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Old 04.01.2017, 01:10
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Pls help me on this part on our house contract

Dear Forum members,

First of all, I wish all of you have a very Happy New Year.

My family is buying a house, and received a draft contract.
While both my husband and I do not fully understand the sentences in the contract, our bank agent pointed out that the following sentence (bold) is not fair to us. We asked it back to the notary who gave us the contract, but he said it is very common and almost every contract has the sentence.

We studied the listed law and searched word by word of the problematic sentence. Overall, the laws indicated in the contract sound fair, but the bold font sentence sounds not very fair, as in our understanding, we(buyer) take full responsibility on any defects found after buying the house.

Would you please help me if such sentence is really common? Or is there any neutral way to make the sentence better on our side?

Thanks in advance!

"Die Vertragsparteien sind von der Urkundsperson auf die Art. 192 – 196 des Schweizerischen Obligationenrechtes (OR) über die Rechtsgewährleistung sowie die Art. 197 ff. und Art. 219 OR über die Sachgewährleistung (Mängelhaftung) aufmerksam gemacht worden.


Jegliche Nachwährschaft, soweit gesetzlich zulässig, wird von der Verkäuferschaft wegbedungen.


Die Parteien sind von der Urkundsperson über die Bedeutung dieser Freizeichnungsklausel orientiert worden. Insbesondere darüber, dass diese Vereinbarung ungültig ist, wenn die veräussernde Partei der erwerbenden Partei die Gewährsmängel absichtlich oder grobfahrlässig bzw. arglistig verschwiegen hat (Art. 100 Abs. 1, 192 Abs. 3 und Art. 199 OR)."
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Old 04.01.2017, 01:20
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Re: Pls help me on this part on our house contract

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Dear Forum members,

First of all, I wish all of you have a very Happy New Year.

My family is buying a house, and received a draft contract.
While both my husband and I do not fully understand the sentences in the contract, our bank agent pointed out that the following sentence (bold) is not fair to us. We asked it back to the notary who gave us the contract, but he said it is very common and almost every contract has the sentence.

We studied the listed law and searched word by word of the problematic sentence. Overall, the laws indicated in the contract sound fair, but the bold font sentence sounds not very fair, as in our understanding, we(buyer) take full responsibility on any defects found after buying the house.

Would you please help me if such sentence is really common? Or is there any neutral way to make the sentence better on our side?

Thanks in advance!

"Die Vertragsparteien sind von der Urkundsperson auf die Art. 192 – 196 des Schweizerischen Obligationenrechtes (OR) über die Rechtsgewährleistung sowie die Art. 197 ff. und Art. 219 OR über die Sachgewährleistung (Mängelhaftung) aufmerksam gemacht worden.


Jegliche Nachwährschaft, soweit gesetzlich zulässig, wird von der Verkäuferschaft wegbedungen.


Die Parteien sind von der Urkundsperson über die Bedeutung dieser Freizeichnungsklausel orientiert worden. Insbesondere darüber, dass diese Vereinbarung ungültig ist, wenn die veräussernde Partei der erwerbenden Partei die Gewährsmängel absichtlich oder grobfahrlässig bzw. arglistig verschwiegen hat (Art. 100 Abs. 1, 192 Abs. 3 und Art. 199 OR)."
Refuse any part of the contract you don't like. What other people do is irrelevant.
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Old 04.01.2017, 01:24
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Re: Pls help me on this part on our house contract

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Dear Forum members,

First of all, I wish all of you have a very Happy New Year.

My family is buying a house, and received a draft contract.
While both my husband and I do not fully understand the sentences in the contract, our bank agent pointed out that the following sentence (bold) is not fair to us. We asked it back to the notary who gave us the contract, but he said it is very common and almost every contract has the sentence.

We studied the listed law and searched word by word of the problematic sentence. Overall, the laws indicated in the contract sound fair, but the bold font sentence sounds not very fair, as in our understanding, we(buyer) take full responsibility on any defects found after buying the house.

Would you please help me if such sentence is really common? Or is there any neutral way to make the sentence better on our side?

Thanks in advance!

"Die Vertragsparteien sind von der Urkundsperson auf die Art. 192 – 196 des Schweizerischen Obligationenrechtes (OR) über die Rechtsgewährleistung sowie die Art. 197 ff. und Art. 219 OR über die Sachgewährleistung (Mängelhaftung) aufmerksam gemacht worden.


Jegliche Nachwährschaft, soweit gesetzlich zulässig, wird von der Verkäuferschaft wegbedungen.


