Posted on September 27, 2001 by Michelle Lind, Esq.
You represent a Buyer who is making an offer on an older home. Should you include any additional language in the Arizona Association of REALTORS® (“AAR”) Residential Resale Purchase Contract (“Contract”) to protect the Buyer in the event that the home has termites?
Termites and the AAR Contract
If the Wood Infestation Report indicates the home has termites, a clause in the AAR Contract gives the Buyer the right to provide written notice of disapproval during the inspection period and either cancel the Contract or request specific termite treatment. Further, this clause will enable the Buyer to cancel the Contract if the Buyer discovers past wood infestation of the home during the inspection period.
Despite this language in the AAR Contract, some Buyer’s agents believe that the Buyer’s offer should contain an additional contingency clause making the Seller responsible for providing a “clean” Wood Infestation Report on the house or for performing any necessary termite treatment. However, adding such language may not be in the Buyer’s best interests. Where written provisions of the contract are inconsistent with the printed or “boilerplate” provisions, the written provisions will prevail. Autonumerics, Inc., v. Bayer Industries, Inc., 144 Ariz. 181, 696 P.2d 1330 (App. 1984).
Adding such a clause is inconsistent with the AAR Contract “boilerplate” language and could be interpreted to eliminate the Buyer’s right to cancel the Contract if termites or past termite infestation is discovered. A Buyer may want to cancel the Contract even if the Seller is required to treat the home for termites, especially if the home has been treated for termites repeatedly.
Investigating past termite infestation
Where can you direct the Buyer to find information about past termite infestation of the home? A new law requires the Structural Pest Control Commission to provide a Buyer with information on past termite treatments. A.R.S. § 32-2304.04 states:
If a Buyer of real property makes a request to the commission, the commission shall make available to the Buyer an information report listing all termite treatments reported to the commission for the property for the previous three years. The Wood Infestation Report… shall state that a Buyer may obtain the information report from the commission.
Additionally, the Structural Pest Control Commission (“Commission”) publishes some excellent brochures available for consumers free of charge, includingWhat You Should Know About Wood Infestation Reports, Why do I still have termites and Homebuyers Guide to Pretreatments. The Commission also publishes information for real estate professionals, such as What REALTORS® should know about pretreatments.
Contact the Commission for further information at:
Structural Pest Control Commission
9535 East Doubletree Ranch Road
Scottsdale, AZ 85258-5514
Consumer Information Line: 800/223-0618 (AZ residents only).
Visit the Commission web site at www.sb.state.az.us/
The Commission also maintains a Directory of Licensed Pest Control Companies at www.sb.state.az.us/PCProfSearch.php.
Note: This article is of a general nature and may not be updated or revised for accuracy as statutory or case law changes following the date of first publication. Further, this article reflects only the opinion of the author, is not intended as definitive legal advice and you should not act upon it without seeking independent legal counsel.