Expert: liznarr - 9/19/2006

Question
Yes, we did indeed fill out a disclosure form.  And none of their complaints were listed or disclosed, as we never had any problems.  Also, it was the buyers inspector who did the inspection, not ours.  Not to mention we did purchase the buyers a home warranty, and the buyer got a refund from the warranty company because they could not please her.  My best guess is she harrassed them to no end and they wanted to get rid of her so  they gave her a refund.  Basically, I'm ready to have these people out of our lives and willing to do so in mediation being their request is reasonable.  If We are deemed to be responsible tehn I'm willing to fix it.  I just want to be done with it all ready!  
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Followup To

Question -
We just sold our house in July.  Now the buyer wants to file suit on us. The first few reasons  being the oven does not close correctly, jets on whirl pool tub don’t work, and AC does not work properly.  All of these we never had any problems with and neither did the inspector.  The main reason the buyer is upset is that there is a crack in the slab in the front porch that they say comes inside underneath a wood floor and then cracked some tile in the kitchen area.  Mind you, when I say crack I mean small very small crack that you can see in many slabs….we were never aware of any foundation problems.  We have offered to see paperwork proving that they have these problems, but have received nothing.  They continue everyday to complain and bring up minute things that are wrong with the beautiful house we sold them.  But they never take any action.  I would love to get this taken care of and get these people out of our lives.  Oh, and also, I had the house professionally cleaned before we moved out and they buyer called me personally and told me the house was filthy and she was disgusted.  I went over to look at it, concerned the cleaner had not done a sufficient job, only to find the house smelling of  house cleaners and clean!  The buyer proceeded to show me a smudge on the microwave, a handprint by a doorknob, some cobwebs, and some soap scum in the shower.  Anyways, to get these people off our backs and out of our lives we gave them $100 to shut them up and find their own cleaners.  I'm thinking we shouldn’t have even done that.  Please give me your opinion. Do you think we are liable for any of this?  I know we have to go to mediation first. I'm at loss on how to deal with these impossible people. I appreciate any advice.
Thanks for your time.



Answer -
Hi,

Not having seen your Contract of Sale, I can only give you general suggestions.  You should check your Contract of Sale for language relating to condition of property and home inspection.  

Contracts used in my area require that a written Addendum accompany any home inspection report outlining any repairs requested and agreed to between Seller and Buyer which must be signed/initialed by all parties.  There is a time period for this to be done, and if no action is taken within the time specified in the Contract; the Buyer effectively waives any right to ask for repairs after the stated deadline and agrees to accept the property in its current condition.

A question for you is, “Does your state require a signed disclosure statement as part of a Contract of Sale?”  If so, and if such a disclosure was properly filled out, this is a tool to minimize liability for you.

You did not say whether or not the BUYER ordered the home inspection report that you referred to, or if this was an inspection you had on file.  However, if the buyer did, in fact, order the inspection you referred to and defects were disclosed that the Buyer did not ask to be corrected (and everyone signed off on the inspection report), you would be relieved of any obligation to correct … so long as any such areas were not a problem for you previously that you knew about and did NOT disclose.

Disclosure is a key issue here.  If you never had a problem with any of this Buyer’s complaints, there is nothing to disclose.  If you did have a problem with something that you did not disclose, you could be accused of fraud (intentional misrepresentation).  

Generally, disclosure litigation deals with material defects which, by definition, would be a defect that, if disclosed and known by a Buyer in advance of closing, could affect a buying decision … in other words, would a Buyer still want a house if he/she knew of a defect classified as “material.”

If the home inspector missed something significant, I would suggest that the Buyers go back to their inspector and ask him to take responsibility for what he missed.  Most licensed inspectors carry insurance to cover such events.

After a home inspection and subsequent closing, a Seller’s responsibility ends unless, as I referred to above, there has been some type of misrepresentation by a Seller.

Some Buyers are never happy and will continue to harass you with groundless complaints as long as you allow it.  If you disclosed all that you knew and this Buyer continues to harass you, check your contract regarding condition of property and home inspection; do some homework; and then send her a Certified Letter stating the facts and make appropriate suggestions.  Better yet, I’d be willing to spend another $100 to have an attorney write her a letter and put her on notice to either file suit or stop harassing you.

My opinion of your $100 payment for another house cleaner is that while maybe not required, you made a good faith effort to appease this woman and correct any “perceived” wrong that she complained about.  Some may disagree, but in view of her other complaints, I commend you for that.  A few smudges and some soap scum?  Big deal. You have demonstrated that you are a better person than she.

I hope the above is helpful and points you in the right direction.  Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth


Answer
Hi,

Sounds like you did “all the right things” and that these people are basically just whiners that no one can please.

You should be aware that mediation is NOT binding UNLESS you agree with the decision rendered by the mediator.  

Should a mediator make a decision that you vehemently disagree with and/or do not want to compromise, you can decline and refuse to sign the mediation decision.  Whether or not the purchaser would pursue it to the next level would then be left up to her/him.

Good luck to you, and I hope you get the outcome you deserve.  These purchasers sound totally unreasonable.

Regards,
Elizabeth