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Get the Facts  Weekly Membership Newsletter
February 7, 2017  -  Stay Connected!
 
    

 
QUESTION: We represent a buyer in a purchase transaction subject to inspection. Buyer has delivered notice via a 35R for seller modifications. Per our agreement seller has 3 days to reply. Seller has not replied. If the expiration is 9pm on day 3 (subject to computation of time) what happens if the seller fails to respond to the first 35R notice?



ANSWER: If seller never responds to buyer's Form 35R request for repairs, buyer has three days to take action. The action buyer can take is: 1) terminate the purchase agreement; 2) intentionally waive the inspection contingency and proceed to closing; 3) negotiate some other resolution with seller. Buyer only has three days, however, to accomplish one of those actions. If, by 9 pm on the third day, buyer has not negotiated and documented concessions from the seller or terminated the agreement, then buyer's inspection contingency will automatically waive. Based on the question asked, buyer's three day period is triggered by seller's failure to respond to buyer's Form 35R repair request and thus the first day of buyer's three day period is the day after the last day on which seller's response was due. An example to illustrate is helpful. Buyer delivers buyer's Form 35R request for repairs on Sunday. Seller has Monday, Tuesday and Wednesday to respond, but never does. Buyer's three day period to take action begins with Day 1 on Thursday and includes Friday and the following Monday. If, by 9 pm the following Monday, buyer has not either terminated the purchase agreement or reached some agreement with seller regarding concessions, then buyer's inspection contingency will automatically waive. Printable Version

The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org . Please tell us your NRDS number when you e-mail the Hotline with your question.


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NAR Leadership Academy Applications Being Accepted
The Leadership Academy identifies, inspires and mentors emerging leaders from the local and state level for the National Association of REALTORS®. The 2018 NAR Leadership Academy is now accepting applications through March 31, 2017. The 2018 schedule will include up to nine sessions addressing leadership training and NAR governance. Sessions will contain both interactive online and in-person experiences. Apply today! [Learn more...]
 

 
 
Pending Home Sales Bounce Back in December
(Source: NAR) Pending home sales picked up in December as solid increases in the South and West offset weakening activity in the Northeast and Midwest, according to the National Association of Realtors®. The Pending Home Sales Index,* a forward-looking indicator based on contract signings, increased 1.6 percent to 109.0 in December from 107.3 in November. With last month's uptick in activity, the index is now 0.3 percent above last December (108.7). [Read more...]
 

 
 
15 Signs You Need To Be Better At Marketing
(Source: Forbes) It takes a strong person to admit that their marketing isn't up to par. But it's far better to admit it than to keep using outdated, ineffective or harmful strategies. This post will look at 15 signs your marketing is failing, and what you need to do about it. [Read more...]
 

 
 
3 Cool Apps to Help Real Estate Professionals Reach Their Fitness Goals in 2017
(Source: TechHelpline) Is improving your health and fitness a New Year’s resolution for you? For many real estate professionals, daily life is hectic, and finding time to focus on personal wellness is often challenging. However, by putting your health first, you will find personal satisfaction that will not only benefit your well-being, but also with business successes. Here are three apps that can help busy professionals get started to improving their health in 2017: [Read more...]
 

Primary Mortgage Rates Survey
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Come see Annie Fitzsimmons, Michael A. Spence, Jennifer Karol, Samuel Meyler and 12 outspoken REALTORS® battle to see which REALTOR® can out-do, out-wit, out-play and become the Ultimate Survivor!  3 Clock-hour class for ALL REALTORS® - Winner to receive a big bundle of passport unlimited cards. Event date/time:  February 16th, 2017, 10:00 AM - 2:00 PM, Auburn, WA. Seating is limited so register by emailing southkingwcr@gmail.com or by calling Jessica Johnson at (253) 880-2740. [Download the Flyer]
 

 
 
UPCOMING CLASSES
 
Put a S.O.C. in it: Standard of Care of a Lawyer
Wednesday, February 8, 2017 (8:30 AM to 4:30 PM) 7.5 CE Hours
Tacoma Pierce County Association of REALTORS, Tacoma, Washington

Why Do We Do This and Not That?
Tuesday, February 21, 2017 (12:45 PM to 4:45 PM) 4.0 CE Hours
Towne Place Suites Vancouver, Vancouver

New Forms, Hot Topics, and Other Industry Fun
Thursday, February 23, 2017 (8:30 AM to 12:00 PM) 3.5 CE Hours
Tri-City Association of Realtors, Kennewick

