So Bobby and Brenda Buyer are excited first time homebuyers. And, as every responsible real estate agent would do, Annie Agent recommends a home inspection. Harvey Home Inspector’s report lists a number of issues, some of which can be discarded, but others, i.e. a small water stain on the living room ceiling directly below what happens to be the upstairs shower, needs to be addressed by Sammy Seller prior to closing. How is this addressed by the parties in their contract for purchase and sale?
The purpose of a real estate contract is to memorialize in writing the parties' intentions thereby reflecting the “meeting of the minds.” In the above scenario, what are the Buyer’s and Seller’s intentions? Does each only intend for the ceiling stain to be painted over so the stain is no longer visible? If so, then I would expect a written agreement along the lines of “Seller agrees to paint living room ceiling.” Or, does each party intend for the cause of the leak to be fixed as well as any necessary cosmetic ceiling repair work? If so, then I would expect to see verbiage along the lines of “Seller agrees agree to take all necessary steps to repair the cause of the water leak appearing on the living room ceiling and restore ceiling aesthetic to pre-stain condition.”
The fundamental key at arriving at the respective parties' individual and mutually agreed upon intentions is COMMUNICATION. Communication between the parties and real estate agents is typically necessary PRIOR to anything being put in writing. How often would a 3-minute telephone call have saved hours of post-closing distress and clean-up? The worst case scenario, but one that happens all too often primarily because of lack of communication, involves the parties intending for the cause of the leak to be repaired along with attendant cosmetic necessities but the agreed upon contract language only addresses the symptom or cosmetic quick fix. Invariably, Murphy’s Law kicks-in, and sometime after closing the water stain re-appears, Bobby and Brenda Buyer seek redress, and Sammy Seller takes the position “I did what the contract required.” At this juncture, the dispute is “ON” and nobody really wins.
As your closing attorney, McManamy Jackson, PC is prepared and available to assist in this process so that the ultimate contract language properly reflects what everyone involved intends to take place. Don’t be afraid to call us in these situations; frankly, it’s why we are here.
As always, please call me with any questions.
Douglas P. McManamy
(912) 691-0943 phone
(912) 691-0947 fax
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