Buyback Guarantee and Legal Advice

Questioner

Buyback Guarantee I have a home with a buy-back guarantee type MVE-C. This means that the housing association guarantees to buy back the home at the appraisal value and that I may only sell the home to the housing association. (The first 5 years there is a division of the difference in value, but that does not apply in this case since I have lived in the home for 10 years.) This value was determined by a real estate agent who also works for Woonstad (also sells houses for the housing association). This value was however significantly lower than the value of houses in the neighbourhood. You can now use a dispute procedure offered by the housing association: `You can use the dispute settlement procedure if you do not agree with the value as determined by the appraiser. You must then have the property appraised at your own expense. The two appraisers will appoint a third appraiser together. The third appraiser will determine a value. A definitive value will then be determined jointly, which is binding for the repurchase.` This is what I did. Both my appraiser and the 3rd appraiser (approved by both parties) arrived at a higher amount. This should be good news, if it were not for the fact that the 3 appraisers have to come to a final value together. I received the following message about this: 'If the 3 appraisers cannot come to an agreement, 3 new appraisers will have to be appointed (you, us and jointly). ' This means that the appraiser from the housing association will only sign if the value is reduced (between the first bid and the appraisal value). So now I have the choice to either accept the lower offer or start a new dispute procedure. Which is not a choice, because even if the new procedure would result in a higher amount, I will have lost the profit in the meantime to the costs I have to make (estate agent fees, mortgage and other costs for the house because it will be sold later). In addition, the appraiser of the housing association will again go for a lower value, which means that I will always have to sell my house below the appraisal value. The housing association brochure states: `Of course the value is determined by an independent appraiser.` Now, based on this course of events, I do not think that this is done by an independent appraiser. This appraiser gets work from the housing association and refuses to sign the new appraisal. A value that has been determined by 2 other appraisers (not connected to the housing association). Is there anything I can do about this? Or am I forced to sell my house below the appraisal value? Thank you in advance,

Lawyer

If I read it correctly, it says that the third appraiser determines the value in a binding manner. It does not say anywhere that the appraisers must agree. So I do not understand why the housing association now requires the appointment of three new appraisers. If it is as you write, I would hold the housing association to the valuation by the third appraiser. However, if the intention is that the parties must come to a valuation after the third appraiser has given his view, then the dispute resolution on this point is actually worthless because the housing association can always force through its own way via 'its' appraiser. So you won't get anywhere.

Lawyer

The dispute resolution is very poorly drafted. Incidentally, I read the provision differently than my colleague Mr Van Binsbergen. At the end of your quote it says: After that, a definitive value is jointly determined that is binding for the repurchase. It is then not just the third appraiser who determines the value. The question is, however, who/what should be understood by 'jointly'. The 3 appraisers jointly? That is strange. It is customary that if the first two appraisers cannot reach an agreement, they jointly appoint a third person who makes the final decision (as my colleague also read the provision). I think you have a good chance of winning that in court. However, I don't think you want to let it get that far. But a substantiated letter from a lawyer can help a lot. Please feel free to contact me for consultation. How much money is involved by the way? That is of course also important in connection with the cost/benefit assessment for a dispute procedure/lawyer costs.

Lawyer

The relevant part of the provision reads: '(..) The two appraisers will together appoint a third appraiser. The third appraiser will determine a value. Thereafter, a final value will be determined jointly, which will be binding for the repurchase (..). The provision in the first two sentences has been made. I agree with Mr. Doomernik that the meaning of the provision in the last sentence is unclear. Although this is not customary in the case of the parties' appraisers jointly appointing a third appraiser, it seems to imply that the three appraisers must jointly arrive at a definitive binding value. It is not very likely that this was the intention of the parties. In that case, the two appraisers could have arrived at a definitive value themselves. The involvement of a third party makes everything unnecessarily complex. That this was not the intention is evident from the fact that nothing has been arranged for the eventuality that the appraisers cannot reach an agreement together. I therefore advise you to adopt the position that the regulation must be read in such a way that the third appraiser establishes a binding value and that the housing association is therefore bound by the opinion of the third appraiser. You must also summon the housing association to purchase the home at that price and to cooperate in drawing up a purchase agreement and the delivery of the home. If desired, I am happy to help you with this.