April 4th, 2016 at 6:08 pm
Answer: If the seller still refuses to repair, the ball goes back into the buyer’s court for the buyer to decide what to do. One option is to forget about the repair and buy the property anyway. Another option is to cancel the agreement due to the seller’s breach of contract. A third option is to ask the seller to go to mediation. A fourth option, and there may be other options as well, is to buy the property and then pursue a legal claim against the seller after close of escrow. For Option #4, a prudent buyer would, before close of escrow,? inform the seller in writing not to construe the close of escrow as a waiver of any rights the buyer may have to pursue the seller for any legal claims, including the repair of the dishwasher. After close of escrow, the buyer may go directly to small claims court, given that the repair of a dishwasher is likely to be less than the $10,000 limit for small claims court actions (no need for mediation/arbitration). If the dispute involves a big ticket item instead of a dishwasher, the buyer is probably best off hiring an attorney who will pursue mediation/arbitration and litigation if necessary.
All that said, as the broker and agent in the deal, we do not want Option #4. We would strongly prefer resolving this dispute before close of escrow, because if the buyer waits until after close of escrow and the buyer is unsuccessfully in resolving this matter with the seller, the buyer may try to get us to pay for the repair. At a minimum, we should inform the buyer in writing that closing escrow without getting the item repaired is against our advice, and that we strongly recommend that the buyer discusses the legal consequences with the buyer’s own attorney before proceeding with the purchase.
–Thank you to Randy Freed for suggesting this week’s legal tip.
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