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When A Buyer Feels Remorse And Wants To Renegotiate An As-Is Contract

By
Real Estate Broker/Owner with KD Realty - 408.972.1822 CA DRE#01366594

When A Buyer Feels Remorse And Wants To Renegotiate An As-Is  Contract

 

Buyers in the San Jose real estate market don't have it easy these days. We've been in a seller's market for quite some time now. 

As a listing agent, one way Kathleen Daniels levels the playing field on San Jose homes for sale is to ensure sellers get inspections done upfront before listing their home on the MLS. In addition, sellers want to have all reports and disclosures be read, approved and sent with an offer.  This way buyers make an informed decision about their offer. In other words, they have physically seen the property and carefully reviewed the disclosures and property inspection reports prior to making an offer. 

Makes sense - right?  Otherwise, Buyers are making what Kathleen calls a "blind offer" and the seller leaves the "as-is" clause in the purchase agreement wide open for buyers. Lets take a look at the mechanics of how this works via the contract.

real estate contract

Paragraph 9 of the California Residential Purchase Agreement states:


"9.    CONDITION OF PROPERTY: Unless otherwise agreed: (i) the Property is sold (a) in its PRESENT physical (“as-is’) condition as of the date of Acceptance and (b) subject to Buyer’s Investigation rights; …"

The term “as is”, as defined by many years of legal update training, means “as known, as disclosed” at the time the offer is made. 

Subject to Buyer's Investigation rights means that the buyer may get their own inspections. Kathleen recommends Buyers always get their own inspections. IF the buyers inspections reveal anything new, that was not previously disclosed and/or outlined in the sellers inspection reports, then a buyer is well within their rights to ask the seller for repairs ,or credits, for those newly revealed conditions.

HOWEVER, if the buyers inspection report does not reveal any new, unknown, or undisclosed conditions, then the offer to purchase in its "as-is" condition stands.

If the sellers property inspection report reveals, for example, that the furnace and water heater are aged and at the end of life, and the buyer read that inspection report prior to making an offer, then the buyer knew the furnace and water heater were aged and likely in need of replacement in the near future, prior to making an offer.

If the buyers property inspection report reveals the same conditions regarding the furnace and water heater, then those conditions are not new. They were known, and disclosed. Therefore, if the buyer submits a request for repairs to the seller asking the seller to replace the furnace and water heater, that is nothing more, or nothing less than, an attempt to renegotiate the terms of the initial offer. This could be a sign of buyers remorse.

If that happens, either the buyers agent failed to educate their client on what "as-is" means; the agent does not know what "as-is" means; or the buyer is simply feeling remorse, like they paid too much for the property, and want a better deal.

I it common in today's real estate market for Buyers to compete in multiple offer situations. They make an offer for more than list price. The offer is subject to appraisal. Maybe they hope the property won't appraise and the seller will lower the price to meet the appraised value.  If the property does appraise, the buyer is on the hook for their offer, subject to, of course,  all other contract contingencies.

Buyers and their agents are on a slippery slope when they write an offer for more than asking price, hoping the offer is the highest offer and accepted by the seller, and then attempt to renegotiate the contract by asking for repairs for items that were known and disclosed. 

It is all about intention and understanding the process. Ignorance is no excuse. An offer made and accepted is based upon the written contract. If the intention was to get a credit or have the seller replace certain items, then the initial offer needs to state that. The back door approach to buying a home rarely, if ever, works in the San Jose real estate market. Most particularly, not when there are other buyers waiting in the wings in a sellers market.

There is only so much Kathleen can do as a listing agent. Preparing the home, completing inspections, making all reports and disclosures available for buyers and their agents to review prior to writing an offer, vetting a buyer's financial, etc. The things we can never be truly certain of is a buyers intentions or if the buyers agent has adequately explained the purchase agreement and ensured their clients understand what they are signing and how the purchase process works, as per the contract.

There will be times when a buyer will attempt to leverage their own inspection report and attempt to renegotiate their contract with the seller. No one can prevent a buyer from doing that. The seller has no contractual obligation to meet any buyer request for repairs other than those that are already part of the contract and/or required by State laws and local ordinances. 

It's important that all parties understand the contracts they sign. Without a general understanding of the mechanics of the contract, buyers and sellers may feel remorse after they have signed and created a legally binding contract.

If you need to sell your San Jose home, you definitely want to hire an agent who understands the contract and who has your back. Kathleen Daniels will share her listing marketing strategy which is proven to net sellers more money. In addition, when you list your home with Kathleen, the property is protected with a home warranty and a Seller's Protection Plan.  Call Kathleen for details.  1-408-972-1822

When A Buyer Feels Remorse And Wants To Renegotiate An As-Is  Contract - by Kathleen Daniels - San Jose Homes for Sale

 

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“From the moment we met Kathleen, we were impressed with her professionalism, knowledge, patience, respect, humor, attention to detail, and compassion.  She's the Whole Package ~ excellent agent and wonderful human being!  In a potentially stressful experience, we have felt in good hands all along.  We are so grateful and recommend her without hesitation!”

