Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
Consult an attorney as agents are not permitted to provide you with advice as to you legal rights and recourse. The things to look for if you are a DIY type are whether you have the right to pursue specific performance, as was mentioned, and/or damages. Just because it doesn't say in the contract that you have those remedies does not mean that you don't.
As a practical matter, the conventional wisdom is that isn't usually worth your time to pursue the buyer even if you have the right to do so. If you got a particularly good deal with this buyer, or your house has a very high value, that may not be the case.
Also check your contract for a provision that awards attorneys fees to a party who is successful in a lawsuit over the contract.
Best of luck.
Ohh? Kindly cite the Nevada Statute would you Willy?
What agents can and can't supply is generally a matter of State Law...you know that, right Willy?
The only one I can imagine referring such a matter to a lawyer would be...well a lawyer...
Small claims stuff Willy..Equity courts. Don't mislead people...
Ohh? Kindly cite the Nevada Statute would you Willy?
What agents can and can't supply is generally a matter of State Law...you know that, right Willy?
The only one I can imagine referring such a matter to a lawyer would be...well a lawyer...
Small claims stuff Willy..Equity courts. Don't mislead people...
I may be misinterpreting your post olecapt, but .....
No state permits a Realtor to give legal advice unless that Realtor is also a lawyer licensed to practice in that state. Thus, a Realtor who is not a licensed atty should advise his/her client(s) to seek legal counsel in matters pertaining to contract law and its relevant legal rights and remedies. Even if the purchase contract addresses the issue with specificity, e.g., forfeiture of deposit as remedy for buyer's breach, the underlying facts of each individual case may give rise to additional causes of action and remedies other than liquidated damages. Lastly, actions for specific performance of a real estate purchase contract are outside the jurisdiction of small claims courts due to the monetary value at issue.
I may be misinterpreting your post olecapt, but .....
No state permits a Realtor to give legal advice unless that Realtor is also a lawyer licensed to practice in that state. Thus, a Realtor who is not a licensed atty should advise his/her client(s) to seek legal counsel in matters pertaining to contract law and its relevant legal rights and remedies. Even if the purchase contract addresses the issue with specificity, e.g., forfeiture of deposit as remedy for buyer's breach, the underlying facts of each individual case may give rise to additional causes of action and remedies other than liquidated damages. Lastly, actions for specific performance of a real estate purchase contract are outside the jurisdiction of small claims courts due to the monetary value at issue.
What is legal advice?
RE Agents in Nevada and other places in the West routinely right clauses into contracts that would be considered practicing law in many jurisdictions in the east.
Lawyers are an integral part of the real estate selling process in much of the east. They play almost no role in the west. Whatever they are doing in the east gets done in the west. So somebody is obviously practicing law in the west by eastern standards.
Most western contracts ban specific performance against a buyer if the proper clause is checked in the contract. So damage is virtually always limited to earnest money. Those are almost alway in reach of small claims court.
The practical result is that you advise the client that the contract provisions are such and so. You might also point out that the number of successful cases against buyers for specific performance on a normal house in the last ten years can be counted on the fingers of one hand with digits left over.
You then point out that if they want a definitive answer they should talk to a lawyer who will likely tell them the same thing for $150. If they are interested you suggest a couple of lawyers who do that stuff.
Note that the generic lawyer in the west has virtually no real estate experience. You need a specialist. And they charge money.
And sure a clever lawyer can get around a well drafted contract specific. About 1 in 100 tries? That high? It is a futile mission and virtually every lawyer will tell you that...and point out that if you lose you almost certainly will pay the other sides legal bills...which are likely to be vastly more than the amout at issue in these cases.
Lawyers have there place. But it is not in routine disputes over RE earnest money.
Ok, since I'm in Florida I guess I could try to tackle this one. First off, we have 4 or so 'standard' contracts we use here. Which one was used in your deal? It makes a difference.
And.. why are you losing your escrow deposit on the house you went into contract on?
Didn't you have it contingent on the successful closing of the house you presently own?
If not, don't ever do that again.
Olecapt, you're correct that state laws need to be consulted. In Texas, for example, an agent would be breaking the law if they tried to explain the legal effect of the contractual provisions to their client. They would also be breaking the law if they suggested, in any way, that an attorney was not needed.
You are doing a disservice to the public to characterize this type of dispute as a routine dispute over earnest money. First of all, the seller's entitlement to the earnest money is typically clear, so that is not what the dispute is about. Secondly, it's not routine for the seller who may have their most valuable asset tied up in this mess. And finally, contractual disputes are exactly the time to consult lawyers. Particularly since you have graciously pointed out the provision that lets the winner recoup their legal fees.
Finally, you have made several references to the better way of doing it out west. Great for you all. Where is the location of the OP's dispute?
NRS 7.285 Unlawful practice of law; criminal penalties; initiation of civil action by State Bar of Nevada.
1. A person shall not practice law in this state if the person:
(a) Is not an active member of the State Bar of Nevada or otherwise authorized to practice law in this state pursuant to the rules of the Supreme Court; or
(b) Is suspended or has been disbarred from membership in the State Bar of Nevada pursuant to the rules of the Supreme Court.
2. A person who violates any provision of subsection 1 is guilty of:
(a) For a first offense within the immediately preceding 7 years, a misdemeanor.
(b) For a second offense within the immediately preceding 7 years, a gross misdemeanor.
(c) For a third and any subsequent offense within the immediately preceding 7 years, a category E felony and shall be punished as provided in NRS 193.130.
3. The State Bar of Nevada may bring a civil action to secure an injunction and any other appropriate relief against a person who violates this section.
(Added to NRS by 1963, 385; A 1999, 1333)
********************************
Point out the part where it states interpreting a contract clause for a client is practicing law please.
Point out the part where it states interpreting a contract clause for a client is practicing law please.
Olecapt, I do not have the time and energy to explain the legal system to you in detail, but suffice it to say that there are laws, and there are cases interpreting laws. The American legal system does not codify every interpretation.
Nevada, like many states, does not have a single codified definition of "the practice of law." Instead, it is reviewed on a case by case basis. In general (http://www.nvbar.org/Ethics/ethics_articles.htm - broken link), in Nevada, "when a person relies upon your judgment and opinion in relation to their legal rights or obligations, you are practicing law."
I can only imagine that you don't like that answer, but there it is.
I wouldn't be overly confident that, just because it has gone on for awhile without prosecution, that you have nothing to worry about. Multiple convictions can result in a felony.
Olecapt, I do not have the time and energy to explain the legal system to you in detail, but suffice it to say that there are laws, and there are cases interpreting laws. The American legal system does not codify every interpretation.
Nevada, like many states, does not have a single codified definition of "the practice of law." Instead, it is reviewed on a case by case basis. In general (http://www.nvbar.org/Ethics/ethics_articles.htm - broken link), in Nevada, "when a person relies upon your judgment and opinion in relation to their legal rights or obligations, you are practicing law."
I can only imagine that you don't like that answer, but there it is.
I wouldn't be overly confident that, just because it has gone on for awhile without prosecution, that you have nothing to worry about. Multiple convictions can result in a felony.
Explaining a contract clause need not be a legal matter. It could be but normally is not. If it's earnest money a competent agent should be able to deal with this w/o a problem. Everyone understands attorney's have their place but not every contract dispute needs an attorney.
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
