Who is to Blame?
By Jim Palmer Jr.

In a recent case a buyer found that an improperly installed glass slider door that at first just seemed “sticky,” ended up requiring a costly replacement after the closing had already occurred. Of course the new buyer came looking for a monetary remedy and started with their buyer’s agent. It is always discouraging to me how people want to assign blame in cases like this! The buyer’s broker was not in a position to have any liability for this situation and yet the buyer knocked on that door first. The buyer had hired a licensed home inspector who had evidently missed this item. It is unclear in this case whether the seller had disclosed the sticky door, but regardless of whether there was disclosure of this issue or not, the buyer had a clear duty to conduct their own due diligence.

Furthermore, Agency Law decisively clarifies that the buyers’ broker had no obligation to do any investigation of omission or errors by the seller and had no obligation to participate in or interpret the findings of the home inspector. The bottom line is that the buyer’s broker had no responsibility to account for a condition that should have been discovered by the buyer and disclosed by the seller and/or the home inspector.

Sometimes empathetic brokers react to a buyer’s post-closing unhappiness in a way that invites at least some responsibility, when in fact they cannot and should not put themselves into a position where they are attempting to enforce a contract between Seller and Buyer. The broker should only encourage the unsatisfied client to seek legal advice or direct them back to their home inspector or possibly provide contact information for those sources.

It is not uncommon for a buyer to discover defects in any property once they’ve had the chance to live in the home or on the property for a period of time. It takes responsibility to be a property owner! That means buyers should be prepared to take on the monetary risks that go with that responsibility instead of pointing a finger at anyone but themselves. “Caveat emptor” is the Latin term for “buyer beware” and that phrase is still relevant in today’s real estate environment. That does not mean that every property has to be purchased in an “As Is” condition. What it does mean is that the buyer has a duty to investigate prior to a purchase and create terms that cure defects or accepts them.