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what happens if the house gets hail damage before the closing?

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the house is under contract. inspection passed. appraisal good. 3 weeks to closing. but because of hail and recent neighborhood activity in getting roof repais done, the seller said they had the roof inspected as well and the insurance approved the entire roof to be replaced, less a $1k deductible. the sellers want us to give them a $1k back at closing to repair the roof. but we havent closed. who is responsible to pay? and are they REQUIRED to make the repair?

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June 29 - Denver

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Search CO Homes FREE
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Search CO Homes FREE

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If it is not clearly spelled out in your contract, there are default answers provided by case law.

There is something called "equitable conversion" that you need to check your contract for. It is implied in courts of equity (not law) and causes the buyer to take resposability for all damage to the house subsequent to the signing of the contract, unless the result of the sellers mal intent, i.e. seller's arson.
Hail is one cause of damages that definately qualifies. In most states, the buyer would be responsible, however, if the home is insured, and the seller is able to claim it under his insurance, you will be able to seek the funds from the seller's insurance proceeds.

Equitable conversion was created out of this type of scenario and exacerbated and best explaned in probate cases. When the seller signs the contract and then dies, who is responsible for maintenance, the sellers estate? No, the buyer! The estate is only responsible for cashing the check.

The good news, if you have an inspection condition in your contract that has not lapsed, use it! Time is not of the essence in real estate contracts unless it says so in the contract. It rarely does. So, even if a few days have passed and this is not an unreasonable time lapse, then you may still exercise the inspection clause.

Call a lawyer if it gets this far!

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September 02

kwijibo61
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couldnt pick a "best answer" as they were all good and informative. but i would like to say thanks and appreciate all your feedback :)

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June 29

David, "B4What"
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David, "B4What"

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Check your contract papers or ask your closing attorney that is part of his duties to make sure closing goes smoothly. Sure the attorney's advice would be, "hey you give my client in writing now that new roof of there comparable choice be installed with min. 15 yr warranty by a licensed roofing company, we'll gladly pay 1/2 the deductible, otherwise seller you replace the roof at your cost and insurance, and pay my client for damages for time delayed." Most closing attorney's will protect their clients and good name for a resolution. Do not give in, but be a firm and patient negotitator. Home is not legally sold until all parties agree in writing. Contracts are not active until all parties named in same or agreeable on all terms, notarized of signatures, and recorded stamp date and time.

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June 29

Lynette Hensley, "lynettehensley"
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Lynette Hensley, "lynettehensley"

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In Washington State purchase contracts can include a clause (on form 22D) that states the owner must maintain the home in the same condition as when initially viewed by buyer.

Look in your purchase contract and talk to your agent to see if that is included in your agreement. The same paragraph also includes that the buyer can reinspect the property to be sure the condition is satisfactorily maintained.

I wouldn't cave at this point. They own the home until you do and are responsible for it.

Lynette Hensley, Associate Broker, ComeBuyAHouse.com

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June 29

Nathan Wolf, "natewolf"
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Read your contract. You could potentially walk away from the closing if they do not repair the roof.

They are still the owners. They are required to make repairs, not you. However, this is why it's called a "negotiation" because they are trying to make it your problem, when in fact it is their problem.

You should also check into whether there is a Home Warranty which covers the sellers for this type of situation. I generally suggest to my Sellers to obtain a FREE-to-the-seller Home Warranty which they pay for at closing. This covers just such repairs. If they have one, it likely will cover the repair/deductible.

In the end, if you are getting a new roof for $1,000 and you decide not to walk away from it, that sounds pretty fair. ALSO, you can see if a local roofer is willing to do the job for $1,000 less -- or to include the deductible in their price. This would guarantee them the work, and the contractor pays the deductible.

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June 29

Michael Emery, "MikeEmery"
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Michael Emery, "MikeEmery"

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Considering you are going to get a brand new roof for $1,000 that will last you a minimum of 10 to 20 years, versus paying out of pocket down the road for the expense, I think you're getting off easy.

I would make sure the roof is either done BEFORE closing or the funds are escrowed. The owners obligation to get you a new roof tends to end when you close.

I would also encourage you to work with the homeowners to make sure you get the color and style of roof that you want too. Real estate transactions don't always have to be adversarial relationships.

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June 29

Patti Hessling, "phessling"
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Patti Hessling, "phessling"

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Review your purchase agreement. Who has the risk of loss during the escrow period? There are a lot of issues to consider with this, in particular does the seller have the 1K for the deductible, if not, then what? Good communication and an open mind are key in situations like this. Think win/win -- consider meeting the seller halfway if ,,,,

Good luck.

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June 29

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