May 9th, 2016 at 7:56 pm
Question: I’m the listing agent. The buyer and seller agreed to a Request for Repairs (RR). In paragraph 1(a), where the form has blank lines to insert the buyer’s requests, the buyer wrote: “See attached Addendum.” On the Addendum, the buyer requested for the seller to do Section 1 termite work. In looking at the RR form, the buyer could have just checked the box in paragraph 1(b)(i) for the seller to do Section 1, or even the box in paragraph 1(b)(ii) for the seller to do Section 2. Neither boxes were checked. Nothing in paragraph 1(b) was marked. Yet, the buyer’s side is now demanding that we comply with paragraph 1(b)(iii) which states: “If Buyer requests either Section 1 or Section 2 work above, Seller shall, no later than 5 Days Prior to Close of Escrow, Deliver to Buyer a written pest control certification.” Is the seller required to do the termite work at least 5 days before close of escrow?
Answer: Yes. You have definitely stumbled upon an ambiguity created by the pre-printed language on the RR form. On one hand, if the buyer failed to check either box in paragraph 1(b)(i) or (ii), arguably paragraph 1(b)(iii) does not apply. After all, paragraph 1(b)(iii) refers to the “Section 1 or Section 2 work above”, whereas the buyer’s request for Section 1 is not really “above,” given that it’s on a separate addendum. On the other hand, however, paragraph 1(a) of the RR specifically states that the buyer requests that the seller takes the specified actions before the final walk-through. Moreover, paragraph 15 of the Residential Purchase Agreement (RPA) gives the buyer the right to a final walk-through up to 5 days before close of escrow to confirm that repairs have been completed. Also, regardless of the RR form, paragraph 16 of the RPA independently requires all repairs to be completed before the final walk-through anyway (unless otherwise agreed in writing).
-Thank you to Daniel Banchik for suggesting this week’s legal tip.
Copyright© 2016 Berkshire Hathaway HomeServices California Properties (BHHSCP). Any unauthorized reproduction or use of this material is strictly prohibited. All rights reserved. This information is believed to be accurate as of May 9, 2016. 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.
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