What’s Your (Closing) Problem?

Opinion | December 1, 2021


One of the agents on my team recently gave his family member a copy of our “Insights” magazine, which we sent out to our client list, and it was her first time really experiencing TRB.

In the magazine, we included two of 2021’s most popular blog posts, re-printed for clients to read for the first time, or enjoy once again.

Upon reading the blog, she commented, “David is really….intense.  I couldn’t imagine working with him.”

Huh.

That went from being a positive to a negative really quickly!

She said, “He seems pretty blunt and hardened in his opinions.  He doesn’t seem like the kind of person who would be up for a discussion on many things.”

Call me crazy, but I didn’t take this as an insult.  An observation, and a correct one, at that.  But “being blunt” isn’t a bad thing, is it?  Especially in an industry such as mine, where “salespeople” are usually less than honest and often put a happy face on everything.  As for having hardened opinions, I do take that as a compliment, thank you very much!

I bring this up because there are many posts that I write here on TRB that are, in fact, opinions.  Then there are posts that are factual.  Of course, some fall in between.

I can provide insight with an editorialized slant.  I can also tell stories from my perspective, which might differ from that of others.

In today’s blog, I want to talk about “problems” occurring before closing that, in my opinion, are not problems.

But to take that a step further, I want to explain that, legally speaking, these aren’t problems either.

It’s one thing for me to tell a story and say, “The buyer shouldn’t have raised this issue,” because I don’t think it’s a problem or an issue worth raising, but it’s another thing entirely to say that “The buyer shouldn’t have raised this issue” because it’s a non-issue in terms of the law.

The last time I wrote a post like this, I recall the debate that ensued about disclosure.

I believe I noted that a scratch on the floor had been covered by a couch, and the buyer, upon seeing the scratch, wanted it fixed.  I noted in my blog post that this was, in the eyes, of the law, up to the buyer to identify and object to before submitting an offer, and that to suggest a seller “disclose” a scratch on the floor would necessitate disclosure of 1,000 other items.  Not to mention: it’s a goddam scratch on a floor.

Probably a third of the blog readers disagreed.  And to them, I say, “Don’t ever buy real estate; you’ll be disappointed.”

So let me regale you with an updated list of “problems” and buyer objections that have been brought to light before a few recent closings.

Fair warning: you may actually become dumber after reading these…

Assumption is the mother of all screw-ups

Two weeks ago, I received a phone call from a buyer agent who had sold one of my condo listings.

“David, my clients are very upset!” she said.  I lent her an ear and heard her out.  “The flooring in this condo can’t be refinished,” she said.

“Okay, I replied, then waited for a response.

“They thought they could refinish them,” she told me.  “But it looks like they can’t.”

I left about ten seconds of silence as I pondered the statement above.  In the end, I drew a blank, and simply asked, “What……what’s the issue here?  Sorry, I mean, what does this have to do with me?”

“Well, they had planned to refinish the floors when they moved in because there are scratches, you know.”

Again, I really didn’t understand what this had to do with me.  I don’t care what they do when they move in.  They can tile the ceilings, have at it!  What was the point of this call?

“The listing says hardwood flooring,” she explained, “And most hardwood flooring can be refinished,” she said.

Now it made sense.  Sort of.

“Yes, this is hardwood flooring,” I told her.  “It’s engineered hardwood flooring.  As to whether or not it can be refinished, I have no clue.”

She said, “Yes, but we didn’t know what type of hardwood it was.”

I told her that I was no flooring expert, and that some floors can be refinished, and some can’t.

“Right,” she said.  “And this flooring can’t be refinished.”

So I flat-out asked her, “What led them to the conclusion, or made them believe, that they could refinish the floors?”

“They assumed,” she said, with an emphasis that seemed to be borne of pride, like they were factually and legally correct.

“Well, then, I suppose they have only themselves to blame?” I noted.

She told me that they were going to speak to their lawyer and ask for an abatement, and I told her that was fine, and that I didn’t want to hear about this again.

It was absurd.

But not the most absurd experience on this list, far from it, in fact…

What is “working order” anyways?

Pop quiz: what is the primary role of a microwave?

If you told me, “It’s to warm-up food,” you might be correct!

Fifty-dollar follow-up: what does ‘working order’ mean?

Well, I suppose if a lamp creates light, then it works.  Right?

Lawyers will tell you that there’s no difference between “working order” and “good working order,” and yet we see these terms used interchangeably in offers all the time.

The Buyer and Seller hereby agree that the appliances noted in the “Chattels” section of this Agreement shall be delivered to the Buyer upon closing in working order.

