An Agreement of Purchase and Sale contains the following warranty:
“all chattels and fixtures shall be in good working order of the closing date”
A Professional Home Inspector delivers a written report indicating that in his opinion the central vacuum requires replacement as it is at the end of its life cycle. The Buyer signs a Notice of Fulfillment of Condition.
On closing day, the Seller’s Agent gets a call that the central vacuum doesn’t work. Who is liable, and why?
The central vacuum system is a “fixture”. The warranty applies to chattels and fixtures.
This warranty applies to the central vacuum system. The Caveat Emptor doctrine does not apply. The reason, of course, is that there was a specific warranty contained in the Agreement of Purchase and Sale. This warranty was intended to have certain effect.
All property is sold “as is”, even without those words being included. If you want something fixed, then you would have to put it in the contract. In this case, IT WAS IN WRITING.
The mere fact that a Notice of Fulfillment or a Waiver were signed does not compromise or effect the warranty. It is a separate and distinct term of the contract which survives on its own. Waiving or fulfilling the inspection condition has no application to the interpretation of this warranty.
Now, for the next question, how good is this warranty?
Brian Madigan, LL.B., Broker