BUYING PROPERTY AS IS – BUYER BEWARE
In every real estate transaction there is an implicit element of risk. If you are buying real estate, understanding how an AS-IS contract affects your rights can significantly impact the success of the transaction. For example, every special warranty deed carries with it some implied warranties that the seller guarantees. “As Is” specifies that the buyer is buying the property in the condition as it exists and cannot look to the seller for any problems that may arise. In essence, the Seller is disclaiming the implied warranties that are part of the deed.
For the buyer, this is the first warning that it is time to “beware” and hire the a professional engineer so you can be certain of the condition the real property which you are about to purchase. Engaging a competent professional engineer early in the due diligence period of a real estate contract can help to ensure that major problems with the property are identified early on in the contract process and potentially give the buyer a chance to get out of the contract.
CAVEAT EMPTOR, “LET THE BUYER BEWARE”
Traditionally, Sellers have used the “as is” addendum in purchase agreements for real estate to prevent any express warranties from being given to the Buyer. This is particular prevalent when the property being sold is a flip. It is no surprise that as the DC housing market continues to heat up, we are once again seeing an increase in flips and correspondingly an increase in As-Is sale contracts. Because the “As Is” sale does not disclaim any of the express warranties made by the Seller, AS-Is sales present a very tempting method for a Seller to unload a problematic piece of real estate on an unsuspecting Buyer.
NO SAFETY IN SELLING REAL ESTATE “AS IS”
Recently the District of Columbia Superior Court held, that despite the existence of an as-is clause in a contract, a seller is subject to liability if he fails to disclose to a buyer defects in the property that are known to the seller, or if the buyer is prevented by the seller from discovering these defects (considered “facts basic to the transaction”). This is a form of fraud and with so many homes being “flipped,” that new paint on the walls could be concealing a greater problem.
Sellers and brokers can take the following steps to help protect themselves:
- Before entering into a contract to sell commercial property, sellers should perform some basic due diligence on their property: including speaking with their property managers, maintenance personnel, and others with knowledge of the property if there are latent defects that need to be disclosed to the buyer.
- Make full disclose to the buyer of any known defects with the property and facts basic to the transaction, whether patent or latent.
- If there is a question of whether a property defect is material, make full disclosure to avoid potential liability.
- Consult with a qualified real estate attorney about the form and substance of sellers disclosure statements and representation regarding the condition of the real property.
- To protect yourself when selling or buying a property “as is,” contact our law office at Antonoplos & Associates., or call 202-803-5676 to speak with one of our experienced real estate attorneys. No matter which side of the deal you are on, it is best to educate yourself and feel confident that you are making the most appropriate decision for your circumstances. Our attorneys are able to provide you with the knowledge and guidance you need. Contact us today.