The Buyer has a home inspection performed of the Property and the inspection reveals rats in the attic. Now, the Buyer wants to know whether the Seller is responsible for remediation. Basically, it depends on whether the rats have done structural damage to the Property. (refer to paragraph 12 of FR/BAR-2)
The ceiling, roof, exterior and interior walls, doors, windows and foundation have to be free from leaks, water damage or structural damage. Consequently, if the rats have eaten their way through the soffit to gain entry into the house, the Seller has to repair the damage and address the cause, which is the rat infestation. In contrast, if the rats have not done any structural damage to the house, the FR/BAR-2 is silent with regards to the rat issue. The Seller is also expected to treat the Property for live infestation of Wood Destroying Organisms which includes arthropod or plant life, including termites, power-post beetles, old house borers and wood-decaying fungi. Although, the Contract is silent as to rats, bats, squirrels, or any other type of rodent or mammal, a Seller still has a duty to disclose to the Buyer a known latent defect of the Property.
In summary, if you have a rat or any other type of rodent or mammal problem with the Property, there has to be structural damage to the Property to be addressed within the FR/BAR-2 Contract. Under the FR/BAR ASIS-2 Contract, the Buyer would be covered since the Buyer has an absolute right to terminate the contract in Buyer’s sole discretion prior to the expiration of the Inspection Period. Because of the aforementioned, another good reason to use the FR/BAR ASIS-2 Contract over the FR/BAR-2 Contract.
As always, if you have any questions concerning the foregoing, we urge you to consult with your real estate attorney. (And yes, those fuzzy nuisances did happen!)
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