[WSBARP] Form 17 issue

Mon Nov 7 14:45:26 PST 2016

I assume RCW 64.06.040 (3), especially the sentence that says "After closing, the seller's obligation to deliver the real property transfer disclosure statement and the buyer's rights and remedies under this chapter shall terminate"  eliminates the right to rescind after the sale closes no matter the failure to fill out the Form 17 completely.   While this isn't the requestor's fact pattern,  the commenters information leads me to ask, is this assumption incorrect?

John M. Riley III
Principal | Witherspoon • Kelley
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Gregory L. Ursich
Sent: Monday, November 07, 2016 12:43 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Form 17 issue

I agree with Annie’s interpretation.  If Form 17 is incomplete, then 3 days does not start to run.

[ibdr2]

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of atfitz at comcast.net<mailto:atfitz at comcast.net>
Sent: Monday, November 07, 2016 10:53 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Form 17 issue

There has been significant discussion over this question among RE brokerage industry lawyers and not surprisingly, there is no single consensus answer.  We would love for you to be a test case at the appellate level so we can have an answer!

I am of the opinion that because the questions seller must answer are statutorily mandated, seller MUST comply with seller's statutory obligations before the burden shifts to buyer to review and terminate or waive within three days of receipt.  Until seller fully complies, buyer's termination period does not begin.  It is not up to buyer to let seller know that seller did not comply with seller's statutory obligations.

The voices on the other side of the equation advocate the notion that courts will take a more reasonable approach and apply a common sense analysis over a black letter interpretation ... substance over form.  Buyer had the opportunity to let seller know of a perceived failure in answering the questions and secreting that information away until a time that buyer wants to terminate the agreement is not "good faith" and would be frowned upon by a court.

I don't believe that you will find a lock solid answer to this question unless your client litigates and gets the answer for all of us.

________________________________
From: "Craig Blackmon" <craig at lawofficeofcraigblackmon.com<mailto:craig at lawofficeofcraigblackmon.com>>
To: "WSBA Real Property Listserv" <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Sent: Monday, November 7, 2016 10:34:56 AM
Subject: Re: [WSBARP] Form 17 issue

I dunno. At a minimum, you can argue that the signed and dated acknowledgement constituted receipt of the "completed" form. If buyers thought the form was incomplete, they shouldn't have acknowledged receipt of it. But they did, and the three days ran. The more your facts are consistent with "buyer's remorse" and not anything to do with the actual Form 17, the stronger your argument.

That's what I'd argue if I were you. And I don't see any common law basis for rescission.

Craig

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On Fri, Nov 4, 2016 at 6:05 PM, Douglas W. Scott <doug at davisscottlaw.com<mailto:doug at davisscottlaw.com>> wrote:
I guess the questions are:  did the buyer rescind based upon something generated from the unanswered questions?  Why didn’t the seller eventually complete those 2 answers?  Did the buyer ever ask that the seller complete them?

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>] On Behalf Of Stephen Whitehouse
Sent: Friday, November 04, 2016 12:14 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Form 17 issue

Listmates,
     I am looking for feedback on your experience with a Form 17  issue.
     The form was fully filled out except two answers were left blank. No issue was ever raised and now, four days before closing, buyer is rescinding on that basis.
     RCW 64.06.030 requires a "completed" statement. However, it also states that the buyer has two options to exercise within three days, to rescind or to approve and accept the statement. In this case the buyer approved and accepted.
     Has the buyer waived the defect, either statutorily, or under the common law? I understand there is some conventional wisdom emanating from the MLS that the buyer can rescind, but I think they tend to take conservative positions.
     Any thoughts?
     Thanks.

Steve

Stephen Whitehouse
Whitehouse & Nichols, LLP
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
swhite8893 at aol.com<mailto:swhite8893 at aol.com>

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