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What recourse is there for this agent now that the paper trail is dead?

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An interesting situation

I received a call the other day from a former agent of mine (now a Broker of her own shop) with an interesting situation that she thought I could shed some light on. I’m always eager to talk with a fellow professional and I’m particularly excited to help someone for whom I was once their Designated Broker.

The circumstances to her problem stemmed around a recent sale where she represented the Buyer. The conversation took a turn when she told me the new homeowner tried to turn on their furnace during a recent cool evening here in Seattle (seems we are getting our share of those lately).

Oopsy #1

The problem occurred when the furnace that was (presumably) working fine before these new homeowners bought the house, now seemed to be on the fritz! My former agent told me they asked to have the furnace serviced as part of the inspection response (let me preface by saying that inspections are not a pass/fail thing here in Washington) but never received any invoice or receipt from whoever serviced the furnace (oopsy #1).

Oopsy #2

I asked her if she knew who had performed the service by contacting the seller but it appears the seller is nowhere to be found (oopsy #2). Aside from the relaxed nature of the furnace service on the buyer’s side, our inspection contingency forms clearly state that all repairs agreed to by the seller are to be performed in a “Commercially reasonable manner.”

Help- what recourse is there?

So my submission to you all is this… although there appears to be no “paper trail” the furnace was serviced, if in fact it was serviced at all, and the inspector appeared to give the furnace a “thumbs up” during the inspection, what recourse does the new homeowners have if they want to pursue remedy for the cost of a new furnace?

Your comments are encouraged and any similar situation that can help is also highly sought. Oh, and please, no one beat up my former agent…she feels bad enough as it is!

Patrick Flynn is a 13 year Veteran of this Real Estate fray and a blogger on mySeattleblogs and is active in various social networks. Like many writers at Agent Genius, Patrick wears a few hats other than a Broker's lid- he is also a Certified Real Estate Instructor for the State of Washington and has enjoyed delivering 1,000+ hours of clock hour and non-clock hour approved courses in his career. Patrick has also been a Designated Broker since 2003 and revels in being able to coach and mentor fellow real estate professionals.

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9 Comments

9 Comments

  1. BawldGuy

    May 25, 2010 at 12:37 pm

    The contract is the contract, meaning that it covers this expressly one way or the other. Either the seller signed something saying it was done, or the inspector did. If neither happened, then I suspect the agent may have a potential problem. The central issue is what the contract says about repairs as it relates to buyer/seller agreement on the inspection report results.

    If, for example, it called for written proof of completion, and the escrow was allowed to close without it, who in your state is held responsible? Or, is it implied that all work was completed if the sale was allowed to close? Those are just a couple ways it could go, cuz as you’re well aware, it varies widely from state to state.

    Regardless, if the solution can’t be found in the contract itself, shame on the state board of Realtors.

  2. Pat Hallesy

    May 25, 2010 at 12:59 pm

    This is where a good home warranty would have come in handy.

  3. markbrian

    May 25, 2010 at 1:21 pm

    Pat hit the nail on the head. A home warranty is always a good idea on top of an inspection.

  4. Benn Rosales

    May 25, 2010 at 1:46 pm

    Sometimes we get stuck in the past. I’ve seen air conditioner compressors go out on day 3 of ownership. Doesn’t mean it wasn’t inspected, it was working, but it failed. Thank goodness for a great home warranty that covered compressor not to mention there was some life left on the compressor warranty as well. These things happen. I’ve seen brand spanking new cars not start or stall. In other words, the solution is getting it repaired, rather than finding fingers to point.

  5. Bruce Lemieux

    May 25, 2010 at 8:25 pm

    If the buyer’s agent is actually representing the interests of the buyer, then he/she must make sure the seller does what he agreed to do. If the seller was responsible for servicing the furnace, then the buyer’s agent must insure the seller has an invoice *before* settlement. And – the day before / day of settlement, the buyer’s agent should walk through the home and check out all of the appliances and systems, so if there’s a problem on the day before settlement, money can be escrowed to protect the buyer.

    For two of my listings that closed this week, the buyer agent has looked around the house with their clients, checked home inspection items, and that’s it. They didn’t turned on the A/C, run the dishwasher, nothing. If you are a buyer’s agent, represent the buyer. Go through a detailed walkthrough checklist before you close. After settlement, all issues become the buyer’s issues — and, by default, the buyers agent’s issues.