That’s a standard clause and we see it in almost every offer.

Tell me that this sounds matter-of-fact, but no matter what, you’ll always have buyers and sellers argue over what “works” and what “doesn’t work.”

I sold a downtown condo this fall and it was scheduled to close a couple of weeks ago.  The buyer agent, who was a family member of the buyer, emailed me to say that the stove and microwave were not in “working order” and that they wanted to know, get this, what could be done.

What could be done?

Forget the soft-sell.  If you want something, ask.

But before we got to that, I told the agent that the appliances were, in fact, in working order, as we had tested them before listing.

The agent wrote back and said that the handle on the microwave was loose and that it was actually held on in one area by a small piece of electrical tape.  He also noted that one of the four burners did not light up as quickly as the others.  These were used appliances, mind you.  Likely a decade old or more.

I emailed him back and informed him that the microwave cooks and heats food, and the oven works (he didn’t note any issues) and all four burners work on the stove, but not all with the same expediency, thus we have fulfilled our contractual obligation to deliver the appliances in “working order.”

Here’s where I might lose some of you, and let me apologize in advance for being blunt, or not wanting to discuss my opinion.

But there’s no discussion here.  The agent is being naive, wishful, and as you’ll see, opportunistic.

A few days later, he called me and said that they weren’t going to close the deal without restitution.  I asked him what he wanted, and he didn’t answer.  I asked him multiple times, and he refused to provide a figure.  He finally said, “We want what’s fair,” and I told him that I would agree to that, since fair is nothing.

Eventually, he outlined the price of a new stove/cooktop and a new microwave, plus shipping, delivery, installation, testing, elevator booking, and disposal of the old appliances.

This was about the time when he lost me.

I wouldn’t even entertain the conversation, I just said, “Talk to your lawyer.”

He was very frustrated, called me unprofessional, and I explained that just because he wanted to argue his case ten times in ten different ways, and I would keep coming to the same conclusion, didn’t make me “unprofessional.”  He said I should “work with him” to come to an agreement.  I continued to say, “Speak to your lawyer.”

From the get-go, he kept saying, “We don’t want to involve the lawyers” like doing so was setting off some sort of alarm.  Many people have this innate fear of the word “lawyer.”  In fact, I think I wrote a blog years ago called, “Don’t Be Afraid Of The Word Lawyer,” since I am constantly bombarded with empty threats about involving the lawyer, speaking to the lawyer, having the lawyer send a letter, and so on.

Who cares, seriously?

Send a letter.  Send ten.

I told this agent, “You guys are going to close as scheduled,” and he laughed and said, “No we’re not.”

I’ve been down this road so many times, I couldn’t count, even if I wanted to.

I wasn’t saying, “Talk to your lawyer” to pass the buck, but rather because I was done with this conversation.  What else could I say?  He felt that the conversation wasn’t over until we agreed on a thousand dollars, or two thousand, or three thousand, but that’s not how these things end.

Wanna know how they end?

With the buyer closing.  As scheduled.  No abatement.  No deduction.  Like this one did.

The F*%$# Stove, Part II

I feel bad telling this story since I genuinely like the buyer agent involved in this transaction, but I was brutally honest with her throughout this stove debacle, and again, I’m not wrong here.

Upon the buyers visiting the house for the first of our “buyer visits,” the buyer agent sent me a long list of “issues” in the house.

But these weren’t issues or problems, they were really just questions.

You are reading this right now, possessing your own level of intelligence, common sense, life skills, et al.  But the next person, or, the people profiled in this story, might not possess the same level of everyday logic or common sense as you, so be advised that this stuff really does happen.

I read through the list of “issues,” such as, “The fireplace doesn’t work,” and wrote the listing agent back:

The fireplace doesn’t work because it’s not turned on.  You need to turn it on for it to work.  There’s a red button under the base, and it goes ‘click’.

In case you’re wondering, it’s not my job, as a listing agent, to teach buyers how to live in their house.  It might be the job of their buyer agent, but I still don’t think you can teach a course in home ownership overnight.  There’s a certain amount of common sense needed along with life skills and life experience.

“There’s no hot water,” went another “issue” on their list, so I responded:

The hot water is turned off.  Turn it back on to get hot water.

This went on for another handful of “issues” and “deficiencies,” but I responded to each and every one.

Then came the “issue” of the stove.

“The gas burner doesn’t turn on.  The LED display is faded.”

I emailed her back and said that the LED display is faded because the stove is fourteen-years old.  I also said that all four burners work, but sometimes on a gas stove, you need to light one burner with the other.

A week later, she emailed me a list of questions from the insurance company with a request for my help because, as she put it, “The buyers can’t answer these.”

