Who is responsible for replacing a broken window prior to closing?

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Who is responsible for replacing a broken window prior to closing?

We are purchasing a condo. The seller refuses to pay for it because they sa:y (1) they never lived in it (a flip property they bought at auction), (2) they were selling it “as is”, and (3) they didn’t break it. However, their agent was holding an open house every week since we signed the offer and we signed the acceptance offer with the understanding that the place was in the condition that we saw at the time (i.e. without the broken window). So, we would like to know who is responsible for fixing this and if we should proceed with the closing or get this problem resolved first?

Asked on February 22, 2011 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Contracts, including contracts of sale for real estate, are legally enforceable. If you had a contract *stating* that the place would be sold in the same shape it was when you viewed, that would clearly be enforceable. Even without that being explicitly stated--and even if it was sold "as is"--there would typically be the implicit agreement or term that, at least as to visible features, it was being sold in the same shape as it was when you signed the agreement; the signing of the agreement would normally "freeze" the status of the property. So you should have grounds to seek the cost to repair the window from the seller; however--

1) The broken window is likely not a "material" enough breach to warrant not closing--your only recourse is probably to seek compensation;

2) If the seller is going to fight, you need to weigh whether it is worth it to press for the money for the window.


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