Quote from @Kevin S.:
@Kelly Boulton
Thanks for your insights.
If lender does the re-inspect, do they pay for it? I am more concerned about roof damage since that is usually the biggest ticket item. I don't mind paying for re-inspection. I rather do that then find out roof damage after close.
Any idea what extent of damage has to occur for the "Force Majeure" to apply? I don't want to buy a house that need major roof work.
I'm not sure if the bank would pay, but hopefully you have already reached out to them to see what they require to move forward. If they are not willing to pay, I'm sure you could negotiate with the seller. I wouldn't think it would be more than $150. Personally, I would eat the money up front to get someone on schedule asap and work with either the bank or the seller for a credit at close.
If there is roof damage, that would be an insurance claim on the current owner's policy. You would not be responsible for the repair from damage. This could be another reason the closing is delayed. Depending on the bank/loan type they could require that the claim is filed and there is proof of repair.
As for Force Majeure, first this is not legal advice because I am NOT an attorney. Though when it came up last year with my client it was determined that you can easily use the county declared state-of-emergency as proof that there was a hurricane.
So if there is damage that can't be rectified through reasonable effort with both parties (ie. damage that the buyer is not willing to claim on ins., won't credit you the cost to fix, a delay longer than 30 days while the bank is processing "re-inspection', ETC) than you can cancel the contract and receive your escrow back. Remember, the seller is counting on this to close as well. It sounds like the transaction is close to closing, which means instead of finding a new buyer, they'd likely be open to reasonable concessions.
Included full clause below...
FORCE MAJEURE: Buyer or Seller shall not be required to exercise or perform any right or obligation under this Contract or be liable to each other for damages so long as performance or non-performance of the right or obligation, or the availability of services, insurance, or required approvals essential to Closing, is disrupted, delayed, aused or prevented by a Force Majeure event. “Force Majeure” means: hurricanes, floods, extreme weather, earthquakes, fires, or other acts of God, unusual transportation delays, wars, insurrections, civil unrest, or acts of terrorism, governmental actions and mandates, government shut downs, epidemics, or pandemics, which, by exercise of reasonable diligent effort, the non-performing party is unable in whole or in part to prevent or overcome. The Force Majeure event will be deemed to have begun on the first day the effect of the Force Majeure prevents performance, non-performance, or the availability of services, insurance or required approvals essential to Closing. All time periods affected by the Force Majeure event, including Closing Date, will be extended a reasonable time up to 7 days after the Force Majeure event no longer prevents performance under this Contract; provided, however, if such Force Majeure event continues to prevent performance under this Contract more than 30 days beyond Closing Date, then either party may terminate this Contract by delivering written notice to the other and the Deposit shall be refunded to Buyer, thereby releasing Buyer and Seller from all further obligations under this Contract.