FACTS: The buyer and seller executed an AAR Residential Resale Real Estate Purchase Contract (“Contract”).  The buyer thereafter requested certain repairs in the Residential Buyer’s Inspection Notice and Seller’s Response (“BINSR”).  The seller did not respond within five days as required.  After being prompted, the seller eventually did respond to the BINSR eight days after it was issued.  In that response, the seller indicated that she would make no repairs.  Five days after the seller’s response, the buyer elected to cancel the Contract.

ISSUE: Is the buyer’s cancellation effective?

ANSWER: See Discussion.

DISCUSSION:

Section 6j(2)(a) of the Contract provides that the seller’s failure to respond to the buyer’s request for repairs within five days is conclusively deemed to be the seller’s refusal to correct any of the items disapproved.  Accordingly, by virtue of the language in the Contract, the lack of a timely response by the seller is deemed to be a rejection of the requested repairs.

Additionally, Section 6j(2)(c) of the Contract address the buyer’s ability to cancel if the seller rejects the requested repairs.  Specifically the language provides that the “Buyer may cancel this Contract within five (5) days after delivery of Seller’s response or after expiration of the time for Seller’s response, whichever occurs first….”  Thus, to effectively cancel, the buyer needed to provide notice within five days after the seller’s response was due.  The purported cancellation five days after the seller provided the notice of rejection (which was late in the first place) was not timely and does not cancel the Contract.