A difficulty arises in the Winter, after the pool is closed and before it is opened in the Spring. If there’s ever going to be some damage, it’s likely to occur because of the frost, the melting, the freezing, and the melting again. Prime time would be January, February and March.
Let’s assume that the pool actually has some value in the deal. The Seller promoted it. There are all kinds of pictures of what the pool was like, last summer. It looked good. The Buyer likes it too. He was looking for a pool and this one looks great.
Now we have something of a problem. The deal is struck late winter. We cannot be sure if there is any “new or fresh” damage. The pool is covered up, so there cannot be any inspection and it’s not running anyways, so there’s not that much to tell.
From the Buyer’s perspective, there should be a holdback. That’s the safest course, but the Seller will not want that. Next best step would be to have the Seller pay for all repairs and expenses. But, you will appreciate that some of those items might simply be seasonal maintenance and those expenses should be for the Buyer’s account. A slight compromise here would be for the Buyer to pick up the first $500.00. This avoids the small, nuisance claim and all the attendant legal fees for both parties.
Here is a working clause that you could consider:
Late Winter Pool Clause
“The parties agree that the swimming pool shall be opened not later than xx April, 2021, by a profession pool maintenance company, selected by the Seller, at the Buyer’s expense.
The Seller represents, warrants, and agrees:
- That the swimming pool to the best of the Seller’s knowledge and belief, its equipment, and the fencing of the said pool, comply with all applicable bylaws, regulations, and legislation,
- That the swimming pool and equipment are now, and on a date 60 days following the completion date, shall be, in good working order,
- To pay for the cost of any repairs required, not covered by insurance in excess of $500.00 which are required to place the swimming pool in good working order.
The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction”.
Brian Madigan LL.B., Broker