Walk-through clauses continue to be an issue for both buyers and sellers. Recently, a seller’s Realtor wondered what I thought about a proposed, very basic, 48 hour walk-through clause. Here is my response:

Good morning,

I think the proposed counter as set out in your email is fine except for the 48 hour clause. As you know, it's a very common clause, but I hate it! Here are some comments on the nature of this type of clause.

This type of general inspection clause (48 hour clause) is very difficult because the buyer has no idea that anything will be wrong or what they can complain about. The devil in this type of clause is what standard the buyer will be using to do his inspection? What constitutes a difficulty or the property not being in the same condition? What remedies/holdbacks does the buyer have?

The buyers would certainly complain about any major issue. They also might complain about crayon marks or picture hanging or TV Mount holes, but I don't think they get to take any action. However, at the very least they might complain so I think you have three choices:

1. Do not allow this clause. Tough, because it looks like the seller might be hiding something. A proper clause is a nightmare to draft which is why they always show up the way they are in your offer.

2. Go back to the buyer's realtor and have a discussion about what rights or action the buyer gets to take after they've done the 48 hour walk-through. You could add words something like these to the 48 hour clause, (NOTE, I am referencing clause 2.4 of the contract):

"The purpose of the 48 hour clause is to confirm that the property is in substantially the same condition as when the contract was accepted and that the attached and unattached goods will be in normal working order".

Just adding those words would be better protection for your seller. If your seller is really anal, you could carry on and add more words to the above.

"The buyer understands and agrees that the seller will make no adjustments for normal wear and tear examples of which are picture hanger holes, technology mounting holes, scuff marks and scratches."

3. Or, your seller could do as most sellers do, just leave the 48 hour clause the way it is, make sure the property is neat and tidy and leave the buyer no room to argue that the property does not meet the requirements of clause 2.4.

Protect yourself.

Cheers,

Barry

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