    Getting a home warranty is often a good idea, but it’s not a replacement for a buyer’s agent doing his job.

  6. Stephanie Crawford

    May 27, 2010 at 2:26 am

    My company requires that we add additional language to all offers that essentially says that the seller will provide a receipt for any work/repairs resulting from negotiations, inspections and/or appraisals. Our general contract only calls for repairs to be completed in a “professional and workman-like manner” so we go the extra mile. It’s a great policy that has covered my @ss on more than one occasion. The trick, of course, is actually getting the receipts before closing. I’m not sure there would be a recourse unless you could prove a seller’s deceit in open court – a difficult thing to do.

  7. Patrick

    May 27, 2010 at 8:21 am

    Thank you all for your great comments. It’s pretty clear the agent should have been more diligent to insure the furnace service and any paperwork was provided. I also agree that a home warrantee is a nice fail safe in this instance as things like a furnace do have a tendency to stop working…often at the most inopportune times.

  8. Ken Montville

    May 27, 2010 at 8:33 am

    I came across something similar to this recently. I was the listing agent and the inspection went fine, everyone signed off on everything and we all went to settlement. About 3 days after settlement some plumbing pipes that were embedded in the concrete slab of the house started to leak. The home warranty company had a maximum they would pay for stuff in concrete and there was no way the inspector could have foreseen something was going to happen.

    This is a case of a) the age of the house and the natural deterioration of the systems of the house and b) the joys of home ownership. So many times, new home owners that run into challenges right after they move in think they can just go back to the Seller for a remedy — like calling the landlord to make a repair.

    I’m sorry. As far as I’m concerned (and I’m not a lawyer), when the ink is dry at settlement the new home owner is responsible for the house and all the systems of the house.

    Fraud is a bad thing, of course. But if the Realtor makes a good faith effort to find the Seller and cannot or the Seller is unwilling to offer a remedy after closing then it’s up to the [new] home owner to take care of their home.

  9. Ashley Howard

    May 27, 2010 at 5:21 pm

    I would like to agree with most that have commented, and say having a home warranty would have cleared this up efficiently. If there was seller’s coverage in place then the home warranty company would have been the ones to dispatch service on the furnace and would most definitely have record of the service. If the buyers have a home warranty then I would assume(depending on coverage details in your state) it would be covered regardless, as most home warranty coverage does not require an inspection.

    Agents may want to be on the look out for a clause that home warranty companies are adding to their policy called “unknown pre-existing conditions”. Some contracts you will find cover “unknown pre-existing conditions” and some will not. The ones that do NOT cover it, will most certainly try to use it as a reason to deny coverage.

    On the upside, the buyers always have the option of adding a home warranty outside of closing that would take care of any additional “joys of home ownership”!

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Opinion Editorials

Idea: Color-coded face masks as the new social contract to combat COVID-19

(BUSINESS NEWS) Americans must come together on a new social contract if we have any hope of permanently reopening the economy and saving lives.

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social contract: color coded wristbands covid-19

A church in Texas used a stoplight color-coded wristlet system to help churchgoers navigate the new social awkwardness of closeness. Those with green bands are comfortable with contact including high fives, yellow bands indicate someone who wants to talk but not touch, and red is for someone interested in keeping their distance altogether.

In pre-pandemic America, basic social cues were sufficient to communicate these feelings, and most violations of them were annoying but not harmful. We now live in a world where daily banalities like grocery shopping and shaking hands with a new acquaintance are now potentially dangerous – for you and those you care about.

So what is the way forward?

Humans are social beings, and much of our survival is reliant on our relationships to, and interactions with, other humans. A way forward is critical. But our brains are trained to find and read faces in an instant to assess emotion and whether that emotion indicates a presence of a threat.

Not only has this pandemic challenged our innate notions of community and safety, the scientifically healthy way forward is to cover most of our faces, which is staggeringly counter to our understanding of a threat. It is now impossible to tell whether a sunglassed-masked stranger walking into a restaurant is a robber or just a person who was walking in the sun.

But because we are humans with large brains, we are able to adapt. We are inherently compassionate and able to emotionally understand fear in others and ourselves. We are able to understand both science and social grace. In this case, the science is straightforward but the social grace is not.