Die Parteien sind von der Urkundsperson über die Bedeutung dieser Freizeichnungsklausel orientiert worden. Insbesondere darüber, dass diese Vereinbarung ungültig ist, wenn die veräussernde Partei der erwerbenden Partei die Gewährsmängel absichtlich oder grobfahrlässig bzw. arglistig verschwiegen hat (Art. 100 Abs. 1, 192 Abs. 3 und Art. 199 OR)."
<<Jegliche Nachwährschaft, soweit gesetzlich zulässig, wird von der Verkäuferschaft wegbedungen.>> must be deleted without substitution (and make sure it doesn't end up in the small print). I'm surprised your banker only said it's "not fair" to you. It means, any faults you find on the house are your responsibilities. And believe me, there are A LOT of faults that can be found and expensive ones.
I never bought a house but unless I were really inlove with it - the house - I wouldn't even bother to change the contract if someone tried this with me. As even if the clause is changed it points out that claiming deficiencies from this kind of seller would be difficult.
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Old 04.01.2017, 01:43
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Re: Pls help me on this part on our house contract

Our house contract had this clause - and I did not find it problematic at all.

BUT

1. I'm no stranger to old house renovation and had a pretty good idea what would need done, and the costs.

2. I had an architect do an inspection to look for hidden things. (That was the idea at least, the architect, recommended by the bank, was not really useful, but that's besides the point. Were I to do it again, I would look for a Bauleiter or building engineer to do the inspection. Cosmetic stuff is meaningless, all I really care about are structural issues.)

3. I bought the house with the idea of gutting the place.

BTW, several other houses I looked at also had similar clauses.

---

Of course you can ask to have the clause taken out. However be aware that the sellers can also tell you to take a hike. And many sellers will.


The questions for you are: How much do you love this house? How anxious are the sellers to sell? Is the price such that plowing another 50, 100, 500K into the house still reasonable? (Hence the suggestion to get an inspection to give you an idea of your level of risk.)

Were it me, I'd leave the clause and negotiate harder on price... is that an option in this case?


If you don't have much of a financial cushion left to deal with surprises, it would make sense to ask to take out the clause. But be aware that you might lose the house by doing so. So which risk is more palatable for you?

---

When we sell this house I will insist on that clause as well. A buyer who objects will be told to take a hike. I will price the house with known defects in mind and happily facilitate a buyer's due diligence, but I want a clean sale.
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Old 04.01.2017, 07:35
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Re: Pls help me on this part on our house contract

It's a normal in other parts of the world.

Put yourself in the seller's shoes. Surely once you have sold a house, you don't want the new buyers to keep coming back to you with bills for repairs?

But, for piece of mind, get a survey done (at your expense of course).

I bought recently, didn't get a survey done but spent an afternoon checking everything and found a couple of problems which resulted in the whole roof being taken off for repairs (a week before we moved in, but at the expense of the previous owner).

To the OP: I assume it's not a new build as that's a completely different scenario with clauses needed to protect you against both visible and invisible defects.
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Old 04.01.2017, 08:22
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Re: Pls help me on this part on our house contract

I've not bought a property in Switzerland, but I know this is how it works in the UK. If you want to buy a house you get a survey done, if you are happy with the condition of the house after the survey, you buy and any problems after you buy are your problems.
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Old 04.01.2017, 08:34
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Re: Pls help me on this part on our house contract

If it is not a new build, it is usual for the seller to limit his guarantee to minimum that the law allows.
Deliberately concealed problems cannot be excluded.
You are advised to get an expert survey and ask the Notar to explain what your risks are.

Here are some supporting statements I found (all in German):

https://www.hausinfo.ch/de/home/fina...ufvertrag.html
search for: Gewährleistung

https://www.vermoegenszentrum.ch/rat...ufvertrag.html
search for: Garantieansprüche bei Mängeln

https://www.sgkb.ch/download/online/...vertrag_12.pdf
search for: Gewährleistungspflicht bei bestehenden Objekten
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Old 04.01.2017, 08:46
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Re: Pls help me on this part on our house contract

That is basically the "do not come back to us when you find asbestos clause"

When was the house built? Or when did it receive major renovation?
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Old 04.01.2017, 08:52
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Re: Pls help me on this part on our house contract

And don't rule out negotiation with the seller. We knew that we'd want to rewire the house as the electricity system wasn't up to modern day needs. We negotiated through our notary that if the cost of the rewiring was over a certain figure the sellers would contribute to the cost. As it turned out it came in under that figure, but if it had been over they would have had to pay towards it.

