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Dear Pat, What Does "As Is" Really Mean?

By
Real Estate Agent with RLAH@properties AB95346

Q:  Dear Pat, last week we had a contract on a house accepted.  It has an "as is" clause, but allowed for a home inspection.  Unfortunately, the inspector came up with some huge surprises that the sellers did not include on the property disclosures, and we felt a little blind sided.  But we still love the place.  What are our options at this point?

A: No doubt about it!  A home inspection can open up a great big old can of worms!

If you read the "as is: clause combined with the General Inspection Contingency that is usually used along with it, you would think you had only two choices:

  • You could accept the house in it's funky condition and deal with it after settlement at  your own expense; or
  • You could walk away from the contract by just declaring it null and void.

But you really do have a third option, one that I have often suggested that buyers use.  There is nothing to prevent you from going back to the sellers with a copy of the inspection report and a request that they remedy the undisclosed condition or reduce the price of the house so you can do it after settlement. 

If there are other offers on the table, you will void your contract by asking for repairs, notwithstanding the "as is" clause.  And the sellers will be free to just say no and move onto the next set of buyers.

Usually, however, the sellers will work with you on this.  First of all, they can no longer argue that they were unaware of the problem.  If they say no to your request, they should amend their disclosure forms so any future buyers will be aware of the problems when they make their offer.  And it's likely they will have to fix whatever it is or reduce the selling price to reflect the property condition.  So they might as well do it for you.

And, by the way, I never use the General Inspection Contingency, even with an "as is" clause.  There is another version. a Specific Inspection Contingency,  that allows you to go back with a request for repairs without voiding the contract.  The sellers can still just say no to your request, but they are not free to accept another offer unless you decide to walk away after they deny your request.

And you should remember that I am not talking about minor repairs, like a dripping faucet or improperly grounded electrical outlets.  The reason sellers request as "as is" clause in the first place is to avoid having buyers come back with ten pages of nickle and dime repair requests.  I'm talking about major things.

Here's what I recommend:  if the seller has disclosed anything that is a problem, you don't go back and ask them to repair it.  You knew when you made the offer about any disclosed funky stuff.  And if it's something minor, let it go. 

But if there is something they didn't mention that is a health or safety hazard that will be difficult to fix, I don't have a lot of sympathy for the sellers - especially if they knew about the situation and didn't disclose it.

 

Dennis Duvernay Broker/Owner
Hillview Realty - Northbridge, MA

That is right Patricia about the third option....their is no harm in asking....you never know, especially if their have been no other offers and the seller wants it sold....YOU NEVER KNOW...

Jan 03, 2011 03:41 AM
Rob D. Shepherd
RETIRED - Florence, OR
RETIRED

Sometimes as-is  means the sellers are out of money. I still try your third potion, it usually offers some relief.

Jan 03, 2011 03:43 AM
Lottie Kendall
Compass - San Francisco, CA
Helping make your real estate dreams a reality

Nice reply to an oft-asked question.

Jan 03, 2011 04:01 AM
Liz and Bill Spear
Transaction Alliance 513.520.5305 www.LizTour.com - Mason, OH
Transaction Alliance Cincinnati & Dayton suburbs

Pat, On our occasions with "As Is", it certainly hasn't stopped the buyers from trying, and more often than not, the sellers DO agree, especially if no other offers are out there.

Jan 03, 2011 04:27 AM
Patricia Kennedy
RLAH@properties - Washington, DC
Home in the Capital

Dennis, as a buyer broker, I always advise my clients to go back with a request, and the sellers almost always say yes.

Rob,  in this area, there are few short sales or foreclosures, so it's not as much of an issue as it would be in other parts of the country.

And Lotte, Thank you!

Jan 03, 2011 04:29 AM
Ritu Desai 703-625-4949
Samson Properties - Chantilly, VA
Northern Virginia,Washington DC & Maryland Realtor

Pat, love the way you drafted the post. I am with you it never hurts to ask irrespective who the seller is.

Jan 03, 2011 04:54 AM
Stacy Magid
Century 21 New Millennium - Woodbridge, VA

My recommendation to our clients is to not use the As-Is clause (especially since most of our clients are VA and FHA).  I explain to the listing agent that we would prefer to keep it a regular sale and if our home inspection has repairs that they (the seller)have the right to negotiate whether they will fix or not. Not to mention that the loan will not go through unless certain major repairs are resolved.   It seems to work pretty well once I explain the situation.

Jan 03, 2011 05:14 AM
Jack Mossman - The Nines Team at Keller Williams in Lodi
The Nines Team at Keller Williams in Lodi - Lodi, CA
The Nines Team in Lodi

Pat - Even REO listings have been known to have asset manager who authorize repairs.  BUT - not on bargain basement contracts.  I am learning the subtle differences in contract law across the nation - in California a "Request For Repairs" is an addendum that does not void a contract - but the buyer needs to be prepared to hear a "no!"  I find the "no" happens much more frequently in short sales than in either equity or REO contracts ...