Governor Abbott of Texas announced the second closure of bars and reduction of capacity in restaurants last Friday in response to the dramatic increase in coronavirus cases statewide. During the press conference he said: “Every Texan has a responsibility to themselves and their loved ones to wear a mask, wash their hands, stay six feet apart from others in public, and stay home if they can.”

It is this shared responsibility that we must first embrace before any meaningful reopening can proceed.

We must accept that for the indefinite future, we have a new normal. We have to adapt to these new social codes in order to protect ourselves and our neighbors. Color-coded bracelets, masks, hats, choose your accessory – this could be a way forward.

First, we must agree these measures are necessary. And we shouldn’t take them because a politician told us to or told us not to – many people feel that our government has failed to provide us with coherent guidance and leadership considering a broad social contract.

We should adapt them because if you are not free, I am not free. We can do this together.

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Opinion Editorials

What to do when you can’t find your passion and you’re feeling lost

(EDITORIAL) Global Pandemic or not, people struggle to search for job opportunities, their career, and find their purpose. Knowing yourself is the most important part.

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career choices

Feeling lost? Can you relate to this Reddit post in the Career Guidance forum?

Careers that aren’t boring?

I’m really lost right now. I just graduated high school and I really don’t know what I want to do with my life.

At the moment my only idea is to join the military (United States) and see how it goes. I really want to go to college on the side but I don’t know what I want to get into. I tried coding in high school and it didn’t make sense, making me feel like i won’t be successful in the technology field. Medical field costs too much+ time in school. Only other career field that’s on my mind is engineering but I don’t know if I’ll be successful?

Is it okay to feel like I’ll fail? Will college actually teach you unlike in high school? I feel like high school didn’t really prep me and I’ll be behind”

And then you have to love this response:

Is the grass really not greener on the other side?

I’ve been a trucker since I left school 10 years ago. Every post I come across are full of people dreading the office culture, politics, environment etc. and saying how they’d love to be outdoors.

I work outdoors and it’s shit, -5°C in winter and 40+°C in summer. Slogging 12-15 hour days behind the wheel, micro-sleeping and hallucinating just to make delivery times. Getting filthy and soaking wet when working outside.

The idea of being in a nice cooled office, not having to put my life on the line and actually working on a project with a team sounds so stimulating to me instead of being a monkey behind a wheel. But then I see so many people call themselves monkeys in other professions and hate the office.”

It’s alluring how the ego is meant to ensure our security and survival, and unless we learn how to work with it and the messages we tell ourselves, we can often feel alone, isolated and the only one with these feelings. It is when you start exploring others’ stories that you may feel an a-ha moment, or things may seem like they click.

One would venture to argue that many people are sometimes lost in a fog, and not sure what to do. Above was an example of a high schooler who is feeling like the military might be his only option, but if you read through the thread, it does appear that he has other ideas but just doesn’t know enough about them or doesn’t trust himself enough to look further in to them. And if the military is the right option for him, that is okay too.

“The ego is the human consciousness part of you. It was designed to ensure your security and survival. Unfortunately for many of us it has never relinquished its initial purpose. Instead, for many the ego became the master script writer and because of it, everything becomes a drama based on past happenings.” Beverly Blanchard

If you’re feeling in a fog, people may ask you:

  1. What are you passionate about?
  2. What do you love doing that you can make money from?
  3. What company do you want to work for?
  4. Where do you want to live?
  5. Are you living for your resume, or for your obituary?

If there’s a screaming feeling inside that literally feels like you are going to BURST with all caps of “I DON’T KNOW”, then let’s take a breath and see what we can do to work with that. Here are some ideas that may be great activities for you to help move forward.

Kindly note, the first thing is to allow yourself TIME. You need some time to figure it out, do some research, look in to options, have conversations, possibly work experiences, maybe some inner soul searching and spiritual work. If you think you have to have this figured out right away, you may have already put a limit on yourself (sorry to be a buzzkill but you might need YEARS to figure out your purpose). You ideally need to figure out how to get from A to B, not A to Z right now.

