Arizona property Law Limits Time For Failure To Disclose Defects

If you have ever wanted to test your knowledge of Arizona and real estate law, here is a chance with the following four (4) questions & answers.

1. During the ten-day inspection period please click the following page buyer delivers to the seller a Buyers Inspection Notice and Sellers Response (BINSR) requesting that (1) missing roof shingles be replaced, and that (2) the seller furnish to the buyer a certification of the fitness of the roof and a three-year roof warranty by a licensed roofing contractor. In the sellers response to the BINSR, the seller agrees to replace the missing roof shingles. The seller refuses, however, to furnish a roof certification and/or a three-year roof warranty by a licensed roofing contractor. Can the buyer cancel the contract because the seller only agreed to replace the roof shingles?

Answer - No. The buyers additional request in the BINSR for a roof certification and a roof warranty by a licensed roofing contractor is a request by the buyer to amend the contract. This offer to amend the contract was rejected by the seller. Therefore, the buyer cannot cancel the contract, and is required to close the transaction with the seller only being required to replace the missing roof shingles.

2. During the ten day inspection period the buyer requested in the Buyers Inspection Notice and Sellers Response ("BINSR") the repair of non warranted items such as the replacement of roof shingles, and also gave notice of warranted items that were not working such as the air conditioning and the swimming pool motor. In the sellers BINSR response, the seller offered a $3,000.00 reduction in the purchase price in lieu of all repairs." The buyer accepted this $3,000.00 offer. Is the seller still obligated to repair, by close of escrow, the warranted items such as the air conditioning and the swimming pool motor?

Answer - Probably not. The seller offered to amend the contract by paying $3,000.00 in lieu of all repairs. After the buyer accepted the sellers $3,000.00 offer, the seller probably had no obligation to make any repairs, including repairs to warranted items.

3. In the residential lease the tenant authorized a lock box on the home after a written request by the landlord or the landlords broker. The residential lease is expiring, and the landlords broker has given written notice to the tenant to place a lock box on the home. The tenant is refusing despite the language in the residential lease authorizing a lock box. Can the tenant refuse this lock box?

Answer - Yes. Under the Arizona Residential Landlord-Tenant Act (the Act) a landlord must generally give a tenant at least two days= notice before entering the home. See A. R. S. '33-1343(c). The placing of a lock box on the home is constructively entering the home without two days= notice, as real estate agents will have the ability to enter the home at any time day or night without the tenant=s consent. Inasmuch as the primary purpose of the Act is to protect the rights of tenants, a term in the residential lease contradicting the protection of this Act is not enforceable. See A.R.S. '33-1315. Therefore, despite the tenants written authorization in the residential lease to a lock box, a lock box is not allowed.

4. The seller and the buyer agreed that the buyers $10,000.00 earnest money would be hard after the ten-day inspection period. Two days after opening escrow the buyer loses his job. The buyer delivers a loan denial letter within the ten-day inspection period, and demands the return of the $10,000.00 earnest money. Is the buyer entitled to the return of the $10,000.00 earnest money?

Answer - No. The buyer is required to act in good faith to acquire financing until the scheduled closing date, not until the end of the ten-day inspection period. Lines 54-55 of the Contract provide that the buyer is only entitled to the return of the earnest money for unfulfilled loan contingency, if buyer is unable to obtain loan approval without conditions by COE Date. In other words, between the expiration of the ten-day inspection period and the close of escrow date many things could happen, e.g., buyer could be re-hired, that would enable the buyer to obtain a loan.