Buyer is backing out due to disclosure discrepancy

[cal300d]

Need advice with a confusing mess. My grandmother (seller) is a week from settling on her house. The buyer is trying to back out of the contract sighting the seller did not fully disclose water has been in the basement.

Technically the seller did not state on the disclosure form that there had been water in the basement. She had been telling people when they toured the house there was an isolated incident of water in the basement due to the sump pump not being plugged in. The buyer’s real estate agent was a witness and will testify that the seller did verbally disclose the isolated incident of water being in the basement. The buyer is trying to state that the seller is trying to hide things and wants out of the contract. Is the seller in the right or wrong?

Second issue, there are no contingencies in the contract and this is a cash sale. The buyer did not require a house inspection in the contract and agreed in writing to buy the house “as is”. A week ago the buyer requested access to the property to be able to take some measurements in the basement. The seller granted the buyer permission to enter the property and proceeded to give the buyer the combination code to the garage door opener. Please there is no need to comment on the issue of giving out the combination. I am fully aware of how wrong this is and I informed the seller of this. The buyer had her brother go into the property to measure the basement. This was the first time the brother had been in the property. He noticed the water spots on the floor and the fixed crack in the wall. As I stated earlier, the seller does have a witness that will testify that the seller did explain to the buyer the situation with the water in the basement and the cracked wall. The brother of the buyer suggested to the buyer that they have an inspection done on the basement. The buyer then hired a house inspector to inspect the basement. The buyer never informed or asked the seller if they can inspect the basement. Since the buyer had the code to enter the garage, the buyer let the home inspector into the property to inspect the basement.

The inspector basically stated that there is evidence in the basement of water and he suggested further investigation to determine the integrity of the wall with the crack. The inspector also stated that it appears the wall had been patched within the past couple of days. This is in fact incorrect and we can get a statement from the builder that this was fixed 4 years ago and the wall was inspected after the repair.

Does the buyer have a right to have the basement inspected? I wouldn’t think so, but I do not know.
Does the seller have rights to take legal action?

Thanks,
CAL

[aprazma]

Regarding disclosures, there is not really such thing as an as-in sale, even if no inspection is performed. There is no way that a buyer can waive the right to have a seller disclose known defects. Every property issue known to either the seller or the seller's agent has to be disclosed in writing.

I don't know of any state where oral disclosures can be substituted for written disclosures. If you really want to pursue this, I suppose you could have a contracts lawyer review the situation.

[La Jolla Real Estate]

Both the broker (when known to them) and the seller should have disclosed any known defect, or anything that affects the condition of the property, in writing.

The buyer certainly has the right to have the property inspected regardless of whether or not the property is being sold "as is".

Note to anyone who is wants to sell "as is": There is no such thing.

LJRE

[KaterinaGasset]

In Florida there is really no such thing as 'as is' in theory.
I do not know of any state where there is a 'buyer beware' clause anywhere.
The seller and the broker and the agent must fully disclose in writing any defects.
The water in the basement is a defect that must be disclosed.
I don't know of any seller who wants to go to court over something like this.
Let the buyer walk away as he has not been damaged much at this point.
If he moves in and the water becomes a problem; you will have a much bigger problem.
I won a case all on my own with out an attorney against a seller who did not disclose a water leakage problem and I settled out of court for a sizable amount plus a reduction of the seller's note.
This is not legal advice. I am not an attorney.
But I will tell you it is better to let the buyer go on their way.
And then market the property with a signed sellers disclosure statement.

[cal300d]

Thanks for taking the time to reply to my post.

On the topic of “As is,” I am currently under contract with selling my house and I do have an “as is” clause in the contract. Basically the way I understand the clause is I am not providing any type of warranty. The buyer has a right to inspect the property and include in the contract to have a licensed home inspector inspect the property. If the buyer purchases the property and something goes wrong or even if something went wrong while I was living in the house and I had no knowledge of the problem, I can not be held liable.

In my Grandmother’s case, the buyer signed a contract with out a home inspection contingency. Which from what I understand, the buyer agreed to purchase the house based on their own personal inspection of the house when they walked through it. The home inspection that they had done is not a valid reason for backing out of the deal.

In this case the buyers are stating the lack of information on the disclosure as the reason for backing out. I have talked to my lawyer who is a real estate lawyer. He stated since the buyer had prior knowledge, verbal or written, this supersedes the disclosure. In my first post I stated that my grandmother had a witness who saw and heard my grandmother tell the buyer about the water in the basement. The witness is the buyer’s agent. I have found out that there is another witness that will testify that my grandmother disclosed the water issue. So my grandmother has testimony from two people about two separate instances that the water in the basement was disclosed verbally.

The lawyer did state if we did not have the witnesses, we would not have a leg to stand on and we would have to base everything on the written disclosure.