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Old 04-14-2007, 08:41 PM
 
Location: Helena, MT
373 posts, read 1,647,157 times
Reputation: 285

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Hi. Have any of you ever experienced problems between the contingency time frame and closing, and what did you do? I'm feeling backed into a corner and don't know what to do. I'd love to hear if someone else has successfully made it past a situation with a broke seller who had major repairs come up between the contingency stage and the closing date.

I was set to close on a house in a couple of days, but in the interim between when my contingency period passed and now, something big happened. The sewer lines had to be replaced to the tune of $5000. The seller paid for this, but in the meantime, the backhoe tipped over in their front yard (it sits on a hill) and the operator was nearly killed. Well, the backhoe went right into the chain link fence and basically folded it in half. Also, the backhoe had to come down the backside of the hill behind the house and caused damage to the old wooden steps back there, too. They put dirt down in the front yard, and just kind of propped the fence back up. It looks TERRIBLE. I also believe they should have to pay for some lawn work and a new fence.

I rescheduled the closing because I wanted everything fixed, and my realtor is totally advocating for the sellers because she wants her commission. they all (including MY supposed agent) wanted me to close as is. My lender and my realtor are at odds because my lender's got my best interests in mind and doesn't want me to close early if stuff isn't fixed.

The sellers are now out on the street because they wanted to close early and already moved out all their stuff. After seeing this disaster, I rescheduled to actual date written into the buy-sell just to make sure everything was fixed. This all basically happened on a Friday and we were set to close on Monday.

I don't believe they want to fix the fence, and I absolutely know that my realtor will not advocate on my behalf. She works in the same office as the selling agent, so she has a real conflict of interest. I've caught her lying to me and she even told me that I was causing these people to be homeless and that they should come live with me.

I'm not sure what I can do short of not closing if no one will present my demands for the fence being fixed. My contract does state that the property must be in the same condition as when I made an offer, with the exception of normal wear and tear. Well, a backhoe tearing up a yard and then falling over into the fencing in front of the house does not seem to be normal wear and tear to me. I believe they need to restore it visually to the condition it was when I made an offer. Yes, I do feel bad that they had to spend money on the sewer, but that really has nothing to do with me.

Argh. What do you do when your realtor is not advocating for you? How can I communicate with the sellers if the realtor is acting like a mole? Should I break this contract? What might happen to me?

What complicates this even more is that the seller turned out to be someone I was childhood friends with, so the realtor is trying to play on my emotions about my "making their family homeless." I think they should have had a contingency plan up until the actual date of the closing in the buy-sell instead of being overly optimistic that I could close early.
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Old 04-14-2007, 10:14 PM
 
10,631 posts, read 39,427,809 times
Reputation: 13346
You've got several possible options:

1) do what the agents are pushing for, close on the house ... and suffer the consequences of the damage. Not a great option from what you're saying.

2) close on the house with money escrowed by the seller (or a price adjustment) to reflect the likely costs of appropriate remedial measures. I always opt for excess funds in the escrow account with the seller getting a refund of any unused funds. The trick is to have enough of their money on hand for the likely unexpected items that crop up to restore the property. Given the time, effort, and energy that the repair situation may involve on your part, it may not be worth doing any of this by you. You may consider that it's totally the seller's responsibility, and if they can't perform, then it's no deal. Give them ample room and opportunity to make good in good faith, but look out for your interests first and foremost.

3) walk away from the deal with your earnest money refunded in full if the seller is unable (or unwilling) to perform their end of the deal per the contract.

You should try to remove the emotion from the transaction .... guilt trips from your agent are highly unprofessional and not in your interest, nor a reason to close a deal that isn't right.

