[WSBARP] "As is" clause.

[Christopher Muñoz]

All -- It may be stating the obvious to say so, given that "As is" does
not
lend itself to exhaustive definition, but it seems to me that in a one-off

transaction where there is at least some bargaining power on both sides of

the transaction, the clause is going to be negotiated, with either a
sell-side or buy-side "tilt", according to market conditions, or a wash,
even-handed.

Of course if one is in Bank REO-land, then one's dealing with adhesion
contracts anyway, so never mind.

If I have sell-side involvement, I at least propose as-is warranty
disclaimer language to the effect that

" . . . as a material inducement to Seller's execution, delivery, and
performance of duties, Buyer renounces all representations and warranties
of any kind . . . ";

I note that in the suggested squibs below, there is no reference to
quality
of title, except for adverse possession and prescriptive easement claims.

If applicable, I'd also like to see, for the benefit of the sell side, an
enumerated disclaimer of any representations re. the income potential of
the property.

If I were involved on the buy side, I'd push back against the "has little
knowledge" language insulating a trustee from representational
responsibility, particularly if I thought it possible that a later claim
for fraudulent concealment might lie.

At the end of the day, all this really should be incorporated into the
price.  Unless of course the situation is such that the seller should be
paying the buyer, to offload an overhanging liability.

- Christopher Muñoz
Muñoz Law Office
Pomeroy WA  99347

.......................................

>> Date sent:  Thu, 24 Apr 2014 18:29:03 +0000

> "As Is" is not defined in real estate law in Washington, and
> therefore, I recommend you be clear what "As is" exactly means.  Below
> is a useful clause.

> Purchaser is buying the Property "as is" and in consideration of the
> negotiated purchase price, Purchaser agrees that upon closing of the
> sale of the Property, Purchaser waives any and all causes of action
> against Seller, its agents and all other persons or companies acting on
> behalf of the Seller, for defects on or to the Property, including, but
> not limited to: (a) the condition of the Property for Purchaser's
> intended use or for any use whatsoever; (b) the presence of hazardous
> or toxic substances on the Property; (c) whether or not the Property
> complies with any applicable building, zoning, fire or housing code
> provisions, governmental laws or regulations, or any required permits;
> (d) the location of the Property's boundaries and the presence or
> absence of encroachments upon the Property; (e) whether the Property is
> served by a public water main, public sewer main, or other utilities
> and the condition thereof and the access thereto; (f) the presence or
> absence of underground heating oil tanks or petroleum based
> contaminants; (g) lot size, dimension or square footage of the
> Property; (h) adverse possession and prescriptive easement claims
> against the Property; and (i) any other matter relating to the Property
> or the Property's condition.

> Marcus J. Fry
> Lyon, Weigand & Gustafson, P.S.


>> Date sent: Thursday, April 24, 2014 11:25 AM

> Here is one I used for a situation where a Trustee of a Trust was
selling
> residential property - not sure if it will help in your situation:

> CONDITION OF PROPERTY.  THE BUYER UNDERSTANDS THAT THE SELLER IS THE
> TRUSTEE OF A TRUST AND CONSEQUENTLY SELLER HAS LITTLE KNOWLEDGE
> CONCERNING THE CONDITION OF THE PROPERTY.  AS A MATERIAL PART OF THE
> CONSIDERATION TO BE RECEIVED BY SELLER AS NEGOTIATED AND AGREED TO BY
> THE BUYER AND SELLER, THE BUYER ACKNOWLEDGES AND AGREES TO ACCEPT THE
> PROPERTY IN "AS IS" CONDITION AT THE TIME OF CLOSING.  BUYER HEREBY
> WAIVES THE RIGHT TO RECEIVE A FORM 17 DISCLOSURE STATEMENT UNDER RCW
> 64.06.

> __________
> Seller initials

> ___________
> Buyer initials

> Kokie Adams
> Purcell & Adams, PLLC



>> Date sent:  Thu, 24 Apr 2014 11:20:11 -0700

> Here's one we use that we've softened a bit to make it reasonably
> palatable to buyers and their agents.  Banks selling their REO
> properties include verbiage that puts this to shame.

> 1.      PURCHASE "AS IS" / NO WARRANTIES.  Seller does not make any
> representations or warranties, express or implied, with respect to the
> condition of the Property.  This disclaimer includes but is not limited
> to the following: (a) the suitability, habitability, merchantability,
> or fitness of the property for Buyer's intended use or any other use;
> (b) compliance with building, zoning or other laws or regulations; (c)
> the absence of any hazardous substances; (d) the absence of pests of
> any kind; or (e) the structural, mechanical, or general condition of
> the buildings and other improvements.  Buyer accepts responsibility for
> all defects and conditions existing in the Property, including any that
> cannot be observed by casual inspection. Buyer acknowledges that this
> is an "as is" sale.  If there is an inspection contingency, Buyer's
> purchase of the Property "as is" will be subject to Buyer's personal or
> professional inspections, including any modifications to the Property
> as agreed by Buyer and Seller.  In entering this Agreement and in
> proceeding to Closing, Buyer has not relied upon any representations by
> Seller.

> Marc Holmes

> Holmes Law Group PLLC



> Date sent: Thursday, April 24, 2014 11:05 AM

> I have a client selling residential property at a great price "as is."

> Does anyone have a good "as is" clause that I can use for the P&SA?

> Roger

> Law Office of Roger T. Dunaway, PLLC



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