But it wasn’t that the buyers couldn’t answer them, but rather they just couldn’t be bothered to answer them.

What type of heating is in the home?

Are you kidding me?  Seriously?

Not only are your options, “oil, gas, electric,” of which about 99% in Toronto are gas, but this is common sense.  It’s also in the listing.  It’s also in the home inspection.

They had six questions, all like this, and I answered all of them.

So either the buyer: a) was too stupid to answer, or, b) didn’t want to spend fifteen minutes on this.  So, I answered for them.

After that came another note about the stove.

So my partner Chris went over to the house, lit the four burners, and sent them a photo.

Case closed?

Nope!

The day before closing, the buyer’s lawyer sent over a request for a revised Statement of Adjustments to include a $7,000 abatement for a new stove!

Absolutely ridiculous.

It seemed that the photo of the stove, with all four burners working, wasn’t sufficient.

So Chris went over to the house and took a video of the stove with no burners on, then one-at-a-time, he turned on all four, and voila!

I sent that video to the buyer agent and said in my email, “This might be the low point of my career.”

Whether the $7,000 abatement request was just a cash-grab attempt from asshole buyers or whether it was because they really, truly don’t know how to work a stove, I don’t care.  I didn’t like it at all, and I’m still not over it.

The problem with buyers like this is that they don’t realize they bought this stove.  Not a different stove, but this one.

I get buyers that use the word “should” a lot.  This appliance should do this, or that.  But not necessarily.  Ask yourself, “What is the appliance that I bought?  Did I buy a fourteen-year-old stove?  And if so, how would a normal person expect it to work?”

It’s in working order.  It cooks food.  The burners work.  The oven works.  If the LED display is faded, so what?  It’s fourteen-years-old.  This is now your fourteen-year-old stove with a fourteen-year-old LED display.   You didn’t buy a different stove, you bought this one.

I say this over and over, but buyers out there are so naive.

$7,000.  Seriously.

I’m still not over it.

That night on my daughter’s fifth birthday…

Have you ever bought a house that had no home inspection?  Topic of much debate, I know.

Have you ever done your own inspection?

How about a house that had a pre-inspection?

I always provide a pre-inspection.  Always.

I hire Carson Dunlop and I present the inspection at the property, while making it available online for buyers and agents.

A few weeks ago, I sold a house that had a pre-inspection.

During one of the buyer visits, the buyer’s dad brought an electrician who said that there were ungrounded outlets on the main floor.

My inspector said that there were not.

His inspector said that there were.

So what happens now?

Nothing.  It’s a trick question.  They bought this house, firm.

Again, this is where I lose some of you, and maybe you could indulge me with a perfect-world view of real estate sales that’s not currently present.

But the courts have always held, “Buyer Beware.”

It’s up to the buyer to either include a condition on satisfactory inspection or not.  It’s up to them.

This buyer did not include a condition on inspection.  They relied upon the pre-inspection provided.

But even if there were inconsistencies or errors in that inspection, the listing agent and the seller are not liable.

Maybe that sucks, but that’s the law.  There’s no debating this point.

The buyer could choose to sue the home inspector, but I don’t know how far that would go.

In any event, what we had here was basically two different inspectors giving two different opinions of whether or not an outlet was grounded.  And in the end, the buyer requested $5,000 to replace the outlets.

But just like the stove in the example above, this is the house they bought!  This house with these grounded or ungrounded outlets, and this roof, and this counter, and this floor.  Not a different house, but this house, and one that they walked through twice, submitted an offer on, and purchased unconditionally.

Whether or not these outlets were grounded or not (which they were) is beside the point.

Not only that, the buyer’s dad’s electrician told my seller that he “fixed a few things” in the house during their inspection, which he is most certainly not allowed to do.  They can’t start working on the house until they own it.  I told the buyer’s agent, “There’s no difference between this guy ‘fixing’ a wire in the furnace room and painting the master bedroom green.”

I knew this one was going to blow up, but I didn’t know how bad.

On the night of my daughter’s fifth birthday, I had the grandparents over and we were about five minutes away from sitting down for pizza when my phone rang.  I figured it was an agent who couldn’t open a lockbox (this happened three times already on Saturday…) so I took the call.

My mistake.  I have only myself to blame for taking this call, like I take every call.

It was the buyer of that house.  He was calling me, and bypassing his agent, to discuss his request for an abatement.

He didn’t really listen all that much.  He interrupted me every time I tried to speak.

Oh, also, he was a doctor.  Do you want to know how I know that?  Because he told me.  Three times.

