Seller refusing to close or give notice to tenant (tenants, contingent, agent)

[GAndy12]

Hey folks,

I've been involved in a total bummer of a situation and wanted to see if anyone had ideas. I apologize in advance for the wall of text.

We were / are in the process of buying our first home in Massachusetts. After a two year agentless search, we found a place, selected an agent, and made an accepted offer.

The basic timeline goes something like:
1. Prior to our offer last November, we were told that there was a tenant, but that the property could be delivered vacant. At the time, we didn't know (or particularly care about) the terms of the lease, and later found out it was a verbal month-to-month for about $600 under market. It wasn't listed as having tenants on the MLS and it only mattered that it was uninhabited when we moved in.

Our agent didn't see the need to put down that the property *was* to be delivered vacant on the offer. She's a 25+ year veteran and we trusted her, perhaps a bit too much. We all should have known better, but she *really* should have known better.

2. Offer accepted, with a prospective closing date of 1/31/11.

3. After home inspection, sellers don't want to give tenant notice, breaking our owner occupied mortgage.

4. Sellers verbally agreed to deliver the house vacant. We have a P&S (sadly, unsigned) sent by their lawyer that stated that the house would be delivered vacant.

5. Sellers want to push vacant closing to 3/1. We agree.

6. Sellers won't sign P&S.

7. Sellers want to push closing back several more weeks, breaking our financing.

8. We agree to take care of the financing again and push the date back.

9. Sellers refuse to sign P&S again.

Today, they came back and said that the tenant won't be out until August 31st. They are refusing to give him notice. Realistically, the tenant is leaving the area in October, so I'm sure he plans on sticking around until then.

I know I probably should follow the advice of our lawyer and bail ASAP.

However, there are a few contributing factors:

1.) In the two years of looking, it is, by far, the nicest thing going in our price range. We have both a low budget and are in a rural area with very limited inventory. There have been no sales in our price range since 2010.

2.) We've got some substantial sunk costs. (Inspections, lawyers fees, and the title search that our real estate agent ordered two weeks ago)

3.) We're totally unhappy with how we've been treated. I'm not saying that it's pyrrhic victory time, but I don't feel so far away.

Does anyone have any experiences with forcing the issue of specific performance? ...or, more pleasantly, perhaps any additional ideas to make the best of the situation?

Thanks for any thoughts.

Best,
Andy

[CSD610]

Why would you continue to wait and change things for a home just because the seller does not want to get the tenant out? The tenant is not the one buying the home you are, who cares if it is an inconvenience for the tenant. What about your inconvenience? What about the time and money you have already had to spend and invest in all the changes? Who is this realtor? Do you seriously want to give your money to owners who are more interested in their tenants convenience than your money and do you seriously want to give the realtor a commission even though she seems to be working for the seller and not you even though YOUR MONEY PAYS HER.

You are crazy if you continue with this nonsense. I would never trust a seller who is more interested in their own agenda and their tenants convenience or a realtor who is blatanly not working for you and your best interest.

I would also have the attorney draw up papers and send the realtor and the sellers a bill to pay all of the fees you have already paid including your attorney's fees AND additional monies for breach of contract and emotional stress (if that is legal).

[GAndy12]

Thanks, CSD.

You're totally right on all counts.

We've put up with too much so far. I can't imagine a realtor worse than ours. She's a charming old lady and we fell for the act.

I think going back and asking for our fees plus a justifiably large sum for breach of contract if they want out is a good possibility.

[CSD610]

I truly dislike seeing others being taken advantage of. There are other homes and if you do wait and purchase this home in the end you may regret the purchase and the home just because of all the hassle. You want to move into a home that is warm, welcoming and inviting and just feels like "Home" not just a "house". Good luck with this situation I wish you all the best and many blessings throughout your lifetime.

[hueyeats]

Time is money.... enough said.

[manderly6]

Move on with your life. If you haven't found another house in a year check back and see if it is still for sale and if there are still tenants in it.

[MikePRU]

Originally Posted by GAndy12

Thanks, CSD.

You're totally right on all counts.

We've put up with too much so far. I can't imagine a realtor worse than ours. She's a charming old lady and we fell for the act.

I think going back and asking for our fees plus a justifiably large sum for breach of contract if they want out is a good possibility.

While I agree that you have been completely taken advantage of and should take a tougher stance, you'll have little to no chance of getting anyone to compensate you for the money you've laid out so far.

When it comes down to it, you have no case for breach of contract. The standard offer form that Realtors in MA use says that the offer is contingent upon the execution of a mutually agreeable P&S by X date. All the sellers have to say is that they didn't like the P&S that was drafted. While I appreciate CSD's wanting you to be made whole I don't think she's being realistic with her expectations for you. If you do decide to stay in this contract, I would want it added in to the P&S that the seller will give you a closing credit equal to the amount which their delays have cost you.

At this point, I would say put your foot down and tell this guy to fish or cut bait. I imagine the attorneys have extended the P&S execution date to a particular day and if it's not done at that point then I would advise cutting your losses and moving on. If you do walk away, you might want to consider a new Realtor. I don't know why this agent is ordering a title search for you. I've never heard of such a thing. Find an agent who's going to be pushy for you since you have not been pushy to this point.

[GAndy12]

Thanks for the advice, all.

Mike: Two weeks ago, without our knowledge, our agent called our attorney, told him we *would* be closing soon, and had him order the title search.

I think you're right and it's time to go.

Interestingly, as an aside with regards to the breach of contract, our signed offer to purchase states: If the parties are unable to agree on the purchase and sale agreement, then this agreement shall become the binding agreement between the parties.

[MikePRU]

Originally Posted by GAndy12

Interestingly, as an aside with regards to the breach of contract, our signed offer to purchase states: If the parties are unable to agree on the purchase and sale agreement, then this agreement shall become the binding agreement between the parties.

Interesting! My offer forms do not have that verbiage. I wonder where your Realtor is sourcing her forms from. Regardless, if I recall correctly, I don't believe you can sue for breach of contract but could sue for performance. Of course, I'm not an attorney. Either way, I'm sure you'd end up with a bigger legal bill than it's worth and lots of headaches.

[sware2cod]

you can close on the house and then give the renter 30 days notice to move. If renter does not move by then, do not accept any rent payment and evict. Find out how fast a laywer can evict in your state. Your lawyer could give advice on this option. It will cost you more money. once you close, you are a landlord and you have to follow all laws on getting renter out. Did renter pay a security deposit? if yes, then the landlord/owner must pass this to you at closing.

I wonder if there is an annual lease that landlord is not telling you about. Why else would they allow tenant to stay until August. If there is an annual lease, then you are stuck allowing tenant to stay until then.

You could always extend your contract date until August. how would that work for you?