Home Buying in Chelmsford>Question Details

Bob Ritchie, Home Buyer in Westford, MA

Selling a home "AS-IS" & Disclosure

Asked by Bob Ritchie, Westford, MA Sat Jun 16, 2012

Home marketed with disclosure and listing errors. Inspection completed and defects found (some potentially dangerous). Answer to defects was that the home was being sold AS-IS but it was not in any of the sales listings. Should AS-IS be declared in the MLS listing up front by the seller?

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Yes it should be disclosed however if the listing price is higher than the agreed upon price then Is it possible the sale would Not have been as is with a full price offer? If the answer to that question is no and the seller fully intended an as is purchase no matter what the accepted price was then the mls should State as is for sure and the offer acceptance should also state as is. Hope this helps! Full disclosure is a must!
1 vote Thank Flag Link Sat Jun 16, 2012
Yes, it should be disclosed if the Listing Realtor new, this was the sellers position? But getting beyond that now, do you want to buy the house? It may be being sold as is, but assuming you had a home inspection contingency, you can now walk away or try & renegotiate the price. Sold "as is" usually means, what you see is what you get. But you cant see everything and are not a home inspector. So if the inspection brings to light (potentially dangerous) defects. this is different. We would need more info as to what you consider potentially dangerous? If it is truly a dangerous item it will need to be disclosed to any future buyers. If you have a Realtor look to him or her for advice or your attorney. Best of luck.
1 vote Thank Flag Link Sat Jun 16, 2012
The house was not listed for sale "AS-IS" by the seller's Broker. We "the buyers got a home inspection with many defects identified. We asked if the sellers were willing to comp us for fixing defects and they were on-board until they were revealed to them. The Broker then claimed that the home was for sale "AS-IS" and will not help with resolving some dangerous and unhealthy results. So we the buyers are the bearers of bad news and they
do not want us as a buyer. (it will be sold to some poor couple just starting out and they will be in a money pit.)
Flag Sat Jun 16, 2012
Hi Bob,

Many "AS IS" transactions are a direct result of the negotiation process. That is, when a seller reaches a sale price that is low enough for the seller that they need to stop the bleeding, negotiations can result in an "AS IS" agreement. Thus, no an "AS IS" agreement shouldn't be disclosed in the MLS.

Were you made aware that the property was being sold "AS IS?"

Did you sign an "AS IS" purchase offer?

If the answers to the above questions are "Yes" why would one expect these terms to change because of the inspection? Since "AS IS" usually means exactly what it says you may be well served to review your documents relative to terms that clarify your option(s) when repairs become excessive.

Good luck,

Bill
0 votes Thank Flag Link Sun Jun 23, 2013
Sure it should, however after inspections are done and repair or compensation requests get made it's important that buyers understand right up front that any seller can only give one of three answers.

1- I'll do everything you've asked.
2- I'm not going to do anything, take it or leave it
3- I'll meet you somewhere in the middle.

All are valid answers whether the buyer likes them or not. However ultimately the power lays with the buyer, as they can simply terminate their contract in most states and walk away leaving the seller to enjoy their defective home and it should be further noted that once the reports are supplied to the seller and their agent the listing agent at least is bound by law to disclose the now "public" defects.

Unless a buyer indicates in their offer to purchase and contract that their offer is "As-Is" and that any inspections are solely for their informational purposes only, the contract isn't 'As -Is" and the seller is fooling themselves if they believe it is. Ultimately it's up to the professionals in the negotiations (i.e we as Realtors) who are responsible for explaining this to our respective clients and for getting the paperwork right so that our clients position is clear.
0 votes Thank Flag Link Sun Jun 23, 2013
As is should always be disclosed. an "as is" property requires a certain type of buyer - usually a cash buyer but not in all cases. As is properties require more renovating work than what the average home owner wants to do. These homes are best suited for a contractor or a tradesman who has the knowledge and expertise to turn that home into something very nice and updated.
0 votes Thank Flag Link Sun Jun 23, 2013
Yes it should be disclosed that it is being sold "as is".

