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Court divided on purchase agreement termination

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The judges on the Indiana Court of Appeals were split in deciding whether the seller of a condominium should have to refund a deposit to purchase after the buyers discovered electrical problems that turned out to be minor issues.

In Gayle Fischer v. Michael and Noel Heymann/ Michael and Noel Heymann v. Caryn J. Craig, et al., No. 49A04-1004-PL-231, Gayle Fischer appealed the judgment ordering she reimburse the earnest money deposit of Michael and Noel Heymann and pay their litigation costs and attorneys fees after the couple backed out of an agreement to purchase Fischer’s condominium. The Heymanns entered into a purchase agreement and paid $5,000 in earnest money, and as a condition of the agreement they had the home inspected. The purchase agreement allowed for them to terminate the agreement if the inspection revealed a major defect and the seller is unable or unwilling to remedy the defect before closing.

The Heymanns’ inspector listed as a major concern on his report that there was no power to the outlets in two bathrooms and an outlet on a balcony. The Heymanns agreed to give Fischer until Feb. 18, 2006, to resolve the issue. On Feb. 17, they put an offer on a different unit, and on Feb. 19, they executed a document for release from Fischer’s unit. On Feb. 20, Fischer’s electrician fixed the problems by pushing a GFI reset button and replacing a light bulb.

Fischer then sued the Heymanns for specific performance of the purchase agreement or for reimbursement of maintenance expenses along with the difference between the agreed upon price and the present fair market value and attorneys fees and costs.

Chief Judge Margret Robb and Judge Patricia Riley reversed, holding the evidence doesn’t support the trial court’s finding that the Heymanns reasonably believed there was a major defect. They held the Heymanns had to have an objectively reasonable belief that the property contained major defects. The findings in the inspection don’t support an objectively reasonable belief that the defect was major.

“The report indicates there was no electrical power to three outlets, which could be and in fact was easily repaired. Therefore, under an objective standard, this would not have a significant adverse effect on the property’s value or significantly impair the health or safety of occupants,” Chief Judge Robb wrote.

The majority noted the buyer must be held responsible for selecting an inspector whose technical capability and approach to identifying and conveying problems in an inspection report enable a compromise as to repairs or cost deductions between a buyer and seller or termination of the purchase agreement. Any failure by the buyer’s inspector must be faulted to the buyer.

“Any incompetency of the Heymanns’ inspector – demonstrated by his failing to resolve the problem by pushing the GFI reset buttons and triggering the Heymanns’ concern as to the seriousness of the electrical problems – must be faulted to the Heymanns,” she continued. “It was the Heymanns’ responsibility to clarify with the inspector the extent of the electrical problem prior to their basing their decision to terminate the agreement on his findings.”

Judge Elaine Brown dissented, pointing out that there was no evidence the inspector chosen by the Heymanns wasn’t qualified, that his inspections were substandard, or that the report was lacking in quality.

She also dissented on the matter that the Heymanns gave Fischer through Feb. 18 to agree to remedy the problems, but she failed to do so. Judge Brown pointed to a part of the purchase agreement that states time periods in it are calendar days and shall expire at midnight of the date stated unless otherwise agreed to. By its terms, the purchase agreement expired at midnight on Feb. 18, she wrote.

The majority remanded for the trial court to determine the extent of damages owed to Fischer, as well as trial and appellate attorneys fees and costs.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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