[WSBARP] NWMLS Form 35 now prohibits disclosure of inspection report???
Kary Krismer
Krismer at comcast.net
Wed Sep 28 16:14:22 PDT 2022
The statewide forms are amended by a group of attorneys I do not know
the identity of, except Justin Haag of the NWMLS and I believe maybe
Annie Fitzsimmons of Washington Realtors. I suggest forms changes with
some frequency and they agree to something slightly less than half.
Sometimes they are even quick about it, like when the market started to
turn around and I discovered that the Short Sale form was inconsistent
with the Backup Offer form. Until the market turned that was not really
something to worry about much.
As to this inspection report issue, due to problems some buyers' agents
were creating they originally made it a default to disclose the
inspection results, but did not specify a remedy. Then a year or two
later they changed it to providing that disclosure resulted in a waiver
of inspection. Note: Quoting the inspection report can result in
waiver because it is "all or part." Unfortunately some agents believe
that an inspector's description of a problem is how you request a repair
to be made. It is not. The inspector states what is wrong. The
inspection response should state what the buyer wants the seller to do.
Kary L. Krismer
206 723-2148
On 9/28/2022 9:08 AM, Roger Hawkes wrote:
>
> I don’t do a ton of real estate forms work; but I am curious about the
> process by which the forms and related requirements get changed; does
> anyone have first hand info about this change for example?
>
> *From:* wsbarp-bounces at lists.wsbarppt.com
> <wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Kary Krismer
> *Sent:* Wednesday, September 28, 2022 7:06 AM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>; Erik
> Marks <erik at egmrealestate.com>
> *Subject:* Re: [WSBARP] NWMLS Form 35 now prohibits disclosure of
> inspection report???
>
> Yes, it's been that way for some time, with the most recent version
> providing a waiver of the inspection contingency.
>
> It's a good change because: (1) The seller did not pick the
> inspector, and the inspector may be an idiot; (2) The buyer will use
> it to blackmail the seller; and (3) It creates disclosure headaches
> for the seller if the deal falls through.
>
> I once spent considerable time verifying the proper flashing with the
> contractor and architech, where the inspector didn't know his stuff.
> Later I discovered an obvious siding defect the inspector missed.
> Both would have required work that would have cost $20-30k, but the
> former was unnecessary.
>
> Kary L. Krismer
>
> John L. Scott, Inc.
>
> 206 723-2148
>
> On 09/27/2022 5:29 PM Erik Marks <erik at egmrealestate.com> wrote:
>
> I am in the process of renewing my broker license and ran across
> something that strikes me as very odd. I would be interested in
> hearing from people on the list who might work in the residential
> forms space and understand the context. What I learned is that
> NWMLS Form 35 (Inspection Contingency) now provides that the Buyer
> agrees NOT to provide a copy of the Inspection Report to the
> Seller, and that if the Buyer does so, then the inspection
> contingency is deemed waived.
>
> My first question is why is this in the form? The only answer I
> can come up with is that the purpose of the clause is to protect
> the Seller from gaining knowledge of what is in the Inspection
> Report so that the Seller does need to disclose that knowledge to
> a future buyer if the pending sale falls through. Is that correct?
>
> And if so, then holy cow am I confused by the decision to add that
> provision. There are entire sections of the
> license-renewal-course dedicated to saying that the Listing Broker
> must avail themselves of reasonably available information about
> the property, and cannot intentionally keep their head in the
> sand. For example, one quote from the materials is” "Strategic
> Ignorance is unethical and illegal. Licensees must always conduct
> a reasonably competent and diligent visual inspection of property
> offered for sale and disclose the facts that such an investigation
> reveals.” Reference is made in the materials to Easton v
> Strasburger, 152 CalApp 3d 90 (1984) as the seminal case
> underlying the principle that intentional ignorance by the broker
> is a breach of ethical duty.
>
> If intentional ignorance by a broker is a breach of ethical duty,
> wouldn’t the inclusion of a clause in the PSA that prohibits a
> buyer from sending a 3^rd party inspection report to the Listing
> Agent, when the Listing Agent knows the inspection report is
> likely to contain material information about the condition of the
> property? And, although the broker did not draft the form, the
> broker did provide the form and the broker signed the form.
>
> I don’t get it…. Thank you to anyone who has special insight on
> this issue to share.
>
> Erik
>
> --
>
> /*Erik G Marks*/
>
> /*Attorney at Law*/
> PO Box 16247
>
> Seattle, WA 98116
>
>
> (206) 612-8653
> _erik at egmrealestate.com <mailto:erik at egmrealestate.com>_
>
> Physical Office:
> 4220 SW Spokane St
> Seattle, WA 98116
>
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