Is the seller required to convey personal property in substantially the same or better condition?
QUESTION: In paragraph 3 of the Offer to Purchase and Contract (Form 2-T), my client and the seller agreed that the “refrigerator in the kitchen” would convey to my client at closing. I examined the refrigerator to ensure it was fully functioning when the contract was signed. Now the Due Diligence Period has ended, and we are supposed to close in two days. As I performed the walkthrough today, I noticed that the refrigerator was not working, and the listing agent has confirmed that it has been damaged and needs repair. My buyer is furious and wants to terminate. Does the seller have to repair the refrigerator under the contract?
ANSWER: Under the standard provisions of Form 2-T, we believe the answer is “yes.” Paragraph 3 of Form 2-T permits the parties to designate certain personal property that will convey to the buyer at closing, provided the lender will agree to such items’ being part of the contract. When personal property is identified in this manner, it falls within paragraph 1(c)’s definition of “Property” that is being conveyed to the buyer.
Paragraph 11 of Form 2-T requires that the “Property” identified in the contract be conveyed to the buyer in substantially the same or better condition at closing. That means, in this case, that paragraph 11 obligates the seller to convey the refrigerator to the buyer in the substantially the same or better condition as the date the offer was made.
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