Thursday, March 5, 2015

Real estate: the misunderstood "as is" clause.

Real estate: the “as is” clause.

In my experience, the iconic "As Is" term is largely misunderstood, by buyers and sellers equally.  This is where your (professional) agent may save you money, and hopefully some mistakes.

“As Is” merely means that the seller and the buyer accept the fact that the seller is not obligated to correct anything at all. The seller still has to fully disclose everything that could affect the value or the desirability of the property (any negative aspect of the property, past present or future - if known) - unless the seller is exempt. “As is” does not relieve the seller of his/her legal disclosure obligations.  Also, at a different level, in most contracts the property has to be, at close of escrow, in the same general condition as on the date of contract acceptance; so, if something is damaged after the contract has been signed, the seller would most likely be obligated to correct it, even if it is an "as is" transaction. - or the buyer may cancel, possibly.

In the past, when the market was different, I would often advise a seller to contractually limit any and all liability to a certain amount, after the buyers had done their inspections.  The buyers could ask for certain repairs, but at least this way the seller did not have to go over that limit if that had been negotiated in the contract.  Today, the "as is" clause would mean that the limit placed on the works possibly done to satisfy the buyers would be zero dollars.  That's as simple as that.  If the buyer has a contingency, the buyer can always ask for something to be corrected, repaired, replaced…. Depending on how the contract is written, the buyer then may be able to cancel the purchase if the answer is not what (s)he likes.  The sellers could always agree to some repairs, why not, if they otherwise are happy with the end result. But they don't have to.

New homebuyers are often scared by the term "as is", and they should not.  I have found that when something big pops up that was not known upfront, both buyers and sellers are willing to work together to address it.  Of course, market conditions will play a large role.
A contract is a living thing: things change during a transaction, new stuff is found, other inspections may happen, and items which were acceptable yesterday may not be acceptable today. “As is” is not the end of the story. It depends a lot also on the other terms and conditions negotiated in the contract.  Knowing the real estate contracts and their subtleties is one of the most important criteria in your choice of an agent to represent you.

And when you sell a property, disclosing as many things upfront as possible is a good strategy: it seeks to remove the majority of the unknowns, and makes it a lot more possible to go into an “as is” contract that is meaningful for both sides.

Thank you for reading,

Trends: Local prices and graphs.

A noteworthy local event coming up:
The French Fair, March 21, 2015