For seller, it’s better to be safe than sorry
Mr. Feichthaler:
I am selling my home in Cape Coral and plan to close on July 15 to a lovely couple from Ohio. Every year, I like to put on a huge fireworks display at my home for family and friends on July 4. Some of the items I have are fairly powerful. If damage were caused to the house, could the buyer back out of the contract? Wondering if I should check out Red, White and Boom instead.
— Christine P.
Dear Christine:
One of our great traditions is to celebrate our nation’s independence, which set the foundation for the spirit and drive of America ever since 1776. Of course, freedoms come with responsibility. You would think that any damage caused to the property after the contract is signed would be your responsibility as seller. However, that is not necessarily so. Your buyer under contract could be considered an equitable owner. This is not outright ownership, but a form of one. If the property goes up in value during the time of the contract, the buyer is entitled to this. Similarly, if values go down, the buyer experiences that loss as equitable owner.
Cases in Florida have held that the buyer could share risk of damage like this. Like so many situations, this is where the contract for purchase and sale is so important.
The typical Florida contract provides that the seller bears the risk of loss, and allows the buyer to exit the contract if a certain level of damage is experiences. For instance, if a window is broker by an errant throw of a baseball, that would not justify the buyer terminating the contract. Rather, contracts typically provide for a credit by the seller. However, if the level of damage is significant, like an M-80 blowing a hole in your roof, the buyer would have the ability to terminate the contract and receive their full deposit back.
Even if you had an unusual contract that provided all risk immediately passes to the buyer upon signing the contract, you can imagine the buyer may be reluctant to spend the money on a damaged home without a fight. Based on your question, I think you already know the answer – enjoy the professional, impressive fireworks display the city of Cape Coral puts on every year. It will be fun to gather again with thousands of city residents to celebrate the establishment of the United States of America.
On behalf of the firm, I wish everyone a pleasant and safe Fourth of July weekend.
Eric P. Feichthaler has lived in Cape Coral for over 35 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 Museum of History, 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. He can be reached at eric@capecoralattorney .com, or 239-542-4733.
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.