Can you explain sellers’ and buyers’ contractual obligations?
Buyers and sellers with signed contracts that are legally binding have many contractual obligations. Here are a few examples.
The standard form, Contract of Purchase and Sale, contains this clause:
“The Purchase Price includes any buildings, improvements, fixtures, appurtenances and attachments thereto, and all blinds, awnings, screen doors and windows, curtain rods, tracks and valances, fixed mirrors, fixed carpeting, electric, plumbing, heating and air conditioning fixtures and all appurtenances and attachments thereto as viewed by the Buyer on the date of inspection...” (Clause 7: Included items).
The contract provides a space for additional items that are to be included or excluded, for example, washing and drying machines, curtains or even a stone garden bench.
If you are a buyer, and you have specified items that you want to be included in the contract and if these items have been removed when you take possession of your home, then talk to your REALTOR® and/or your lawyer as to whether the seller has breached Clause 7 of the contract.
The standard form Contract of Purchase and Sale contains this clause:
“The Property and all included items will be in substantially the same condition at the Possession Date as when viewed by the Buyer...” (Clause 8: Viewed).
If the property’s condition is different when you take possession of your property, talk to your Realtor and/or your lawyer as to whether the seller has breached Clause 8 of the contract.
Buyers may impose a specific obligation on the seller, for example, to make repairs or to clean the property prior to the closing. Examples could include shampooing carpets, power washing the driveway, removing garbage and unwanted items, cutting lawns, and repairing fences.
Sellers (and buyers) are obligated to keep their contractual commitments. If a contractual commitment has been breached, consider talking to your Realtor and/or your lawyer as to your options.
Your Realtor and his/her brokerage may be able to help resolve this complaint by contacting the other party’s Realtor or brokerage to ask for assistance or to communicate your concerns.
Note: Your Realtor cannot force the other party to do what they said they would do in the contract. For this, you need the assistance of a lawyer or the Courts.
Subject to clauses
Buyers may wish to make “subject to” offers for example; subject to the buyer being able to obtain financing; subject to an inspection of the property and/or subject to legal advice. Sellers can accept an offer subject to the seller being able to find another suitable property within a specified period of time or subject to legal or financial advice. The parties must act in good faith and are expected to make reasonable efforts to satisfy and remove subject clauses from the agreement.
Note: A subject clause is not necessarily an “escape clause.” If the other contracting party does not believe you have made an effort to satisfy the subject clause he/she may consider that you have breached your contractual obligations.
Deposits are most commonly held in trust by the buyer’s Realtor’s brokerage. Once deposit monies have been placed in the brokerage trust account they can only be removed from the trust account with the written approval of the buyer and seller. If the parties cannot agree, the real estate brokerage may pay the monies into court pending legal action that the parties may choose to take.