Selling 'as is' puts more responsibility on buyer

 
 
Posted6/7/2019 6:00 AM

Q. My brother and I will sell my mother's home shortly and we have one major concern. Neither of us has been to the house much over the past few years and we are concerned about its condition. When things would break, mom would usually choose the absolute cheapest way to resolve the problem. Plus, we know the guy she usually hires to do her repairs and I wouldn't trust this guy to do anything at my house.

We spoke to a Realtor who showed us a form we were going to need to fill out regarding the condition of different parts of the house, like roof, basement and appliances. Honestly, we don't know if the roof leaks or the refrigerator works so we don't know how to respond on the form.

                                                                                                                                                                                                                       
 

How do people who are selling a house they don't know much about handle this?

A. The form you are referring to is the Residential Real Property Disclosure Report. In that report, the party completing the report is asked if he or she is aware of any issues regarding numerous elements of a typical residence, such as roof leaks, water in the basement or appliances not working properly. This, of course, is difficult if not impossible for sellers not familiar with a property.

The first statement on the report is "The seller has occupied the property within the past 12 months." You will answer no. From there, some "non-occupying" sellers do not respond to the remaining statements. Some respond checking "no" in response to "I am aware of (leaking roof, defective windows, etc.)," relying on the fact that they don't live there, so how could they be aware of a problem.

In regards to the contract, I would advise you elect to sell the property "as is." By selling as is, you are making no representations concerning the condition of the property. You are essentially stating that it is on the buyer to discover any defects and bring them to the seller's attention. Also, the buyer acknowledges that no representations, warranties or guarantees were made to buyer by seller. Be advised, however, as with all sellers, you are required to disclose any known defects, whether you lived there or not.

Selling "as is" does not preclude the buyer from conducting a home inspection, does not preclude the buyer from asking for repairs or a credit for discovered defects, and does not preclude the buyer from walking away from the transaction and receiving his deposit back if an agreement is not reached.

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It does, however, provide some insulation to the seller in the event a problem arises shortly after the buyer takes possession.

Q. My wife and I are looking to buy our first home and we are looking mostly at new construction. We stopped at one place last weekend and the sales representative showed us their contract. It was 25 pages long and full of stuff we didn't understand. How do we protect ourselves if and when we find a place we would like to buy?

A. New construction is a little tricky. When purchasing a used home, most form real estate contacts contain an attorney review clause. This allows your attorney to suggest modifications to the contract, with the exception of price, usually within five business days after the contract is fully executed. If an agreement on the suggested modifications is not reached, either party can terminate the transaction.

Many new construction contracts I have seen do not contain an attorney review provision. Accordingly, once signed, you are bound by the terms of the contract.

So, if you find a home and the contract contains an attorney review provision, no problem, just give your attorney enough time to review it. If it does not contain an attorney review provision, ask the sales representative if an attorney review provision could be included in the contract. Sometimes the sales agents will have an "attorney review rider" he or she can attach to the contract.

If there is no attorney review provision in the contract and the sales rep will not add it, it's decision time. You either walk away or sign. Most builders will not alter their contract so the attorney review provision simply affords you the opportunity to fully understand what you are signing. I certainly agree, however, that signing a 25-page contract that you don't fully understand would be uncomfortable for most folks.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tom@thomasresnicklaw.com or call (847) 359-8983.

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