[WSBARP] Buyer Remedy for Seller Default in NWMLS P&S

[Andrew Hay]

That's a good question Nestor - perhaps force the issue to generate an anticipatory repudiation prior to closing.
Assuming no non-merger clause, merger has exceptions: Failes v. Lichten, 109 Wn.App. 550, 37 P.3d 301 (Div. 2 2001) looks like a good launch point to see if you feel comfortable this is an exception.  A lot depends on the amount in controversy for the repair as to how you approach it.

Andrew Hay
Hay & Swann PLLC
201 S. 34th St.
Tacoma, WA 98418
www.washingtonlaw.net<http://www.washingtonlaw.net/>
andrewhay at washingtonlaw.net<mailto:andrewhay at washingtonlaw.net>
253.272.2400 (w)
253.377.3085 (c)
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com
Sent: Wednesday, February 7, 2018 5:50 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Buyer Remedy for Seller Default in NWMLS P&S

Andrew,

I agree that specific performance is an extraordinary remedy and generally used to force the Seller to sell and convey when they decide to back out. It thus appears when the NWMLS contract is silent, then the Buyer is free to pursue legal remedies under the law, which in this case is damages.

In this situation, the Seller's refusal to repair is prior to closing. How can Buyer sue in advance for damages for cost of repair if they haven't closed? And if Buyer does close, then my concern is the merger doctrine where the contract merges with the deed. How do I get Seller cooperation pre closing and what stick do I have to get him to comply.

At least the CBA contract spells this out.

Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary

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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 Andrew Hay
Sent: Wednesday, February 7, 2018 5:08 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Buyer Remedy for Seller Default in NWMLS P&S

Specific performance is an extraordinary remedy.  I can't see a judge forcing a seller to perform repairs, unless the repair is way out of the ordinary.  This sounds like a claim for damages - cost of repair, plus incidentals and consequentials.   Fees and costs also if included in the P&S Agreement.  Normally the risk of paying fees and costs would be enough incentive to force the seller to perform.

Andrew Hay
Hay & Swann PLLC
201 South 34th Street
Tacoma, WA  98418
Phone: (253) 272-2400
Fax:     (253) 267-8947
www.washingtonlaw.net<http://www.washingtonlaw.net/>


THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED RECIPIENT ONLY.  IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AND DESTROY ALL COPIES

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com<mailto:nestor at pplsweb.com>
Sent: Wednesday, February 07, 2018 4:49 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Buyer Remedy for Seller Default in NWMLS P&S

I have a Buyer who is having an issue with the Seller who refuses to make the repairs after agreeing to the same on Inspection Response Form 35R. After reviewing the NWMLS P & S Agreement and Form 35 and 35 R.  I see Seller remedy for Buyer default, but I don't see Buyer remedies for Seller default?

How does Buyer enforce this? Specific Performance, Damages?

Thanks.


Nestor Gorfinkel, Attorney at Law
Admitted to practice law in Washington & Florida
Florida Civil-Law (International) Notary
Puget Property Legal Services, PC
11900 NE First Street Suite 300
Bellevue, WA 98005
Tel. (425) 961-0519
Fax. (888) 837-0616
nestor at pplsweb.com<mailto:nestor at pplsweb.com>

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