Is the home seller responsible if buyer takes possession before closing and heating breaks down??

A home seller decides to allow the buyer to take possession of the home two weeks before closing. They use the January 2024 version of the Buyer Possession Before Closing Addendum - form 2A7-T

The heat goes out after the buyer moves in but before closing. The buyer requests that the seller pay to have it repaired. Does the seller need to do that?

On one hand, Paragraph 3 of Form 2A7-T imposes on the buyer the obligation to maintain the property once they take possession. Paragraph 2 of the form states that the buyer waives any remaining due diligence rights and agrees to accept the property as it stands when they take possession.

However, there is an exception - that this is all “subject to any obligation that may be imposed on Seller by law”.

N.C.G.S. § 42-42(a)(4) requires a landlord to “Maintain in good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances.

Therefore, a seller will be responsible for the cost of repairing the heating system in the property since it is included within the list of obligations to provide fit premises.

Furthermore, the statute prohibits the landlord and tenant from waiving the landlord’s legal obligations to maintain the premises, which is why this exception is included in our standard form.

A seller should consider this obligation to maintain the premises when setting the rental rate for the buyers.