Seller is Refusing Certain Contract Provisions

Do the inspections prior to signing. How the heck does the seller know if there's lead paint anywhere in the building? Seller has no control over maintenance. Plus, it is usually increased in January. Is there something special here? The more " lawyer-clever" you get dickering e terms of a standard contract of sale, the more you will alienate people in standard NYC RE transactions. If there's something special about this deal, let us know. Is this a standard coop? You've not provided much info. Generically speaking these are not standard terms and operate 100% in favor of the buyer. Why would a seller agree to it all without push back?

If it walks like a duck.....

Thanks, Kyle. To be clear, the lead paint representation is for the unit only, not the building. The only thing special about the deal is that the unit is not turn-key. It's not quite a gut reno either. There is, however, a ton of renovation that must be done to bring this thing to acceptable levels

If these terms aren't market, then how does the seller give the buyer comfort on these issues?

falco... I don't follow.

are u using a Manhattan based atty for this deal or an outside atty?

If it's a prewar building, there's lead paint down under there. That contraxct provision is an option to walk for whatever reason you come up with. Commit yourself to not suck on the walls and pull the provision.

I agree with the others you are attempting to find a clause that is basically a get out of jail free card. You are asking the seller to make a deal with you that you could not only find a crap reason to pull out and walk away, you also are asking them to let you reduce the purchase price if you are able to bring someone in to claim there are defects that cost more than 2% of the purchase price. What recourse does the seller have to refute your "inspectors" claims? If he fights you on them his unit will continue to sit on the market. Also how long has seller owned the apartment? It is prewar and I have to assume there have been many owners in between, yet you want to hold him responsible if there is lead paint or some sort of building code he may not be aware of? Also maintenanance is not under his control and always increases, so why would he want to take responsibility?

None of what you are asking is normal and if I was the seller I would tell you to come back when you are serious about closing.

The seller gives you comfort by giving you the ability to walk around the apartment for as long as you want and probably even over many visits to see if there are any issues you see that you want to question. If that is not good enough, then perhaps you should continue to rent where you have no idea whether there is lead paint, up to code, etc.

Get an inspection done before signing the contract. You seem pretty nervous about the condition of the apartment. They should be able to test for lead paint too.

Try to get a little more info about the building code clause. I wouldn't think not getting it would be a deal breaker assuming the inspection comes back fine. The seller may not have gotten that assurance when they bought the place, so they don't want to give it now. It could be something as simple as having a garbage disposal installed when the building doesn't allow it, or installing built ins without submitting an alteration agreement. It may be a big deal, but probably not.

The other clauses seem pretty one sided, and I wouldn't expect the seller to agree to them.

Numbers 2 and 5 are absolutely NOT standard and are indeed unreasonable. Drop them. With regards to the lead, assume the answer is yes. Because it always is yes in a prewar.

Seller should allow a walkthrough for inspection but keep in mind that inspections for individual units aren't always standard procedure in co-op purchases. But if you want one you should have one.

^^^Yikes--asleep at the wheel today--that should read "numbers 3 and 5" NOT 2 and 5... ^^^^

Based on your name, "nycesquire," I am figuring that you are an attorney. Otherwise, very odd name. Think through what you are asking and you'll see why a seller cannot agree. For instance, as aptly pointed out by Mikev, there is no workable formula for things like the very clever 2% reduction clause you propose--it is rife with risk for disagrement, delay, lawyer's and other's fees, etc. As for most of what you ask, in NYC, buyers get "comfort" as you say through due diligence prior to signing a contract. Maybe you have to work out the details regarding any damage you cause, but you could try to negotiate with seller to get a lead paint/asbestos test done prior to signing (not typically done--buyer assumes the risk ordinarily). Of course, should the tests come back positive, the seller would then be stuck having to disclose that to other prospective buyers after you back out of the deal, so were I the seller I'd refuse to let you do the tests to discover potential "defects." As far as hedges against maintenance increases, you are out of your mind. Buyer's attorney reads the board minutes and financials and gleans whatever s/he can about maintenance and general budget matters from those docs.

Why do you think an engineer is needed for an inspection? Is this an apartment? What do you hope to discover or inspect? Cabinetry? Showers? If there is a special issue like a rickety internal stairway or elevator, that's different. Same if this was a combination apartment by the recent owner and things look hinky or if there are obvious serious leaks, or if there were a prior fire, or something else extraordinary. But for run of the mill apartments, no such engineer's report is reasonably necessary.

I realize you may be nervous about a gut reno and are trying to spread any risk around, but it doesn't really work that way. If there's lead paint, you pay to abate it. If there's asbestos, you do the same. It's not the end of the world. Or, just don't move walls; skim coat what exists, and paint over it so you never have to deal with what lies underneath.

I wouldn't want to do business with you. It sounds like your attitude is,'I want to be able to bend you over at my whim'. You yourself say that "there is a ton of renovation that must be done to bring this thing to acceptable levels". So, either resolve to do the necessary work >at your expense, not at the current owner's< or find yourself a turnkey unit. If you don't have the ballz for a reno, don't take it on.

