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Protecting My Clients – Like a Mama Bear

Protecting My Clients – Like a Mama Bear

One thing that has always been important to me has been protecting my clients best interest.  That can be either the seller or the buyer or both if the circumstance presents itself.  Coming from a nursing background, I feel the need of being a client (patient) advocate.  I believe it is my job to make sure you are protected in a transaction.  After speaking with a local Orangeville lawyer, I feel the black and white law has many grey areas!

In contracts, we try to write clauses that protect or ensure something is done by the end of the transaction.  The question arises, what happens if it doesn’t get done or go according to the contract? This is where I think the law can get grey.  Our agreements of Purchase and Sale are legal contracts and are signed by all parties under seal.  Legally both Seller and Buyer have agreed to all the negotiated price, dates and terms; but, what recourse do you have if something is not as it was supposed to be on closing?

Let’s use an example of the fridge, stove, dishwasher, washer and dryer are included in the purchase of a home.  The buyer’s representative has written a clause stating at time of closing the chattels must be in good working order.  The buyer does a final walk through the day before closing and notices the dryer is not working.  What do we do?

It is in the contract that the chattels remaining with the home are to be in good working order, but what happens if they are not? And further, what exactly is “Good Working Order”? The first thing the Buyer’s representative would do would be to contact the Seller’s representative to find out why the dryer is not working.  Maybe it is something very simple like the breaker is turned off or it is broken and the repairman is to be there prior to close to fix.  If the seller explains it just died this morning and they will not be able to get it fixed before close, an agreement of a hold back by the lawyer may be an option.  Hold back of money by an Orangeville lawyer is not as easy as many realtors believe.  A hold back must be negotiated between the two representing lawyers and agreed to by their respective clients.  In this example, if the seller did not agree to a hold back of money, then the buyer has no option to hold back money to repair the dryer.   You may be thinking the seller is in breach of contract as it states the dryer needs to be in good working order and you would be correct. It is not reason enough for the buyer to walk away from the deal and not to close on the property because the buyer would also then be in breach of the contract.  Your options as the buyer would be to close and then go after the seller in small claims court which could take many months and aggravation to try to recoup the cost of a new dryer.  You may also choose to just close on your purchase and get the dryer fixed yourself.   This does not seem fair but is realistic.

I think as realtors we need to make sure our clients have realistic expectations from the onset.  If you are buying a home with older appliances, even though we include in the agreement a clause that states they must be working, there is always a chance that one of those older appliances may not be working when you move in.  If the buyers are not in a position to fix or buy another appliance to replace the defective one, then we should really make sure they are looking at homes with newer appliances and less chance of being defective.  Typically a buyer is buying a home because it is in the right location they want, it is the size they need and in most cases they have not bought the property for the appliances!

The take-away lesson is having a condition of inspection is very important.  Your buyers should know exactly what they are buying from everything from the roof shingles to the sump pump in the basement and everything in between.  If there are any concerns, address them prior to firming up the deal.  As a seller representative, we should make sure our clients know that they are responsible for maintaining anything that is to remain with the property right up to closing date unless otherwise stated.  I am protecting my clients best by giving them straight up information and giving them realistic expectations.

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