What should my buyer do when they conduct a “Final Walk-through” and find conditions that weren’t in existence at the time it went under contract or during the due diligence phase of the contract?
All Buyers are advised per Section 11 of the REPC to conduct a final walk through of the property.
11. FINAL PRE-SETTLEMENT WALK-THROUGH INSPECTION. No earlier than seven (7) calendar days prior to Settlement, and upon reasonable notice and at a reasonable time, Buyer may conduct a final pre-Settlement walk-through inspection of the Property to determine only that the Property is “as represented,” meaning that the items referenced in Sections 1.1, 1.2 and 8.1(b)(ii) (“the items”) are respectively present, repaired or corrected as agreed. The failure to conduct a walk-through inspection or to claim that an item is not as represented shall not constitute a waiver by Buyer of the right to receive, on the date of possession, the items as represented.
The Seller has an obligation under section 10.3 to deliver the property to the buyer in “Substantially the same” condition as it was when it went under contract.
10.3 Condition of Property/Seller Acknowledgements. Seller acknowledges and agrees that in reference to the physical condition of the Property, Seller agrees to: (a) disclose in writing to Buyer defects in the Property known to Seller that materially affect the value of the Property that cannot be discovered by a reasonable inspection by an ordinary prudent Buyer; (b) carefully review, complete, and provide to Buyer a written Seller property condition disclosure as stated in Section 7(a); (c) deliver the Property to Buyer in substantially the same general condition as it was on the date of Acceptance, as defined in Section 23, ordinary wear and tear excepted; (d) deliver the Property to Buyer in broom-clean condition and free of debris and personal belongings; and (e) repair any Seller or tenant moving-related damage to the Property at Seller’s expense. The provisions of Section 10.3 shall survive Closing.
In a scenario where the buyer discovers issues at the final walk though that weren’t in existence at the time of acceptance or prior to due diligence deadline, and create a scenario where the home is not in a “substantially similar condition”, the seller would be contractually obligated to either repair/remedy the issues or negotiate acceptable terms with the buyer. Sellers obligations under section 10.3 “shall survive closing” so it is possible for the buyer to close and then get seller to remedy, however it will prove extremely difficult after closing has occurred and may require mediation and attorney involvement. Documenting the condition of the home at time of acceptance and at final walk-through with video, photography, inspection reports etc. is key to prevailing in this scenario.
The buyer should be aware of their obligations under the contract to complete settlement within the parameters of the contract as to avoid buyer default.