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Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 55595
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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I sold a house "as is" in Massachusetts and completed the

Customer Question

I sold a house "as is" in Massachusetts and completed the P&S. The buyer is coming back seeking full discount for the septic that failed after the P&S. What should I do?
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Richard replied 2 years ago.
Hi! My name is ***** ***** I look forward to helping you!
Can you provide me a bit more information? Did you complete the Massachusetts Seller Disclosure Form accurately? How old was the septic system? Did you know of any issue with the septic system that you failed to disclose? Thanks.
Customer: replied 2 years ago.

The MLS stated it was private sewerage and that a Title 5 inspection was not done. There was not a separate disclosure form. The system had no flaws that were known but it is 60 years old. My father lived there alone for over 20 years and he is incapacitated and in a nursing home.

Expert:  Richard replied 2 years ago.

Thanks for following up. Your buyer may want a full discount for the septic system, but the buyer is not likely to have any chance of prevailing. One, if this was your father's home and you were selling it on his behalf, you would have been exempt from any responsibility for the Seller Disclosure. Two, this was the real estate agent's responsibility and because it wasn't delivered, the real estate agent would have determined that it was not required. Three, the house was sold "as is" which would mean just that and the buyer had every opportunity to inspect the septic system. Four, the fact that it failed after closing is not your problem. It was an as is sale, it was 60 years old, and could have failed at any time. Once closing occurs, the buyer has the risk of loss if something happens after closing. Five, even if none of the above was applicable and it was your fault, your liability would be the value of the septic system that failed. That would be the cost of replacement TIMES THE REMAINING USEFUL LIFE. At 60 years old, it had no useful life left, so it had no value.

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 2 years ago.

You said above "once closing occurs". I want to make sure that you know that it has not closed. It has a P&S agreement only.

Expert:  Richard replied 2 years ago.

Thanks for following up. I did misunderstand. If the closing has not occurred, then the buyer would have the right to terminate if the buyer chose to do so because this would be a material adverse change between the time the P&S was signed and the closing. BUT, you would have no obligation to discount the price if you chose not to do so. The buyer's choice would be to either terminate or close unless the two of you agreed between the two of you on a price adjustment. Any adjustment should be minimal because a 60-year old septic system really has no remaining useful life.