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RealEstateAnswer, Lawyer
Category: Real Estate Law
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Experience:  10+ years in handling Leases, Landlord-Tenant, Foreclosures,Mortgages, and Eviction cases
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San Diego County. We're closing on a home in two days. In

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San Diego County.
We're closing on a home in two days. In the last week, all of a sudden there have been lots of miscommunications and instances where what was said changed by the next conversation from our agent.San Diego County.
We are closing on a home in two days. There have been some recent instances of changing stories and commitments stated and then canceled from our own agent (suddenly feels like we're not getting good advice from our buyers' agent and that he's more interested in making things easy for the seller's agent.) Ours IS a case where the buyers' agent works for agency of the seller's agent (the agency is in his name) and they are getting both commissions and also have a tight relationship. They are a well reviewed agency and been in the business many years just as an aside. Understandably this is not ideal (buyer and seller agent in the same agency and one technically works for the other) but in this crazy cutthroat market in SoCal we probably wouldn't have had our offer accepted (loan package albeit excellent credit scores and very smooth) over the cash bid.Question now:
The house had been staged and had decor from the previous owner who had passed. The sellers, out of town adult children of the woman who had willed the house to them, had an estate liquidation sale over the weekend.We went in to the house during the last half hour of the two day estate sale and purchased a couple of items ourselves and naturally a lot of the other purchased items were gone from the home as expected at that time.Totally unexpectedly and accidentally, we noticed that a piece of art that must have been sold had been covering what appears to be about 5x5 inch area of mold or mildew around the two nails that suspended the art.
We took a few photos and left.
We had done many inspections /standard home inspection plus 13 others (roof, windows, foundation, etc) but did not (and imagine would not have been allowed) to remove/touch the art and furnishings during inspections. And frankly there was no indication and we wouldn't have even thought to check.The hope is that it's minor and revealing that by cutting out a couple feet of dry wall could tell us. But what if it's not?Timeline:
We have released contingencies as of last Thursday.
Liquidation sale was Sat/Sun.
Observation of mildew or mold was Sunday late afternoon.
Monday (today) is termite tenting that I believe will start even before the time we were told since we have been getting unclear and uncommitted communications to our direct questions in the past week from our agent. We don't also want to delay termite tenting (or allow the seller's agent to) in case it would hold up a successful closing or that they could use it as a pressure strategy in us to rush us into closing (to pressure us to just accept any issue instead of dealing with it) in case the loan has any date/contingencies that we are not aware of.
What happens and what are our options when the tent comes off Wednesday (supposed to be our final walk through before signing documents on Wed afternoon or Thursday first thing) if:
1. The mildew/mold is there and visible. Can we ask to cut into it or do it ourselves and naturally agree to repairing the drywall ourselves if we discover it's minor/nothing? And what next?
2. What if someone has patched and painted over it after the sale and before we see it, thereby covering it up at this point. (We have photos from when we saw it at the liquidation sale yesterday afternoon but have not brought it up to anyone yet (holiday weekend and this was just several hours ago yesterday, and also we are concerned about our options and best approach)).
We're not feeling that comfortable with the agents - either of them, seller or buyer (ours) at the moment.
We love the house and want a smooth and efficient end.
We have a huge earnest deposit in the deal. Naturally we also don't want to now discover a major mold issue (again we're hopeful it's not that an
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: California
JA: Has any paperwork been filed?
Customer: All details above.
JA: Anything else you want the lawyer to know before I connect you?
Customer: I believe all details are above, though they may generate folllow-up questions.
Good morning. I certainly understand the situation and your concern. During the sale process, the seller had a duty to maintain the home and would be responsible for something like this if it occurred and became present. After all, the risk of loss has yet to pass to you as the buyer and they own it and are liable for it and to maintain it. As such, you do have right to cut it out and repair it to assure this is a minor/isolated thing and not something that is major and requires work and effects your health. You can speak with them and address this. Now, it you were to discover that they knew of this and tried to hide it and cover it up and failed to disclose it you could go after them and sue for damages and the cost of repair. You would want to bring in a professional/expert to look into this and identify any problems or issues that are present and use this to your advantage if something needs to be done to correct it.
Customer: replied 4 months ago.
Thank you. Here's the rest of the content of the note so it's complete (there must have been a word count, and I pasted it from a document that I wrote elsewhere). I don't think it will change your initial response, but just so that you have the complete initial inquiry. You'll notice a couple sentences of overlap.
We have a huge earnest deposit in the deal. Naturally we also don't want to now discover a major mold issue (again we're hopeful it's not that and there were no other big 'flags' during our inspection and followups).
We have released contingencies; we acknowledge that.
This 'hidden' finding is obviously unexpected and potentially distressing.
We don't think the sellers are particularly friendly, interested in fairness or know a lot about the house--it was their mother's and is their inheritance.How should we play this out over the next couple days protecting ourselves and our interests foremost?
Summary timeline:
Today--tent goes on for fumigation, so no one in the house.
Tomorrow--tent still on. Any action items or communications? Or none?
Wednesday: tent comes off; final walk through where we will either see the mold or will see patches/painted area over it (covered up) and are supposed to be closing that day or first thing the next morning (Thurs).Any advice is very appreciated.I think we will press the request a phone call button here next in a couple minutes.
You can always extend the closing date to address this issue and concern. You can allow the tenting to take place and address the issue with looking at this once the tent is off. The goal is really to check out and inspect the mold issue. Ask to bring in someone to look at it and as I shared see if the closing date can be extended if you can not get someone in prior to who can look at this.
