Q: What are my options for roof damage that occurred after inspection but before closing?
I had my house inspected in October and everything was fine. The old owners did not want to move out until January and there was damage sustained to the roof in November. My insurance will not cover it because I didn’t have a policy on this house and said to have the previous owners file a claim, they’re refusing to do so. What options may I have?
A: A number of states (including Illinois) have adopted the Uniform Vendor and Purchaser Risk Act (765 ILCS 65/1). This Act provides that in all real estate contracts there is an implied term that if the purchaser has NOT yet received title OR possession of the property, the seller bears the risk associated with any destruction of the premises. If the property is destroyed through no fault of the buyer, the seller cannot enforce the contract and the buyer is entitled to the return of any earnest money paid. If the buyer HAS taken possession of the property prior to its destruction, he is obligated to proceed to close on the transaction.
Many joint approved contract forms provide that the risk of loss falls on the seller prior to closing. Under these contractual provisions a buyer is generally given two options: (1) The buyer may elect to terminate the contract and have his earnest money back returned; or (2) accept the premises as damaged or destroyed, together with the proceeds of any insurance payable as a result of the destruction or damage.
So, my first recommendation would be that you review the specific terms of your contract. Then, assuming that it does not shift the risk of loss to the buyer, then approach the seller again. Whether or not they submit the claim to their insurance company does not change their liability to you....
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