You've probably seen or drafted a 'walk through' clause for an offer to purchase. Something like:
"Buyer to be granted access 48 hours prior to possession with buyer's representative to complete a pre-occupancy walk-through."
This is a terrible clause for both buyer and seller. If I was on for the seller, I would never, never allow such a clause. It's an open door for a buyer to go through and raise any kind of issue dictated by their buyer's remorse and attempt to either exit the deal or force the seller into price adjustments.
Of course, I don't believe that's what the buyer is planning here. What they want is what every buyer wants: to ensure that the property is in the same condition as it was when they did their last walk-through. Perfectly reasonable.
But what if the walk-through is done and issues arise?
This clause provides no solutions. The buyer wants certainty and protection, and this clause offers neither.
And, FYI, a pre-closing walk-through/inspection is not the buyer's legal right. Dealing with the legal side first, there is nothing in the current standard MLS contract, and there is no common law right to a pre-closing inspection.
I think drafting this kind of clause is impossible when the buyer has nothing particular they are worried about. Why? Because these kinds of clauses need to be specific.
This would be a better clause:
"5 business days before completion date, seller will ensure professional installation of American Standard dual flush toilet, model number XXXXX and provide receipt as proof of payment."
In summary, if a buyer wants to protect themselves for something specific, add a clause that:
- precisely describes the seller's obligation
- states a time by which that obligation must be completed
- has a money consequence (holdback) for failure to complete the seller's obligation, and
- details how and when and who controls the release of the holdback.
Next time, more on the nuances of holdbacks.
Cheers,
Barry