Jan 03, 2011 07:03 AM
Jane Peters
Home Jane Realty - Los Angeles, CA
Los Angeles real estate concierge services

"As is" here is worth about as much as the paper it is written on.  If there is something wrong that was not disclosed it is up to the buyer on how to proceed.  The seller is going to have to fix it or move on to the next buyer with something else to disclose.

Jan 03, 2011 08:01 AM
Jay Markanich
Jay Markanich Real Estate Inspections, LLC - Bristow, VA
Home Inspector - servicing all Northern Virginia

That is good info Pat.  In VA there is no disclosure on anything as it isn't a requirement, as you know, so the as is is understood and if there is something serious the buyers can back out.

Jan 03, 2011 09:31 AM
Paula Swayne
Dunnigan, Realtors, Sacramento (916) 425-9715 - Sacramento, CA
Realtor-Land Park, East Sac & Curtis Park -Dunniga

Hi Pat!
There are a few things different on the east coast as opposed to the west, but the intent is about the same.  I usually tell both buyers and sellers that the California Purchase Agreement says that the buyers are accepting the house in its present condition, health and safety issues not withstanding.  Having said this, if there are legitimate issues after a home inspection is completed, most sellers are understanding of this and will address the repairs and/or credits.  The exception to this is if the sellers put in the counter offer that the buyers are accepting the property in its present condition.  The reason that this is an exception is that the sellers are telling the buyers that they will accept the buyers price with the understanding that no repairs will be made. 

Jan 03, 2011 11:04 AM
Lou Ludwig
Ludwig & Associates - Boca Raton, FL
Designations Earned CRB, CRS, CIPS, GRI, SRES, TRC

Pat

Thanks for sharing your wisdom on as is contracts, and your right on target there's a legal view and what the customers interpretation it to be. Never enter into a listing or a contract without help of a real estate professional.

Good luck and success.

Lou Ludwig

Jan 03, 2011 11:04 AM
Ellen Caruso
Daniel Gale Sotheby's International Realty - Glen Head, NY

Pat, my husband buys a lot of homes "as is" because he is a builder with an investment opportunity on his mind. But as you say sometimes there are contingencies...like an abandoned oil tank on the property, that is costly and if found out could crash the deal.

Jan 03, 2011 12:35 PM
Debbie Gartner
The Flooring Girl - White Plains, NY
The Flooring Girl & Blog Stylist -Dynamo Marketers

Excellent post.  Great logic.

Jan 03, 2011 02:59 PM
Patricia Kennedy
RLAH@properties - Washington, DC
Home in the Capital

A lot of times, I'll have sellers counter accepting less than they want but with an "as is" clause.  Without the "as is" our boiler-plate requires the systems and appliances to be in working order.  So if there is something like a leaky faucet, the seller would be contracturally obligated to have it fixed.  But if it's a leaky roof, the seller doesn't have to fix it, but the sellers can walk if they don't. 

The issue gets complicated when the seller has not disclosed the problem.  Even at a lower price, the buyer made the offer based on certain assumptions about the property condition in coming up with the price.

I've been lucky to be able to negotiate my way through these types of situations, mostly because once the seller knows about the problem, they have to fix it or disclose it.

Jan 03, 2011 03:07 PM
Lora "Leah" Stern 914-772-4528
Coldwell Banker, 170 N Main Street, New City NY 10956 - New City, NY
Real Estate Salesperson

Pat, what a great answer to an often asked question.  "As is" is often an indication that the seller does not have the funds to put out upfront to fix the problem.  But, in that case I've been able to negotiate a price reduction based on the required repair or problem.  If the problem is a safety issue, then it may need to be fixed in order for the bank to approve the mortgage.  As you say, that usually gets the seller to move on it or he won't be able to sell it to this buyer or any other one either

Jan 04, 2011 01:41 PM
Steve Shatsky
Dallas, TX

Hi Pat... I always tell the agents in my offices that "As" and "Is" are two of the shortest yet most misunderstood words in Real Estate!  Thanks for a great post that sheds light on them!

Jan 04, 2011 03:13 PM
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

Great post Pat.  As-Is is not only misunderstood by consumers but also many agents.  I think the phrase would be better if the home were sold As-Disclosed as opposed to As-Is.

Jan 05, 2011 12:53 AM
Barbara-Jo Roberts Berberi, MA, PSA, TRC - Greater Clearwater Florida Residential Real Estate Professional
Charles Rutenberg Realty - Clearwater, FL
Palm Harbor, Dunedin, Clearwater, Safety Harbor

Pat - I have answered that question so many times - normally the seller is indeed willing to take care of some of the things the inspector finds just to get the place sold. It is a case by case thing.

Jan 05, 2011 07:32 AM
Lanre-"THE REAL ESTATE FARMER" Folayan
Samson Properties - Bowie, MD
I don't make promises.I deliver results.SOLD HOMES

Well written post Queen Pat. Have to bookmark this one. What a great blog to explain the question that the buyers asked you. Great post.

Feb 08, 2011 07:23 AM