seller repair obligations prior to closing the sale

[criticalthinker]

What is the name of your state (only U.S. law)? MA

The Purchase and Sale Agreement included an opportunity to inspect the property. The inspector found a mold and damaged sheathing issue in the attic space. Several sections of plywood sheathing contained both active and inactive mold (enough to turn the panels solid black over however long it has been left untreated). Some of the panels delaminated as a result. Ideally the sheathing needed replacement, not remediation. I should mention that, in addition to the mold/delamination issue the roof also needed to be replaced since it was well past its service life.

We responded with an inspection report and a request that the roof shingles and underlayment be replaced along with any damaged sheathing. All work was to be performed by a licensed contractor. The seller (through his agent) agreed to "replace the roof". Within 7-10 days the roof was replaced, however in a subsequent inspection we noticed that the damaged sheathing had not been replaced. When asked about the oversight the seller's agent then said her seller would have "a handyman take care of the mold issue". Obviously that is not acceptable. We're not talking about a minor mold issue over a small area. 4-6 panels of 4x8 plywood are affected.

The seller's agent has now changed tune again and says the mold issue would be our responsibility. Obviously that irritates us because it was previously agreed that the seller would take care of the roof. Had the seller's agent revealed (before having the roofing replaced) that the seller did not intend to replace the sheathing, we would have had an opportunity to pay the roofer the difference in cost to replace the damaged sheathing ($300-$500) properly.

Now, because the seller proceeded to have the roofing installed over mold damaged plywood we are left with more expensive options, and the seller refuses to pay to fix the oversight. We can either pay for mold remediation (~$1200+) which resolves the mold issue but not the plywood issue. We can pay to have a roofer tear up the brand new roof, replace the affected plywood, and reinstall shingles (~$2000+). Or, we can simply end the transaction per the terms of the P&S agreement.

We'd prefer to follow through with the transaction because, outside the sheathing issue and a handful of other minor issues, we do like the home. Obviously that means we could simply eat the costs and be done with it. We may do just that. However, that's not why I am here. I'd like to know if the seller has any responsibility/obligation here given that s/he:

1. would have had to have known that the issue existed (though I would imagine it is virtually impossible to prove). According to the inspector mold damage this extensive developed over a long period of time due to inadequate attic ventilation. The home has a large furnace in the attic and no ridge vent to help prevent condensation on the inner sheathing. The mold damage was not disclosed prior to our inspector's assessment.
2. agreed to replace the roof after reviewing our inspection report, but proceeded to replace only the outer damage, not the inner damage.

It seems this mold and damaged sheathing should be the seller's responsibility, but perhaps I am wrong.

Also, is there now an obligation on the buyer or seller to reveal the issue to the lender? I would imagine banks are not fond of financing homes with known mold issues.

In any case, we plan to speak with our attorney later this week. I was just hoping to perhaps get other opinions here as well. Thank you for your time.

 

[justalayman]

would have had to have known that the issue existed (though I would imagine it is virtually impossible to prove).

why would they have known of the mold? Was there evidence of a leak in an area that was commonly used? If not, a leak can go undetected for years.

According to the inspector mold damage this extensive developed over a long period of time. This was never disclosed.

if they weren't aware of it, they weren't aware of it.

agreed to replace the roof after reviewing our inspection report

do you have that in writing? Did it include any defective roof boards?

It seems this mold and damaged sheathing should be the seller's responsibility, but perhaps I am wrong.

why? Just because there is a defect does not mean it is the sellers responsibility. They could sell the house with no roof and one wall missing if the buyer was willing to accept it.

 

[ecmst12]

Seems like you should walk away from this deal, if you can.

 

[criticalthinker]

why would they have known of the mold? Was there evidence of a leak in an area that was commonly used? If not, a leak can go undetected for years.

do you have that in writing? Did it include any defective roof boards?

why? Just because there is a defect does not mean it is the sellers responsibility. They could sell the house with no roof and one wall missing if the buyer was willing to accept it.

Hi Justalayman,

Given that this house is equipped with a furnace installed in the attic it is reasonable to assume that the owners would access the attic anywhere from 2-6 time per year just to change the air filters on the furnace. The mold damaged sheathing is as close as 12 inches from the furnace and extends out several feet in multiple directions. It can be seen with the naked eye without the aid of a flashlight.

The P&S agreement simply allows for an inspection and for negotiation between buyer and seller regarding issues uncovered during inspection and not otherwise warranted. If the seller refuses to proceed with repairs we do have the option to terminate the agreement.

Regarding a home with no roof and a missing wall, your statement is true of cash purchases, however it is not true when seeking a loan. Banks have very specific requirements for lending. Partly finished homes are classified as "new construction" -- a different type of loan with its own criteria. Homes must be considered habitable to qualify for conventional loans.

As ecmst12 suggested we may have to walk away from the deal no matter how much we like the place. I am simply interested in finding out if circumstances would allow us to go back to the seller to demand that the roof, which they did agree to repair in writing, be redone properly. After all, they could have done it right the first time, or provided us with an opportunity to pay the cost difference and have the sheathing replaced more affordably during the reroofing process, and it'd have been a non issue. The now substantially higher additional expense to correct the botched job should not fall on our shoulders. Perhaps from a legal perspective it would. If so, then perhaps it is time to walk away.

 

[nextwife]

IMHO: If we as buyers want total control over how a repair is done, we should just get a price adjustment and arrange it ourselves After closing, TO OUR SECIFICATIONS.

 

[criticalthinker]

IMHO: If we as buyers want total control over how a repair is done, we should just get a price adjustment and arrange it ourselves After closing, TO OUR SECIFICATIONS.

Absolutely agree. In fact, that's just what we arranged regarding several other lesser issues. We had planned to take care of those ourselves at a later date.

However, the seller insisted on taking care of the roof repair. I assume because he felt he could have it done for less than our requested adjustment. That's fine and dandy, but it still needs to be done correctly. We're not talking about disagreement over aesthetics or nitpicking. This is physical damage that could have been easily and inexpensively repaired when the shingles and underlayment were removed.

It seems the answer is clear. We'll just have to walk away from it. Thank you all for sharing your insight.

 

[HomeGuru]

Absolutely agree. In fact, that's just what we arranged regarding several other lesser issues. We had planned to take care of those ourselves at a later date.

However, the seller insisted on taking care of the roof repair. I assume because he felt he could have it done for less than our requested adjustment. That's fine and dandy, but it still needs to be done correctly. We're not talking about disagreement over aesthetics or nitpicking. This is physical damage that could have been easily and inexpensively repaired when the shingles and underlayment were removed.

It seems the answer is clear. We'll just have to walk away from it. Thank you all for sharing your insight.

**A: that is your option or have your own expert inspect the repair job.

 

[justalayman]

Regarding a home with no roof and a missing wall, your statement is true of cash purchases, however it is not true when seeking a loan. Banks have very specific requirements for lending. Partly finished homes are classified as "new construction" -- a different type of loan with its own criteria. Homes must be considered habitable to qualify for conventional loans.

Who said anything about conventional loans? I simply said:

They could sell the house with no roof and one wall missing if the buyer was willing to accept it.

and that is true and especially in this situation, there would be little problem with conventional mortgages due to the problem. I have sold homes that were repaired during the sale process such as you intended this to be and I have sold homes that it was known would require repair after the sale for it to qualify for a conventional loan. You can work through mos problems as little as this.