Neighbors need to breach party wall agreement - options?
June 18, 2019 6:53 PM   Subscribe

We have a side-by-side, two-story duplex (i.e. semi-detached home). Our wonderful neighbors need to move out of state and are closing on the house. Hail damage means we're replacing our collective roof. They also need⁠—as part of closing⁠—to replace the gutters. We're not replacing ours which means we will be mismatched. We have a party-wall agreement that forbids this. What to do?

We adore our neighbors and are sad to see them leave. We've collaborated on exterior projects before now e.g. staining trim and painting to preserve the aesthetics of the house. There is a party-wall agreement that we've never needed to refer to, which restricts doing exterior work without the other's consent and doing repairs which don't match.

A recent hail storm damaged our roofs on both sides which we will replace together. ($4,300 deductible, sigh.) Their gutters were also cosmetically damaged⁠—not visible from the ground. They are soon to close on their sale. The damage has been mentioned to the buyers and they have been obliged to put into their closing agreement that they will replace the roof and gutters before closing. They can't delay closing because they will lose their new home on which they have a contingent offer. We don't want them to replace the gutters because they won't match exactly (and therefore it's a breach of the party-wall agreement). We could replace ours too but (a) at a $2,500 cost and (b) new gutters won't match the trim exactly because they're pre-painted so aren't ideal unless essential.

Our neighbors are stuck. They either break the party-wall agreement and keep the closing agreement (and keep new home); or they break the closing agreement and lose the deal and new house. They have to choose the former of course.

Given there is no structural or visible damage to the gutters AND that the buyers have seen the party-wall agreement, I can't believe they really want the new gutters if there is going to be a mismatch. Our neighbors have asked their realtor to explain the situation to the buyers (and said they would give buyers the cash instead). Apparently the buyers insist they want to proceed.

Maybe it's true. But I am skeptical. Do they really understand that (a) the existing gutters are fine; (b) they're going to mismatch our side; and (c) they're forcing something that is in breach of the party-wall agreement. (Allegedly they work in real estate.)

I don't want to do anything to jeopardize our neighbors move, but nor do I want a mismatched house, new neighbors regretting a decision when they move in, starting off on the wrong foot with them. I want the buyers to agree to taking the cash and leaving the gutters alone. If they genuinely don't want to then it is what it is—but I'm doubtful anyone would want that.

I think I should call the realtor (or email or mail) to explain my concerns. Is that the right approach? I'm thinking something in writing is better but they will start work in two days. (My take is that they should never have put something in the closing agreement if it breached the agreement, until they had our consent. Although I wouldn't mention that.) My goal is to have her convince the buyer's realtor that this is a bad idea, assuming there is a realtor. I don't want her to present us as difficult neighbors (we're not!!) and jeopardize the sale.

FWIW, it's a relatively high-end, 12-year old house, in a desirable part of CO. Relevant clauses from party-wall agreement:

No Unit Owner shall make any material modifications to the exterior of a Unit (including roofs) without first obtaining the prior written consent of the other Unit Owner.

In connection with any Repair Work or modifications to the exterior portions of any Unit, the Owner thereof shall replace any finish or other materials removed with similar materials of at least the same quality, such that there is no reasonably observable difference between that portion of the exterior which was repaired or modified and the remaining portions of the exterior.
posted by NailsTheCat to Home & Garden (28 answers total) 3 users marked this as a favorite
How much more would it be to do all of the gutters? Maybe see if they'll cover it.
posted by rhizome at 7:00 PM on June 18, 2019

Response by poster: Roofers estimated $2,500. You mean the realtor cover it? (Insurance won't cover it.)
posted by NailsTheCat at 7:10 PM on June 18, 2019

I know anecdotally that Realtors (or real estate agents) will sometimes cover these types of things to protect the rest of the commission. It depends on a lot of factors.

I'd try to leverage this: such that there is no reasonably observable difference

Can the new gutters be painted to match the old, or vice-versa, for less than the cost of replacing all of them?
posted by under_petticoat_rule at 7:16 PM on June 18, 2019 [2 favorites]

I think you're coming to the realization that agreements are not self-enforcing.

