I’ve mentioned that you shouldn’t be afraid to [legally] walk away from a contract on a house that isn’t going to work. I thought it would be fun to run through the duds (houses) that we walked away from and why, but first, what is the home inspection clause and how does it work?
The home inspection contingency is a clause within the real estate contract that allows the prospective buyer to enter the home and inspect it before closing. The clause usually has an expiration date on it, meaning the inspection and any negotiations need to be done within X days of the contract ratification (ratification is once all parties have signed). I would recommend using a professional to look at the house, versus you thinking you can find the signs of a major a problem. It will cost you 1-2 hours of time and about $300-$600.
It’s important to note that even if a house is sold “as is,” you can still inspect it, ask for corrections, and/or walk away from the contract. “As-is” just means that the buyer should not enter the contract with the intent of the seller doing anything for them. But really, anything in life is negotiable, right?
Additionally, putting a home inspection clause in the contract doesn’t mean you have to perform a home inspection. So put the clause in there as a means to ‘escape’ if you need it.
THE LEGAL LANGUAGE
I was going to share a screenshot of one of our contracts, but the home inspection section is over a page long, so I’ll paraphrase. The contract was subject to a home inspection, and the Purchaser had to “provide the seller with all inspection reports, cost of repairs and Purchaser’s written repair request no later than 10 days after the Date of Ratification.” It continues to state that the inspection is paid for by the Purchaser, and the Purchaser cannot require the Seller to perform any inspection or pay for it. Then there is an outline for how long each party has to review the request and return it to the other party (e.g., negotiation period). Finally, there’s the clause that allows the Purchaser to walk away.
In one of our Kentucky contracts, it also states that all inspections must be ordered and paid for by the Buyer, and that the Seller must provide reasonable access to the property to perform inspections. Interestingly, the Kentucky contract focuses heavily on removing any responsibility from the Realtor(s) during the inspection process. I hadn’t noticed that nuance before, and now I’m curious how much has gone wrong in Kentucky that there are several sentences along the lines of “The parties hereto release the above Realtors and real estate companies from, and waive, any and all claims arising out of or connected with any services or products provided by any vendor.”
The Kentucky contract’s home inspection contingency is as follows. “The BUYER hereby agrees that he/she has inspected the property and hereby accepts the property and its improvements in its present “AS-IS” condition; with no warranties, expressed or implied, by SELLER and/or Realtors. BUYER may have the property inspected and may declare the contract null and void, with earnest money returned to the BUYER, by notifying SELLER or SELLER’s agent in writing within 15 days from contract acceptance. Failure to have inspection and notify SELLER or SELLER’s agent in writing within said time shall constitute a waiver of this inspection clause and an acceptance of the property in its “as-is” condition. The time frame established in this paragraph is an absolute deadline.”
I’ll say it again: I applaud Virginia’s plain language use in their contract templates. While the home inspection clause is lengthy in Virginia’s template, it’s written in an easy way to read and understand, unlike this Kentucky paragraph. I’ve also read New York’s template, and it’s even more painful to read and is written in legal jargon.
Quick aside. Virginia is a “buyer beware” state. This means that the seller does not have to disclose anything about the condition of the property to you. Whereas Kentucky requires the seller to fill out a form that identifies all known issues. Know the requirements where you’re purchasing/selling.
Remember that you need to have the inspection completed and the inspector’s report written up with enough time for you to review it with your Realtor and decide how to proceed (e.g., ask the seller for repairs), all within the timeframe established in the contract (e.g., 10 days from ratification). If you want the house inspected, you should look to hire that individual within the first day of ratifying the contract.
When you hire a home inspector, they’re going to look through the house and identify any deficiencies. They’re looking at all the major mechanics of the house, identifying any safety issues, recommending repair/replacement, and making note of items that aren’t currently a concern but may develop into one. You should have a good understanding of the house’s foundation, roof, plumbing, HVAC, electricity, and appliances through the inspection.
While it’s not required for you to be there during the whole inspection, I’ve found it to be more helpful if you are. We’ve done it where we were present through the entire thing, but there’s a lot of down time for that, and we’ve been there just for the end to get a walk through of the findings. If you’re not there to see it in person, the pictures and explanations may not be completely clear.
The inspector will provide you with a detailed report within a couple of days of the inspection, which has pictures of the deficiencies and possibly an estimated cost of repair. The issue could be as small as paint imperfections, or as big as a structural issue. Here are some examples we’ve had on homes we did purchase.
BUYER’S NEXT STEPS
- You can accept the deficiencies identified and take no further action. Sometimes there’s a contract addendum that’s required where you state you completed the home inspection and are requesting nothing from it.
- You can request repairs from the seller, or you can negotiate the contract price to compensate for the deficiencies. The seller is unlikely to address superficial notes (e.g., painting), but may take notice for any major issues (e.g., gutters, roofing, HVAC). You can request the seller to repair any item from the list, but understand that you’ll catch more bees with honey. If you submit every item to them, they’re more likely to say no to many items on the list, and you no longer hold the control of what’s getting fixed. If you provide a short list that appears important, they’re probably going to accept the repair list. The list should be formally submitted (i.e., signatures) to the seller, and the seller should have to sign the list, agreeing to the repairs, within a certain period of time. As good practice, the buyer should be walking the property within a day or two of closing; you want to verify that the house is still in working order and the same condition as when you signed the contract to purchase. We did have an issue where the seller was not performing the tasks agreed to on the home inspection request form, and we had to make a few trips to the house to ensure it got done.
- In extreme cases, you can invoke the termination clause and walk away from the contract. We did this on a house that several maintenance issues that were deferred and a structural issue; on another house that had several issues that were fixed poorly and one tenant showed us a huge mold issue in a closet; and on another house that had fire damage that was never fixed. Sometimes the seller will request the home inspection report. It’s a service you paid for, so you’re not required to provide it (but check your contract language to verify you’re not required to turn it over).
HOME INSPECTION MINDSET
If fatal flaws are uncovered through the inspection, you may feel like you’re committed once you’ve spent $500 on a home inspection; think of it in terms of how much you’ll save in headaches and costs down the road fixing all the things that you were made aware of through that process. Real estate investing is a business, and sometimes there are just costs of doing business that may not feel good, but are worth you moving forward in a positive direction in the long run. Just know that the home inspection contingency is a tool in your tool belt as a buyer.