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Comments(58)

Susan Jacobsen
The Alliance Group Realty - Hilton Head Island, SC
20 Years Providing WOW Real Estate Service

Kathleen - I love your post! We are having such issues with buyers basically trying to renegotiate if they feel that they didn't really know the condition and felt that they should be paying less; on the other hand, sellers too want to return to the point when everybody signed and they agreed to an inspection and then the requests are made by the  buyers and the sellers says wait - this is 'as is.' I always recommend that the seller get an inspection but I love how you handle this and how it becomes a very valuable tool!

Aug 25, 2014 05:00 AM
Mike Cooper, Broker VA,WV
Cornerstone Business Group Inc - Winchester, VA
Your Neighborhood Real Estate Sales Pro

Well laid out, Kathleen. I think one of the smartest things a seller can do is to have inspections done prior to listing. Make the repairs and call it a day. 

Aug 25, 2014 05:05 AM
Bill Reddington
Re/max By The Sea - Destin, FL
Destin Florida Real Estate

AS-IS addendum is much different in Florida. Inspections need to be done on a timely basis. Within 5 days of inspection buyer has the option tof cancelling a contract if there is even a screw out of place. Makes for no surprises after an inspection.

Aug 25, 2014 05:43 AM
Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

Interesting how standard practice is a little different in your area, San Jose. Here, buyer has default 17 day inspection period in the California Residential Purchase Agreement (unless stated otherwise) to cancel and it would include findings in seller's disclosures which are given after fully-ratified purchase contract. It is broker recommended buyer perform their own home inspection, and based on that inspection, buyer can request repairs or cancel contract. Consumer protection in California favors the home buyer, but it is wise for home buyers to hire a knowledgeable agent.

Aug 25, 2014 06:08 AM
Bryan Robertson
Los Altos, CA

That whole scam of renegotiating after an inspection should have some sort of penalty.  I've seen a lot of buyers do it.

With respect to disclosures, everthing you said is spot on.  Every seller should have a full set of disclosures done in advance to cover everything so the buyer isn't surprised by anything new.

Aug 25, 2014 06:19 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Tom White, yes, caveat emptor is appropriate. They need to be aware and complete their own due diligence.

Dick Greenberg,  Thank you. So far, so good. Buyers are moving forward. We wrote an good response to the request documenting that all of the conditions were noted in the seller’s property inspection report.

Endre Barath, Jr.   I agree with you.  It is written so that the seller has no recourse if the buyer bails … provided they do so prior to removing contingencies. I am right there with you.  Sellers give a notice to perform and if the buyers don’t perform …

Debbie, Thanks!

Amanda & Jared, Thank you. Sometimes I feel I am working both sides of a transaction even though I am only representing one side.

Sharon Kowitz - Our contract defaults to 17 days due diligence.  In a seller’s market that is often shortened to 10 days or less.

I think it boils down to intentions, Than Maynard.  If they intend to act in good faith … all usually goes well. If not, there are shenanigans like making requests for repairs and credits … attempting to renegotiate the initial offer after acceptance.

Aug 25, 2014 09:28 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Ed, Therein lies the problem … too few do!

Silvia Dukes PA, REALTOR  It is the same way here in CA. Buyers can get their inspections. However, in the spirit and intent behind the contract, and “as-is”, buyers should only be asking for repairs/credits for items that were not discovered in the seller’s inspections and/or otherwise disclosed by the seller.

Paula McDonald  Many agents can’t explain the contract therefore clients don’t understand.

Dorie Dillard, It is basically the same here.  However, see my comment to Silvia above.

Jill, thank you.

Scott Godzyk - If there is no rule/law against a seller getting inspections upfront then I would start the trend of doing so. Sellers want to know what the deficiencies are before the buyer finds out.

Aug 25, 2014 09:30 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Rob Spinosa - I recently went through that with a buyer. They were buying as an investment with the intent to move to the property in one year when their daughter was ready for school. We went round and round ... and the buyer did not like paying the higher interest. So, he went to another lender to lie about it ... then I told him I would not write the offer because I knew the truth.  No amount of money is worth being dishonest.

Jerry Newman - yes it is. Real estate is local as are the contracts we use.

Juli Vosmik - buyer is moving forward. There were no holes they could poke in the sellers response. There only option was to move forward or release.  They are moving forward.  Buyers were pretty well invested at that point. I'd have been surprised if they walked.

Aug 25, 2014 09:36 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Kat Palmiotti -   It is a process that works for me and my sellers. Not all agents do this. I cannot come up with a good enough reason not manage a listing this way.  When I represent buyers, I frequently come across listings that have nothing ready to go, no seller disclosures, no preliminary title report, nothing!

Richie, Before huddling, make sure your agent knows the contract.

Brian Schulman - Perfect – you are doing your job and doing it well.

Eric Boucher -  Well said.  It did not stop them from trying. As Howie Mandel would say … NO DEAL.

Cathy, Thank You.

Tammy Lankford - I think it is all about intention … working in good faith. 