He also told me how many houses he’d bought and sold over the years, just so I knew.

He said, “My lawyer wanted to call you directly, but I talked him off of that,” as a veiled threat, as in I’m ‘lucky’ that I didn’t have to speak to his lawyer, and only him.  Again, people are supposed to be afraid of the word ‘lawyer,’ right?

First of all, his lawyer isn’t supposed to call me.  His lawyer is supposed to call the seller’s lawyer.

Second of all, the buyer sure as hell isn’t supposed to call me.  Er, the buyer’s dad.

I heard him out for five minutes of self-justifying, self-aggrandizing nonsense, ripe with inherent threats about consequences that were so far-fetched they bordered on childish, until I finally spoke up and said:

“You purchased a home after submitting an unconditional offer.  You decided to forego an inspection, which is your right as described in the pre-printed section of the standard Agreement of Purchase and Sale, and instead relied upon a third-party inspection, and signed a Schedule B which agreed to indemnify and hold harmless the seller and the listing agent….”

…..and then he went berzerk.

I haven’t heard a man shout like that in a long time.

It was what you might describe as a blood-curdling scream.

“I-don’t-like-you,” he said, slowly, deliberately, and annunciating every syllable.  “You’re arrogant,” he added.

“You just cut off your nose to spite your face,” he said before launching into a diatribe of insults, threats, accusations, and things I care not to repeat.

I have a very thick skin.  Very little bothers me.

But in that moment, after he hung up on me and I walked back into a room full of family, I felt violated.

It was my daughter’s birthday and I felt so stupid for taking that phone call.  I should have said, “I can’t talk to you about this,” and hung up as soon as he told me who he was.

This was never going to end well.

There are no ungrounded outlets in that house.  Our inspection says so.

But even if there were, the law is on our side.

And even if it wasn’t, there are proper channels to go through, none of which should have resulted in a verbal assault thirty seconds before I kiss my daughter and serve her cake.

I’m not looking for sympathy on that last point, and if you find fault with the “problems” addressed above, then say so.

But there are just so many buyers out there with illusions of grandeur about how the purchase of real estate works.

I just got a text message from a buyer agent this very moment:

“She said some of the lights in the condo don’t work.”

So then change the goddam lightbulbs!  The condo has been vacant for four months, maybe a bulb burned out!

Is this really worth sending a message?

Can buyers out there not do anything themselves?

Every single closing has an issue these days, and I don’t blame buyers for being naive, but rather I blame buyer agents for being yes-men.  When the buyer says, “There’s a mark on the wall from tape, which I think is from their children’s art that was taped to the wall, can they repaint that wall?” the buyer agent needs to explain to the buyer that this isn’t part of the sale and subsequent closing process.

I would rather be honest with my own buyer-clients and turn them into realists than coddle them and disappoint them later.

I have so many other examples, but this blog is already way, way too long.

Recently, an agent told me that a tree-branch had fallen and the buyers wanted to ensure it would be gone before closing.  Really.  A branch.  Can they not break it into five pieces, put it in a paper bag, and leave it on the curb?

But like I said, we’re too long in the tooth.

Back on Friday with a guest-blog from a “concerned” TRB reader.  Concerned that (gulp!) another newspaper article is taking liberties with financial calculations in their argument as to why renting is better, so he’s going to put some real numbers together for our perusal…

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13 Comments

  1. blowing sunshine

    at 9:20 am

    David was my agent this past winter, selling our townhouse and getting us our dream house in an awesome neighbourhood in the city. David is very good at his job, and I quite like his personality, though I can see how some might consider him ‘intense’. When we moved out of our townhouse, we made sure the place was spotless and we bought the sellers a bottle of champagne and left them a note. there were no issues with that side of the process.

    The day before we closed on the house, David was with us for the final walk through. The sellers had just moved their furniture out and had a two cleaners in (which was appreciated). We went into the garage and saw that there were a number items still in there, ladders, a few boxes and most notably, a large pile of concrete slabs and assorted bricks left over from construction projects. Mind you this wasn’t a couple of pieces, but hundreds and hundreds of pounds of materials that we didn’t want or need. David took a picture and sent it to the listing agent who responded quickly that the sellers would remove everything before closing. Easy right? Well, 2pm the next day we close, go into our new house (they had left the alarm activated and we didn’t have the code, so that was a special kind of start), and of course the pile of bricks and slabs were still in the garage. David, didn’t hesitate, he went hard at the listing agent, and then the sellers lawyer emailed to say we had ‘agreed’ somehow to the sellers leaving that crap in garage, David slapped that down pretty hard and then the lawyer suggested we hadn’t paid for an Ikea wardrobe in the basement we had agreed to buy for $50 from the sellers and that we should consider it even??? We had in fact transferred the money prior to closing, and then David had a field day with the lawyer and basically bitch-slapped him over email. Long story short, someone came an hour later and hauled away all the remaining crap in the garage. A couple of months later, I noticed our gas bill had a third-party rental charge listed. I inquired and found out that the HWT was a rental, contrary to the agreement of purchase which indicated no rental equipment. I contacted David, who once again sprang into action, and after several back and forth emails with the listing agent confirmed that the sellers had agreed to buy out the HWT.

