Washer and Dryer Missing on Closing
I acted for a Buyer client. It closed today. Buyer gets keys and washer/dryer are missing.
I put the following in included Chattels :
Fridge,Stove,Washer,Dryer Elfs Storage sheds if any
There were 2 sets of fridge and stove one set of washer and dryer.
2 Weeks before closing: we did a walkthrough and one set of fridge and stove was missing. Buyer was not happy but they were older (the appliances) so he didn’t make a fuss. Now, the washer and dryer is (sic) gone.
Buyer has videos of property during all walkthroughs with all missing appliances. I messaged the listing agent. He read it but did not respond. Based on previous conversations he seems like he does not want to deal with any issues.
What would you do?
Additional Information Provided
I texted the Listing agent, he didn’t reply. I called him and he answered but tried to say that it didn’t say 2x in the contract. I mentioned that chattels say “if any”. My Buyer let it go eventually.
I did not contact Buyer’s solicitor before closing, regarding the fridge and stove. The Buyer let it go at the time because they were older appliances
The Listing agent responded saying they advised the client to leave it (sic) and that I should talk to the lawyer.
There was only one washer and dryer.
The Buyer did take a videotape of all the chattels during several walkthroughs.
What steps if any should the Buyer take?
This seems somewhat confusing. If, I understand correctly:
Fridge 1 missing two weeks before closing
Stove 1 missing two weeks before closing
Fridge 2 remains
Stove 2 remains
Washer removed on closing
Dryer removed on closing
In respect to the first two, namely Fridge 1 and Stove 1, the Buyer is not concerned, largely due to the fact that they were old. Hence, not worth pursuing!
Fridge 2 and Stove 2, are still in place, so there is no problem there.
The Washer and Dryer were both removed immediately prior to closing, and consequently present issues going forward.
The Chattels Included Clause
Fridge,Stove,Washer,Dryer Elfs Storage sheds if any
This is a rather imprecise clause, certainly if you were looking for all 6 appliances.
It asks for one Fridge and one Stove, and that’s precisely what the Seller left behind.
Then, it goes on to specify “… Washer, Dryer Elfs Storage sheds if any”.
That would indicate that the clause is conditional in some way. But, precisely what does it mean? Does it mean, IF, they are in existence at all, then, they MUST be left? Or, does it provide the Seller with discretion to decide which ones will be left, if any, at all?
This may provide the option to the Seller to leave them behind, if they would like to. Ordinarily, they would have no option, they would have to take it. So, with cottages, very often, the Buyer will accept any chattels that the Seller chooses to leave behind. I am not sure what was intended here. Intention must be clear from the document itself. There is an entire agreement clause. So, parol evidence is not permitted.
The use of the letters “Elfs” is vague. It is often used by real estate agents in MLS Listings because of the limit on the number of words and letters that can be used. It does not extend to the general public. So, there is a very good chance that this has no meaning whatsoever in an Agreement between a Seller and a Buyer.
However, let’s assume that it has the real estate meaning and stands for “electric light fixtures”. Under the standard form Agreement, any light fixtures which are included, need not be specified since they are indeed “fixtures” and automatically go with the house. When they are listed under “Chattels Included”, these are light fixtures which are indeed chattels, namely lamps. So, this inclusion brings the Seller’s lamps into the equation.
The clause goes on to specify “storage sheds”. Were there any? If so, were they left? Would it not have otherwise been clear that either there were, or there weren’t any storage sheds!
The Potential Lawsuit
The items subject to a suit:
Fridge 1 missing two weeks before closing, Buyer doesn’t care
Stove 1 missing two weeks before closing, Buyer doesn’t care
Fridge 2 remains, in place, no suit
Stove 2 remains, in place, no suit
Washer removed on closing, possible claim
Dryer removed on closing, possible claim
Lamps possible claim
Sheds possible claim
Existence of the Items
How will the Buyer prove what they were?
Certainly, the Chattels clause is quite vague here. Easily, the Washer could have been specified as “2020 GE Profile Washer Serial # GEXYZ123456”. Then, the value would be clearer.
Was there a provision which said “the chattels will be in good working order on closing”? If so, then we know that at least it will work.
Was there a provision which said that the “Manufacturers’ warranty shall be transferred to the Buyer? If so, that would add real value!
Let’s assume that the Washer is a 2010 model. The total life expectancy of ten years at most has been exceeded by two years. That means that this washer is useless and has no value. Absolutely zero!
On the other hand, if the agreement contained a “good working order” clause, then at least, it would be functional in some way. That means that the Seller is entitled to a second hand functioning, 2010 washer, at the end of its life expectancy. Perhaps, that value would be $50.00 to $100.00 at most.
Value of the Items
A similar approach would have to be taken with respect to the Dryer, the lamps and the sheds.
The lack of precision with respect to the description of the items and the lack of any specified valuation of the items would likely preclude a Trial Judge from drawing any accurate conclusion and awarding any kind of a Judgment whatsoever in favour of the Buyer.
A Trial Judge will require the Buyer to prove his case “on a balance of probabilities”, that means, “more likely than not”, or looking at it on a percentage basis, 51%, not 50%/50%.
This will mean that the Buyer would be unsuccessful in a lawsuit against the Seller.
By the way, the videotape was taken by the Buyer illegally without permission from the Seller and therefore would be inadmissible in Court.
Brian Madigan LL.B., Broker