And frankly I'd get another notary. We asked for one who spoke English which the real estate agency organised for us and on the day we went to sign the contract he went through it paragraph by paragraph with us to make sure we understood it; that's what he's supposed to do - make sure both sides understand their obligations under the contract. As well as the clause on the rewiring we had one or two small changes which he had his staff amend in the contract immediately so we could sign that day. You shouldn't be struggling to understand the contract on your own.
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Old 04.01.2017, 10:19
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Re: Pls help me on this part on our house contract

I'm surprised the bank squawked...it's pretty standard in all such contracts. It certainly has been in the ones that we have had (as both buyer and seller).
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Old 04.01.2017, 10:23
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Re: Pls help me on this part on our house contract

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And frankly I'd get another notary. We asked for one who spoke English which the real estate agency organised for us and on the day we went to sign the contract he went through it paragraph by paragraph with us to make sure we understood it; that's what he's supposed to do - make sure both sides understand their obligations under the contract. As well as the clause on the rewiring we had one or two small changes which he had his staff amend in the contract immediately so we could sign that day. You shouldn't be struggling to understand the contract on your own.
It is the Notary's responsibility to ensure the parties understand the contents of the contract, but that probably stops short of translating into a foreign language. As Medea said, either change notary to one that speaks good enough English or get someone trustworthy and with sufficient language skills to translate. Given that you are already some distance down the road with this notary, changing now would no doubt incur extra costs so maybe the second option would be the most practical.
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Old 04.01.2017, 11:13
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Re: Pls help me on this part on our house contract

We had a similar clause in our contract. I did not like it and it cost us a lot of money but we were buying in an area where houses sell quickly, and we had been looking for a number of years with a number of failed bids.

So in the end we bit the bullet, and yes, we found the dreaded asbestos! This cost about 20k to remove, and meant that we had to replace the bathroom (which we were not planning to do) so an extra 25k there. We were told that the electrics would need replacing, though this cost more than we thought as well, as did everything else. We now know that the roof will also need to be replaced at some point in the not too distant future.

All of this was not for the faint hearted, and to be honest it has knocked me for six and massively stressed me out at the time and I am still feeling the effects. If we had known about the asbestos we would almost certainly have walked away.... and yet... now that is is done, I am poor but I have a nice house that I am happy with... wouldn't change that to be honest.

If I had hired a surveyor, their results would also most likely have made me walk. Since true or false, the next offer was apparently not much lower than ours, any attempt to strongarm negotiatate would have carried the risk that the seller pulled out.

I made my own judgement and used a family friend who is an electrical planner and has some experience there. I wanted to live there and am happy that I do. While the refurb cost a lot, it almost certainly added to the value of the property, though it is hard to say if it enhanced the value more than the refurb cost. Hopefully!
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Old 04.01.2017, 11:20
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Re: Pls help me on this part on our house contract

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If we had known about the asbestos we would almost certainly have walked away....
That's easy to avoid - just don't buy anything older than 1992, when it was prohibited. If the house is from 60-80s when its usage was at the peak, or renovated at that time, I'd take it as an almost certain guarantee that you'll have it and you should factor in removal costs when deciding if sale price is a good deal or not. Generally, for houses that old, everything would need to be renovated, and sooner than later, there's no free lunch.
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Old 04.01.2017, 11:28
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Re: Pls help me on this part on our house contract

Thanks a lot for all the advice.
The house was built in 2005, and it was explained that it is in a good condition. We thought that we do not need to do any major renovation and offered good price for reserving the house.

Both my husband and I do not know much about building, house, etc., and when we asked to the notary about the sentence, he explained to us about washing machine, fridge, etc.

From all the advice, I now see there are more serious stuff that we need to care. I think we need to hire an expert to examine the house.
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Old 04.01.2017, 11:33
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Re: Pls help me on this part on our house contract

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That's easy to avoid - just don't buy anything older than 1992, when it was prohibited. If the house is from 60-80s when its usage was at the peak, or renovated at that time, I'd take it as an almost certain guarantee that you'll have it and you should factor in removal costs when deciding if sale price is a good deal or not. Generally, for houses that old, everything would need to be renovated, and sooner than later, there's no free lunch.
Our house was from 1935 ... according to how things were built then, it was before asbestos was used, so should have been ok. However, a refurb in the 1970s used tiling cement with asbestos content.

So no, you are incorrect... not so easy to avoid as you say.

And of course, if you want to limit yourself to houses only built after 1992, you are further limiting your choices.
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Old 04.01.2017, 11:35
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Re: Pls help me on this part on our house contract

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The house was built in 2005
That's practically brand new.

