Home Buyers Can’t Always Get What They Want

In 1969, the Rolling Stones had a big hit with the song “You Can’t Always Get What You Want.” While that was a hit for the Stones, it is disappointing when a home buyer finds that can also apply to a home purchase. It all depends on the contract, so let’s take a look at the form contract frequently used in Southwest Florida, the NABOR Residential Improved Property Sales Contract. 

The majority of homes sold in Southwest Florida are sold furnished. That is rare in the United States. Most homes are sold unfurnished. When a home is sold with furnishings, it is important to know what is included. Items referenced or shown in the MLS or even in an ad may not be included unless the contract says so. Pictures and advertisements are not part of the contract. 

The NABOR contract includes a list of items that are included with all sales unless specifically removed from the list. Fixtures are almost universally included, as they are made part of the real property once attached. Removal would damage the real property. Personal property is not automatically included. That makes it important to read the contract and make sure it includes everything that the buyer wants. 

The NABOR contract lists some items that must be fixtures including built-in appliances, attached ceiling fans, built-in shelving, wall-to-wall carpeting, integrated home automation and audiovisual, central vacuum, water softener/purification system, built-in home generator, security surveillance system, storm and decorative shutters, pool equipment, electric vehicle charging equipment and solar panels and related equipment. Believe it or not, sellers in our area have taken one or more of those items so the contract is written to clarify those items. 

The NABOR contract includes refrigerators ranges dishwashers, microwaves, washers, dryers, draperies, window treatments, garage door openers and access devices, pool covers, child pool safety fades and automated pool cleaning equipment.  

The items included by contract are further limited to those on the real property at date the contract becomes effective, which is defined as the last stated initials or signature. Even if something was there when a buyer walked through, it might not be there later unless the contract mandates it be there. 

Other personal property can be included, but only if added to the contract. Furnishing is frequently part of a home sale in Southwest Florida. But furniture is not automatically included. 

If the buyer expects furniture, the buyer better make sure the furniture is included in the contract. And, if the buyer wants to make sure all of the furniture is included, the buyer should attach an inventory listing every single item. Realtors often shortcut the process by including terms such as “fully furnished” or “turn-key furnished” but those terms are subject to interpretation and disagreement between buyer and seller. 

What the buyer usually wants is not satisfied by making sure everything is listed in the contract. A buyer also wants everything to be in good condition. In some cases, a buyer buying  a used home thinks the buyer is  entitled to “brand-new.” 

The NABOR contract also defines what is a defective item to which the buyer can object. The contract makes it clear that components do not have to be in like new condition. Systems and equipment are to be in working condition. Working condition is defined as “operating in the manner designed to operate.” Home inspectors often report that the air-conditioner needs to be cleaned or that the refrigerator is rusty. When those items are performing as designed they are not defective. 

Roof and other structural components are defective only if not structurally sound and watertight. Home inspectors again raise issues with old roofs, pointing out that the roof will have to be replaced soon because it is at the end of its useful life. But if not leaking it is not defective under the contract. 

The contract provides similar standards for radon, mold, termites, lead-based paint and building permits. Building permit issues can be a problem if not properly included as part of the buyer’s inspection because the contract provides those issues are inspection items are not title issues. If objections are not raised within the time for reporting defective inspection items, a buyer can be barred from later claiming building permit issues are title problems that must be cured. 

The NABOR contract does not mandate a seller correct any defective inspection item. It provides the buyer with a right to conduct inspections within a limited amount of time. Inspections must be non-invasive. If the inspection reveals any item which is defective as defined by the contract, the buyer has another limited time in which to request the seller remedy the defect or give the buyer a credit equal to the cost of correction.  

The seller has limited time to respond to a buyer’s request and if the seller fails to respond to the failure is a rejection of the request. If the seller does anything other than agree to the buyer’s request, the buyer may terminate the contract and get back to the buyer’s deposit or proceed to closing. If the buyer terminates, all of the buyer’s expenses are still buyer expenses. They are not reimbursed by the seller. 

If the seller agrees to repair or correct a defect, the seller alone gets to pick who does the repair. The buyer can confirm if the repair was properly done during the buyer’s walk-through, which is to be scheduled by the contract just prior to closing. If the repair is of an item behind a wall or otherwise impossible to inspect, the buyer will not be able to open the wall to make sure it was done correctly.  

The reader’s take away from this column should be it is very important to read and understand a real estate sales contract before signing the contract. Form contracts are great shortcuts and by law Realtors may use them and fill in the blanks. But they may not provide what a buyer wants. Although the Stones reminded us that we can’t always get what we want, if a buyer tries really hard, the buyer just might get what the buyer needs.