Protect yourself or your Buyer in "AS-IS" purchases!

Q: What can a buyer do if the seller includes an as-is clause in the contract and "issues" are discovered from the inspection? Will the buyer lose his deposit if he walks away from the deal after the inspection uncovers, let's say, termites or electrical problems? It would seem to me that a buyer would insist that the as-is clause be removed. --V. Wohner

A: In most states, the phrase "as is" has been defined, over time (and lots of lawsuits) as also indicating that the buyer is taking the property in "as-disclosed" condition. These same states tend to have disclosure standards that require sellers to tell buyers, even as-is buyers, about any "material" issues with the property: things that the seller knows about that would have some influence on the decision-making process of a reasonable buyer.

In other states, though "as is" does not connote any disclosure requirement on the part of the seller. I recall reading an Arkansas case where the seller had known the property's lot flooded every year for many years, didn't disclose it to the as-is buyer, and the court sided with the seller. In these areas, "as is" might well be interpreted as "caveat emptor" (Latin for "buyer beware").

However, in the vast majority of cases, buyers can -- and should -- insert an inspection contingency into an as-is contract. In fact, the inspection is the vehicle for knowing what exactly is going on with the condition of the property. The inspection, follow-up, or specialty inspections and repair bids or estimates are really the only way for a smart buyer to know whether they should move forward with an as-is deal.

Under an as-is contract with an inspection contingency or an inspection period, the buyer will have a certain period of time to obtain his inspections and decide whether he wants to move forward with the transaction, back out of the transaction and recoup his deposit, or back out of the transaction.

If after inspections, the buyer decides to exercise the inspection contingency and back out of the transaction within the time frame provided in the contract, their deposit money is safe and must be returned by the seller.

If, on the other hand, the buyer receives troubling information during the inspection but would still like to move forward with the transaction as is, he can do that.

Some buyers do this, especially when they feel like they are getting a great deal, even with the repair costs, when they can afford the repairs or anticipated them in advance, and/or when the seller is already making nothing on the property, so a price reduction would turn the transaction into a short sale (which might or might not be allowed by the seller's bank).

Other buyers who learn of termite or other work that needs to be done choose several tactics. Some request that the seller complete some or all of the repairs, and insist that if the seller refuses, they (the buyers) will cancel the transaction and request their deposit back. Other buyers request a price reduction, on the same condition of canceling the transaction if the seller cannot or will not do so.

I see it as highly unethical to make a "fake" as-is offer, knowing full well that you plan to come back and ask for repairs or a price cut later in the transaction.

But if you get inspections and are surprised at how much work is needed, or at what it will cost, there is no legal or ethical bar from either backing out of the transaction entirely or making an effort to renegotiate the terms of the contract, so long as you do so within the contingency or objection period time frame provided in the contract.

In most states that allow for contingencies and objections, the buyer is legally able to back out of the contract after the contingency or objection period expires, but will forfeit his deposit or other liquidated damages provided in the contract if he does so.

Consult with your local broker or agent, or a local real estate attorney, to determine what avenues are available in your state and under your contract.