Friday, June 18, 2010

Purchase Agreement Cancelled—Understanding Risk of Loss during Minnesota’s Tornado Season

Minnesota’s summer storm season has started. The first big severe weather outbreak of the season walloped Minnesota yesterday. Hail pummeled roofs. Wind tore off siding and snapped trees like toothpicks. Lighting zapped houses causing a variety of damage. And tornados literally moved homes off foundations. From the time we are very young, Minnesotans are taught how extremely important it is to be weather alert during the summer.

Unfortunately, Mother Nature doesn’t care if a homeowner just accepted an offer from a buyer after having their home on the market for weeks on end. No doubt some of the homes damaged in yesterday’s storms will affect homebuyers and sellers with a contract in place.

Picture the following scenario: After months of scouring Anoka County for the perfect place to call home, you wrote an offer on a home in Lino Lakes that was accepted and is scheduled to close in 45 days.

A few weeks prior to the closing, severe storms with straight-line winds blow through Lino Lakes, Centerville and Hugo. Concerned, you drive up to your dream home and see that the picturesque oak trees that gave the home character have been uprooted. Worse yet, one of the huge trees crashed onto the house severely damaging the roof and eaves. You are devastated as this was no longer the home you pictured in your dreams. What happens now?

Risk of Loss is one of those “boiler plate” clauses on page four of the purchase agreement used most often in the State of Minnesota. Being preprinted, some agents and/or their clients will gloss over this clause but it is very important to understand, as is every other line in the document you sign to buy a home.

The highlighted section starting at line 150, clearly states that the risk of loss due to any reason whether an act of God or the acts of vandals will be the responsibility of the seller from the time the purchase agreement is signed until the date of closing. That means if there is a fire or accident the seller is required to bring the home into the condition that it was in at the time the contract was written and signed.

So if that temperamental decade-old dishwasher goes out, the seller is required to repair or replace it. If a deliveryman backs over the mailbox at the end of the driveway, it is the seller who must repair the post and replace with a new box. And if hail leaves dents in the aluminum siding, the seller must make the repair.

Final walkthroughs are essential to ascertain the condition of the home prior to signing the closing documents. But what happens to those irreplaceable picturesque trees that have fallen on the roof? Three weeks prior to a closing, there could be plenty of time for the seller to call their insurance company and have the home repaired. But is it the same house? And more importantly does the buyer still have to buy the home? In a word, no.

The clause goes on to say that in the case where there is substantial damage to the home or property, it is the buyer’s option to cancel or continue with the purchase agreement. In the fallen tree scenario outlined above, which was a real situation that occurred a few summers ago, the landscaping was significantly changed in the eyes of the buyers as the trees could not be replaced. The damage to the home caused an insurance claim that would now be reflected in a
CLUE insurance report that could affect the ability to insure the home. The buyers opted to cancel the contract as was their option in the clause with all earnest money refunded.

Risk of loss comes into play quite often when buying and selling a home. In most cases the repairs are made quickly to both the buyer’s and seller’s satisfaction and the contract will close on time. But when the property sustains significant damage, the buyer has the option of continuing to closing or walking away from the deal. Boilerplate or not, Risk of Loss is an important clause to understand when buying or selling a home.



 Copyright 2010 Teri Eckholm