Question:
A Buyer was offered all the leftover tile, wood flooring and some other items left in boxes on a house he’s buying. There were many texts from Listing agent. The buyer agreed to accept. Buyer went over to house and secured it under tarps due to storm. The Seller and/or the Seller’s family came over the weekend and took everything. There was no Amendment to the Agreement of Purchase and Sale.
The value is about $2,500.00.
Answer:
Ultimately, the question is whether or not there is a contract here. It looks like it might be a collateral contract. Nothing to do with the original Agreement of Purchase and Sale. So, the terms should be clear. It’s all in writing. There’s a promise for a promise. You don’t have to move it, I’ll accept it. And, there’s part performance, namely the Buyer attended at the premises to cover the items with a tarp.
There certainly is a lot of “evidence” indicating that there is an agreement. Assuming that the Listing agent had no authority whatsoever, but it certainly appears that he had ostensible authority, then, these items should remain. If no authority, then, the Listing agent is liable for the loss in value. If there is authority, then the Seller is liable.
The role of the Buyer’s agent is somewhat more complicated. If the Buyer’s agent was part of the negotiation process, then, there should have been a straightforward document eliminating any issues, either:
1) an independent collateral contract, or
2) an Amendment to the Agreement of Purchase and Sale.
The amount in dispute falls within the jurisdiction of the Small Claims Court. The Buyer might consider suing the Seller and the Listing agent for his loss.
If the Buyer is truly upset, and anxious to pursue the issue, he might also consider adding the Buyer’s agent to the lawsuit as well.
Brian Madigan LL.B., Broker