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

Thu Feb 8 09:56:44 PST 2018

Thanks for the citation. I read the cases, and not quite comfortable
recommending to a client to close and litigate this issue considering the
amount in question. Looks like anticipatory breach if we have to go that
route. There is the alternative proposed by our colleague Rani. Quite
possibly we provide instructions to the Escrow Agent that Buyer states that
closing and acceptance of the deed is subject to waiver by the Seller as to
the merger doctrine regarding the repairs under Form 35R.

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] On Behalf Of Andrew Hay
Sent: Thursday, February 8, 2018 9:17 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Buyer Remedy for Seller Default in NWMLS P&S

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

 <http://www.washingtonlaw.net/> www.washingtonlaw.net

 <mailto:andrewhay at washingtonlaw.net> andrewhay at washingtonlaw.net

253.272.2400 (w)

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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 nestor at pplsweb.com
<mailto:nestor at pplsweb.com> 
Sent: Wednesday, February 7, 2018 5:50 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

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

 <http://www.washingtonlaw.net/> www.washingtonlaw.net

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From:  <mailto:wsbarp-bounces at lists.wsbarppt.com>
wsbarp-bounces at lists.wsbarppt.com [
<mailto:wsbarp-bounces at lists.wsbarppt.com>
mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of
<mailto:nestor at pplsweb.com> nestor at pplsweb.com
Sent: Wednesday, February 07, 2018 4:49 PM
To:  <mailto:wsbarp at lists.wsbarppt.com> 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

 <mailto:nestor at pplsweb.com> nestor at pplsweb.com 

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