I'm buying a condominium near NYC in a red hot (seller's) market.
As part of my rider, I added the standard clause below to protect my interest against planned remedial assessments. For this building, the condo association hired an engineering firm back in January to investigate all aspects of the building for required remedial work. That study was completed and made available to every unit owner (communicated under-the-door, email, and in condo meeting minutes), including a 3-year schedule to repair roof, EFIS/stucco, courtyard, etc. however the approximate cost of the repairs wasn't included.
I finally had a chance to review the report – the day I was supposed to close – and spoke with the management company who informed me, under the approval of the association's attorney, that the board had received an estimate from a contractor in the amount of "$876,000 give or take a few thousand" for the full remedial work. He added that the board has met last week to consider options for imposing this remedial assessment to each owner on either an 18-, 24-, or 36-month repayment schedule at "approximately $80 – $140 per month per unit" depending on size. I therefore conservatively estimated my share being $140/month x 36 months or $5,040 and requested the seller to escrow or credit the same.
The seller claims no knowledge of any pending assessments and is only offering me a laughable $1,000 credit. I have incurred thousands of dollars in expense (appraisal, inspection, and HOA) and will likely incur many more having to find and move to a new place if this deal falls through.
QUESTION: Based on the rather standard rider clause below, what are my legal rights to pursue the seller for costs incurred (current and future) for material breach based on misrepresentation? I'm not asking her for a reduced price, only to pay – in escrow – what she would/should have known about.
"Seller has neither received actual notice nor are they aware of any pending special assessment or increase in the monthly maintenance. In the event a special assessment is imposed prior to closing, Seller agrees to pay the balance in full at closing, or alternatively, if the amount of any special assessment has not been determined by the date of Closing, Seller agrees to hold an appropriate escrow for same, based on the association’s estimate of the assessment to be imposed. In the event that Seller does not agree to pay the special assessment or hold an appropriate escrow for same, either Buyer or Seller may cancel the Contract of Sale. In the event the Contract is cancelled pursuant to this provision, the Seller shall promptly return the entirety of the deposit and any additional funds, and the parties will have no further obligations to each other."
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