Right to inspect: The devil is in the details
By Margy Grant
May 16, 2016 – One of the most common clauses buyers utilize when submitting an offer to purchase real estate is the “right to inspect.” Based on the number of calls to the Florida Realtors Legal Hotline, this also is one of the most misunderstood clauses, and one that could have serious consequences for buyers and sellers if it is not interpreted and enforced correctly.
In the “As Is” Residential Contract for Sale and Purchase approved by Florida Realtors® and The Florida Bar — the purchase contract most commonly used by members — the right to inspect clause contains the language “in the Buyer’s sole discretion.” This phrase is intended to mean that a buyer may cancel the purchase contract at any time during the inspection period for any reason. Occasionally, Realtors confuse this language. They interpret it to mean a buyer is required to discover a defect in the property or structure and only then is entitled to cancel. This is incorrect.
A buyer may terminate the contract by delivering written notice to the seller for any reason, even something as minor as the color of paint in a bedroom. However, to be binding, the notification has to be made prior to the expiration of the inspection period.
Another issue that is often misunderstood is the process for renegotiating a contract before enacting the right to terminate.
Let’s say you are representing buyers who have signed a contact to purchase a home. An inspection has revealed the roof is aged and leaking in one section. Your buyers still want to buy the house; however, they want the seller to either fix the roof or reduce the purchase price to reflect the repair amount. Otherwise, they will have to cancel.
Simply contacting the listing broker to communicate the problem does not constitute a cancellation under this section of the contract. If a buyer wishes to renegotiate then you, as the buyer’s Realtor, need to provide specific information to the listing broker. Explain exactly what the buyers want and explicitly say that if the seller refuses, then the buyers intend to cancel under the inspection clause of the contract.
If you fail to accurately explain what the buyers want as a remedy, and the seller does not respond before the time to inspect the property lapses, your buyers may be in jeopardy of losing their deposit.
How do you as a Realtor protect yourself from situations like this? Simple: Communicate and watch the calendar. In writing, explicitly explain to the listing broker what your buyers want from the seller. At the same time, make sure your buyers do not miss the deadline to cancel the agreement if the parties cannot agree on repairs or a reduction in purchase price. Remember: The “As Is” form contract is calculated on calendar days, not business days.
Real estate contracts vary in terms of when a buyer or seller can amend or cancel. You should carefully review each contract’s right to inspect clause. In the event there is confusion about which day is the final date to cancel, you should contact the other side and make sure everyone is in agreement. But when in doubt, err on the side of the earlier date to protect yourself and your buyer.
In most transactions, a buyer wants to buy and a seller wants to sell, so approach all negotiations positively and work toward a sale. But, at the same time, take precautions to make sure you do not inadvertently put the buyer’s deposit at risk.
Margy Grant is Vice President and General Counsel for Florida Realtors