I just wanted to follow up and see if there is anything else I can answer or clarify as I am here to help. If not I kindly just ask that you rate my help so the site will provide me with the proper credit for my time. Thank you again!
RealEstateAnswer and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 4 months ago.
Is it alright to speak with you for a minute...
You can request a call and an expert can contact you.
Customer: replied 4 months ago.
Is it possible to speak with you in the phone?
I am not able to speak on the phone at this time but happy to answer any follow up questions which you may have. Also just be aware the site does charge an additional fee for the call so I wanted to share that with you
Customer: replied 4 months ago.
We are also concerned about cutting into the wall. Since we do not own the home, we don't think that anyone on the sellers side would give us the AOK to cut into the wall to actually visibly check the mold. What would you suggest in this case? When the home clearly doesn't belong to us yet. Also, the selling agent and our buying agent as we've mentioned work for the same real estate agency, and now we are on more of an alert state when it comes to communications with them. Their responses are becoming fewer and more and more limited. Ambiguous really. And it should the sellers be responsible for bringing in a mold expert when the wall gets cut open finally? And is pushing the closing out a day or two put us in any kind of jeopardy for losing the deal and losing the house all together?
Customer: replied 4 months ago.
We are dictating. And apologize for the many typos.
As long as you patch, repair and paint the section which is cut it should not be an issue. Now, you are the ones that have concern so you would have to incur the cost on getting this checked out if they allow it. As far as financing you need to speak with the lender about this but if you and they agree it should not be an issue.
Customer: replied 4 months ago.
If it just happens to be a mold issue behind the wall and it is extensive, and if we have to check out the roof for any leaks as well to try to find the source of the water… Then what might your recommendations be? We just read about the possibility of setting up in escrow (or retaining) a small holding amount that could be held separately for inspection, discovery and repair in trying to determine what exactly is going on while not holding up closing. Your thoughts? And that separate amount would be held out of closing to cover any associated potential costs of repairs within some time period or released back to seller. Thank you very much. We are very trusting people and this most recent series of events has us a bit spooked and trying to figure out what we 'don't know' to ask or consider.
that is an option to explore and use. As I shared you need to explore this and have a professional look into it and assess the issue. If needed the closing could always be extended and they could fix it or give you a credit at closing to fix it on your own.
Customer: replied 4 months ago.
Hi. We were offered two free calls and spoke with someone in Indiana for a few minutes, as well. We don't need the charged premium call at the moment. I didn't press except there, but I am very appreciative to know about that service for the future. Just verifying that it wasn't excepted or built since I got a peculiar message suggesting it may have been right after your written reply came through.
Customer service can assist and answer that as I do not have access or information to that
Customer: replied 4 months ago.
accepted or billed. Typos above.
They can look into that
Customer: replied 4 months ago.
Thank you. I guess the final question for now and slight concern, is that these all sound like very reasonable options, but we are unsure if the other end is going to be reasonable, and would like to know if there is a way to pursue this that has a more likely ability to be perceived and agreed to.
You would have to refuse to close and it would be a legal battle at that time.
Customer: replied 4 months ago.
Thank you. I do have one more final-final question: is the "final walk-through" a legal activity in California? Is it a formalized part of the process that you sign on? I'm not totally clear if it is simply something that is done as a gesture and only if something substantially has changed, then you pursue it… Or do you actually sign off on paperwork stating that you've done the final walk-through?
Customer: replied 4 months ago.
If you refuse to close, you stand to lose the deal/home and earnest deposit as a possible consequence as well, right?
The purpose of it is to make sure there are no problems or issues with the home since it was last inspected and viewed. This issue is a reason for it as weeks often pass and there is a chance damage could happen and it would need to be taken care of. If you refuse to close the money could be lost if they try and keep it but if you refuse it will be up to the court to decide if you sue.
Customer: replied 4 months ago.
Ok. So is the final walk through documented and a legal form from the California board of realtors? Or an informal verbal quick check. How much weight does it hold?And what if the sellers and their agent just say NO. NO to checking out the mold issue further. NO to allowing any extensions of the closing etc. ?? And NO to even cut open the wall with what looks like mold?This is Jay - Wendy's husband.We can't thank you enough.
So much information to try and take in.We just really want to take the right next steps.If we in any way postpone the closing process do we at all jeopardize our loan or our contractual obligations to the deal as a whole. To the sellers. ??
Your realtor should have a check list of things to look for and look over during the final walk thru prior to closing. If the sellers say No then you need to decide if you are going to refuse to close
And litigate this if needed. If everyone agrees there should be no issue with extending the closing date you just need to speak with your broker about this.
Customer: replied 4 months ago.
Thank you again. We can conclude and I'm happy to provide the great rating. You've been very patient and also helpful. Does our conversation stay private or is it public?
I can ask the site to close it out if you desire.
Customer: replied 4 months ago.
Thank you. I'd like this to be private. I don't want to close the account… I just didn't know if I just leave this open for additional questions or how to provide you an excellent rating. I actually would like to leave this open and I am doing a free seven day trial and hope to extend that beyond.
it can remain open as well. Just let me know
Customer: replied 4 months ago.
Over the next couple of days, I am fairly certain I will have a few more questions. This has been a different kind of stressful, and unfortunately we don't feel like we can lean on our buyers agent to get reliable answers and good advice at this point. We are continuing to use his services just to see this through, but limiting our increase in the interest of protecting our interests.
Customer: replied 4 months ago.
inquiries not 'increase'...limiting our inquires to our agent.
Customer: replied 4 months ago.
I would like to leave this open I guess then. (I'm new to the process).
Customer: replied 4 months ago.
Done for now. Leaving it open. Thank you!
My pleasure