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Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 53976
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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We recently closed on a new property and did a lease back.

Customer Question

We recently closed on a new property and did a lease back. The previous owners took items that were supposed to have been left behind per the contract. Additionally they (or their movers) scratched the wood floors. The scratches were conspicuous and the patterns consistent with flat surface scraping, width and length of a box. Line 6 in the Temporary Occupancy Agreement states that, “Seller shall be liable for the expense of repairing any damage to the Property caused by Seller or Seller’s family members, licensees and invitees during the Temporary Occupancy Period, excluding normal wear and tear.” Although normal wear and tear is debatable, the scratches we took pictures of depict negligence. Finally the previous owners still have the keys to the house, are denying they have garage door openers (which they checked off as possessing in the sellers disclosure) and are denying that they ever possessed one of the ceiling fan/light remotes. (this cannot be true as the inspector had to be sure all lights/fans were functioning) We asked the owners for a dollar amount to replace exact items they took and a screening (buffing and polyurethane coating)for the wood floors. They previous owners are offering 1/2 of amount to cover all items. They stated that they are not looking to negotiate any further and if we don't accept then legal action should be taken.
Per the contract none of this should be negotiable anyway. Aren't they in breech of contract? We weren't asking to negotiate. We were asking for them to produce the items they took or provide replacement value and additionally cover the cost for damage to the wood floors.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Richard replied 1 year ago.
Hi! My name is ***** ***** I look forward to helping you!
They are in breach of the contract and you are entitled to 100% of the cost. If they want to force you to file the suit, then do just that, but let them know not only will you be seeking your damages, but all your legal costs of the suit. Furthermore, let them know you will be asking the court to award you punitive damages due to the seller's intentional bad faith. They're just thinking you won't do this, but you should because filing the suit will give you give you the collection options and leverage you need to collect the debt owed you. That's because once the suit is filed and a judgment awarded, you become a judgment creditor, and sellers don't then pay the judgment, you can have the sheriff serve a summons on them for a debtor examination. That forces them to meet you in court again and answer questions under oath about their assets. After that information is obtained, you have the power to garnish wages (unless you're in TX, SC, NC, or PA), attach bank accounts, have the sheriff seize other personal property, and/or place liens on any non-homestead property they own to satisfy the judgment. In my experience, however, simply filing the suit is typically all you need to do to resolve this outside of court because most of the time, once served with a summons they are being sued, they will settle this to avoid the additional costs and expenses of defending a suit they can't win.
Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). I thank you in advance for taking the time to provide me a positive rating!
Customer: replied 1 year ago.
Thank you Richard. Our concern is they are denying that the damage was done by them or their movers and offering "some" compensation. Once we take them to court how do we prove that the damage was done by them or their movers? They are stating that the damage was preexisting. We are trying to protect ourselves from being counter sued and having to pay their fees. We know that the damage was not preexisting but how do we truly prove this having no photos or video of floors pre-damage?
Also, dealing with all of this has taken a week which has delayed our move and work that we were going to have done pre move in (painting, etc...) Now we have to have the floors done which is more time. Would serving them prevent us even further from getting work started on the house and proceeding with the move?
Expert:  Richard replied 1 year ago.
You're very welcome...it's my pleasure to help. If you have no pictures, it is a more difficult proposition. Perhaps you have some third parties who could sign affidavits that these were not pre-existing. Or, a professional that could floor person who could testify that these were new based upon aging of the scratches...(i.e., if they were pre-existing, then likely they would be dirtier or more worn than new scratches). You can take pictures now, and proceed with your work and move in without compromising your case.
Customer: replied 1 year ago.
We have pictures from the day after they moved out. They wanted the floors cleaned (which we agreed to) to prove that it wasn't mud. I took photos of the scratches post cleaning as well. Would our agent be an appropriate person to sign an affidavit? Or the home inspector? I've already had two floor people out who stated that the scratches looked fresh. Would they need to sign an affidavit as well?
Expert:  Richard replied 1 year ago.
Any and all parties that have knowledge would be appropriate parties. And, the floor people. The more affidavits, the more it tilts things in your favor. :)
Customer: replied 1 year ago.
Can I file the suit without an attorney? How do I do this?
Expert:  Richard replied 1 year ago.
Can you tell me in what state you are located? And, what would it cost to fix everything?
Customer: replied 1 year ago.
Georgia. the round figure is $4700. this includes a deep clean after the work to the floors are done.
Expert:  Richard replied 1 year ago.
Thanks. Yes, you can file this in small claims court (called Magistrate Court in Georgia) because these courts hear any claim up to $15,000. These courts are designed to be used without an attorney. The following link will guide you: http://consumer.georgia.gov/consumer-topics/magistrate-court
Customer: replied 1 year ago.
thank you. also an additional question. during the due diligence period we presented them with the inspection report. We had a contractor come to inspect and quote for repair. they wanted their own contractor to come out as well. both contractors came on the same day. we were informed that same date in the evening that the owners had repaired the damage and that they were not interested in addressing the issue any further. is it legal for them to make this repair (of which was brought to their attention by our inpection report) without communicating their intentions?
Expert:  Richard replied 1 year ago.
Although they were likely within their legal rights to make the repair, if the repair was not made properly, you would have a claim against them for the cost of remediating the problem.
Customer: replied 1 year ago.
so by them having the work done that meant that they "agreed" to the repair? because at that point we hadn't even had the chance to specify what and how we wanted it repaired.
Expert:  Richard replied 1 year ago.
Yes, that is correct. I'm sorry for the delay....mid-morning run! Thanks for your patience and I'm sorry for any inconvenience.
Customer: replied 1 year ago.
no problem! so when drafting the letter to ask for costs to cover missing items and damage, do we reference the contract or just state that they are in breach on many items?
if they cannot produce the exact items that were supposed to be left behind then are they liable to cover replacement cost? replacement cost is what we asked for. (we were able to provide them matching models and configurations and replacement value as I had taken pictures of these items during one of the walk throughs)
Expert:  Richard replied 1 year ago.
I would just state there are multiple breaches of the contract. Although you can ask for replacement value, if this were to go to court, the court would likely reduce the replacement value by the age of the item. For example, if an item had a useful life of 10 years, and it was 3 years old, you would likely be awarded 7/10 of the replacement value.
Customer: replied 1 year ago.
is it true that punitive damages are not generally awarded in contract disputes?
Expert:  Richard replied 1 year ago.
It is more difficult in a contract dispute, but not impossible if you can show bad faith on the part of sellers. It doesn't hurt to let them know, however, that you will be seeking them. :)
Customer: replied 1 year ago.
the previous owners are moving out of state and are currently staying with parents here in town. per the GA Magistrate site it states that: the claim must be filed in the county where the defendant lives.
Expert:  Richard replied 1 year ago.
You want to make sure to file it before they leave. Serve them at their parents home.

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