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

Thu Feb 8 13:13:04 PST 2018

I would suggest having someone who specializes in such repairs view the
property so you can solidify your evidence as to valuation and
consideration of what is at stake. Just a thought. Nick Clapham

On Thu, Feb 8, 2018 at 12:56 PM, <nestor at pplsweb.com> wrote:

> 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
>
> *www.washingtonlaw.net* <http://www.washingtonlaw.net/>
>
> *andrewhay at washingtonlaw.net* <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 <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
>
>
>
> *ATTENTION - This e-mail message and any attachment to this e-mail message
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> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com <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>
> *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
>
>
>
>
>
> *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*
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> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>] *On Behalf Of *
> nestor at pplsweb.com
> *Sent:* Wednesday, February 07, 2018 4:49 PM
> *To:* 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* <nestor at pplsweb.com>
>
>
>
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-- 
Nicholas L. Clapham
(407)484-9625

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