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For Sale by Owner Articles • Owners.com - Negotiating for Home Sellers

"Don't Ask Don't Tell" Not A Wise "As-Is" Strategy

By Broderick Perkins
 
Selling your home "as-is" is a viable strategy in today's hot markets, but it doesn't free you from making legally mandated disclosures.
Quite the contrary.
Buyers likely will be particularly suspect about your home's condition and equally persistent about learning just what your home's "as-is" is.
Even if the buyer doesn't ask about the condition of your home, not telling what you know could leave you liable for non-disclosure after the sale closes.
"As-is has nothing to do with non-disclosure of known defects," Ray Brown, co-author of "Home Selling For Dummies" (IDG Books, $16.99).
"It simply means you are not providing any guarantees or warranties to the buyer as to the condition of the property and will not make further allowances, credits, or price reductions for any problems with your property," Brown added.
Hot markets, like those in many localities today, make as-is selling a useful option. FSBOs (for sale by owner), looking every where to save money, commonly use the as-is sales approach.
"In a hot seller's market people sell as-is because they know buyers are not as picky with repairs and in selling as-is they save money on possible repairs and the headaches and hassles of repair jobs," says Robert Aldana a real estate agent and publisher of the Let's Talk Real Estate Web site.
"Also, selling as-is can save the seller from further expenses that crop up on the ever popular "supplementary report." The report is used when you are quoted an amount for repairs, only to find out that, when they were doing the repairs, they found further damage that sometimes doubles the original repair bill. With an as-is sale, a seller needn't worry about the report because they are not having the floors and walls torn up," Aldana said.
As a wise seller, however, spend some of your expected as-is windfall going over the home with a magnifying glass to ferret out and disclose its true "as-is" condition. That could include hiring not only a professional general home inspector, but also a major appliance inspector, roof inspector, chimney inspector, termite inspector, foundation inspector, and others as needed.
While the buyer can't sue you for unknown defects, claiming ignorance about some easily detected defects may not be a strong defense, says Ron Rossi a real estate attorney in San Jose, CA.
"Most real estate trial attorneys will agree that it can be difficult to prove a seller didn't know about a problem. Some cases have even said that the use of an ''as is'' clause amounts to a ''red flag'' and puts a potential buyer on notice of potential problems," Rossi said.
If you don't inspect the home, your buyer likely will if only to quell suspicions about hidden problems he suspects you are aware of but aren't disclosing.
Beyond helping remove liability by allowing you to make clear and specific disclosures, inspections offer additional benefits.
  • Inspections indicate your honesty, openness and willingness to identify your home's "as-is" condition.
  • Your inspection report, provided it's a professional narrative, could convince the buyer further inspections are not necessary, saving both of you time (which is money) on the transaction.
  • Inspections, before you list your home, give you time to correct problems that could affect the health and safety of future residents -- problems that could cause the lender to balk. That doesn't mean you have to change your "as-is" strategy, only that either you or the buyer must complete the work before the sale can proceed.
    "If a buyer finds defects and does not back out, but demands that you do the repairs, you are not obligated to do any repairs and can cancel the contract and find another buyer. The lender's requirements do not change your obligations in your sales contract. You weren't obligated to do any repairs because of the "as is" clause," said John Reyes, a real estate agent with RE/MAX Group South Bay in San Jose, CA.

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