July 9th, 2018 at 10:51 am
Answer: Yes, most likely. If this matter became a full-blown legal dispute, a judge, jury, or arbitrator is highly likely to consider a crime recently committed at the home to be a new material fact affecting the value or desirability of the property. Also, the seller’s disclosure of other “neighborhood noise problems or nuisances” on the existing TDS is not the same thing as disclosing this recent burglary. Hence, the seller’s failure to provide an amended TDS as required under paragraph 10A(6) will likely be deemed a breach of contract. Although the buyer technically needs to receive an amended TDS to cancel according to paragraph 10A(7), the law generally will not allow a contractual party to benefit from his or her own breach of contract. The buyer should prevail in cancelling and receiving the deposit back, even without an amended TDS. Hopefully you can solicit the help of the listing agent to get the seller to understand these points and agree to sign a Cancellation of Contract.
-Thank you to Nicki Marcellino (La Jolla Manager) for suggesting this week’s legal tip.
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