But it Said in the Listing…

So you have picked up the keys at the lawyer’s office, the moving truck is in front of your dream home and your volunteers are ready to put their backs to work and help you transport your furniture from curbside to the assigned rooms. Excitement fills the air as your turn the key to allow your family and friends a first glimpse of the moment you have waited for. You cannot wait to show off all the extra toys and adornments that caught your eye months earlier that clinched the deal.

That wine cooler nudged up neatly next to the kitchen counter, the mirror over the fire place, the snazzy cover and pool crawler, that pool table in the basement, the bar fridge in the wet bar in the man-cave, the ride on lawn mower, the gazebo sitting on the patio, the pile of seasoned hardwood in the garage just waiting for the first cool November evening to be stoked into the air tight stove in the basement family room and the high end whisper quiet dishwasher. “Yikes! ….. where are they … they’re  not here …. the dishwasher does not work and and there is a guy at the door alleging that payments on the conditional sale agreement for pool heater are six months in arrears and he is taking it away.  But they were all set out in the listing we saw at the realtors and looked at a hundred times on the internet, we better call the agent and the lawyer.”

But were they in the offer itself which you and the seller signed. Listings are part of the marketing of the home and unless there is specific wording in the agreement of purchase and sale that those items are included or that the appliances and other equipment are in good working order and free of liens you have virtually little legal ground upon which to make a claim.

In every standard agreement of purchase and sale form there is a clause commonly referred to as the “entire agreement” clause. It is near the end of the printed form which, I suspect, few bother to read. It states: “This Agreement shall constitute the entire Agreement between the Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein.” 

So no matter what was in the listing you cannot rely on that information and make any claim against the seller for fraudulent misrepresentation unless you can establish the following: (a) the seller made a false representation of fact; (b) the seller knew the statement was false or was reckless as to its truth; (c) the seller intended that the buyer would act on the statement; (d) the buyer relied on the statement and (e) the buyer suffered resulting damage. You as the buyer are also saddled with the doctrine of “caveat emptor” which also adds another further heavy burden to establish a claim.

So if there are items on a listing which you think are part of the transaction then make sure they are clearly stated in the agreement itself or you may find yourself very disappointed with the result when you finally take occupancy.

This article is not to be construed as legal advice. You are encouraged to consult a professional.