Eric Feichthaler

Dear Mr. Feichthaler,

I recently signed a contract to sell my house to a family from Massachusetts. After signing, the buyers inspected the house and decided the air conditioning unit was too old. On a phone call they said they would pay for half of the new air conditioner if I replaced it. I contracted to have a new system installed, and it was completed last week. When the closing documents were sent to the buyer, which included half of the cost of the system, they are telling the closing agent to remove the charge. They are saying they never agreed to pay for part of it, and that they would have cancelled the contract unless I had replaced it. How to I get them to pay?

— John R.

Dear John:

If there is one message my responses have had throughout the years, it is this: The contract is king! The standard as-is real estate contract utilized by most practitioners in Cape Coral provide the buyer an opportunity an inspection period to confirm the property condition, zoning, and other matters are acceptable. During this period, the buyer can cancel for any reason, or even no reason at all.

When an issue is identified, like the air conditioning system, there are a few ways that a seller can address the concerns of the buyer. First, the seller can offer to replace the system, possibly having the buyer pay for a portion of the replacement. Another option would be to offer the buyer a credit on the closing or reduce the sales price to account for a portion or all of the replacement. A third option would be for the seller to say no, take it or leave it, and allow the buyer to decide whether to proceed with the purchase with the air conditioning as-is.

Once the decision is made to replace the unit, as you did, it is imperative that an addendum / revision to the contract be made to state specifically what the rights and obligations are of the buyer and seller. In this case, it should have provided that you will replace the air conditioner prior to closing, and that the buyer will reimburse you at closing for the agreed-upon amount. With no written addendum, it sounds like it is a he said she said argument, which will not prevail in a court of law. Also, if you decide you don’t want to proceed with the sale as result of this experience, the contract likely does not allow you to cancel. The buyers could sue you for specific performance, with a court ordering you to sell the property for the contract terms. If you lost this lawsuit, you would also likely be responsible to pay for their attorney’s fees and costs, as well as your own. There could be other facts that would impact this analysis, so I do recommend you seek legal advice prior to taking further action. When it comes to real estate, get it in writing, every time. I wish you all the best.

Eric P. Feichthaler has lived in Cape Coral for over 33 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.