In general, most jurisdiction follow the
Doctrine of Caveat Emptor, which is Latin for
“Buyer Beware” thus placing the onus upon the Buyer(s) to utilize their
“due diligence” with respect to certain elements of a property and/or to engage the services of the appropriate and qualified expert in this instance, to inspect the property.
Consider that the buyer would have been well advised, had he made his offer conditional upon his obtaining a satisfactory inspection report, by the insertion of an appropriate clause or one similar thereto as follows:
This agreement is conditional for a period of 30 days from acceptance hereof upon the Buyer conducting a building inspection of the property and being satisfied in his sole and absolute discretion with the results of such inspection, which shall form a condition hereof which only the Buyer may, at his option waive in whole or in part at any time during the conditional period. The Seller shall allow the Buyer and his agents access to the Property on two (2) occasions prior to closing, during normal business hour, upon two(2) days written notice to the Seller, for the purpose of conducting such inspection. This condition is included for the sole benefit of the Buyer and may be waived at his option by notice in writing to the Seller within the time period stated herein.
The language of the above note clause was according to the court, imported a
"significant subjective element" and permitted the buyer to
terminate the transaction and gain the
return of his deposit in the event that any deficiencies are found. There was no provision permitting the seller to cure any deficiencies or the type of deficiencies they had to be i.e. material, structural, etc.
Failing that protection: the Buyer must rely primarily on what is contained
"within the purchase contract" or other admissable documentory evidence in addition to creditable witness testimony as may relate to misrepresentation and/or prevailing statutory law.
Recourse Option: A Buyer, who had specifically retained the services of a "Buyer's Agent" in a fiduciary relationship to act in the Buyer's best interest and the Buyer's Agent consequently breached his fiduciary duty to the detriment of his client, the Buyer could perhaps negotiate a settlement or failing a settlement, sue the Buyer's Agent for a breach of his fiduciary duty.
A competent attorney would explore all of the Buyer's options.Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this
information
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