    David shared a number of examples where the request was rejected/or had no merit. But it is as important to have an agent who knows what to do when there are legitimate issues upon closing.

    1. Geoff

      at 1:32 pm

      damn I bet buying out that Hot water heater rental wasn’t cheap. That’s a good post for another day, the rental water heater business.

  2. RPG

    at 9:29 am

    This is a product of millennials coming of age and buying homes. They weren’t taught the same life skills as the previous generation who benefited from wood shop, home economics, auto, etc. Nature versus nurture. Some of these skills that the rest of us take for granted like hanging a light fixture aren’t possessed at birth. And if it’s not taught to them then they’ll always make it an issue when faced with one of these “problem.”

    1. Ed

      at 10:07 am

      How many millennials does it take to change a light bulb?

      We’ll never know.

    2. Marty

      at 2:23 pm

      God damn it, that ls what YouTube is for though.

      Learn.

      Then do.

      When I was a kid, we didn’t have YouTube, and every used car I bought, I immediately bought the Chiltons or Haynes manual.

  3. GinaTO

    at 10:25 am

    Hey David, we closed yesterday! With no issues! Phew. But chatting with our lawyer a few days ago, he mentioned that most closings have issues these days – people seem to be nitpicking on small things and creating issues out of thin air.

  4. London Agent

    at 10:53 am

    These are my favourite kind of blogs that appear here on TRB. My favourite guilty pleasure.. it’s like reading David share all of my private thoughts live on the internet. Thank you

  5. Joel

    at 11:53 am

    Buying a house to live in is an emotional experience if you are any part of that transaction you should try to make it a positive experience.

    Many people are overly emotional and scared about the amount of money they are spending. Trying to fix a broken appliance for $50 when you have sold for $1million + isn’t something that you legally have to do, but it is a good indicator that you are a decent person.

    Most of these issues remind me of the shopping cart fallacy. Legally you don’t have to return it, but to be a decent member of society you should.

    Part of the large commissions realtors get paid comes with some hand holding on both sides. The buyer knows you are pocketing $10’s of thousands for a transaction that has been on the market for a week. Dealing with the issues after is part of the cost of doing business. Maybe the doctor mentioned bedside manner and how it is something that greatly relates to ones overall experience.

    While these are all very transactional to a realtor that does 100 transactions a year, they are a once or twice in a lifetime experience for the buyers. With the birth of our kids, one had a more positive staff and one had a more annoyed staff and it really changed the mood and overall opinion of the hospital and industry based on that.

    The $7000 for the stove is ridiculous, the complaint of the wiring should have gone to the inspector, but in the end it is people and one of the biggest purchases of their life.

    1. Geoff

      at 1:34 pm

      I think repairing something broken after viewing is different from refusing to improve an appliance from when it was inspected. Put another way, if I agree to buy a car with a scratch in it, I can’t be upset the seller didn’t repair it when I go to pick it up.

      1. Jennifer

        at 12:11 pm

        Agree. They can simply put it in the Agreement if they want it fixed before closing. And then there are other things, like you mention, that are just plain human decency – someone just paid a lot of money for what you owned, be a good person and leave it in good shape (broom swept, light bulbs working, etc.) for them when they move in. It’s not asking for a lot.

  6. R

    at 5:10 pm

    The fact remains, never trust an agent. They are only looking out for themselves. Don’t rely on your agent or (obviously) the seller’s agent. Do your homework.

    Agents like to pretend they are lawyers, but have no actual training or legal power. The licensed electrician dad probably has more training than most agents.

    R

    1. Murasaki

      at 6:59 pm

      Or maybe he was just pretending to be an electrician to help out his pal’s kid. We’ll never know.

  7. Kyle

    at 10:22 pm

    What kind of fucking moron brings his Electrician to inspect a home? Is an Electrician going to be able to tell you whether the roof, windows, HVAC, structure, insulation, and plumbing are in good shape? And no shit, his Electrician claims there’s issues with the wiring. He’s probably thinking, this guys is a Doctor…Cha, ching!

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