Does A Buyer Have Recourse? By Jim Palmer Jr.

With most home purchases the buyer negotiates the opportunity to perform a final walk through of the property prior to the actual closing of the transaction in order to determine whether the property is in the same condition that is was when the buyer first looked at the property. Most of the time, the final walk through goes smoothly because most sellers are careful to leave the property in good condition, but there are times when the buyer finds items in disrepair with damage caused by the move such as holes in walls and scratches on railings.

Sometimes there are hidden defects that are suddenly apparent, such as stains in carpet that had been covered by throw rugs. Sometimes items that were listed to remain with the property are missing, such as drapes, blinds, appliances or even light bulbs.

In the standard Realtor® generated form (22D), there is a clause that states; “If a system or appliance (including, but not limited to plumbing, heat, electrical, and all Included items) becomes inoperative or malfunctions prior to Closing, Seller shall either repair, or replace the same with a system or appliance of at least equal quality. Buyer reserves the right to reinspect the Property within 5 days prior to Closing to verify that Seller has complied with this paragraph. Buyer and Seller understand and agree that the Listing Broker and Selling Broker shall not be liable for the foregoing or Seller’s breach of this paragraph.”

So what if the buyer doesn’t do the walk through or misses an item in a walk through that is defective. Does that mean that they have no recourse? No! They do have recourse, but they have lost the leverage they had prior to the closing and funding. Since the closing is completed they must rely on the good will of the seller, or they are compelled to take them to court for resolution.

In many cases the defects are minor enough that the buyer just takes the lumps because it is too bothersome to go to court. When such a situation occurs, the first call the buyer makes is usually to their broker. For the sake of good will, the broker usually tries to initiate and facilitate a conversation between the buyer and the seller when there are after-closing issues, but the brokers are not obligated by law or duty to enforce the contract.