Are you willing to sue your current neighbor over this? If the answer is "no", you should probably give up now - your neighbors have chosen the path of expediency over complete compliance with the agreement. This happens frequently - they are taking the risk of you suing them over the risk of losing a sale or the risk of losing the new house or the cost of fixing both sides. They have to take a risk/cost - they just decided which risk/cost they took.

I'm not sure what you're asking. You could ask your neighbor to replace your gutters at the same time. You might be able to get a discount from the contractor by doing both sides at once. You could send an angry legal letter to your neighbor, which your neighbor may abide by or ignore. However, ultimately it comes down to a cost-benefit analysis on the part of your neighbor as to whether compliance is worth the cost.

Business people of all sorts violate agreements all the time. This is no different.
posted by saeculorum at 7:17 PM on June 18, 2019 [10 favorites]

You mean the realtor cover it? (Insurance won't cover it.)

No: your neighbors.
posted by rhizome at 7:21 PM on June 18, 2019 [3 favorites]

Best answer: The only solution is for your neighbour to replace your gutters at the same time, but to the same quality/colour you have now (which doesn’t sound like the $2,500 priced ones do). I’m sure your neighbours would rather not spend the money (after most likely making a profit on an attractive house your both maintained) but you have a legal agreement. They are choosing to proceed in a way that harms you, and lowers your property’s value after they have extracted *their* money from the joined units.

As noted, you can choose to ignore it *this time*, but that means any future non-symmetrical changes will potentially not be enforced by the current agreement (if you don’t enforce your written agreements they have less legal bearing).
posted by saucysault at 7:25 PM on June 18, 2019 [11 favorites]

Response by poster: Are you willing to sue your current neighbor over this? If the answer is "no", you should probably give up now

Definitely no. Rule #1 is must not risk sale. Nor friendship. I am just incredulous the buyers want this. Consequently, I don't think sellers' realtor has done a good job of explaining things. I think... perhaps... she could persuade their realtor to convince them otherwise. (Why would they want mismatched gutters?)

Yes. Painting theirs to match ours would be an option. Or, yeah. we have to replace ours. Replacing ours because we have finicky new neighbors I could just about accept. Replacing them because a realtor couldn't be bothered to explain it properly.... not so much.
posted by NailsTheCat at 7:31 PM on June 18, 2019 [1 favorite]

Best answer: Your neighbors did you wrong by agreeing to replace the gutters in violation of your party-wall agreement. They clearly put selling their house as a higher priority than maintaining the agreement and the friendship. The only acceptable thing to do, in this case, is for them to offer to replace the gutters so that they either match yours exactly - or replace ALL the gutters, including yours, with a replacement that is acceptable to you.

They threw you under the bus. Why are you so eager to protect them?
posted by stormyteal at 7:40 PM on June 18, 2019 [33 favorites]

Your moving neighbors presumably are going to make more than $2,500 on the sale. They should eat the cost and replace all of the gutters.
posted by Toddles at 7:51 PM on June 18, 2019 [9 favorites]

Replacing the gutters means replacing the gutters to not break the party-wall agreement. That seems pretty clear cut to me. So your neighbors can do whatever is needed to achieve both (the gutters and the agreement) or lose their sale.

Are they willing to lose the sale for $2500? That’s their call, but it seems to this internet stranger to really be that simple of a decision.
posted by cgg at 7:54 PM on June 18, 2019 [2 favorites]

Response by poster: They clearly put selling their house as a higher priority than maintaining the agreement and the friendship

Yes. I appreciate it comes across that way, or even is that way from a high level. I think it's just something that snowballed: they were under contract, then hail damage, they got adjusters to review in advance of any inspection. There's no catastrophic damage so they wanted to offer cash at closing. This was refused though so they had to agree that they would fix it before closing.

At that stage I don't think anyone thought of the party-wall constraints. I feel like the realtor should have -- they have a copy of it. They shouldn't have let them made promises they couldn't keep. All of this would have been fine however until we were adjusted also and discovered our roof should be replaced but our gutters were fine.
posted by NailsTheCat at 8:17 PM on June 18, 2019

They shouldn't have let them made promises they couldn't keep.

You're the only one who is able to keep the sellers from replacing only their gutters. The agreement is between you and the sellers - no one else. Who do you think will stand up for you here? There's literally nothing stopping the sellers from doing this except you. The seller's realtor is certainly not going to act in your interest.

