What’s a seller’s continuing maintenance requirement?
By Meredith Caruso
March 19, 2018 – Often sellers choose a contract based on the repair requirements involved. Do they use a contract that requires no repairs, like the Florida Realtors/Florida Bar "As Is" Residential Contract for Sale and Purchase (As Is FR/Bar)? Or do they prefer a repair obligation up to a specified limit, which they can do if they choose the Florida Realtors/Florida Bar Residential Contract for Sale and Purchase (FR/Bar) or Florida Realtors Contract for Residential Sale and Purchase (CRSP)?
Either way, it's important for both Realtors and the transaction parties to understand potential additional repair obligations contained within the contracts.
If using the "As Is" FR/Bar contract, the seller has no obligation to make repairs based on the buyer's inspection results. But what happens if, after the inspection period on this contract, the seller's air conditioning unit (which was noted as "older" in the inspection report) simply stops working? With no repair obligation, can the seller simply say "too bad" to the buyer and expect the buyer to proceed to closing?
In short, no. And here's why: Based on the language in paragraph 11, the Property Maintenance section, excluding normal wear and tear and Casualty Loss, the seller is obligated to maintain the property including, but not limited to, the lawn, shrubbery and pool, in the condition existing as of the Effective Date of the contract.
This means that the seller may not have repair obligations under the inspection section of the As Is FR/Bar contract, but the seller does have to keep the property in relatively the same condition it was when the parties went under contract.
Some other examples could include a neighborhood kid accidentally hitting a ball through a window or the pool pump no longer functioning. Assuming there was no hole in the window and the pool pump functioned fine when the parties went under contract, the seller must fix those items.
It's important to note that this potential repair obligation also extends to contracts where the seller is obligated to make repairs pursuant to a buyer's inspection. If using either the FR/Bar or the CRSP contract, the seller has to make any repairs up to the repair limit(s) as laid out in the contract. However, if the refrigerator stops working right before closing, the seller is also obligated to fix that as well. This is an additional repair beyond the inspection repair obligation already contained in the contract.
Why? Because a refrigerator that isn't working right before closing – when it was working at the time the parties went under contract – needs to be repaired based on the property maintenance language in the contracts. For the FR/Bar this is also paragraph 11; for the CRSP, this language is in paragraph 8.
While these particular sections of the contracts may not come into play very often, it's important to know of the potential obligation just in case "things happen," as they tend to do.
Meredith Caruso is Manager of Member Legal Communications for Florida Realtor
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