Delivery of Clean Property

Dear Peter,
Representing the seller, I recently closed a sale for a one acre site with a house. The house was remodeled and clean, but the grounds were littered with what the buyer is now calling "trash and junk". Prior to closing, the buyers made no mention of the seller cleaning the lot.

Today the buyer's agent called me and said the buyer wants the lot cleaned by my seller, stating, "Per the state GAR contract, the sellers are in breach and we will take further measures if this is not resolved within the next 48 hours."

I'm not exactly sure how to respond to the Buyers Agent. Paragraph 9 of the GAR contracts says, "Seller shall deliver property clean and free of trash and debris at time of possession." However the seller did not clean up the complete acre of ground because there was never any indication from the buyer of cleaning up the grounds.

Since there was no mention of the "junk and trash" anywhere until a day after closing, could there have been any ramifications to the Seller for violating the GAR contract? Was it a violation of the contract?

Sincerely,
Jolted by Junk



Dear Jolted,
"Property" in the GAR means the subject and the subject is real property, which includes all the ground, grass, boulders, driveways, ponds, creeks, paved areas, dirt mounds, gravel pits, fenced areas, tire swings, tree houses, lily pads, drain fields, compost piles and outhouses.

A contract is whatever the parties want it to be, and if these parties agreed to use the 2011 GAR F20, without changes to the pre-printed paragraph about the subject's condition, nor subsequent language to the contrary, then the parties have agreed to deliver and accept the property in clean condition.

If the seller fails to do deliver the condition as agreed, then a tort has been committed, not necessarily a crime. Remedy for the buyer is to (in chronological order, separated by reasonable periods of time):
1) ask the seller to behave as agreed
2) firmly but politely insist a little louder that the seller behave as agreed
3) submit itemized damages to seller
4) firmly but politely insist a little louder that the seller remit payment of itemized damages
5) walk away with display of unmitigated audacity, including simultaneous sneer and a single-digit salute
--or--
5) litigation for damages (this usually depends upon severity of clean-up or irritability level -- when they say, "it's a matter of principle" this means they're gonna sue your keister. avoid this if you can :)

My recommendation to you is this: convince your seller to do as he has agreed and clean up the property. In my experience, best practice is to fully explain the details of an agreement to all principles, mitigating these types of occurrences. When the parties are aware of their obligations regarding an agreement, they are much less likely to abridge these obligations.

If the seller refuses to do as he agreed, then I would relay this information to the buyer's agent and ask that agent to, "Please stop calling me regarding this topic and pursue other remedies. I may be of no further help to you. I understand the buyer is upset and they are calling on you to fix the issue. With respect, you should talk to your broker about it."

Just to be clear about this: Your client agreed to deliver the property in clean condition, whether or not it was verbally discussed.