How enforceable are items in the "additional items" section?

5 Replies

I’m interested in purchasing a home and had my agent put into the contract that the following items must be either repaired or a credit given for repairs (we noticed these items during the first showing):

"Contingent on:

receipt of initial mold report from H2O no later than 3 days after effective date

items notably understood for repair or credit

sliders do not work, do not lock must operate properly

hot water heater has leak

screen lanai has sections of screen not secured in place"

We are using a standard Florida Realtors and Florida Bar approved contract.  It is not a AS-IS contract.

My interpretation is that the items listed MUST be either repaired or credit given.


My agent is insisting that the additional terms don’t mean the seller has to fix or credit anything, instead it is an understanding that after the inspection we will be issuing an inspection notice asking for a credit/repair, which the sellers can then accept or decline. I’ve inserted her comments below:

“There is nothing that says they are absolutely giving you anything.
It was inserted as part of an understanding of what we will be coming back with, opening accepting the price...

You need to complete the inspection to fully see what else is a concern before you ask for credits or repairs. It’s called an inspection notice… you will want to include the cost to cure/repair those items so we can present a price… ok”

My point is that if they are not going to fix the items, which she believes they won't, why would I go through the cost of having an inspection done?  Not fixing the items, at this particular price point, would be a deal breaker for me.

My limited understanding of tort law indicates that the contract is binding and that the Inspection notice is an addendum that can be bargained over.  If I asked for something else, outside of the items in the original contract, then the sellers could decline to fix/credit those but the original terms of the contract are enforceable.

I would appreciate any insight the forum can provide, especially if you are Florida real estate lawyer.  I do need to initial the counter offer tomorrow.

Thanks!

I don't know about Florida, but I can tell you that here, contingencies just mean the contract can be voided and the buyer receive their earnest money back. The seller doesn't have to fix or replace anything, especially if worded like that. If the seller won't do those things, then walk away, don't pay for the inspection and get your earnest money back. 

The only real breach of contract is generally if the buyer does not conclude the sale of the property despite having the means to do so - i.e. the financing contingency is satisfied, the inspection report goes well, etc. The only recompense available to the seller usually is the earnest money. On the buyer's end, the only recompense is getting the earnest money back, and maybe suing the seller in small claims court for out-of-pocket expenses (a waste of time IMO). 

@Mustafa Abdulali   I would agree with @JD Martin   A contingency means you can get out of the contract if the items in the contingency don't happen. The words "Contingent on" should have been left out, then you would have a case. 

I don't agree with your agent, unless there is another contingency clause elsewhere. Where does it say you get to inspect for any additional items? Where is there anything about an "Inspection notice" 

If your agent wrote the above contingency for you but your intent was those things must be repaired you agent has done you a disservice.

Not meant as legal advice but simply my layperson understanding of contract law.

Agreed, the language concerning the items to be repaired, or credited, we're not clear.  In general this idea is a bad one anyway, as their interpretation of a proper repair may be different than yours.  Besides, this is less small Han $1k in repairs, and generally you're better doing them your self anyway.  Also, the most commonly used FARBAR is indeed an "as is" contract, and I suspect that Is what you used, even though it's not "titled" as is.  If you give me the contract version, in the lower left hand corner, I can verify it for you.  I assume you do have an inspection period, paragraph 12?

@Mustafa Abdulali As to your original specific question, yes anything added in the contract is enforceable, if clear, and in fact it overrides anything else within the agreement that it conflicts with. The "Contingent on" makes it an option, not a requirement.  Make your final decision during your inspection period.