What would you do in this situation...? - Posted by RobertMD

Posted by E.Eka on October 16, 2003 at 12:34:29:

Yes you may be in default. It’s something called the Parol Evidence rule. Evidence of verbal Subsequent modifications to a written contract are inadmissable. So you can’t sign something that says one thing, and then verbal agree with the seller another thing that contradicts the terms of the written contract.

What would you do in this situation…? - Posted by RobertMD

Posted by RobertMD on October 16, 2003 at 24:37:44:

I had made an offer on a house that has been sitting vacant for a few months. I have already done inspection, appraisal… and we were just a week or two away from closing although no definite date was ever set. Seller wrote on the contract that he would like to close earlier than usual.

I had asked seller for closing help, which he fully accepted. The seller was honest and disclosed everything he knew about the property…

Anyway, my agent faxed over the inspection contigency report a few days ago listing about 20 things to fix, including even minor things such as patch and paint.

The seller’s agent responded rather quickly (
verbally) saying that he heard from seller that he’ll fix most things but awaiting the estimate for the repairs for the major electrical and ventilation work.

The inspection clause says he must respond within 3 days. Although he responded verbally and began most of the repairs within 3 days, on the 5th day seller’s agent called my agent with the surprising news.

The seller’s agent said that seller’s wife lost her job and that they have been going into a financial struggle, which means they can no longer afford to make the heavy mortgage payments in their other home so they want to move back to the house which I was supposed to move in to. They’ll either sell or rent their other home.

When the seller’s agent called, my agent went hysterical and practically yelled at the other agent saying that he doesn’t care about seller’s situation and that 1) the seller has signed a legally binding contract, 2) is responsible for paying the commission for bringing a buyer, and 3) subject to a possible lawsuit for being in default.

The seller’s agent says he’ll ofcourse return the deposit and will ask seller if he’ll refund the out of pocket expenses that I had incurred so far.

I also heard from the seller’s agent that the estimate of repairs came in higher than the seller had expected, so he can’t afford to fix those things due to higher than expected estimated repairs. (around $1500 ~ $2500?)
I believe the contract says that the seller is responsible for fixing electrical, mechanical, and plumbing related issues.

Sellers Agent says that he responded within 3 days and clearly told us that seller’s awaiting estimates for repairs, hence the reason for total of 5 days, or 2 days late. The inspection contingency does say that both parties may withdraw, but only if responded within 3 days and if it’s not related to the electrical/plumbing/ issues.

Anyway… I’m dragging on and on. I really like that house but not sure what the right thing to do is…
Do I have a case in court or am I wasting my time?


Re: What would you do in this situation…? - Posted by Nate(DC)

Posted by Nate(DC) on October 16, 2003 at 17:56:08:

If you really like the house, why not ask the seller to give you an option (or right of first refusal) to buy it at the agreed upon price, whenever they get back on their feet?


Re: What would you do in this situation…? - Posted by E.Eka

Posted by E.Eka on October 16, 2003 at 10:00:05:

DId the contract say that one of the parties must repsond in WRITING by the 3rd day? If the method of response is left out, and you admitted that the seller responded in the alotted time, the seller is not in breach in that regard. However, renegging on the sales contract is another matter. You can sue for specific performance among other things, but is that what you really want to do to a couple whose wife just lost her job? Maybe you can work out a settlement in order to avoid the headache of court, lawyers etc.

Re: What would you do in this situation…? - Posted by Mike (MI)

Posted by Mike (MI) on October 16, 2003 at 08:02:43:

Are they currently living in the other home? Would they be willing to cut you a deal on that one (Maybe a L/O for what is owed and enough to cover their payments as rent) The other house sounds more expensive, but maybe you could work something out there.
They are not going to be able to make 2 house payments if they are struggling financially.
When life deals you lemons…make lemonade.
Good Luck,

Re: What would you do in this situation…? - Posted by ken in sc

Posted by ken in sc on October 16, 2003 at 08:02:25:

This is a time for talk, not threats or lawyers. The Seller does seem to be in a hard position. How about offering to take the repair amount off the price, thus he does not have to come out of pocket, or maybe give you a repair allowance at closing? I would set a meeting with the seller, sit down and have a discussion. If you have to, you can at least get your cost back, you know that as he has already offerred it. But you mey be able to salvage the deal with a calm discussion. Your agent is not doing you any favors by quoting the law and yelling. This is when you may be able to win by being creative. At least you wont lose anyting but time.


Re: What would you do in this situation…? - Posted by Dimpil

Posted by Dimpil on October 16, 2003 at 05:39:30:

Yes you can sue but aren’t there other homes? You agent is more then likey worried about losing his fee vs. finding you a new home to purchase. Have him return your deposit and out of pocket and move on.

Re: What would you do in this situation…? - Posted by BrokerScott (Mich)

Posted by BrokerScott (Mich) on October 16, 2003 at 05:22:14:

You would need to check with your lawyer. Do you have a case? Well maybe, BUT, do you really want to persue it? If the seller’s hard luck story is true, you would come out looking like a shrew. If you can get them to compensate all you actual out of pocket expenses, you might be better off being gracious. On the other hand if they end up selling to someone else, just for more money, I’d sock-it-to-em. Have that contingincy written by your lawyer and agreed to in writing. I’ve had deals blow up, as has nearly everone. I figure that it’s easier to go find another than fixate on one particular property. Best, Scott

Deposit Issues… Can they do this? - Posted by RobertMD

Posted by RobertMD on October 16, 2003 at 12:13:12:

Seller’s agent says that I may also be in default because original contract says that I agreed to put a deposit in the escrow of the amount $10,000
but I have only given the seller’s broker total of $5000.

I looked at the original contract and it really does say that I agreed to $10000 because that’s the amount i gave to my agent… not sure why broker only has $5000… my agent says the seller’s agent verbally said 5000 should be enough.
There seemed to be some discrepency about this issue.