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still blows my mind when I see hime inspection addenda from other parts of the state/country, compared to my area. the lawyers hired to write our stuff must have been on their game.
]Anything delivered to your agent is deemed as delivered to you,[/b]
while I agree, I could also state that it would depend on what the delivery is of. On my local contract, for HOA/Condo disclosure association documents, delivery occurs to wherever/whomever is listed (and hereby agreed upon by initials by both parties on that page. I typically place my email address for this situation, so that I receive those docs ASAP (although some associations are not up to speed on electronic delivery of docs, but I digress..
this way, I A. have a copy to review (for violations, discprencies, financial shortcomings etc), and B. also I have a record for future access should a client misplace their copy. This also allows an almost immediate transfer to my clients (husband and wife, separate emails most of the time) to start the 72 hour window we allow for review.
That's what I'm wondering too. If the agent received it on the first, at least out here, that is the same as the seller receiving it on the first which would comply with the 10 days. Clauses work together in contracts so you need to read what your contract says about mutual acceptance and when the clock starts ticking for timeframes. Out here, our day 1 is the next business day after the contract has been mutually accepted.
I'm also stunned that it took 3 days to get you things. Especially since it fell on the day the contingency ended.
Personally, I think you have an uphill battle getting the EM, but I do encourage you to chat with your agent about their delays in getting you documents. It might not be the buyer being out of contract, but your agent failing in their fiduciary duties to you. Hiring a bad agent isn't reason to get the earnest money.
agreed. I bang my head everytime an agent tries to strong arm me because our home inspection list of repairs came over on day 10 (day 11 in their mind lol).. even though our main contract lists a date of ratification, and earlier in the same main regional contract it clearly states that (other) than specified dates physically selected and inputted pertaining to financing/appraisal/termite/whatever, everything goes into effect the first day AFTER the ratified date.. it's embarrassing sometimes that brokers don't implore this detail with the money makers they just hire and hang licenses in on a conspicuous wall in their office.
next step then.... OH, there's an HOA? Go ahead and send me those HOA docs then, I hope I dont find 1 singular thing in there that would cause concern for my client to not feel comfortable moving forward.....
hate pulling that card, but it's legally there to pull
The repairs were listed in a written agreement that the buyer and I (the seller) signed within the 5 day time frame follows the end of the inspection Contingency Period. So, if Understand your explanation, this written agreement became a firm complete contract because I agreed do the repairs that the buyer requested.
Forget the business days, count all days theme you talk about. The norm in a contract is the number of total days allocated.
No you agreed to something that had already been withdrawn. Until you sign the agreement, it is only an offer, and the buyer has the right to withdraw the offer, and can cancel the contract. You signed something that had been withdrawn the previous day. It no longer existed. Just as when the buyer made the original offer to buy the property, the buyer can withdraw the offer up to the time your signature agreed to the contract. Once you signed it, it was now a contract with a contingency that there would be an inspection.
The inspection was held, and there were problems found. As of that time, the buyer either was to cancel the purchase or make another offer which opened the contract, changing to that they would be willing to close, if you signed you would pay for the problems.
It is now a new offer as the old contract is no longer in effect. It would not be a contract, until you signed the repair agreement which would then make it a complete and new contract.
The buyer did what was his right, withdrew the offer to buy your property prior to your signing. There is no longer a contract for you to sign. The entire contract was only an offer, and upon the buyer withdrawing his offer, there is no longer a contract.
A day later, you decide you want one of two things: 1)--Complete the sale under the terms of an offer that had been already cancelled. OR 2: Let you keep the $10,000 deposit. You then signed the already cancelled offer/contract. There was no valid offer/contract for you to sign. You signed something that ceased to exist the previous day when the buyer withdrew his offer.
The best thing for you to do, is to accept the fact that you do not have a contract to sell your home, and sign to return the deposit to the buyer. If you don't you are going to end up in court, sued by the buyer to return the money, and if the buyer's attorney does as is normal include suing you for failure to return the buyers money when the contract was cancelled by buyer before you signed it, and sue you for the Buyers Attorney Fees which can add up to a lot of money quickly. The buyer will not care how high you drive up the attorney fees, as they will be sure you will be paying them.
You signed within the allotted time of the new agreement, but you did not sign it will the contract/offer to buy had already been withdrawn. This is the reason, you never fool around signing an offer to buy a property, because until you sign it there is no binding contract and the buyer has the right to withdraw up the time you sign. It is very common thing that when buyer holds off signing any type of offer, that the buyer changes their mind, and cancels the contract. It never happened to me, as I made sure that the sellers signed as quick as possible to prevent the buyer backing out. However I had numerous Realtor friends that had this happen, and once the contract was cancelled before the seller signed they had to return the money.
Another thing to consider. This buyer is not going to buy the property. Until you return that money, you cannot sell the property to someone else. The property is now in limbo, until the court makes a decision. It may be as long as two years before a court makes the decision. Do you really want your property off the market that long, with the probability the buyer is going to get his money back, and the risk you can end up paying some very expensive buyers attorney fees.
