Second Thoughts Before Buying a Home As-Is: Take These Extra Steps!

Bernhard Law FirmAny purchaser should have second thoughts before buying property “as-is.” If a buyer chooses to go forward as-is, the buyer should make extra efforts while performing due diligence before closing, including: (i) doing a prior walk-through of a unit and all of its appurtenances; (ii) checking the HOA or condo association’s records on the unit and all its appurtenances and limited common elements; (iii) getting title insurance on the unit and its appurtenances; (iv) personally attending the closing, asking lots of questions, and memorializing those conversations in the as-is contract; (v) getting keys to any appurtenant storage rooms, cabanas, parking, or other appurtenances and elements at closing; and (vi) getting written confirmation or assignment documents as to any appurtenant storage rooms, spaces, cabanas, or other elements. Below is a discussion of Florida law affecting an as-is purchaser’s rights. If you have questions or a dispute on an as-is property purchase, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com, 786-871-3349.

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house-on-sticks
As-Is House Purchase

Under Florida law, an “as is” real estate purchase contract allocates to purchasers the risk of mistake as to the boundaries, title, and appurtenances of real property. Thomas J. Duggan, LLC v. Peacock Point, LLC, 89 So. 3d 283, 286 (Fla. 1st DCA 2012) (“as-is” provision placed on purchaser the risk of mistake); Rawson v. UMLIC VP, L.L.C., 933 So. 2d 1206, 1211–12 (Fla. 1st DCA 2006) (“as is” allocated the risk of mistake as to the boundaries to the purchasers). Where a purchaser buys property “as is,” he cannot demand, challenge, or claim on non-conformity thereafter. See Giallo v. New Piper Aircraft, Inc., 855 So. 2d 1273, 1275 (Fla. 4th DCA 2003) (seller statement not actionable where sales contract was “as is”). This is because an “as is” expression disclaims and excludes any prior representations and makes plain that there is no express or implied guarantee as to the status of the property being purchased. See Masker v. Smith, 405 So. 2d 432, 434 (Fla. 5th DCA 1981) (aff’ing judgment against as-is purchaser).

Under Florida law, a real estate buyer must take reasonable steps to ascertain all material facts relating to the property and to discover them. B & G Aventura, LLC v. G-Site Ltd. Partnership, 97 So. 3d 308, 310 (Fla. 3d DCA 2012) (purchaser of condo could not obtain relief on mistake that it came with unobstructed view, as purchaser did not perform walk-through before); Nelson v. Wiggs, 699 So. 2d 258, 261 (Fla. 3d DCA 1997) (seller had no duty to disclose seasonal flooding information available through diligent attention); Rosique v. Windley Cove, Ltd., 542 So. 2d 1014, 1016 (Fla. 3d DCA 1989) (purchaser could not claim where aware of zoning uncertainty before closing). Where a purchaser fails to perform his due diligence, including by review of all pertinent records available and walk-throughs of all property to be purchased, he cannot thereafter make demands for non-comformity of the property or title. Id.

Under Florida law, where a claimant has no written or specific documents assigning rights in his favor, he has no standing to make a claim on those rights. See Henry v. United Nat’l Ins. Co., 813 So. 2d 177, 178 (Fla. 3d DCA 2002) (holding claimant lacked standing to challenge real estate contract where he was not a party to it and had no specific assignment of that interest from a party to it); Assil v. Aurora Loan Services, LLC, 171 So. 3d 226, 229 (Fla. 4th DCA 2015) (holding mortgagee and successor in interest lacked standing to claim mortgage where there was no written assignment of the specific mortgage to them); Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1283 (Fla. 2d DCA 2005) (aff’ing dismissal of claims where claimant had no specific written assignment of the benefits and rights claimed).

Under Florida law, a person’s speculations and unsubstantiated beliefs as to property bought or terms of a deal are immaterial, inadmissible, and cannot be considered by the Court. §§ 90.803 and 90.604, Fla. Stat. (2016); Perez v. Bell South Telecomms., Inc., 138 So. 3d 492, 498 (Fla. 3d DCA 2014) (subjective belief or unsupported speculation inadmissible); Hordis Bros., Inc. v. Sentinel Holdings, Inc., 562 So. 2d 715, 718 (Fla. 3d DCA 1990) (statement based on subjective belief was insufficient).[1] Similarly, a person can neither challenge nor authenticate documents without first-hand personal knowledge of the documents’ creation. See Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014) (court could not consider statements without personal knowledge).

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house-in-ice
As-Is Home Purchase

A person waives a claim to legal rights where (i) the person had knowledge of an existing legal right, and (ii) acts inconsistent with that legal right. See, e.g., Hammond v. DSY Developers, LLC, 951 So. 2d 985, 988 (Fla. 3d DCA 2007) (holding seller’s mailing of counteroffer after deadline for acceptance constituted an implied waiver of the acceptance date); Inverrary Gardens Condo. I Ass’n, Inc. v. Spender, 939 So. 2d 1159, 1161 (Fla. 4th DCA 2006) (holding manager waived right to arbitrate breach of contract claim); Mike Bradford & Co. v. Gulf States Steel Co., 184 So. 2d 911, 915 (Fla. 3d DCA 1966) (holding company with full knowledge of its rights waived right to arbitrate upon answering without raising arbitration). An as-is purchase is a waiver of rights. Supra.

Given the above Florida law, any purchaser should have second thoughts before buying property “as-is.” If a buyer chooses to go forward as-is, the buyer should make extra efforts while performing due diligence before closing, including: (i) doing a prior walk-through of a unit and all of its appurtenances; (ii) checking the HOA or condo association’s records on the unit and all its appurtenances and limited common elements; (iii) getting title insurance on the unit and its appurtenances; (iv) personally attending the closing, asking lots of questions, and memorializing those conversations in the as-is contract; (v) getting keys to any appurtenant storage rooms, cabanas, parking, or other appurtenances and elements at closing; and (vi) getting written confirmation or assignment documents as to any appurtenant storage rooms, spaces, cabanas, or other elements. If you have questions or a dispute on an as-is property purchase, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com, 786-871-3349.

[1] Campbell v. Salman, 384 So. 2d 1331, 1333–34 (Fla. 3d DCA 1980) (affidavit on information and belief inadmissible); Petticrew v. Petticrew, 586 So. 2d 508, 509 (Fla. 5th DCA 1991) (speculation and conjecture were inadmissible).

Bernhard Law Firm PLLC
Bernhard Law Firm PLLC – http://www.bernhardlawfirm.com
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