Opinion
11-12-2020
Phillip Witter and Janet Witter, Plaintiffs, v. Daniel Nitschke and Erin Nitschke, Defendants.
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In this small claims action, plaintiffs sold residential property to defendants, then remained on the premises pursuant to a post-closing occupancy agreement. Plaintiffs claim that they surrendered the property in broom-clean condition, and are entitled to release of a $2,000 escrow deposit.
Defendants filed a counterclaim seeking $400 of the escrow deposit to reimburse them for the cost of having the premises professionally cleaned. A hearing to consider the claim and counterclaim was held before the Penfield Town Court. Plaintiffs and defendants appeared without counsel.
FACTS
Plaintiffs Philip Witter and Janet Witter entered into a purchase and sale contract with defendants Daniel and Erin Nitschke for residential property located on Saint Ebbas Drive, Penfield, New York (Plaintiffs Exhibit 1). Plaintiffs were represented by attorney Michael Santariello. Defendants were represented by attorney Anthony Iacovangelo.
The parties agreed that plaintiffs, the sellers of the property, "shall have the right to retain possession for 18 calendar days after closing " The contract further provided that the property shall be in "broom-clean" condition at delivery of possession to the buyer. A post-closing occupancy agreement (Plaintiff's Exhibit 3) specified that the sellers shall be permitted to remain in possession of the property until August 28, 2020. It further specified that the sellers shall deposit the sum of $2,000 upon the signing of the agreement which shall be held in escrow by seller's attorney.
Plaintiffs surrendered the property on August 28, 2020. Plaintiffs Philip and Janet Witter both testified that the property was in broom-clean condition, as required by the contract. Plaintiffs introduced several photographs to support their claim. Plaintiffs seek the release of the $2,000 held in escrow.
Defendants Daniel and Erin Nitschke both described the property as "filthy", testifying that they observed hair in the bathrooms, dust and crumbs in the kitchen drawers, and cob webs and a dead fly on a window sill. Defendants introduced several photographs to support their claim. Defendants further testified that they found it necessary to hire a professional cleaning company to clean the property before they moved in. The invoice from the cleaners indicates that the kitchen and three bathrooms were cleaned at a cost of $400 (Defendants Exhibit O). Defendants do not oppose the release of $1,600 of the money being held in escrow to plaintiffs, but seek a judgment entitling them to retain $400 as reimbursement for the cost of cleaning the property.
LEGAL ANALYSIS
Small Claims Court is designed to provide litigants with a simple, informal and inexpensive procedure for the prompt determination of claims (Uniform Justice Court Act § 1802). Although procedural rules may be relaxed, cases must be decided according to the rules and principles of substantive law (Uniform Justice Court Act § 1804).
Here, the parties negotiated a contract provision providing that the property shall be in "broom-clean" condition at delivery of possession to the buyer. Although the term "broom-clean" is not defined in the contract, it is commonly used in real estate contracts. The obligation to surrender premises in "broom-clean" condition has been interpreted to require that the premises "be free of garbage, refuse, trash, and other debris at the time of surrender" (Tobin v Gluck, 137 F Supp 3d 278, 299 [ED NY 2015]; 74 NY Jur 2nd, Landlord and Tenant § 234).
Courts have concluded that property is not "broom-clean" if the sellers fail to remove their possessions from the premises. Thus, to satisfy a "broom-clean" condition the seller is required to remove property such as furniture and appliances, as well as debris such as empty paint cans from the premises (see Bernstein v Engel, 4 Misc 3d 144 [App Term 2004], where the court held the premises were not broom-clean because the tenant left furniture in the apartment; see also Samuel Z. Karp v S.E. & K Corp., 67 AD2d 635 [1st Dept 1979], where the court held premises were not broom-clean because the seller left salvage goods which the buyer had to hire a private carrier to remove). Here, there is no serious allegation that plaintiffs failed to remove their possessions from the premises. The evidence revealed that plaintiffs left a few pots and pans and one tray of silverware in the kitchen. This is clearly a de minimus violation not warranting an award of damages.
The closer question concerns the cleanliness of the premises. While a buyer would certainly prefer that a house be professionally cleaned and move-in ready at delivery of possession, there are no cases suggesting that a "broom-clean" condition requires the seller to have the premises professionally cleaned before vacating. The cases where the court has found sellers responsible for the cost of professional cleaning have been rather extreme. For example, In Tiberio v Barber, 19 Misc 3d 1123 [2008], the court concluded that the sellers failed to meet the broom-clean condition, finding that the premises were in "a deplorable, disgusting and revolting state." Specifically, the evidence in Tiberio showed that when the buyers moved into their home they were greeted by the sight of a cat litter box loaded with fecal matter. The basement reeked of cat urine. Under those circumstances, the sellers were required to pay for the cost of having the property professionally cleaned. Here, defendants testimony, which included complaints that there was hair in the bathrooms, dust and crumbs in the kitchen drawers, and cob webs and a dead fly on one window sill, falls short of the type of conditions that would require the plaintiffs to reimburse for the cost of professional cleaning.
In short, "broom-clean" does not impose the duty on the seller to have the property professionally cleaned. Where the parties agree to a "broom-clean" condition, the buyers should anticipate that they may need to hire professional cleaners before moving in. If the buyers desire to have the property professionally cleaned at delivery of possession to the buyers, the buyers need to negotiate a "professionally clean" condition, rather than a "broom clean" condition. Where the contract includes a "professionally clean" condition, the buyers may reasonably expect that the premises will be truly move-in ready.
It is a fundamental tenet of contract law that where parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms (159 MP Corp v Redbridge Bedford, 33 NY3d 353, 358 [2019]). The court may not void a provision of a contract merely because it appears unwise or violates the courts subjective view of fairness. The court's function is to enforce contracts unless they clearly contravene public policy.
Here, the court is satisfied that plaintiffs met their contractual obligation to surrender the premises in "broom-clean" condition - free of garbage, refuse, trash, and other debris.
Accordingly, plaintiff's request to compel the release of $2,000 from the escrow account is granted (see Ross v Friedman, 269 AD2d 584 [2nd Dept 2000] small claims court may compel the release of money from an escrow account). Defendants' counterclaim seeking $400 from the escrow account to reimburse them for the cost of cleaning the premises is dismissed.
This constitutes the decision and judgment of the Court. Dated: November 12, 2020 James P. Mulley Jr. Penfield Town Justice