Legal Question in Real Estate Law in Indiana

We are the seller of a home, and we had a offer made, it was accepted. Home inspection revealed needed radon midiation in basement, and a couple of minor repairs done to home. Inspection also said roof was worn and showed some hail damage. Never said it needed to replaced. Buyers are asking for new roof. We did the other repairs and installed midigation system in basement. Home is 3 years old. We had insurance adjustor and a roofing contractor come out to look at roof. Both said roof was good for 20 more years, and there were a few nail pops, nothing major. So we had those fixed. Buyers backed out because we would not put a new roof on. We are wanting to keep earnest money. They are suing us for the return of 1000.00 dollars in earnest money. What do you suggest?

Inspection clause in purchase agreement buyers reserves the right to have the property inspected(including lead based paint. Independent of and in additon to any inspections required by fha vaor buyers lenders. All inspections are to be at buyers expense unless noted otherwise or required by lender. by licensed independent inspectors of qualified independent contractors selected by buyer within the following time periods. Seller shall have water gas electricity and all operable pilot lights on for buyers inspections. Then their is response time or 10 days, and we had an amendment on that. next clause inspections may include but are not limited to the condition of the following systems and components: heating, cooling,electrical, plumbing, roof, walls, ceilings, floors, foundation, basement, crawl space, well/septic, water , etc. Another clause talks about buyers believing that a major defect with the propert and seller is unable or unwilling to remedy the defect to the buyers reasonable satisfaction beflore closing. They are claiming major defect, but other inspections are not reporting major defect. So are they entitled to their earnest money. We were willing to fix what the adjuster and roof contractor suggest, they still want released from agreement. Under indiana law defet means a condition that would have a adverse effect on the value of the property, that would impair the health or safety of future occupants of the property, or that if not repaired, removed or replaced woud sifnifcantly shorten or adversely affect the expect normal life of the premises. Roofing contractor said roof was good for 20 years.

We dont have earnest money, our realtor does and he says we have rights to keep. The buyers have hired a lawyer and he said in the letter he sent us they believe there is a major defect, and he is suing for attorney fees and court costs? I just thought I would send this info.

Asked on 8/23/09, 10:53 am

2 Answers from Attorneys

John Bator Bator Redman & Shive

Stick to your guns-you can keep the money-if the reports show no major defect, then you are right. Many times people consult attorneys who advise to try to "win" by just sending a letter but will not pursue the suit itself. I cannot see this going to a trial even in small cliams court over what is major defect.

Let me put this another way-I would not take their case unless I receive a retainer up front and get paid as we go-their risk to collect fees-nor would I take it on a contigency.

don't forget, if you win you get your fees plus the money

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Answered on 8/23/09, 11:18 am
Burton Padove Indiana and Illinois Lawyer, Burton A. Padove

Attorneys fees are only allowed in three circumstance: by statute, by contract or by fraud. If none of those exist, you should not have to worry about attorneys fees.

I am not a judge, but based on the information provided, you sound like you are in good shape.

Be sure to have all of your evidence available at trial. Be sure to subpoena the inspector and your real estate agent.

The other alternative is to offer to split the $1000, or as I said earlier sue to enforce the contract.

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Answered on 8/23/09, 4:49 pm

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