The topic of the Inspection time-lines is relatively mundane but, important. A Buyer can put his/her Earnest Money Deposit at risk if not followed correctly and the Buyer may inadvertently “Waive their Inspection” without realizing it. The Form 35 – Inspection Addendum to Purchase and Sale Agreement allows a Buyer to terminate the transaction based upon the results of their Inspection and receive their Earnest Money back. It provides a series of required days the Buyer and Seller have to communicate their intentions to each other and allows for the negotiations of repairs, if necessary. Here are a few tips to successfully navigate those deadlines.
a.) The Buyer has an agreed upon number of days to conduct an Inspection and communicate their intention to the Seller. If the Inspector recommends an additional Inspection by an expert, ie. plumbers, roofers, electricians, the Buyer submits that notice to the Seller on Form 35R along with only a copy of that recommendation from the Inspector. No other information from the Inspection Report should be transmitted to the Seller.
b.) Buyer will then have an agreed upon number of days to have that additional Inspection and communicate to the Seller. This communication should be on a second Form 35R and should include everything the Buyer requests the Seller to repair prior to Closing. The Buyer should use specific language in their request.
c.) Once received by the Seller, the Seller will have a specified number of days to respond back to the buyer. Here’s the kicker …. if the Seller does not communicate to the Buyer within the specified number of days, this non-response means the Seller has not agreed to perform any of the repairs the Buyer has requested.
d.) The Buyer then has an agreed upon number of days to either; (1) do nothing or (2) terminate the transaction. If the Buyer does nothing, he/she must fully understand that the Seller will perform none of the repairs requested and they risk losing their Earnest Money Deposit if they do not Close the transaction based on one if the inspection items. Or, the Buyer must terminate the transaction within the agreed upon number of days and request the return of their Earnest Money Deposit.
Here’s another scenario:
1.) Buyer properly submits a Form 35R with a request that 10 items be repaired prior to Closing.
2.) Seller responds in the appropriate time-line agreeing to repair 6 of the items but, not the other 4.
3.) Buyer has the agreed upon number of days, let’s say three days, to either (a.) agree to accept the Sellers’ response or (b.) terminate the transaction. After those three days have passed, there is nothing in the Purchase and Sales Agreement that allows for continued negotiations between the Buyer and Seller. If the Buyer and Seller cannot reach an agreement within those three days, the Inspection is deemed “Waived by the Buyer” The Seller will not be obligated to perform any of the repairs requested by the buyer and, the Earnest Money Deposit will be at risk.
4.) The Buyer and Seller must formally agree to extend the time-line for negotiating the repairs prior to the end of this three day period if they desire to continue with the negotiations.