If it didn't develop any problems by now that could indicate construction errors (e.g. mold), it should be pretty solid.

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when we asked to the notary about the sentence, he explained to us about washing machine, fridge, etc.
Yes, with it you're taking on full risk that if anything breaks it's your problem. This is pretty standard. If you want warranty, you should buy brand new, which will cost a pretty penny. And even then you'll only have the warranty for just 2 years (5 for certain defects).
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Old 04.01.2017, 11:36
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Re: Pls help me on this part on our house contract

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Thanks a lot for all the advice.
The house was built in 2005, and it was explained that it is in a good condition. We thought that we do not need to do any major renovation and offered good price for reserving the house.

Both my husband and I do not know much about building, house, etc., and when we asked to the notary about the sentence, he explained to us about washing machine, fridge, etc.

From all the advice, I now see there are more serious stuff that we need to care. I think we need to hire an expert to examine the house.
A house built in 2005 should 'in theory' not have any major defects requiring expensive work.

It could be worthwhile getting an expert to give it the once over just to be on the safe side though.
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Old 04.01.2017, 11:36
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Re: Pls help me on this part on our house contract

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So no, you are incorrect... not so easy to avoid as you say.
1935 < 1992, ergo asbestos risk.

And refurb in 70s is a *major* risk sign. As I said, its usage peaked at 1960-1980s. And the mineral itself was used since 19th century even.

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And of course, if you want to limit yourself to houses only built after 1992, you are further limiting your choices.
You want a good deal - you'll need to take the risk. You want to play it safe, buy newer houses, or pay for a professional survey. It's as simple as this.

Asbestos isn't the only bad stuff they used to use it in the past, btw. Just the most well known.

Last edited by ivank; 04.01.2017 at 11:56.
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Old 04.01.2017, 12:01
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Re: Pls help me on this part on our house contract

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1935 < 1992, ergo asbestos risk.

And refurb in 70s is a *major* risk sign. As I said, its usage peaked at 1960-1980s. And the mineral itself was used since 19th century even.


You want a good deal - you'll need to take the risk. You want to play it safe, buy newer houses, or pay for a professional survey. It's as simple as this.

Asbestos isn't the only bad stuff they used to use it in the past, btw. Just the most well known.
All true, but buying houses built after 1992 isn't necessarily a sign of quality either. Many people have the view that older houses were better built than recent ones. I'm not generalising,of course that is not always true, but I have seen a number of examples where this seems to be the case. Certainly our one is sturdy as hell, and we don't hear the neighbours.
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Old 04.01.2017, 12:23
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Re: Pls help me on this part on our house contract

Gobugi, bottom line is that home ownership is a trade off. Your mortgage will likely mean a savings over renting, you have access to tax deductions that a renter will not have, you have an asset that (hopefully) will grow - but with that comes other expenses.

You would be foolish to purchase without an inspection - get that done before going further. An inspection should cost somewhere between 1000-3000, get an estimate before you engage an architect/Bauleiter.

Have you already concluded negotiations, have you already paid a reservation deposit? If so, it might be sticky tossing in demands now, so be aware of the risk you run of being told to take a hike, use your best negotiating skills to create a win/win (or appearance thereof) situation with your new requests.

Remember that you will some day sell this house. How would you respond to a buyer who wanted you to assume endless liability for the house? Is that something you would be prepared to take on? Imagine yourself as a future seller as you think about how to address this.

There will be surprises, there always are, even with the most scrupuously honest seller and the best of due diligence efforts. Some things simply are not known. Every homeowner needs a healthy chunk o' change put aside to deal with those surprises as they crop up.

Classic example: A few years after we bought and renovated the standard for particle emission from a heating system was lowered. Our furnace worked very well despite it's age, when we bought it was well within allowable levels. But the sudden change in the law meant that we had to replace the furnace to the tune of 25K. (Well, we could have just replaced the burner but new burners were largely incompatable with our old unit, hence the full replacement.)

Forking out 25K to replace something that wasn't *really* broken was not something I had planned on, but this is the kind of thing that goes with the territory of home ownership.

Things the notary mentioned like the washing machine and fridge are, frankly, incidentals. Of course you will at some time need to replace them - but these are not expensive (in the grander scheme of things) and really should not be a worry. The age of the appliances is known, the seller likely factored that into the asking price, just as you should have factored their replacement into your offer. Such incidentals are really not worth haggling over - no, what you really should concentrate on are the big ticket items mentioned: asbestos, replacing a roof, structural damage, etc.

When you own a home you take on risk. And (hopefully) reap rewards. Part of the game.

Best of luck to you.
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