[WSBARP] Liability of seller who agrees to repair and repair fails

Sat Aug 31 11:43:06 PDT 2019

Thanks Marc and Kary

Well my first impressions was  -- sure the contract should apply -- so seller should be liable.  But I have seen merger kill some cases.

Looks like there are exceptions to merger stemming from Black v Evergreen Land Developers

The doctrine of merger is founded on the parties' privilege to change the terms of their contract at any time prior to performance. Execution, delivery, and acceptance of the deed becomes the final expression of the parties' contract and therefore subsumes all prior agreements. Snyder v. Roberts, 45 Wash.2d 865, 871, 278 P.2d 348 (1955). In general, the provisions of a real estate purchase and sales agreement merge into the deed, although there may be exceptions to this rule when there are collateral contract requirements that are not contained in or performed [75 Wn.App. 252] by the execution and delivery of the deed, are not inconsistent with the deed, and are independent of the obligation to convey.
Black v. Evergreen Land Developers, Inc., 75 Wash.2d 241, 248, 450 P.2d 470 (1969).

It seems like the repair obligation meets the exception requirements.

Morgan v. Stokely-Van Camp, Inc., 34 Wash.App. 801, 808, 663 P.2d 1384 (1983) and 22 Wn.App. 122, BAN-CO INVESTMENT CO. v LOVELESS give some helpful though not powerfully analogous circumstances suggesting the repair clause would survive.

Nothing directly on point from my search, however.

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)
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 <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of marc holmeslawgroup.com
Sent: Saturday, August 31, 2019 8:29 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Liability of seller who agrees to repair and repair fails

I think merger ought to apply and preclude any such claim if the parties used a NWMLS form purchase and sale agreement including the Form 35 Inspection Contingency and did not include additional language in the nature of a warranty or expressly stating survival beyond closing.  Section 1(d) of the inspection contingency states that “repairs shall be accomplished at Seller’s expense in a commercially reasonable manner and in accordance with all applicable laws ….”   It goes on to say that “Seller’s repairs are subject to re-inspection and approval, prior to Closing, by the inspector who recommended the repair if Buyer elects to order and pay for such re-inspection.”

The Buyer also has a separate right to do a final walk through of the property before closing to confirm the “Seller has maintained the property and systems/appliances” per section F of the Form 21 purchase and sale agreement.

Accordingly, the buyer is given ample opportunity to inspect the agreed upon repairs to affirm they were adequately completed.  There is no language in the standard forms whereby the seller warrants those repairs beyond the day of closing.  Plus we’ve seen plenty of caveat emptor leaning court decisions, so I’d say the impetus is on buyers to be diligent.

Marc Holmes, JD
Holmes Law Group PLLC
2303 W. Commodore Way, Suite 306
Seattle, WA 98199
marc at holmeslawgroup.com<mailto:marc at holmeslawgroup.com>
(206) 357-4224 (ofc)
(206) 849-0853 (cell)

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Kary Krismer
Sent: Saturday, August 31, 2019 9:04 AM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Liability of seller who agrees to repair and repair fails

I don't have any authority, but I"m pretty sure it is not precluded.  Before you go too far down that road I would first look to see if the language of the repair request was complied with.  35R requests are often very poorly drafted such that even a mere attempt to fix might be sufficient to comply with the request (or a half-ass repair sufficient).
Kary L. Krismer

John L. Scott, Inc.

206 723-2148
On 8/31/2019 12:09 AM, Andrew Hay wrote:
Here is an awkward sentence but it is Friday night….  is a residential buyer’s claim to force a seller to pay for a redo of an agreed repair that was ineffective in solving the problem precluded by doctrine of merger?

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)
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

***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________

WSBARP mailing list

WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>

http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20190831/6106b714/attachment.html>