Adhesion-type contract? I'm just an engineer, plain english if possible in a few words.
Sounds like you are saying that if there is a (possibly truly unknown) defect the previous owner is liable financially to fix it even after an "as is" sale. How about when the buyer has the place inspected and the inspector misses "it"?
My bad, sorry. Very briefly, an adhesion contract generally is in a common, boilerplate form, typically prepared by one party to the contract and is a "take it or leave it" to the non-preparing party. In my experience (maybe CF has had other experiences), but courts generally frown on these one-sided contracts.
Liability for failure to disclose known defects by either the home seller and/or the real estate licensee (realtors) is limited to "actual" damages and the prevailing party in a lawsuit is entitled to recover their attorney fees. Depending on the court, actual damages could be cost of repair and in one court, emotional distress damages. Here is the remedial statute for violations of Oklahoma's Residential Property Condition Disclosure Act:
60 O.S. § 837 (in pertinent part):
A. The purchaser may recover in a civil action only in the event of any of the following:
1. The failure of the seller to provide to the purchaser a disclaimer statement or a disclosure statement and any amendment prior to acceptance of an offer to purchase;
2. The failure of the seller to disclose in the disclosure statement or any amendment provided to the purchaser a defect which was actually known to the seller prior to acceptance of an offer to purchase; or
3. The failure of the real estate licensee to disclose to the purchaser any defects in the property actually known to the real estate licensee prior to acceptance of an offer to purchase and which were not included in the disclosure statement or any amendment provided to the purchaser.
B. The sole and exclusive civil remedy at common law or otherwise for a failure under subsection A of this section by the seller or the real estate licensee shall be an action for actual damages, including the cost of repairing the defect, suffered by the purchaser as a result of a defect existing in the property as of the date of acceptance by the seller of an offer to purchase and shall not include the remedy of exemplary damages.Back to the "as is" issue. In several cases I handled, I advised the Courts of this well-reasoned precedent out of Illinois.
The term “as is” is generally understood to mean that the buyer is purchasing goods in its present condition with whatever faults it may possess. The term is similar to terms such as “with all faults” or “in its present condition,” and implies that the seller is relieved of any further obligation to reimburse for loss or damage because of the condition of the goods.Lake Bluff Heating and Air Conditioning Supply, Inc. v. Harris Trust and Sav. Bank, 452 N.E.2d 1361, 1367 (Ill. App. 2nd 1983)Citations omitted.
Accord,
Kaye v. Buehrle, 457 N.E.2d 373, 376 (Ohio Ct. App. 1983)("It has been held that when a buyer contractually agrees to accept property “as is,” the seller is relieved of any duty to disclose."). Lost the argument every time. I even lost the argument where the home buyer signed an express
waiver of liability, presumably because of the adhesion nature of the contracts.
It's not all bad news for the gweedster, I eventually win in these cases involving realtors because the home buyer could never establish the realtor had "actual knowledge" of the complained-of defect.