#2 can be typical for a single family home, but is highly unusual for an apartment in NYC. Again, some variation of #3, where the seller also has an "out" if the inspection results are unfavorable, is not unheard of for single family properties, but would be highly atypical for NYC.

For #1 and #4, I think the best you'd ever get even with a single family home is to have the seller represent (but not warrant) no knowledge of building code violations or lead paint.

#5 is just crazy, unless there's something highly unusual about this building, like a land lease up for renewal. Even then, I'm not sure any seller would agree. And I'd have serious questions about any attorney who let a seller agree to such a thing. The buyer and his/her attorney should read the minutes and make a decision about the likelihood of a future maintenance increase based on that.

nycesquire I understand you are trying to protect yourself but if I were a seller I would flat out reject your provisions and give you a time limit to sign the contract or walk. If I were you I would walk b/c you seem unsure if this is the right property for you. When unsure about big purchases or marriage just walk.

I've read a lot of silly/absurd expections/requests from expectant buyers, but yours, nycesquire, take the cake. Virtually all NYC apartments are sold "as is." We're not talking about some suburban/rural home, where an inspector reveals his findings, and adjustments to contract or offer price may be made. If you want a professional to look at the apartment prior to making an offer, that's your right. However, once you sign a contract, you're done. The price is what it is. Unless, of course, the seller is desperate enough to allow such a contingency clause in the contract. And again, it's highly unlikely in this town that you'll find such a seller.

As for the maintenance issue, you're again way off base. I've never heard of any contract with a clause that "protects" a buyer against future maintenance increases, high or otherwise. Bottom line, you either really like the property, even with all the work that may be needed, or you don't. And if not, you walk away and continue your search. You strike me as someone who wants to prove that no one can outfox him, and " I'll prove it by inserting all these clauses into the contract." The general tenor of the other contributors to this discussion is right on the money: You're anything but a serious buyer.

Allow me to take a contrarian view: Every piece or real estate i've ever bought, sold, or rented, some nitwit realtor or her match-box lawyer has said to one term or another "YOU CAN'T ASK FOR THAT - ITS NOT STANDARD!!" Mostly, when that term would protect me from being screwed. I got most of them, and some protected me from a big loss.

I agree that some of what you ask for could be adjusted or re-timed to be a little more reasonable. The suggestion above to satisfy yourself on some of these issues prior to signing seems particularly well advised. But you're asking the exact right question: How does the seller give YOU, the buyer, comfort on these issues? When a realtor's or lawyer's answer is "that's not standard and, uh, pay no attention to the man behind the curtain!", you should consider your alternatives.

And that's really what this comes down: Your leverage vs. the sellers leverage, your best alternatives to this unit vs the sellers best alternatives to YOU as a buyer. If you're paying full price, with all or at least a lot in cash, in a market that's not gonna find a lot of new cash-rich wall street guys this winter, you have some leverage. Even more if you could take the place or leave it, and have 3 live alternatives in play. ONE of those sellers will bite on at least some of your terms. On the other hand, if you can barely scrape up 20%, your wife is in love with the place and mad that you're risking it, and your kid needs to be in a new school, then you have less flexibility.

But don't let anyone shame you into doing something against your interests: It's not like the market is going to get away from you in the next year or two.

It's a buyer market and Manhattan Real estate is still 65% above 2000 value! If the seller doesn't agree to your terms, walk away and let him svck his apt up! Then, next year, when his apt will have lost 5% of its value, remind him he should have accepted your offer and pat yourself on the shoulder!

"You're anything but a serious buyer."

LOL. File this with "Don't be cheap!", "Be a man!", and other phrase someone throws at you to get you to do something that is against your interest.

Hey fager1: A REAL fager would just buy me whatever i want...

Its still very much a buyers market. I forst trien to buy at NSP, but they wouldnt geive me the contingencies I wanted...then I went into contract on my place in summer of 2010 with a private seller and got everything I wanted. it took 2 days of silence but after I made it clear there was no deal without my contingencies the seller gave in.

Good to hear, Marco!

Again, I do agree some of the OP's requests could be softened or removed. But as a general rule, when i'm about to spend $1M+ and some seller, lawyer, or realtor tells me "That's not standard - just close the way ***I*** want, dammit!!", well, my sphincter tightens up at that.

for me it was simple...I couldnt afford to lose my deposit under any circumstance.

What if I were the seller, and just asked if you were amenable to dropping the accepted offer by 2% in exchange for dropping your demands.