Any chance those repairs cost around 10k? That's the only reason I can think of for you thinking you trying to excuse keeping 10k of someone else's money. For perhaps 4 days you think your entitled to 10k? Even if you go by 16 days (please) really, you think you should get to keep that money?
We function on business days. It isn't a huge deal. I just make a Google Calendar after mutual acceptance and share it with the other agent and my client so that we are all clear when the dates are. I've found that some agent struggle with counting days.
We do it that way or we would have to counter on dates with each counter offer as you can spend a week countering back and forth sometimes. We do take deadlines seriously out here. We don't do those cure forms that a lot of states do. Either you make the deadline or you don't.
Out here if the client really terminated outside of the contingency time frame, it would be a no brainer to fight for the earnest money. And for people who say the seller never gets it, my clients deserved it three times and got it three times.
Sure.
We sometimes spend extended time on the back and forth, and that can adjust dates.
But, most contracts are arrived at within 24-48 hours and the impact on the timeline is usually minimal.
I don't very often use a marked up offer/contract for buyers, but complete new clean documents when we get to a meeting of the minds anyway. With ZipForms and DocuSign, I see more and more agents doing the same thing.
We only have three dates in the Standard NCAR Contract anyway.
Due Diligence Period expiration.
Closing date
Date of Contract.
The DD Period date is the most sensitive to any lag in negotiations. Usually there is a bit of fat in that date anyway, and quite often it does not have to be revised.
my agent answered my questions and said that I didn't have the right to claim the deposit and the buyer can walk out, which doesn't make sense to me and this is why I posted the note here.
You can always find technicalities to presumably lock a buyer in to buying your house. But zoom out for a moment. Keep your goal in mind and move on. You can't make someone buy your house, and if you tie up the buyer with litigation to go after his deposit, you can't sell the house to someone else while it is being litigated.
Let it go and move on to finding another buyer. Also address whatever serious items were found in the home inspection so the next buyer won't jump ship for the same reason.
agreed. I bang my head everytime an agent tries to strong arm me because our home inspection list of repairs came over on day 10 (day 11 in their mind lol).. even though our main contract lists a date of ratification, and earlier in the same main regional contract it clearly states that (other) than specified dates physically selected and inputted pertaining to financing/appraisal/termite/whatever, everything goes into effect the first day AFTER the ratified date.. it's embarrassing sometimes that brokers don't implore this detail with the money makers they just hire and hang licenses in on a conspicuous wall in their office.
next step then.... OH, there's an HOA? Go ahead and send me those HOA docs then, I hope I dont find 1 singular thing in there that would cause concern for my client to not feel comfortable moving forward.....
hate pulling that card, but it's legally there to pull
Lack of education by brokers is a BIG problem in our area we are currently addressing which has led to a lot of this. We currently provide THREE HOURS of forms training at our orientation for new Realtors, then its up to the brokers....and most care little or not at all if their agents understand the contract docs. Its mind blowing, especially since these brokers are responsible for them.
I am the seller. We signed the sale agreement on January 21. My agent says that the agreement was really executed when both parties received the signed agreement by email on January 22.
The inspection contingency clause in the agreement has the following two parts:
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Part A: The Contingency Period is 10 days from the Execution Date of this Agreement for each Inspection Elected in Paragraph 12(C).
Part B: Except as stated in Paragraph 13(C), if the result of any Inspection elected in Paragraph 12(C) is unsatisfactory to Buyer, Buyer will, within the stated Contingency Period:
1. Accept the Property with the information stated in the Report(s) and agree to the RELEASE in Paragraph 25 of this Agreement, OR
2. Terminate the Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of the Paragraph 23 of this Agreement, OR
3. Present the Report(s) to Seller with a Written Corrective Proposal ("Proposal") listing corrections and/or credits desired by Buyer. The Proposal may, but is not required to, include name(s) of a property licensed or qualified professional(s) to perform the correction requested in the Proposal, provisions for payment, including retests, and a projected date for completion of the corrections. Buyer agrees that Seller will not held liable for corrections that do not comply with mortgage lender or governmental requirements if performed in a workmanlike manner according to the terms of Buyer's Proposal.
a. No later than 5 days from the end of the Contingency Period(s), Seller will inform Buyer in written that Seller will:
(1) Satisfy all the terms of the Buyer's Proposal(s) OR
(2) No Satisfy all the terms of the Buyer's Proposal
b. If Seller agrees to satisfy the terms of the Buyer's Proposal, Buyer's Proposal, Buyer accepts the Property and agrees to the RELEASE in Paragraph 25 of this Agreement
c. Within 2 days of the receipt of written notification that Seller will not satisfy all terms of Buyer's Proposal, or the time stated in Paragraph 13(B)(3a) if Seller fails to choose either option in writing, whichever occurs first, Buyer will:
(1) Accept the Property with the information stated in Report(s) and agree to the RELEASE in Paragraph 25 of this Agreement, OR
(2) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of Paragraph 23 of this Agreement, OR
(3) Enter into a mutually acceptable written agreement with Seller, providing for any repairs or improvements to the Property and/or any credit to Buyer at settlement, as acceptable to the mortgage lender, if any. If Buyer fails to respond with the time stated in Paragraph 13(B)(3)(c) or fails to terminate the Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the RELEASE in Paragraph 25 of this Agreement.
