Fact Pattern: A buyer enters into a sales contract using the C.A.R. Residential Purchase Agreement (RPA). All timeframes in the “Contingencies” section (paragraph 3L) of the RPA default to 17 days. During escrow, the buyer removes all contingencies. A few days later, the buyer asks for access to the property to conduct a mold inspection.

Multiple Choice Question: Must the seller allow the buyer access to the property? Pick the best answer:

A. Yes, because that would be “best practices.”
B. Yes, if within the first 17 days after acceptance.
C. No, because the buyer has already removed all contingencies.
D. No, because the buyer is just trying to find a way to cancel. 

Answer: Answer A is a true statement, generally speaking (see Practice Tip below). However, Answer A is not the correct answer to the question posed of whether the seller is required to allow access.

Answer B is the correct answer. A buyer has 17 days after contract acceptance for “Informational Access” to the property (see paragraph 3L(3) of the RPA). This particular provision is difficult to find in the RPA, because it’s in a box directly below the Investigation Contingency in paragraph 3L(3). The “Informational Access” provision is in the “Contingencies” section of the RPA, but it is not a contingency.

Answer C is wrong. The RPA specifically states that the buyer has informational access to the property “even if contingencies are removed” (see paragraph 3L(3)).

Answer D is wrong. The Fact Pattern says nothing about the buyer’s motives for wanting to get a mold inspection.

Practice Tip on Allowing Access: As mentioned in Answer A, generally speaking, a seller should voluntarily agree to allow the buyer access to the property, regardless of what the contract requires. One reason to allow access is the typical buyer will eventually have an opportunity to access the property during the buyer’s final walk-thru anyway. Another reason is that the seller should generally want the buyer to fully investigate before close of escrow. The burden on the seller in allowing access is usually minimal, given that the buyer cannot conduct any invasive or destructive investigations anyway (see paragraph 12B(2) of the RPA). If something (e.g., mold) is discovered during the buyer’s access before close of escrow, we still have an opportunity to work things out before closing. But if it is discovered after close of escrow, it can easily become a full-blown litigation matter, and the agents commonly get dragged into the dispute too.

One possible exception to the general rule of allowing access is when the buyer is acting in bad faith, playing games, or causing too much disruption to the seller’s household. In those situation, if you are the listing agent, you should discuss the matter with the seller, and let the seller decide whether to continue to allow the buyer access after the initial 17 days.

-Thank You to Nicki Marcellino (La Jolla Manager) for suggesting this week’s legal tip!

Copyright© 2023 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of May 8, 2023. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals. Written by Stella Ling, Esq.