Of course some terms can be dickered and often are in most deals in one way or another. Just not the terms being discussed here. I myself dickered some terms. For example, a RE contract is usually voided upon death of the seller or buyer. We were two people buying together and weren't yet married. I wanted the contract to clearly state that if either me OR my partner died the contract would be voided and that it wasn't necessary for us to both die to trigger the clause. If something happened before closing to one of us, living in the place would have been heart breaking for the other and unduly expensive. That, imo, was a reasonable clause alteration to match the particulars of the sale. I also put in that the board's acceptance of our dog was material and that if the board approved us but said we couldn't bring our dog then that would constitute constructive rejection and the contract would be voided with escrow returned. Another reasonable provision, imo, given that tearing our little family apart was not an option (my "puppy" is now 14 years old and happily ensconced in the apartment we bought).

These are the little things that are easy enough to work out. Start playing with formulas for purchase price other than that which was originally agreed upon and you are in an interesting and likely unfruitful realm of negotiations--at least for most NYC RE.

It seems like the consensus is that many of our requests aren't market, and we should be prepared to abandon some. It also seems that provisions being non-market isn't a good reason not to ask for them.

You guys are the best. Hearing cogent opinions on each side of the issue is very helpful! Keep em comin!

I think if a buyer loses thier job, they should get to break the contract

Is this another fake poster and fake hypothetical like the NY Rental Bible ?

We just went through this with what we thought was a serious buyer. We got so tired of all the contract changes we just pulled the plug. Luckily for us we can afford the c.c. if the place doesn't sell and we still want to move but, not everyone can do that. Even sellers can get tired after a while. We priced things right, made the normal market changes and the buyer just wouldn't stop adding more and more to the contract. We just couldn't sign...it was getting to the point that it would be like saying to anyone we bought a new home from in a great school district "If out kids don't get A's here for life then we want our money back". So even after thousands of dollars of our own legal bills we walked away. It is a buyers market, once the seller understands that and is fine with what the market will bear there still is a point where sellers get tired and say it's just not worth it..unless it's a fire sale! Good luck and hope you come to terms with what are normal "asks" in this market and what are over the top. Hey, we are buyers now too and going to try to get as much as possible but, in reasonable terms accepting "typical" risks once you have inspected and bought.

Ahaha! Leslie! That's what sellers were saying too in 2008. 3 Years after, some are beating themselves in the head not to have accepted THAT offer!

ive told this before here, but i once ditched a buyer, in favor of another who bid slightly less, because original buyer's negotiating style and demands were such that there was apparent risk he would be tough to close with--he was sweating numerous irrelevant details with an unpleasant, demanding, entitled ahole approach, and negotiating price and all else was very painful--

my decision to sell was based on my consideration that my timing was right (who knew, of course, really?) and I envisioned moving out of my apt, into new place, rendering a well-decorated well-showing place less so, only to have this dbag buyer play unacceptable games at the closing such that i had to remarket the apt and engage a legal fight with dbag---a fight that could have encumbered my right to sell to another buyer--with the whole epoisode causing me to miss the time i had deemed optimal for sale--my lawyer agreed that dbag smelled like he could be a nightmare and I sold to the very reasonable couple who loved, bought the apt and have been very well-liked within that coop.

dbag went nuts when he heard i'd decided not to sign with him--i have the letter he wrote about unethical people like me etc etc---good for a hearty laugh now and then

Wbottom, was this after he signed the contract and paid the down payment, or before the contract was even signed?

contract was not yet signed (obv, no down pmt escrowed), despite endless negotiation on price and, as i said, all sorts of truly meaninglesss crap

he threatened to sue me for his legal costs--fing hilarious!! best 15k i ever let slip away

I wonder if the buyer was relayed to inododo.

Related

Probably in 3 years I'll be beating myself in the head for wanting to sell. Come on get real...terms need to be normal...I think the one that was beyond for us was the board had to approve his renovation plans. Yet, he had no architect, designer, didn't know what plans they actually wanted to make, didn't get plans need to be approved through the co-op board, city...I did all that stuff already and it took me around 4 months expedited. If you're a serious buyer and a serious seller you work it out. Right now that's more about price..once you buy a place what you want to do with it is your business. Of course asking if the board is okay with renovations and presenting them before buying or giving them an idea is very smart..saying you get all your money back if the building and city doesn't approve is ludicrous. If you don't know the whole story of each sale it's really hard to comment sledgehammer.

Wbottom, just read your stuff..basically the same stuff just different haggling..best walk away I ever did too. Luckily we can carry the costs if we don't sell and still want to move so we're not in position of fretting too much. Lucky us I know; however, I know everyone has different needs, wants, and abilities.

1) Warrant that the unit satisfies the building code
That is a ridiculous condition. It's like asking someone to warrant that it won't rain tomorrow. Are you really an esquire?

4) Warrant that there is no lead paint in the unit (it's a prewar building)
Let buyer do the testing

5) Condition closing upon there not being a greater than 10% increase in maintenance during closing period
also a dumb condition

Is this reasonable?
no

But what happens if the warranty about the building code turns out to be false? Do you ask for your money back and give back the apartment or what if the people who sold it use the money for another place or move to Florida or the southwest?