-----------------------------------------------------------
Facts:
(*) On January 28, my agent received the inspection report and she forwarded it to me by email four days later on February 1.
(*) On January 30 , my agent received the buyer's reply-to-inspection letter, which was forwarded to me three days later on February 1.
(*) Buyer sent me the termination letter on February 4
(*) On February 5, I replied to the buyer's agent that I was agreed about the repairs to the house that were requested by the buyer's reply-to-the inspection letter even though the Buyer sent me the termination letter the day before (on Feb 4 - see Paragraph above). Please note that my reply was within the stated time frame according to PART B (3a)..
(*) The buyer requests the full deposit as the termination letter is signed by me.
My understanding:
If I take January 22 as the day when the agreement was executed, the Contingency Period of 10 days was due on February 1st. I am not sure I should count calendar days or busines days in the State of Pennsylvania, so this is my first question to you guys?
If I understand Part B (above) of the agreement, the buyer replied to inspection within the stated Contingency Period and I was satisfied on Feb 5 with all the terms of the Buyer's Proposal to do repairs to the house, which was with the stated time frame according to PART B (3a). However, the termination letter came out a day before, on Feb 4.
I need to know the consequence(s) (if there is/are) of the buyer if he wants to continue thinking about terminating the agreement and walking out?
I think Buyer is in default and his deposit is forfeited to the seller (me) as liquidated damages.
Please advise?
Thanks
I agree that the attorney should answer the questions. However, if the buyer has a financing contingency in place, they can easily get out of a contract by not obtaining a mortgage. In the mean time, your place is not marketable for other buyers.
Secondly, if the inspection revealed items that need to be corrected, you may now need to correct these since by getting a copy of the report showing issues with your property you are now aware of them and will need to disclose them if you chose not to fix (again, check with your attorney on this).
Lastly, I don't like that your contract does not specify whether the days are 'calendar' days or 'business' days. If the buyer thought they were 'business' days, then they were within the required time frame with all of the notices (again, your attorney would confirm or deny)
Jukesgrrl: I am taking your comments and other’s seriously. It seems to me tht you’re a realtor and so you do have valuable and useful information but not necessary you’re using the right legal terms, or legal knowledge. Most agents I have dealt with don’t know exactly how to exercise all the paragraphs in an agreement. They know that if things get worse, they will need to make a phone call to the Broker’s attorney(s), or others. I am not assuming that $10,000 is mine, but I was hoping to get some of it. The property has been vacant for some months. I have to make mortgage payments. Before taking this offer, I was considering about renting it to a potential tenant, but I changed my mind and declined his offer and decided to sell the house to this buyer, who offered me $10,000 less. Since I wanted to sell the house as my first priority, I took his offer but I needed to bring more than $20,000 to closing. So, can you ask yourself is there any tangible damage because the Buyer walked out without suffering any consequences? The answer would be “YES, WITH NOT DOUBT”. All cases are different…
But, things here in my case don’t look like I have a way to win this case and I will need to let him walk out without paying a penny (based on your suggestions and comments), but this doesn’t mean this is fair, which it is not. Those paraphrases in the agreement support what I am saying; Buyer is in default, PERIOD. This is not an issue about calendar days Vs. business day since here In PA we use Calendar days, it was confirmed by my agent. Last but not least, my Realtor is so embarrassing that she has said to me at least 18 sorrys because she dropped her ball in this situation. If she releases me, she would give me a favor. She didn’t even answers those questions that you asked me.
Oldtrader: I still don’t understand why it is so difficult for me to explain that buyer accepted the offer and made a proposal for the repairs during the Inspection Contingency Period. He signed the proposal and so did I, period. According to the agreement, after all this happened buyer cannot terminate the agreement without putting his deposit in jeopardize. This is my point here, not that he cannot or he can terminate the agreement. As all you guys say: " buyer or seller can terminate the agreement even minutes before closing", and I AM OK WITH THAT, but there should be a penalty for that under the agreement. Is this difficult for you to digest or agree with this statement? The day later that you mention happened within the stated waiting period and I didn’t cancel the termination letter yet.
I understand that you all Realtors take my comments in a defensive manner because you think as Realtors, but It is still difficult for me to accept that those paraphrases in an agreement cannot be exercised correctly by any party who are shown in the agreement , and instead they can break it without having any consequences.
NaleyRocks: The repairs is in the range of $3,00--$4,000.. Again, I am not asking $10k, but some compensation for loosing time and money. Is this so difficult to understand ?
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