Ask Phyllis!

Negotiating After Closing

Dear Phyllis,

A family friend was our Realtor® and we sold our home in October of 2018.  The process was simple enough. We gave the buyer complete access to the home for their main inspector, which also included separate sewer and chimney inspections. We were under the impression that we were selling AS IS because that’s what our counter offer stated.  As you know, 2019 brought El Nino like rains and the roof of our old home leaked.  The buyer contacted our Realtor® and that’s when all the drama began.  We told our Realtor® and the buyer that we were not aware of any roof leaks.  The buyer threatened to sue and we ended up settling with them for $2,400.  I am curious as to what our Realtor® could have done differently.     Confused

Dear Confused,

I sympathize with your situation. As a home seller you can only disclose what you know.  Last year we were in a drought and this year brought torrential rains. If the roof wasn’t leaking you certainly couldn’t predict the future.  You completed the Transfer Disclosure Statement (TDS) which asks the approximate age of the roof.  Owning a home requires constant maintenance.  It’s unfortunate that your buyer didn’t understand that all of the components of a home have a life expectancy. 

The California Purchase Contract reads: “Condition of Property” Unless otherwise agreed to in writing (i) The Property is sold (a) “AS-IS” in its present physical condition as of the date of Acceptance and (b) subject to Buyer’s investigation rights; (ii) the Property, including pool, spa, landscaping and grounds, is to be maintained in substantially the same condition as on the date of Acceptance, and (iii) all debris and personal property not included in the sale shall be removed by Close of Escrow.

I assume your real estate agent reviewed the buyer’s physical inspection. Perhaps their inspector asked them to consult a roofer and maybe they were remiss and didn’t. This may have given you some ammunition during your negotiations.  I am not a real estate attorney, but assuming you were truthful in your disclosures, there is little you or your real estate agent could have done differently, other than perhaps have selected a different buyer.

  Phyllis Harb