Inheritance and Property Rights/rights during escrow
QUESTION: Hi Lee,
I need your help. My son is closing on a house in Oakland. The papers were to be finalized yesterday. His realtor went out to see if the sewer lateral had been finally completed (we waited weeks for this to be done)and saw that the trees in the backyard had been SEVERELY trimmed. We don't know at this point who authorized the "trimming"....the next door neighbor, the owner of the property we are in escrow OR both!!! We are being told that there was "miscommunication" between the neighbor and the person who did the job. The owner of the property says his last counter offer to my son was reduced more than he wanted and so he doesn't think he needs to reduce it further at this point. We are also waiting for a receipt for work done on a deck that the owner says he can't find. What recourse/options do we have? At this point, can the seller dictate he won't give any compensation even though it is no longer the property that was agreed upon? Is there somewhere we could get information as to my son's rights in this case? We would GREATLY appreciate ANY insight/recommendations you would have concerning this situation. Thank you SO much for your time and kindness in this matter.
ANSWER: I'd say you may have a good basis to rescind the deal; they give back your deposit as you're not in default and you release them from the obligation to sell to you. The typical contract says the seller will maintain the property in the same condition as when you made the deal and that hasn't happened, assuming this tree "trim" is so severe that it affects the appearance of the property (and may well have damaged the trees in the process -- you might want to get a tree surgeon to give you an idea on that one);
and this nonsense about not being able to find proof of work done on the deck -- sounds phoney. If you can't come to an agreement on a price revision because of now having to take the deck "as is" and the tree situation, then rescind and let him sell to someone else.
There are plenty of properties on the market. And don't let your realtor bully you into doing the deal for fear that you'll be sued for breach of contract -- or will lose your deposit as liquidated damages. You're not in default and that's what triggers a deposit loss or lawsuit.
It's good you found out all this before closing. As for the sewer work being done, this might require more than a look-see by the realtor who only gets paid if the deal closes -- and may not be the most reliable source of whether the work was done and/or done right.
---------- FOLLOW-UP ----------
QUESTION: Hi Lee,
Thank you for such a timely and thorough answer. One question remains at this point. Because this is a contract and the fact that the property is no longer in the agreed condition,can the owner just refuse to compensate for the trees or is he obligated by law to compensate for the loss? Again, thank you SO much for your time and kindness. I look forward to hearing from you.
It depends somewhat on what your contract says, but generally speaking if you negotiate for say a used car and the contract says it's to be delivered in the same shape as it was when you first saw it; then the seller wrecks it and the spray-painters go crazy with spraying the thing; and he tows it over to your house, dumps it in your driveway and says, here's your car/where's my money?
No. You no longer have a binding contract on the car and it's a legal excuse for your performance if he can't deliver what you bargained for. Similar situation here. That tree trimming might well have killed the trees; it certainly has affected the view you bargained for.
Yes, if he wants to make an adjustment and you're happy with that, this can be done; but just like the dude with the wrecked car -- if you're not getting what you bargained for you don't have to proceed forward and you should get a 100% refund -- which you may have to sue him in small claims court to get. To be safe, take photos of the trees as they are; if the realtor has any "before" photos, get those and hold on to. Let me know how this turns out. Don't be bullied into surrendering your deposit either; he's in breach of the agreement, not you.