Posted on 11/19/2003 7:56:03 PM PST by Per-Ling
I'm active duty military displaced between duty stations and was under contract to by a house. My pregnant wife and 3 year old son are living in a cramped hotel room. The seller, one week away from the closing date and after a conference with God has decided to pull out of the contract. What recourse do I have? Does he HAVE to sell because he's under contract? Can I sue for lodging expenses, food and sundry items due to his prolonging of my homelessness? Please Help!! (I'm in Georgia, if that helps you lawyer types)
Not only do they not know the law, most are chickens. The seller tried to back out on the sale of the house I'm sitting in right now, after the contract was signed. I jerked him up by the short hairs and had the house in a week. The real estate agents involved were appalled that I was so aggressive, but I was right.
Buyers are usually the ones to renege, not sellers, which is one reason so few people know the rules on this issue.
Call a lawyer...Fast!
Seriously, call a local real estate office and ask if they'd be kind enough to recommend a real estate lawyer in the area. You might have to pay $100 for a consultation, but I'd say it's worth it.
DO NOT rely just on what the real estate agents (or us, for that matter) tell you. They are legally obligated to the SELLER, not the buyer. Get thee a lawyer, pronto. (I am not a lawyer).
I'd consider this house gone and would be wary if they turn around and tell you the deal is back on. Anybody got a ping list for Georgia? Maybe there is a FReeper that can offer you a temporary rental unit.
Maybe. If you or your realtor have done a good job of drawing up the purchase and sale agreement, so that it covers all 15 issues necessary to make a real estate purchase and sale agreement specifically enforcable, then you can have a court force the owner to sell you the property. Also, if the purchase and sale agreement provides for it (and they usually do) you probably could force the seller to pay your attorney's fees--which is a good thing, if the seller has some asset from which you can force him to pay.
If you have not completely filled out and had both parties sign the purchase and sale agreement, you cannot specifically enforce it, but might have a claim for damages. Again, you might be able to get attorney's fees.
But if there is some contingency in the purchase and sale agreement that has not yet been met, that involves any kind of discretion on the part of the seller, then you probably have no claim.
Find at least two attorneys between about 10-20 years out of law school whose practice involves real estate. Ask them if they will meet with you briefly to look at your purchase and sale agreement and see what kind of claim you have (many will be willing to do this for free). Drop off a copy of your purchase and sale agreement in advance, so they can spend 5 minutes reviewing it before your meeting. You will have a lot better idea about where you really stand.
Final word of advice--be realistic about the value of not dealing with lawsuits and attorneys.
Just be sure that you understand that the realtor's lawyer represents and protects them and not you.
Since you are active duty, you might be able to get some assistance from the JAG's office. You are better off with a specialist in real estate litigation, but if money is tight, see what the JAG can do for you.
Good luck. And thank you for your service.
Your real estate agent should ask his broker for help. There should be some kind of language in the contract to force the seller to honor the contract as long as you have followed your part of the contract. You might have a case to sue both the seller and your agent if you weren't properly protected.
First the usual disclaimer. I am not a lawyer.
My wife and I purchased a second home twenty years ago in Kalifornia. We refinanced our residence to pay for it.
This put us in the position of having a check in the amount of our life savings which we were expected to turn over to the escrow company.
Just a week before closing, the seller threatened to back out because the seller had become responsible for a third mortgage of which the seller had been unaware.
This occurred on a Friday and our money was due by the terms of the purchase agreement the following Monday. Another poster has hinted at some of the possibilities when one party to a transaction fails to honor their commitments. In our case it was possible that we could find out that the place was ours after having taken steps based on the opposite expectation. It was important to know where we stood legally.
I obtained the textbook from our local junior college for their course in real estate law. I read the entire textbook in a weekend.
The most relevant part of it was the description of what constitutes "title" and the criteria for title to pass from seller to buyer.
From my recollection, "title" to real property in Kalifornia consists of possession, full use, and the right to exclude others, among other things.
Again, as I recall, "title" to real property in Kalifornia passes from seller to buyer at the moment that the seller delivers to the escrow company a signed deed to that effect. This would normally happen very late in the escrow period, but it would not be "at closing". The day of closing is that day when all funds can be disbursed because all conditions by all parties have been satisfied and funds exist to satisfy all parties.
Based on this understanding of Kalifornia law, my wife and I decided to proceed with the sale despite verbal threats by the seller not to proceed.
Since our seller had already delivered a signed deed to the escrow company, we were already the new owners of the property. The only thing the seller could still dispute was whether he would accept our money from the escrow company and whether he would agree to be excluded from the use of the property by us, the new owners.
I gave the real estate agent instructions, witnessed by the escrow officer, to take possession of the property on the last day of escrow, to assure that the seller and all his belongings were removed from the property, to change the locks on the doors and retain the keys on our behalf, and only then to allow recording of the closing documents.
We have now owned and enjoyed this property for twenty years. I was prepared to take possession of the property regardless of the sellers actions. I was prepared to confront the seller until the seller made plain that he would not surrender the property. I was prepared to call the police and have the seller arrested as a trespasser if the seller did not leave.
Laws vary from state to state. The buyer needs to know what the law is in Georgia.
One thing for the buyer to keep in mind is that the escrow company is not going to close the escrow until all parties agree that it should be closed. If the buyer does not agree to close the escrow, then I believe that escrow will stay open. There is no way for the seller to open a new escrow for a different buyer if there is already an escrow open. It may be necessary to record something at the county recorder's office, but any new buyer will be unwilling to buy this property with such a "cloud" on the title.
If the seller really is hearing messages from "God" then it may be that the seller is incompetent. If that is the case, then it may be best to just find a way out of the transaction with as little loss as possible. Contracts against incompetents are typically not enforceable.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.