New Forms, Hot Topics, and Other Industry Fun
Thursday, February 23, 2017 (1:00 PM to 4:30 PM) 3.5 CE Hours
Walla Walla Police Department, Walla Walla
 
New Forms, Hot Topics, and Other Industry Fun
Friday, February 24, 2017 (8:30 AM to 12:00 PM) 3.5 CE Hours
Hell's Canyon Resort, Clarkston

New Forms, Hot Topics, and Other Industry Fun
Friday, February 24, 2017 (1:30 PM to 5:00 PM) 3.5 CE Hours
Quality Inn, Pullman

2017 RE Business Symposium
Thursday, April 27, 2017 (8:30 AM to 4:00 PM)
Hilton Seattle Airport & Conference Center, Seattle

Disclosure Requirements in Real Estate Transactions - 7.5
Thursday, September 14, 2017 (8:30 AM to 5:00 PM) 7.5 CE Hours
Tri-City Association of Realtors, Kennewick

 

 
 
QUESTION from 2/1/2016 - It is becoming more the norm for sellers to want buyers to make offers that either waive the inspection or have had a pre inspection - an offer that takes the listing straight to pending upon mutual acceptance. Some listing brokers are having the sellers order home inspections and attaching them to the listing for the use of all potential buyers, and this is being done as a favor to save the buyers money as well as to protect the house from having 6 or 7 different inspections completed in a matter of a few days. My understanding is that if the seller hires an inspector, the inspection is for the use of the seller. There is no warranty for a buyer and no relationship between buyer and inspector. My inspector told me that I would be setting myself and the sellers up for a lawsuit by providing an inspection report to potential buyers and encouraging them to waive their own inspection. I’m curious if this is true and is it legally sound to attach a pre inspection completed by an inspector hired by the seller to the listing for the use of potential buyers?

  
ANSWER - If the seller's/listing broker's inspector fails to find issues that form the basis of a subsequent lawsuit filed by a buyer, then undoubtedly, one of the claims in the lawsuit will be based on seller's/listing broker's selection of the particular inspector. Any such claim is likely to be filed against seller and listing broker/firm. Whether the claim will state that hiring of the inspector was negligent or that actual fraud was involved in the concealment of defects will depend on the facts involved in the situation. But, by selecting the only inspector allowed into the home and by controlling the flow of information available as to the quality and condition of seller's home, seller and listing broker/firm set themselves up for this claim in a way that would not be possible in the traditional format of buyers conducting their own inspections. Additionally, in this situation, listing brokers risk an additional claim from seller. If a lawsuit is filed by buyer against seller, based on this fact pattern, seller is likely to make a subsequent claim against listing broker/firm, based on the fact that listing broker/firm promoted this method of home inspection. To defend the claim, listing broker/firm will need to be able to prove that listing broker explained the variety of available options, regarding inspections, to seller, along with the pros and cons of each option, and that seller independently selected this particular option. Listing broker should also be able to prove that seller selected the inspector. Whether this information will constitute a successful defense to seller's claim cannot be anticipated with certainty. There are no guarantees in litigation and no claim that cannot be won or lost. Listing broker/firm may or may not successfully defend this claim from seller but without proof along the lines described in this paragraph, listing broker will have a more difficult defense. There is undeniable risk to both seller and listing broker/Firm in selecting the only inspector allowed into seller's home and then limiting the information available to buyers based on that inspector's conclusions. Both sellers and listing firms/brokers must evaluate the risks and benefits associated with the variety of inspection options available and determine, for themselves. which option to pursue. If seller chooses any option other than the traditional method of buyer entering a purchase agreement and then inspecting seller's home, then listing broker/firm should have proof of seller's independent choice in selecting the option and inspector used. As is always the case, when brokers counsel sellers with respect to issues that affect seller's legal rights and obligations, broker should advise seller, in writing, to seek legal counsel. In addition to the other "proof" described in this answer, broker/firm should retain proof in the transaction file, that broker advised seller to seek legal counsel with respect to this issue. Similarly, if a firm intends to recommend this inspection option to sellers, firm should seek the advice of its own legal counsel for assistance in determining whether this practice is tolerable based on a risk assessment and if so, what documentation should exist relative to seller's independent decision making.
 
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The Legal Hotline Lawyer does not represent Washington REALTORS or its members. To browse through our database of past Q & A's, visit www.warealtor.org. Attorney Annie Fitzsimmons writes the Legal Hotline Question and Answer of the Week. Please submit questions to legalhotline@warealtor.org. Please tell us your NRDS number when e-mail the Hotline with your question.