You might also consider that you may have been damaged by the non-performance of the seller to complete the deal. If you've got an adverse housing or financial impact result, you may have grounds for recovery. Especially if a broker is pushing you to complete your performance when they know that the property you contracted is not the property condition that is being delivered; there's ethical and legal responsibility on the part of the broker and agents to you, especially if your agent had you sign a "buyers agency" agreement.
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Old 04-14-2007, 11:56 PM
HDL
 
Location: Seek Jesus while He can still be found!
3,000 posts, read 5,692,104 times
Reputation: 7811
Default I'm going to try and make this short and sweet

Lorelei, please give us an idea of the estimated cost to put the fence and landscaping back to the way it was prior to the accident? If this amount is $1-2K, then I suggest the Buyer and Seller Agents split the cost half and half out of their commissions to get this deal closed !

Of course, I'm sure there is more to the story and additional questions to be asked, but I would guess that the $5K additional expense plus moving prior to COE are probably a great burden on the sellers (your former childhood friend) . So I ask you now, how much do you love this home ? Did you get a great deal on the house ? What will you do if you don't proceed with this home ?

Realtors on here may hate me , but I would 'threaten' walking away first and then see if the Realtors will ante up some of their commission. Either that or risk losing any commission at all . And furthermore, you now know NOT to use that agent to buy another home if you decide to walk away from this one .

Lastly, childhood friend or not (and I don't take this fact lightly), this is a business deal and I cannot tell you how many times I've seen RE deals fall apart at the final hour. Business is business. What if something major happens when you move in? Are you going to get upset with your former childhood friend? Well, maybe you will, but basically, you needed to have a good inspector prior to closing and hopefully, you did.

Lots of weird things happen in real estate . I posted a awhile back about my buyer who thought she could move in with me along with her husband and son 2 wks before COE. My home was only 1300 sq ft. I almost lost the deal! I wish you the BEST and hope that you keep everything in perspective. Not getting 'emotionally' worked up is what got me through my difficult closing !
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Old 04-15-2007, 04:31 AM
 
Location: NE Florida
17,835 posts, read 28,879,876 times
Reputation: 43259
sunsprit and happydawglady have given you some great advise.

"the realtor is trying to play on my emotions about my "making their family homeless."
If my Realtor made this comment I would be "having a chat" with their broker.
Especially since the selling agent is with the same office.
Your agent is suspose to have your best interests as their main concern.
There is enough pressue with buying a home without having "guilt" thrown in by your Realtor. It makes you wonder how much discussion has gone on "behind closed doors" between your Realtor and the selling Realtor.

Tact is not one of my strong points but I would tell your Realtor to "knock it off" Quit playing the emotions card or you will have a chat with their broker (which I would do anyway) You wil be living there not your Realtor.

karla
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Old 04-15-2007, 06:41 AM
 
20,793 posts, read 51,010,573 times
Reputation: 10438
Another thing to consider is that the backhoe operator SHOULD be the one to pay for the damages he caused not the owners. I agree that if you close you need to get enough money in escrow to fix the damage and I would collect at least 10% OVER that for unforeseen costs associated with fixing those things.

As for the homeless card--sorry, not your fault. The owners should have made arrangements in the event the house didn't close. It is never a done deal until the last piece of paper is signed. There are hotels they can stay in if needed. I know that sounds harsh but this IS a business deal and should be treated as such.

Perhaps you could ask the realtor to forgo her commission on the house and pay for housing for these people since she feels so bad for them.
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Old 04-15-2007, 08:02 AM
 
Location: Springfield, Missouri
2,813 posts, read 11,712,030 times
Reputation: 2000001255
Lorelei, is the house itself in great condition? Do you still want it? There may be an out depending on how the contract is written up with what condition the property is to be in when it passes title to you.
If you want the property still and these other issues can be fixed, then I'd let them fix the problems (THEY pay for it, not you as it's not yet your house), or, look for an out.
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Old 04-15-2007, 08:40 AM
 
Location: Sometimes Maryland, sometimes NoVA. Depends on the day of the week
1,501 posts, read 10,332,909 times
Reputation: 1090
Quote:
Originally Posted by golfgal View Post
Another thing to consider is that the backhoe operator SHOULD be the one to pay for the damages he caused not the owners.
I was going to point that out, too. Assuming they were using a licensed contractor, the contractor or his company should be paying for the damages. They probably have insurance for it. And my husband (a electrical contrator) says, "if they are hired to do a job, and the [bleep] it up, then they need to be the ones fixing it. Thats what their insurnace is for." His company has to do this all the time, for example, when the electrician drills through a water pipe, his company calls a plumber to come fix it. And when some idiots he worked with ran a trencher through a gas main, you bet they came after the company for expenses (and penalties for that one).