Again - agreements like this are violated all the time. If you're not willing to defend an agreement (by either taking legal action or at least convincing the sellers you are willing to take legal action), the agreement has no weight.
posted by saeculorum at 8:35 PM on June 18, 2019 [10 favorites]

Is there a lot of variance in gutter design in your area? Where I am they are all the same and come in maybe 4 or 5 different colours. So to me the neighbours would be able to replace their gutters with new ones of the same colour and would be on-side the agreement because there would be "no reasonably observable difference" between theirs and yours.

If you have more variety in the design and colour of your gutters this would obviously change but even then I'm finding it hard to understand why they couldn't just put in new gutters that would look the same as the old ones.
posted by any portmanteau in a storm at 8:42 PM on June 18, 2019 [1 favorite]

Response by poster: Is there a lot of variance in gutter design in your area?

I don't think so. So the design would hopefully be similar. The issue is color. The existing ones are sandy tone, painted in the same color as the wood trim they hang against. The new ones will be off-the-shelf in as close a color as they can get. It's not a match. But it's not going to be too far off hopefully. I don't really know what it will look like but, where the gutters actually join for instance, surely it will be noticeable. (But yeah -- it could be that it doesn't end up looking that bad. There's just no way to know.)
posted by NailsTheCat at 8:52 PM on June 18, 2019

Best answer: Your current neighbor got you into this mess. Can you ask them to replace your gutter just across the street-facing side of the house? Then any color transition will happen at the corner of the house and won't be as noticable? Your current gutters will remain on the other side and back of the house.
posted by hydra77 at 8:57 PM on June 18, 2019 [5 favorites]

Best answer: The existing ones are sandy tone, painted in the same color as the wood trim they hang against. The new ones will be off-the-shelf in as close a color as they can get. It's not a match.

Paint the new ones to match the old ones. The onus is on their side to 'make good', not yours.
posted by Thella at 9:12 PM on June 18, 2019 [10 favorites]

Best answer: If compromise along the lines of what hydra77 mentions doesn't work out, you might consider seeing if you can get them to pay a small amount directly to you in damages for their breach. Your jurisdiction could be different, but in some letting something like this go may impair your right to enforce the agreement against the new owners should a dispute arise in the future.
posted by wierdo at 9:13 PM on June 18, 2019

Response by poster: Thanks for all these answers. (They're not what I wanted to hear. But what I needed to hear.) Because I am such a stubborn so-and-so, I think I will call the realtor tomorrow--just to hear her perspective, if I can get in touch with her. My reasoning is that I want to try and stop this monstrosity if I can help it and I think one approach is for someone to say to the buyers, "You know the risks of what you're asking?". (OK--not monstrosity. Maybe unappealing color mismatch, maybe barely discernible discrepancy.)

If that fails (as it no doubt will) then I have some good options above: painting their gutters, partial replace and so on. As well as advice that not enforcing now can impact future enforcement options. Thanks as always hive mind!
posted by NailsTheCat at 9:27 PM on June 18, 2019

You want the gutters to match. The cost of new gutters to match theirs is $2500. But why would you replace perfectly functional gutters?

Get a quote from their gutter installers to paint both gutters with the exact same paint as a combined job. That has to cost much less than $2500 (random internet results suggest painting gutters may cost $2-3 per foot, and you'll probably pay less since they will already be working on the gutters).
posted by reeddavid at 10:18 PM on June 18, 2019 [1 favorite]

So you’re asking “who would do this”, and I think one important aspect is that for some people it would be very hard to see your position on this. Like - it sounds like you’re saying the cosmetic damage to their gutters isn’t bad and so they should keep the cosmetic damage, but the cosmetic damage of the mismatch would be huge enough to be devastating from your side? That doesn’t make sense to me.

When buying a house, some people want all damage fixed, whether it’s visible or not. It sounds like you want them to take the cash at closing - but one of the main reasons to take cash at closing is so they can fix it themselves without being out money. In which case the buyers would be in the same bind, except now you’re suing them, instead of your neighbor.

