The Agreement of Purchase and Sale, stated:
“All existing appliances including…” and then enumerated the various appliances.
The sellers have changed out the stainless steel dishwasher for an older white dishwasher.
We are coming up to the closing. Lawyer is saying there’s nothing we can do. Is this true?
The “switch out” is very egregious conduct, no matter how you look at it.
The Agreement of Purchase and Sale deals with the building and the appliances that were there at the time the deal was struck.
Some Buyer’s agents will add “existing appliances” but that doesn’t add anything, that was already understood. Some agents will add “Stainless Steel GE Profile dishwasher”. That helps. Some will go one step further and add the serial number. This could make a real difference.
Sellers who plan to undertake the switch out, will likely do this anyways. Unfortunately, there is no right to holdback funds unless it was mentioned specifically in the contract.
From the Buyer’s perspective, raise the matter before closing, indicate that you will close under protest and then immediately commence legal proceedings for the lost appliance. It costs about $100.00 to file a claim in Small Claims Court.
In terms of proof, the pictures on MLS or any published brochures, vidoes, or virtual tours would be helpful. A matter going to the value will be the age of the dishwasher. A picture is helpful, a description is helpful but the serial number will specifically identify the appliance in the case of removal.
Courts really don’t like to countenance “thieves”. A number of years ago, a Buyer was awarded an additional $10,000.00 on account punitive damages because of the Seller’s egregious conduct. (Laski v. Chau, 2001)
Brian Madigan LL.B., Broker