Only known defects are disclosed. Many times sellers don't know about issues until it comes up in a home inspection. Very often mold or termites can come up in a home inspection and the seller had no idea about the issue.

If the home has been unoccupied for a long time or is a bank owned, then the seller really has no idea how to fill out the disclosure.

Ultimately you home inspection is your last line of defense and you should hire the best one you can find!
0 votes Thank Flag Link Sat Jun 22, 2013
Only defects known by the seller and/or the listing agent are required to be disclosed. Perhaps the seller was not aware of the potentially dangerous issues. It sounds as if the seller accepted the terms of your purchase contract but, whether stated or not, did so with that being their bottom line.

Under the terms of the contract to purchase you were given an opportunity to have the property inspected and if you are unsatisfied with the results you may withdraw from the contract (based on the contract language in MassForms).

It appears that you tried to go back and "re-negotiate" the price based on the findings of the home inspection. The seller is under no obligation to 1) fix the items or 2) reduce their price regardless of whether there was, or wasn't, a statement of "as is" condition.

Without knowing what property you're referring to as well as the agreed upon terms of the contract, we can only offer you basic information. If your buyer agent isn't explaining things clearly, consult with a real estate attorney.
0 votes Thank Flag Link Sun Jun 17, 2012
There was only an offer made. The house was not advertised "AS-IS". After the inspection when the defects were found we asked the seller if they would be willing to work with us and they agreed. Once they knew the price of Mold removal and other repairs, the realtor and seller said the house was being sold "AS-IS".
Flag Sun Jun 17, 2012
It should have been stated. The seller is under no obligation to fix and "potentially dangerous" defect found by a home inspection. It is up to the buyer if the buyer wishes to proceed and purchase the home and/or renegotiate the purchase price.
0 votes Thank Flag Link Sat Jun 16, 2012
I'm not a lawyer, but my guess is even if it had been described somewhere as "as-is" that doesn't change the listing agent's responsibilities to disclose known defects.

That said, it's possible the listing agent was unaware of the defects prior to the inspection. There have been a slew of court cases over the years when there has been a dispute over what an agent knew or should have known. Once they're made aware of a defect which materially affects the value of the property, and unless they have a professional's opinion to refute the finding of the home inspector, at a minimum they must disclose what was found, by whom.

Even if they do get someone to refute the issue, it might still be prudent to disclose the issue was identified by an inspector and found by someone else to not be an issue. There is, sometimes, no bright-line indication of exactly what to disclose or how it should be disclosed. The general rule is, if you would want your mother (or brother or son/daughter) to know about an issue before buying the property, you should probably proactively disclose it to everyone. And if you are ever in doubt whether it should be disclosed, that tells you you should probably disclose it.

But "as-is" is not a legal term. It doesn't even mean the same thing from listing to listing. Sometimes it's used to describe a property in tough shape. Sometimes it's used for a property that's in fine condition, but the seller doesn't intend to make any concessions after the home inspection.

And it's pretty much a given that any bank-owned property will be described as an "as-is" sale, regardless of the condition, because lenders---especially national corporations---have rules about property descriptions and transaction procedures that must be followed to a "T." That's because they can't get into gray areas on hundreds or thousands of different listings.
0 votes Thank Flag Link Sat Jun 16, 2012
You can sell a house that needs to be torn down, without an Occupancy; if you disclose it.
The house could have been a crack-house, or a meth lab; just disclose it.

You can sell anything AS-IS, just disclose it.

Likewise, the Buyer can make an offer contingent upon you fixing something;
and at that point, you may fix it or refuse.

You just do not want to be caught with a problem that you were aware of, that wasn't disclosed.
And if you lived in the house, for any length of time, they will assume that you were aware of it.

Good luck and may God bless
0 votes Thank Flag Link Sat Jun 16, 2012
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