I don’t think this is a thing the realtor has just failed to communicate- I think this is something that they want.
posted by corb at 3:16 AM on June 19, 2019 [7 favorites]

I'm unclear why you are continually and willfully ignoring the easiest, standard advice that fixes this problem easily: the neighbours pay to replace your gutters along with theirs, in keeping with the party wall agreement.
posted by DarlingBri at 3:23 AM on June 19, 2019 [6 favorites]

If I were the buyer, I would also rather have cosmetic damage fixed before move-in than cash in hand and the lingering knowledge that there is cosmetic damage I may need to deal with later, with all the annoying dealing with contractors and disruptions that involves. I would not be concerned about my half of the duplex matching the other half.

Different people have different priorities. I don’t think there’s any reason to suppose they don’t know what they’re asking. It sounds like you are about to have new neighbors who do not have the same priorities you do about the exterior of your duplex, so this is going to come up again. Why not put your effort into developing a good relationship with them early to help you navigate future differences, rather than starting off your relationship as the neighbor who keeps second guessing them and throwing wrenches into their house purchase?
posted by Stacey at 3:39 AM on June 19, 2019 [8 favorites]

I agree that you should call the realtor and explore a solution. They absolutely should have flagged this and are hoping to get away with it. Your neighbors are already out of there mentally and have shown they aren’t concerned about what this means to you, but the realtor is going to be driven by one thing, impact to their commission. Use that. Even calling and being only a little bit potentially troublesome could win a concession.
posted by Miko at 4:01 AM on June 19, 2019 [1 favorite]

There is also the possibility that this information has not gotten to the buyers at all. We found out after moving into our house that the sellers had wanted an extra month to move out and we also wanted to push out the move in date. Their realtor told ours that they adamantly wanted to move out asap. So, if you can make sure the buyers have actually heard and understood the situation, that might help.
posted by blurker at 7:20 AM on June 19, 2019

Why are you prioritizing the friendship you've developed with the contract-shunning, soon-to-depart neighbors, at the possible expense of a good start with the new neighbors? Your old neighbors shouldn't even be making this gutter business YOUR concern. The conversation ought to have gone, right, the roof replacement due to the hail damage is a given, but we screwed up somewhere along the line in our closing so we will be paying to address all the gutters. We're so sorry for the inconvenience.

Whether that means full gutter replacement, replacing their gutters and paying to paint-match your gutters, or painting all the gutters a new trim-complementary shade, they're on the hook for it, and ideally apologetic for the unexpected work that impacts your day or week.

Don't call the realtor. If anything, you might make the buyers second-guess this purchase because the prospect of sharing a semi-detached house with a micro-manager (again, not on you, not your intention! your neighbors are doing you a disservice giving you the blow-by-blow details, when taking care of the gutters in this instance has become their sole responsibility!) is a turn-off.

The contract has to be enforced now, to protect you and your investment down the line. You adore your friends, and I'm sorry that they're so focused on their new home and not being real wonderful right now.
posted by Iris Gambol at 10:06 AM on June 19, 2019

If you're not willing to defend an agreement (by either taking legal action or at least convincing the sellers you are willing to take legal action), the agreement has no weight.

People here seem to be under the impression that the US Marshals are going to show up and prevent the sale at gunpoint.

My guess is the realtor won't even answer you call. The sellers are betting that responding to your legal action for breach of the contract will be less than $2.5k. The buyers probably don't care either way, and in any case any agreement doesn't concern them.

No matter what you'll likely be replacing your gutters yourself. Whether or not you want to go through the hassle of recouping that replacement cost in via small claims court will be up to you.
posted by sideshow at 10:15 AM on June 19, 2019 [2 favorites]

the Owner thereof shall replace any finish or other materials removed with similar materials of at least the same quality, such that there is no reasonably observable difference between that portion of the exterior which was repaired or modified and the remaining portions of the exterior

As per your agreement they don't need to be identical, just a reasonable match.

Just ask the sellers to paint their new gutter to match the old gutter, problem solved. It's going to be much cheaper for them to paint them than to put new gutters in for you that you absolutely don't need.
posted by lydhre at 12:16 PM on June 19, 2019 [2 favorites]

Response by poster: Realtor called; basically said that it's tough crap now--it's in the closing agreement. If the new ones don't match then we'll cross the bridge then. New gutters installed, they're not a terrible match. It's discernible but foliage helps. We'll live with it.
Thanks all for help.
posted by NailsTheCat at 11:32 AM on July 18, 2019

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