Let’s suppose that you represent a buyer who has just closed on the transaction. After taking possession of the property, the buyer discovers that the dryer and the refrigerator are missing. The buyer believed that those appliances were included in the purchase and is very upset that the seller took them in the move. The buyer asks you if the seller was supposed to leave those items as part of the sale. As you review the documents you notice that the MLS listing included the dryer and refrigerator but as you review the REPC, you notice that none of the boxes in Section 1.2 Other Included Items are checked indicating that none of the listed items, including the dryer and refrigerator, are a part of the sale. Now you have conflicting sources. Which one controls?
The short answer, the REPC always trumps the MLS. The REPC is the contract between the buyer and seller and should represent all terms relating to the transaction. The MLS listing is an advertisement and is not legally binding on the buyer or seller. Because the dryer and refrigerator were not included in the REPC, the presumption is that the buyer and seller did not intend on those items being included in the sale regardless of what the MLS listing says. What if the MLS listing had been printed out and incorporated into the REPC? In that case, the buyer would have an argument that the items listed in the listing were now a part of the REPC, but it’s still better is to make sure all included items are referenced in the REPC. As a buyer’s agent, make sure you are aware of what items your buyer expects to stay with the property and get them into the REPC. It’s better to have a discussion with the seller about included items at the beginning of the transaction than to have a misunderstanding after the transaction has closed.
Peter J. Christensen, J.D.