If it were me, I'd have the money held back from the sellers and put into escrow. Then I'd go after the company to fix the problem. If they refused, hire someone to fix it, have the money paid from escrow. If they are refusing to put money in escrow, then you would have the option of taking the contractor to small claims court for the damages.


Good luck!
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Old 04-15-2007, 09:55 AM
 
287 posts, read 1,329,732 times
Reputation: 132
Quote:
Originally Posted by happydawglady View Post
Lorelei, please give us an idea of the estimated cost to put the fence and landscaping back to the way it was prior to the accident? If this amount is $1-2K, then I suggest the Buyer and Seller Agents split the cost half and half out of their commissions to get this deal closed !

Of course, I'm sure there is more to the story and additional questions to be asked, but I would guess that the $5K additional expense plus moving prior to COE are probably a great burden on the sellers (your former childhood friend) . So I ask you now, how much do you love this home ? Did you get a great deal on the house ? What will you do if you don't proceed with this home ?

Realtors on here may hate me , but I would 'threaten' walking away first and then see if the Realtors will ante up some of their commission. Either that or risk losing any commission at all . And furthermore, you now know NOT to use that agent to buy another home if you decide to walk away from this one .

Lastly, childhood friend or not (and I don't take this fact lightly), this is a business deal and I cannot tell you how many times I've seen RE deals fall apart at the final hour. Business is business. What if something major happens when you move in? Are you going to get upset with your former childhood friend? Well, maybe you will, but basically, you needed to have a good inspector prior to closing and hopefully, you did.

Lots of weird things happen in real estate . I posted a awhile back about my buyer who thought she could move in with me along with her husband and son 2 wks before COE. My home was only 1300 sq ft. I almost lost the deal! I wish you the BEST and hope that you keep everything in perspective. Not getting 'emotionally' worked up is what got me through my difficult closing !

Why should the realtors give up the money they are using to raise their family, I am sure you would not do it if you were in their shoes. Stop bashing realtors, this is ridiculous. The bacho guy should have his own insurance to fix repairs. Are you using an Attn.? I would get his/her advise.
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Old 04-15-2007, 10:47 AM
 
Location: Missouri
6,044 posts, read 20,665,071 times
Reputation: 4997
There are times in life where being a big B**** is completely justified. I would complain to the agent's broker immediately. I would want the seller to fix the problem, fork over some cash, or lower the selling price accordingly. The seller can go complain to the backhoe company and get reimbursed, or put a claim into his homeowner's insurance. I would not budge on this! If you found out an old friend were struggling, would you just automatically and generously fork over $1k - $2k? I doubt it...why do it now? Things happen and if your realtor wants to get paid that bad and that quickly, she'll figure out a way to work it out to your satisfaction.
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Old 04-15-2007, 01:32 PM
 
192 posts, read 772,889 times
Reputation: 223
What a nightmare! Buying a home is stressful enough without a Murphy's Law situation such as you're experiencing.

I am curious though because you mention "your agent". Is this agent working directly for you via a buyer-agency (representation) contract? Because you also say that "your" realtor is "totally advocating for the seller". It sounds as if "your" agent might be merely acting as a sub-agent for the seller, rather than as a buyer agent on your behalf. If you didn't sign a Buyer Agency contract with her, then "your" agent is legally obligated to work for "them" even though she helped you to find this house.

If you did sign a buyer agency agreement with her, and you know that she is not fighting for your interests as she is legally obligated to do, then you have a good case against both that agent and her broker!

But if you did not sign a buyer agency agreement, then your realtor is doing exactly what she is supposed to do, which is putting the interests of the seller first and foremost even though that is to YOUR detriment.
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