Condo contract with no inspection contingency (sales, real estate, lawyer)

[Cognizant]

We signed a condo contract with no inspection contingency. We deposited 4k on earnest money deposit. Seller allowed us to perform inspection(for information purpose only) and we discovered few issues(window not shutting down, paint peeled off in bathrooms, exhaust fans in both bathrooms not functioning). There issues were not disclosed in the property disclosure when we signed the contract. We are requesting our realtor to have the seller fix these issues, but our realtor don't want to communicate these issues because seller realtor already said that inspection is for information only and not for negotiation. We are planning to close by June 30th. Who should be responsible to fix these issues ? We want to move in to this condo but we wanted seller to fix these issues. I am thinking about sending the inspection report to the seller in a certified mail so that he can take care of the issues. If they don't fix these issues, can we back out of the offer and get our earnest deposit $4k back ? Please advise on how to proceed.

[flyonpa]

Its unlikely you can back out,

Fixing all the item you listed would be less the $1K, Some thing you just have to eat, as the cost of being a home owner...

The question is why did you sign a contract with no inspection clause?

[Wells5]

What is a condo contract? There is a standard NH purchase and sales agreement for all types of residential real estate transactions (http://tinkhamrealty.com/images/p&s-agreement.pdf). One of the provisions is for an inspection on behalf of the buyer.

If you did sign a non-standard purchase contract that did not contain an inspection contingency or did not check the inspection contingency box on the standard contract because you were assured that the seller's disclosure form was truthful and accurate, then you need to hire a real estate lawyer if the other party will not address your grievances.

[GregW]

You were obviously sold a place under false circumstances. I would hire a lawyer to help me get out of this particular contract. The defects you noticed were probably only the beginning of your problems.

[cowbell76]

My house is currently under contract to sell, so I am very familiar with the standard NH P&S agreement as well as the disclosure form.

First of all, buyer beware. Do your due diligence. You shot yourself in the foot by waiving the inspection contingency. Why would you do so if you're paying for an inspection, anyway?

Second of all, things like peeling paint and even windows not shutting down (whatever that means) are not really something to be negotiated even if you did have an inspection contingency. Most experienced and realistic buyers wouldn't request (or at least expect) these to be remedied. The peeling paint, particularly, should have been visible to you if you took an even somewhat thorough look before submitting an offer.

The exhaust fans should work, but this isn't the sort of thing which I would expect to see on a disclosure. For all you know, the they've never worked for the seller and the seller is unaware they're even there. Did you turn them on before you made an offer? Why not?

Even when your agreement includes an inspection contingency, you shouldn't be going into inspections assuming you'll renegotiate later. Factor minor problems into your offer price. The inspection is meant to reveal major problems not readily observable by the buyer. Even if major problems arise, the seller has zero responsibility to remedy the situation although in refusing to do so the contract can fall through and you can get your earnest money back. In this case, YOU are the one who chose to structure the contract this way, allowing for no "out" based on inspections.

In any case, none of this is a big deal... are you having second thoughts for other reasons? Why would you kill a deal over this?

Also, $4K seems a lot, in NH, for earnest money, for a condo, unless it is a very expensive condo. Are you otherwise in a weak buying position such that you needed to deposit so much, and waive inspections?

Just to make perfectly clear: the disclosure form is not meant to list every single minor problem in the house. Every house has minor problems. Also, the seller would be wise to return your certified mail unopened. This is your report and the seller has no obligation to look at it. It's also an unwise idea to go directly to the seller, bypassing their agent.

[cowbell76]

I have several more things to add, because this situation is making me even more thrilled with our mature, realistic, non-greedy buyers who gave us a full-price offer in less than a week, with a good down payment, and who aren't hammering us with a list of repairs after the inspection, despite an inspection contingency.

What I'm saying might sound harsh, but I'm just being realistic about buyer responsibilities and real estate laws. Everyone, but often especially sellers, particularly if a property is owner-occupied, invests a substantial amount of time, money, and effort to get a property sold. If a seller living in the home thinks the deal is not going to fall through due to inspection results, they will likely start securing new housing and making moving arrangements. A seller with a waived inspection contingency should be able to be 100% certain that they have to make no repairs. If you break the contract, it is to their detriment. Even if they're not living at the home, they may be relying in other ways on the deal going to closing.

A few questions - was this listed as-is? Did you enter a contract sight unseen? Did you think that a clean disclosure means there is absolutely nothing wrong with the property? Every buyer has a responsibility to examine the property to their satisfaction before entering a contract. This is even more important if you are waiving the inspection contingency. Open every door and window, flip every switch, turn on every faucet, flush every toilet, look at all walls, floors, and ceilings. Nothing you list as a problem requires any particular skill, experience, or access to be seen. You seem to have waived the contingency with the idea that the wording means nothing legally, and if your "informational" inspection turns up a problem, you can just strong-arm the seller into fixing it, or it means the seller lied on the disclosure form.

1.) No home inspection is meant to provide the buyer with a list of problems to be turned over to the seller in full, for repair. As I said above, what you list is minor and many buyers, even with a contingency, would not expect the seller to repair. And, even brand new construction will usually have a few problems.

2.) It is entirely possible and common for a home to have problems, not disclosed, of which the seller is completely unaware. At one time we had a major system failure which was not known to us.

3.) Home inspection reports can be wrong. The inspector said our attic didn't have a ridgeline vent, which it does have. He didn't go in the attic or on the roof. A friend recently sold a condo in another state, and the inspector said a stove burner didn't work, because he didn't know how induction cooktops work. As for window issues... double-hung windows could have been opened and then not repositioned properly, so they don't close. I washed all our double-hung windows prior to listing, flipping each window inward to wash both sides, and I had to be really careful to make sure the top half was pushed all the way up, and all "tabs" were clicked back into place. In one case I didn't do it properly and couldn't close the window until I went back and did everything right.

In the end, nothing you list is a big deal, anyway, and given that you waived the inspection contingency, I have no idea why you imagine the seller has any responsibility to make any repairs, and why you should be able to walk away with your earnest money. The seller had zero obligation to allow your inspector into their home (and in my experience inspectors can cause quite a bit of damage....) They did so ONLY as a courtesy to you, and now you want to take advantage of them? It seems to me that if the seller had something to hide, they wouldn't have allowed ANY inspection prior to closing, even with the inspection contingency waived.

[Cognizant]

Thanks for all your responses. I am moving forward with this condo.

[sailor_lou]

Originally Posted by Cognizant

Thanks for all your responses. I am moving forward with this condo.

Sounds like a good decision and as identified above, the issues described sound like most normal home repair items. Good luck with your purchase.

Lou

[cowbell76]

Originally Posted by Cognizant

Thanks for all your responses. I am moving forward with this condo.

This is good to hear. Perhaps you are now cognizant of how contracts work. (ba dum bum.)

Really this is no big deal and when you own the condo you'll have to deal with other repairs as a routine part of home ownership. No one wants to go into a "new" home without everything absolutely perfect, but the real world isn't HGTV, especially if someone is buying an older property. (You don't say the age but we know it's not new construction.)

May you have many happy years in the condo, and never waive the inspection again!