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To Do or Not to Do...a Home Inspection (with apologies to William Shakespeare)

Lucien A. Morin II
Mar 18, 2022
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Despite COVID and its impact on our lives, people still bought and sold homes over the past 2 years.  With the low inventory of available housing, it can be a frustrating experience for first time homebuyers.  As recent news articles confirm, it is not unusual for “over asking” multiple offers being submitted within hours of a live listing.

A number of prospective buyers, in an attempt to make their offer more attractive to a seller in this competitive atmosphere, have chosen to waive a property inspection.

We do not recommend this practice for our buyer clients, but understand the demands of today’s seller’s market.

For twenty years now, with certain exceptions, a seller is required to deliver to the buyer, prior to the buyer signing a contract, a Property Condition Disclosure Statement (“PCDS”) in the form specified by Real Property Law §462.  The seller has the right not to provide the form, and in that circumstance, the buyer gets a $500 credit at closing.

New York is still a “Buyer Beware” state. While the intent of the PCDS is to have the seller describe the condition of the home, the form itself is clear under the “Purpose of Statement” paragraph - it is not a substitute for an inspection, nor is it a warranty of any kind by the seller.

What is a buyer to do having waived an inspection, moves in only to find water running down the wall from a leaky roof or some other catastrophe?

Likewise, is a seller insulated from any liability in that instance if there was no mention of that condition in the contract or PCDS?

Does the language in the local residential form used by realtors and attorneys which provides that the home is purchased AS IS subject to exceptions protect the seller?

If the seller does not answer a PCDS question applicable to a defective condition, does the buyer have any better rights when the defect is discovered after closing?

In each instance the answer is based on the actual facts.

Did the seller intentionally conceal the defective condition?

Would the buyer have been able to discover the condition had an inspection been performed?

If a PCDS is part of the transaction, absent fraud, buyers have had a difficult task to succeed against a seller should defects be discovered after closing.

If you would like to schedule a consultation to talk about your rights when encountering this type of situation, either as a buyer or seller, please feel free to contact Lou at lmorin@mccmlaw.com or give him a call at 585-512-3534.

Lou Morin is recognized as one of the preeminent attorneys in Western New York for real estate and bankruptcy matters.  A frequent guest lecturer for bar association and realtor groups, Lou has also served on committees which have revised and improved the standard forms used by realtors and attorneys for residential real estate transactions.  Lou also maintains an active bankruptcy and business workout practice.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.


About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.