my sister is in escrow 4 a short sale. she found out that the seller took off the dishwasher, stove, oven, exhaust off the property. what can she do?

Asked by Ola, 91303 Sun Mar 13, 2011

what are her legal rights? can she back out of escrow without penalty?

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Joan Patters…, Agent, Rancho Cucamonga, CA
Sun Mar 13, 2011
First of all, were these items "excluded" in the listing on the MLS or in a counter offer? If not, and your sister made an offer on this home under the impression they would be staying without any notification from the seller at all, then your sister should contact her agent and tell them to look at the RPA (Residential Purchase Agreement) Item No-9 talks about the conditions of property:
Condition of property: Unless otherwise agreed: (1) the property is sold (a) in its PRESENT physical ("as-is) condition as of the date of Acceptance and (b) subject to Buyer's Investigation rights; (ii) the Property, including pool, spa, landscaping and grounds, is to be maintained in substantially the same condition as on the date of Acceptance; and (iii) all debris and personal property not included in the sale shall be removed by Seller at close of Escrow.

Item B states-Buyer has the right to inspect the property and, as specified in paragraph 14B, based upon information discovered in those inspections; (1) cancel this Agreement; or (ii) request the Seller make Repairs or take other action.

I am so sorry that this has happened to your sister. Unfortunately, I have seen this happen time and time again where people who are losing their home either to a foreclosure or a short sale feel "entitled" to be able to take these items. They go with the house and are considered "built in items".
My suggestion to you is to have your sister speak with her agent and have that agent speak with the listing agent and see what they can do about it. I recently had this happen and we reduced our offer to the bank due to some appliances being taken after our offer was written and we told the bank why we reduced our price. It does not mean the bank will do it as every case is different. Your sister at that point will have to decide if she wants the house without those items. If she does, she can move forward with the sale of the home. Every sale is different and every seller is different. I hope she has good luck with this. I am sure the home is going for a great price now. Let me know what happens.

Kind Regards,

Joan Patterson, B.A., G.R.I.,A.S.P., Realtor, License #01431647
Keller Williams Realty
3 votes
Emily Knell, Agent, Huntington Beach, CA
Sun Mar 13, 2011
Yes, she could probably back out without penalty, since some or all of those items are attached fixtures & were included in the standard purchase agreement.

Please have her buyer agent pull up most recent comparable sales, it's possible that she's still getting the house for a great deal & those items are rather minor, in the grand scheme of things.
562-430-3053 cell
Realtor Since 1996
Short Sale Expert
2 votes
Nona Green, Agent, Agoura Hills, CA
Wed Sep 11, 2013
If the appliances taken were specifically included in the price, ie: they are built-in or they were expressly included, then your sister can cancel the sale without penalty. The threat of the sale being cancelled may be enough for the seller to return the items.
It's not uncommon for a short sale to be the result of a nasty divorce - one of the divorcees is named on the loan, and the other is not. The divorcee who is not on the loan thinks they have nothing to loose by absconding with the appliances or anything else of value. The lienholder will often take too long to agree to an allowance for appliances, in which case your sister has no choice other than to go forward with the sale, sans appliances, or walk away.
Legally, your sister has recourse against the seller, yet practically speaking, getting compensated may be all hassle with no results.
It's this kind of stuff, along with other pitfalls, that gives short sales a bad reputation.
1 vote
John Souerbry, Agent, Fairfield, CA
Mon Mar 14, 2011
You've received good advice from Joan and Emily, to which I will only add that buyers should take extensive pictures of the property when making an offer. If you can, make a video as you walk through the house and call out each installed appliance or other item that you believe should transfer in the sale, including any personal property that the MLS listing says is included (e.g. garden tools or swimming pool equipment). I do this for my clients and send a copy to the listing agent. The video is played on my iPad as we do the final inspection, then again on closing day when we pick up the keys. If anything pictured in the video is missing, we ask for a price adjustment. After all, the client is buying the house, not the appliances. I wouldn't recommend cancelling the purchase unless the seller refuses to adjust the price for missing items or the property has been greatly damaged.
1 vote
Alain Raynaud, Agent, Agoura Hills, CA
Thu Oct 16, 2014
The contract usually provide a clause on whether personal property is included in the sale. Please review the contract and check that clause it will surely indicate which item of personal property is included. Also it is important to understand what is considered personal property and it refers to the way it is attached or is built in.(Method of attachment)
We cannot give legal advice but we hope our answer will clarify the situationiedsceg
0 votes
Jonathan Hya…, Agent, Trussville, AL
Wed Sep 11, 2013
What does the contract say? In my state those items are detailed on a Personal Property addendum. Contact the negotiator for the bank that her or her agent is dealing with and let them know what is happening.
0 votes
The Mark Mos…, Agent, Westlake Village, CA
Tue Sep 10, 2013
First you have to remember that the sale of the home is between the buyer and the seller. The bank is a 3rd party who has to agree to the terms of the sale. When a seller sells the property they have to keep it in the same condition as to when you first made the offer. So if the seller removed those items after you wrote your offer you would have the right to request that the items be replaced or a credit issued prior to the close of escrow. If the home has already closed escrow when you discovered the problem you would probably have to take legal action against the seller for taking the property. Remember you have a contract and it states which appliances are included in the sale so unless the seller let you know at the time of the contract that they were taking those items you would have the right to go after the seller.
0 votes
Jim Walker, Agent, Carmichael, CA
Mon May 23, 2011
Oh everybody, suggests lower the price to make up for it. Well it just isn't that dang easy and you agents know it!

The bank is just as likely to refuse the lower price as to drop it. The seller has acted in bad faith toward your sister, the bank, their own agent, and this nation of laws. After such an egregious breach of contract, the seller does not deserve any forbearance now from the bank. The bank is within its rights to throw out the short sale agreement, and proceed with foreclosure.

I usually have sympathy for foreclosure victims and short sellers, but this seller is an all too common bad exception. Yet another short sale horror story. Of which there are many. Buying a short sale is almost always a bigger gamble for the buyer than a normal buy or even a foreclosure buy.
0 votes
John Arendsen, Agent, Leucadia, CA
Mon May 23, 2011
Just out of curiosity what have you decided to do?
0 votes
gabriel matt…, Agent, calabasas, CA
Fri May 20, 2011
Lower your price and get a great value on the home. Make sure you work with a lender that is aware of the house condition and will lend on the current condition.
0 votes
John Arendsen, Agent, Leucadia, CA
Mon Mar 14, 2011
Back out of the deal or step up.
0 votes
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