‘As-is’ sale won’t negate disclosure for leaky windows
Ilyce Glink and Samuel Tamkin
Q: A large bank of windows in our home leaks from time to time. We can have a heavy rain or a storm system move through our area and experience no leakage. But a light rain can happen, and we detect some leakage.
We have spent about $3,000 to have the windows recaulked, and flashing and cedar siding replaced. Yet, the problem remains and happens inconsistently.
Does this type of problem need to be disclosed if we decide to sell the home? We have had a number of companies evaluate the situation with no permanent remedy. Should we consider selling the home in “as is” condition? Can you provide an explanation of the pros and cons of selling a home “as is?”
A: Water problems in homes can be tricky because the cliche “water finds its level” is true. We have heard of situations in which water comes down from the roof and ends up leaking through a window, or comes in through the sides of a window when the window is not flashed properly, or comes through the casing of the window when the window is not built right. And, water can come through the sides of a windowpane when the caulking and sealing has failed.
Which problem do you have? Who knows, right?
You seem to be trying to resolve the issue logically and have put quite a bit of money into trying to fix the situation. Given the amount of money you have put into the issue, without achieving a satisfactory resolution, we would think that you probably will have to disclose the issue to a potential buyer.
Many seller-disclosure forms specifically ask you to disclose problems or defects with windows. A buyer won’t be able to see the problem unless the windows happen to be leaking when they walk through the home; but you do know of the issue, so that likely means you have to tell the buyer.
On the issue of selling your home in “as-is” condition, you should know that selling a home “as-is” does not eliminate the need to disclose defects. When you sell a home “as-is,” you put the buyer on notice that you are not making any representations as to the condition of the home, other than as required by law. But what most people take from an “as-is” sale is that the home has or may have serious problems and that the buyer needs to investigate these problems. Once closed, the buyer is responsible for any issues that come up with the home.
That might help you sell, but you will pay the price in the form of what you can get for your home. Homes that are sold “as-is” generally will sell for less than other homes. Sometimes selling “as-is” scares off potential buyers, so it might take you a lot longer to sell.
If you truly can’t fix the problem, you should disclose the problem to the buyer and then make sure your contract also states that you have disclosed this problem; you should disavow any obligation to repair any issues related to the windows that have the problem. You might still scare off some buyers, but at least they shouldn’t be able to come back and sue you for not disclosing the issue to them.
Better to solve the problem. We’re hoping you can before you list the home for sale.
Send questions to Real-estate Matters, 361 Park Ave., Suite 200, Glencoe, IL 60022, or contact author Ilyce Glink and lawyer Samuel Tamkin at www.thinkglink.com.