Aug 25, 2014 09:44 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Lenn Harley - I am 100% in agreement with you.  However, when the seller does home, termite, and other inspections prior to listing on the MLS AND those inspections become part of the seller's disclosures AND the buyer reads and approves the inspection report prior to making the offer AND returned the inspection reports "read and approved" with their offer ... then the conditions were known and disclosed ... which is the crux of this post.  Had the buyers inspection revealed anything new, that was not previously disclosed, then those items are fair game to ask the seller to remedy.

Aug 25, 2014 09:49 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Clay R. Seay - Yes, understanding is vital. It can be costly when agents and clients learn the lesson the hard way. 

Catherine, Thank you.

Karen Feltman - I agree. They advise incorrectly because they don’t know … or they don’t want their clients to know.  Yikes!

Nick & Trudy, Thank you.

John Meussner - Never easy sailing. It helps to have some insight about the agent and the buyers as well. Knowledge is also leverage in real estate. 

Carla Muss-Jacobs, Principal Broker/Owner -  Buyers have the right to have the property inspected here as well. Sellers do not have to negotiate here either. I can’t break the code on OTOH – but buyers don’t have to proceed here either. Their deposit is at risk if they have removed their contingencies.

Mike & Eve Alexander - you are right.  In this case, the two inspections were identical.  What are the odds of that?

Aug 25, 2014 09:59 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Richard Weisser - That is true here as well.  Sellers must disclose what they know.  Getting inspections upfront helps sellers disclose what they may not have known.

Sarah, I agree. Don’t ask – don’t get.   And I would add, do not expect too much, if anything.

Geoff, Ours is essentially the same. See my comment to Lenn above.

Andrew Mooers -  You are correct about that! Been there too!  OUCH.

Susan Jacobsen - I have a very compelling case for sellers.  I’ve yet to have a seller not agree to my process, which includes getting inspections done upfront!

Mike, I agree and/or not make the repairs, price accordingly, and disclose – disclose – disclose!

Bill, Buyers can do that here as well. Again, it speaks to understanding the contract and intention. At least it does IMHO.

Pamela Seley, REALTOR® - It is exactly the same here. We use the same contract!  We are talking about the mechanics of the process. Buyer knew from reading the seller’s inspection reports what the issues were. The buyers offer was based on that knowledge.  Not much of a chance getting the seller to replace things that the buyer already knew were old. That is bait and switch, renegotiating after the fact. No matter how we slice it … it is what it is.

Aug 25, 2014 10:09 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Bryan Robertson - Thank you. I wish it were required for sellers to have their disclosures complete and ready for review prior to listing! If sellers opt not to get inspections ... so be it  ... they do so at their own risk, and expense.

Aug 25, 2014 10:11 AM
Kathleen Daniels, Probate & Trust Specialist
KD Realty - 408.972.1822 - San Jose, CA
Probate Real Estate Services

Great discussion here everyone.  Thanks for commenting.

Aug 25, 2014 10:12 AM
Laura Cerrano
Feng Shui Manhattan Long Island - Locust Valley, NY
Certified Feng Shui Expert, Speaker & Researcher
In my opinion it never ever hurts to really take time to consider that you will be in this home for a good chunk of your life. Every piece of damage and every accident and every good time and bad time is on your hands once you sign that line.
Aug 25, 2014 10:16 AM
Patricia Kennedy
RLAH@properties - Washington, DC
Home in the Capital

Kathleen, I am soooo with you on this one!

As someone who is usually on the buyers' side of the transaction, anything that is disclosed is off limits.  Here, sellers are sometimes a little sneaky, and if they get caught in a fib, I am ruthless.  But I like your approach to listing - getting a disclosure based on a home inspection is a very good thing to do. 

Aug 25, 2014 11:22 AM
Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

Kathleen Daniels I agree that would be bait and switch negotiation tactics on buyer's side. It hinges on the idea seller should be so lucky to have their offer, but seller is not required to go along and can always refuse. Seller disclosing upfront items they are not willing to repair or replace is reasonable and honest on their part, and I agree 100%, buyers should consider that fact before making their offer. Great post, Kathleen, for discussion on the fine tuning of buyer/seller negotiations. 

Aug 25, 2014 01:58 PM
Claude Labbe
RLAH / @properties - Washington, DC
Realty for Your Busy Life

Well said.

As also mentionned, you also get Sellers who get seller's remorse.  It seems the contract is considered only when it helps our client's position; but the fine print isn't as important when it's not.

But this makes it all the more interesting & fun

Aug 26, 2014 05:02 AM
The Villages Realty
The Villages Realty - San Jose, CA
"Our Performance Will Move You!"

Hi Kathleen.  Nice post loaded with some good information.  I suspect it will bring some business your way.

Jan 31, 2017 08:48 AM
Eagle Ridge Realty
Eagle Ridge Realty - Gilroy, CA
"Our Performance Will Move You!"

Hi Kathleen, I just dropped by to see what interesting stuff you have posted.  Keep it up!

Feb 01, 2017 07:41 AM