tune, the only thing that can compel them to “fix” anything is if they want to keep the deal. If a high radon reading is determined (anything over 4.0 picocuries per million) as a part of the home inspection process, and the buyer insists that the seller remediate it, (with the current cost to fix the issue running between $1200 to $2,000), they can simply say “no” and they don’t have to do anything.  

So using this scenario, let’s play it out for you. The buyer says fix it, because their agent has told them it is a health and safety issue.The seller is not legally obligated to do anything. The buyer says, “fine, then stick your house in your ear.” This may not be the exact dialogue but you get the point. So, the deal is dead…. (long pause).

Now, what happens? The buyer moves on and so does the seller and that’s that.  Ah, but here’s “the rub” as Shakespeare said.  The seller must now disclose to the next buyer that the house failed a radon test. He now has what is called a known latent defect.  Under Real Estate law, all sellers and their agents must disclose these conditions There are no exceptions. There are especially strict penalties for Not disclosing for principals, and agents can risk fines, forfeiture of license and imprisonment.  So let’s continue to play this out so you grasp the complexity of it.

The seller and or the agent must disclose this to the next buyer and pretty much just about all of them will say the same thing. “I don’t really care, JUST FIX IT!” So the seller, even though they weren’t obligated to address it with the first buyer, is more than likely going to have to deal with it or he might have an unsellable property. What was most likely to have occurred, if the first agent was really on their game, is they would have negotiated some sort of split for the cost or perhaps the buyer might have assumed 100% of the cost for themselves if they deemed the property was a good enough value.  This is especially true if they were not misled into believing that the seller had a legal obligation to address it. The expectations were erroneously presented and they acted accordingly.

Something else to think about along these lines.  Many times the lender will insist that certain repairs get addressed as a condition for them to grant a mortgage. Again, the seller is NOT legally bound to comply. However, and this is a big however, at this point some common sense should kick in and the seller needs to figure out a way, based on the cost, to get these repairs squared away.  These are negotiating issues not legal ones. One of the freedoms we have been granted is to make decisions for ourselves. Hopefully, we all make good ones. Even the law cannot force us to make the best decisions for ourselves and sometimes clients and agents just cannot get out of their own respective ways and get everyone to agree to do what makes the most sense, for all parties concerned.

Author Brendan J. Cunningham is a New York Licensed Associate Real Estate Broker, lead of the Platinum Team at HusVar Real Estate, as well as an accomplished writer, Shakespearean trained professional actor, and podcaster.

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