  • Do some research on Design Thinking.
    Spend some time with a journal getting out some of your thoughts so you can move them from the emotional part of your brain to a more logical and rational place (usually once you’ve put something on paper or even said it out loud). You may like this Design Your Life workbook based on a Career Exploration class at Stanford where you explore your interests, and how they can align with work and your purpose. The workbook is great because it gives you writing prompts that help guide you (they also give ideas on how long to spend on an activity so it could be 10 minutes or 30 and you can decide if that is something you can do at that point in time). They also just released a book, Designing Your Work Life. How to Thrive and Change and Find Happiness at Work.
  • Make a simple list.
    Spend 5-10 minutes just writing out things you really like or love (no explanation, just the name of the item). There is no judgement to this list and nothing is too silly (Iced coffee, video games, tennis, music, dogs, photography, favorite subject(s) in school, friends, family, reading…) Walk away. Come back to it. Do any of these things give you clues on what type(s) of professions fascinate you? Then make a list of what you need to do from here (more school, internship, volunteering, pro-bono projects, part-time or full-time job). Stop and ask yourself how you can get more of these things in your day to day.
  • Consider yourself an Investigative Reporter, and talk to people about how they chose their areas of study and/or careers.
    The hope is that you are pleasantly surprised to hear many people have had this feeling and they moved forward anyway. They made decisions with the information they had, and their career and projects grew from there. This could help you recognize what is that next step you need to take.
    I would tell that high schooler to go meet with military recruiting offices and see what they have to say. I’d also suggest they reach out to mechanical engineers and learn about what they work on and what they had to do to get there. If they are unsure of how to find any, check out LinkedIn to start. Many people look at those that they consider to be successful and see where they ended up – often we miss the part of the story about what they had to do to get there. This is what we should be looking to uncover, and that may give us insights on what our next steps can be.
    In job searching, a great tool is conducting Informational Interviews and speaking with people that are in jobs that you think may interest you and they can tell you more real details. Whatever you find to be really intriguing and makes you want to know more about, that could be a good sign of a career/job you’re interested in. Ask them about education and skills requirements and take notes.
  • Consider your life like a flight of stairs.
    Each step is leading to the next one. You don’t have to know or see the entire staircase, and you may not even know what’s on the second floor.
  • Write your Eulogy.
    This sounds really morbid and maybe slightly is, but a plane doesn’t just take off on a flight plan without knowing where it’s going and landing. If you write out your eulogy, you may discover what you want to be remembered for, and start living a life that includes those types of efforts, endeavors, and projects. This also may take a little bit of pressure off of you that everything in your life will not be solely based on your job or career. Then, maybe hide it so your family doesn’t think you’ve lost your mind.

Whatever you do, please know you are not alone and the more you think everyone else has it all figured out, the better acting you are witnessing. Yes, there are people that have known what they wanted to do since they were little but even their job/career has had it’s twists and turns.

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Opinion Editorials

I was laid off, but then my position was filled, what can I do?

(EDITORIAL) Is it good form for your position to be replaced in the middle of a pandemic? No. Is it legal? Well, usually, but what can you do about it?

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position replaced

If you’ve ever had the misfortune of being laid off, you might have found yourself revisiting your work place’s job posting to see what kind of ship they’re running in your absence–only to find that, instead of downsizing, your employer has filled your old position.

You would be well within your rights to question whether or not your employer screwed with you, and you might even consider contacting legal representation. Before you do, though, keep in mind that being laid off from a position due to budget cuts, and having that position cut entirely are two different things–and you might just be looking for a problem where there isn’t one.

After all, according to Evil HR Lady, this kind of process isn’t just legal–it’s actually pretty normal.

Yes, it’s normal to assume something sinister when you find yourself without a job that someone younger (and let’s not forget cheaper) than you is now doing.

But Evil HR Lady (a personality who, despite the title, seems absolutely benign) points out that seniority often plays a role in who stays and who pays: “[Imagine] there are five team leads, and the company decides to lay off one of the team leaders. This person has seniority over the people below him, so he takes the top remaining position and bumps that person out of their job…The position eliminated is Team Leader, but the person who loses his job is junior trainee.”

The above process is legitimate on paper, but the true take-away here should be that such a “replacement” might not be a replacement at all; downsizing is still downsizing, even if your position isn’t the one that is actually cut.

It is worth noting that the sheer volume of layoffs due to COVID-19 does leave some potential for system abuse. Under the cover of a global pandemic, it wouldn’t be unfeasible for a company to sneakily replace older employees with younger talent under the guise of downsizing, and even though the former employees would have a case for age-based discrimination, they might not think to make that case given the obvious context.

If nothing else, this phenomenon is a functional reminder to keep an eye on your workplace after you leave for a trial period–if for no other reason than to ensure that your employer isn’t trying to pull a fast one.

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