Sellers took cabinets off the wall! (negotiation, mortgage, contracts, counter offer)
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To the OP - I will give my quick run down on this. I am both an Attorney (in Texas) and a Realtor but this should not be construed as legal advice that should be relied upon.
The cabinets are fixtures, and our contract states all fixtures stay unless specifically excluded. Period. The Texas contract is crystal clear here, so all the debate about that issue from other jurisdictions is pointless. You bought and own the fixtures, this includes the cabinets in the garage. Both agents made mistakes here, but the listing agent is the one who is primarily at fault. Your agent should have told you about the MLS comment that is only visible to us realtors and should have included this in the contract specifically. The sellers likely do not believe they have done anything wrong since they told their agent to exclude them, so they are probably completely unaware unless you already got sideways with them (I forgot after 8 pages of reading)
Second - small claims court is your way to go. It will be fast, cheap, easy. File your claim, serve the Sellers. On your day in court, provide your contract to the judge. Bring your realtor who will need to testify that you had not seen the agent remarks. You will win. The only thing in this suit that matters is the purchase contract b/c the contract itself is the complete agreement....nothing oral or represented earlier not contained in that contract is a part of the contract.
Third - file the complaint with the TREC against the listing Agent/Broker. You may even want to tell them you are doing it before you sue. They may feel compelled to replace your cabinets to prevent this from happening. It could save you quite a bit of time.
To the OP - I will give my quick run down on this. I am both an Attorney (in Texas) and a Realtor but this should not be construed as legal advice that should be relied upon.
The cabinets are fixtures, and our contract states all fixtures stay unless specifically excluded. Period. The Texas contract is crystal clear here, so all the debate about that issue from other jurisdictions is pointless. You bought and own the fixtures, this includes the cabinets in the garage. Both agents made mistakes here, but the listing agent is the one who is primarily at fault. Your agent should have told you about the MLS comment that is only visible to us realtors and should have included this in the contract specifically. The sellers likely do not believe they have done anything wrong since they told their agent to exclude them, so they are probably completely unaware unless you already got sideways with them (I forgot after 8 pages of reading)
Second - small claims court is your way to go. It will be fast, cheap, easy. File your claim, serve the Sellers. On your day in court, provide your contract to the judge. Bring your realtor who will need to testify that you had not seen the agent remarks. You will win. The only thing in this suit that matters is the purchase contract b/c the contract itself is the complete agreement....nothing oral or represented earlier not contained in that contract is a part of the contract.
Third - file the complaint with the TREC against the listing Agent/Broker. You may even want to tell them you are doing it before you sue. They may feel compelled to replace your cabinets to prevent this from happening. It could save you quite a bit of time.
Hope that helps.
Thanks, and for a while, suing the sellers in small claims court is exactly what I planned to do. But then I realized, as you mentioned, the sellers probably sincerely think they did nothing wrong. They should not have to pay for their agent's error.
That's why I decided yesterday to file a complaint against the broker and/or agent.
I truly appreciate your expertise as an attorney and realtor in TX, so if you could tell me a little more about why you suggested taking the sellers to small claims court, I would greatly appreciate it. Also, your thoughts on this, if you don't mind. We still have in our possession the $500 deposit we received from the sellers at closing (part of the lease back contract). I've gone back and forth on keeping the money or returning it to the seller, but I'm now leaning toward returning it. The broker and agent made the mistake, not the seller.
We still have in our possession the $500 deposit we received from the sellers at closing (part of the lease back contract). I've gone back and forth on keeping the money or returning it to the seller, but I'm now leaning toward returning it. The broker and agent made the mistake, not the seller.
If it were me, I would keep the deposit--at least until this could get resolved. That was the purpose of the deposit--to cover any damages. You seem overly kind-hearted about this, which is understandable, but it was not your fault that the seller took the cabinets. The Seller and the Seller's agent need to work out a resolution. You should keep what little leverage--and restitution--that you have. You can always return it later if the Seller's agent makes amends, and you can let them know that.
Thanks, and for a while, suing the sellers in small claims court is exactly what I planned to do. But then I realized, as you mentioned, the sellers probably sincerely think they did nothing wrong. They should not have to pay for their agent's error.
That's why I decided yesterday to file a complaint against the broker and/or agent.
I truly appreciate your expertise as an attorney and realtor in TX, so if you could tell me a little more about why you suggested taking the sellers to small claims court, I would greatly appreciate it. Also, your thoughts on this, if you don't mind. We still have in our possession the $500 deposit we received from the sellers at closing (part of the lease back contract). I've gone back and forth on keeping the money or returning it to the seller, but I'm now leaning toward returning it. The broker and agent made the mistake, not the seller.
In the end, while the listed agent failed to perform THEIR job correctly, the Seller (tenant) is the one who breached the contract with you. You do not have a contract with the sellers agent at all, only the seller himself.
The proper course is to sue the Seller and the Seller will counter sue his agent for not doing his job properly. The seller will likely be made whole by their agent from the counter suit. Do not feel guilty about suing the seller at all. This is business...if he stole $5000 out of your wallet you would go after him without question - this is no different, even if he did not know he was stealing it.
You do not have standing to sue the other agent so pursuing the other agent is not the proper judicial process. You should still file the complaint with the TREC, and it is possible to get a recovery from the real estate fund, but the FAST, cheap, and proper method is small claims court. Let the Seller and his listing agent hash it out - that is where the problem lies, between them two. They failed to do their paperwork properly.
In the end, while the listed agent failed to perform THEIR job correctly, the Seller (tenant) is the one who breached the contract with you. You do not have a contract with the sellers agent at all, only the seller himself.
The proper course is to sue the Seller and the Seller will counter sue his agent for not doing his job properly. The seller will likely be made whole by their agent from the counter suit. Do not feel guilty about suing the seller at all. This is business...if he stole $5000 out of your wallet you would go after him without question - this is no different, even if he did not know he was stealing it.
You do not have standing to sue the other agent so pursuing the other agent is not the proper judicial process. You should still file the complaint with the TREC, and it is possible to get a recovery from the real estate fund, but the FAST, cheap, and proper method is small claims court. Let the Seller and his listing agent hash it out - that is where the problem lies, between them two. They failed to do their paperwork properly.
It's good that marksmu weighed in on this, too. Follow through and I suspect that the Seller's agent may even right this situation before everything works through the process. Good luck.
It's good that marksmu weighed in on this, too. Follow through and I suspect that the Seller's agent may even right this situation before everything works through the process. Good luck.
I agree. Awesome advice from Mark. Thanks for weighing in.
Thanks, and for a while, suing the sellers in small claims court is exactly what I planned to do. But then I realized, as you mentioned, the sellers probably sincerely think they did nothing wrong. They should not have to pay for their agent's error.
That's why I decided yesterday to file a complaint against the broker and/or agent.
I truly appreciate your expertise as an attorney and realtor in TX, so if you could tell me a little more about why you suggested taking the sellers to small claims court, I would greatly appreciate it. Also, your thoughts on this, if you don't mind. We still have in our possession the $500 deposit we received from the sellers at closing (part of the lease back contract). I've gone back and forth on keeping the money or returning it to the seller, but I'm now leaning toward returning it. The broker and agent made the mistake, not the seller.
If "Garage cabinets do not convey" was on paper, your agent did not show due dillegence, as he failed to bring this to your attention. The sellers stated they were taking to cabinets, just because you weren't made aware of it, doesn't mean you should sue the seller. Your agent dropped the ball.
If "Garage cabinets do not convey" was on paper, your agent did not show due dillegence, as he failed to bring this to your attention. The sellers stated they were taking to cabinets, just because you weren't made aware of it, doesn't mean you should sue the seller. Your agent dropped the ball.
You err in your assessment. The seller did NOT state in the actual contract that they would remove the fixtures. An MLS note is not a contract between principals. (If it was a contract, would no one ever buy a house at other than the listed price? "The MLS says $425,000. It has to be $425,000?" Nope. People negotiate terms in compromise all the time that they say they won't do, or would never ever do.)
The OP contends that the seller agreed in the contract to leave the fixtures, if only by agreeing to not exclude them.
I concur with the input below from the esteemed barrister. I do wonder about collecting after a small claims judgment is given, if the OP cannot even locate the sellers, but he seems firm in his advice that that is the best venue.
Quote:
Originally Posted by marksmu
In the end, while the listed agent failed to perform THEIR job correctly, the Seller (tenant) is the one who breached the contract with you. You do not have a contract with the sellers agent at all, only the seller himself.
The proper course is to sue the Seller and the Seller will counter sue his agent for not doing his job properly. The seller will likely be made whole by their agent from the counter suit. Do not feel guilty about suing the seller at all. This is business...if he stole $5000 out of your wallet you would go after him without question - this is no different, even if he did not know he was stealing it.
You do not have standing to sue the other agent so pursuing the other agent is not the proper judicial process. You should still file the complaint with the TREC, and it is possible to get a recovery from the real estate fund, but the FAST, cheap, and proper method is small claims court. Let the Seller and his listing agent hash it out - that is where the problem lies, between them two. They failed to do their paperwork properly.
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