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man, that was stressful... The way everything had gone thus far, I was almost certain that the buyer would find some excuse to not close... I was thinking maybe this whole thing was really a case of buyer's remorse... so when I saw those signed papers, HUGE relief. I move in Saturday.
thanks for letting me vent, and all advice is appreciated. I'm not taking them to small claims court; it's just too much trouble - and when I really put it into perspective, if they'd have made their offer and initially asked for $2500 in closing costs (which, since this was an FHA loan, was how they wrote in the change), I'd have still taken it.
I did tell my realtor to make sure the buyer's mom's boyfriend didn't show up until we were left, though. I do *NOT* want to meet that man! :P
Boy you guys practice screwed up Real Estate. I have not read anything so impossible to interpret since an old insurance policy from the 20s.
The entire section about breaches and related stuff should be called the AZ lawyers full employment act.
Quite the opposite - it works extremely well - very few attorneys ever get involved
When one party breaches the contract (or is believed to be in breach), the other party issues a "Cure Notice" - giving the party in breach 3 days to cure. This notice is given to the Title / Escrow company as well. If there is no cure, then, the non breaching party may notify the escrow of their intention to cancel and direct the disposition of the EM
Works VERY well
Perhaps it is Nevada practicing screwed up real estate?
I guess the proof is in the pudding. We have very few lawsuits here in AZ, mainly because our contracts are so well written.
EXACTLY!! We have learned from the experiences of the past - and, as you mentioned, the mediation clauses in the AAR contract puts most (not all) disputes in a position of being dealt with quickly, fairly and at minimal (or no) cost to the parties.
EXACTLY!! We have learned from the experiences of the past - and, as you mentioned, the mediation clauses in the AAR contract puts most (not all) disputes in a position of being dealt with quickly, fairly and at minimal (or no) cost to the parties.
To me, that IS PROTECTION for our clients
Well Let's let everbody see what we are talking about.
Arizona contract on a default...
Breach: In the event of a breach of Contract, the non-breaching party may cancel this Contract and/or proceed against the breaching party in any claim or remedy that the non-breaching party may have in law or equity, subject to the Alternative Dispute Resolution obligations set forth herein. In the case of the Seller, because it would be difficult to fix actual damages in the event of Buyer’s breach, the Earnest Money may be deemed a reasonable estimate of damages and Seller may, at Seller’s option, accept the Earnest Money as Seller’s sole right to damages; and in the event of Buyer’s breach arising from Buyer’s failure to deliver the notice required by Section 2a, or Buyer’s inability to obtain loan approval due to the waiver of the appraisal contingency pursuant to Section 2c, Seller shall exercise this option and accept the Earnest Money as Seller’s sole right to damages. An unfulfilled contingency is not a breach of Contract.
Nevada Contract on a default...
16. DEFAULT:
A. IF BUYER DEFAULTS: If Buyer defaults in performance under this Agreement, Seller shall have one of the following legal recourses against Buyer (check one only):
As Seller's sole legal recourse, Seller may retain, as liquidated damages, the EMD. In this respect, the Parties agree that Seller's actual damages would be difficult to measure and that the EMD is in fact a reasonable estimate of the damages that Seller would suffer as a result of Buyer's default.
-OR
Seller shall have the right to recover from Buyer all of Seller's actual damages that Seller may suffer as a result of Buyer's default including, but not limited to, commissions due, expenses incurred until the Property is sold to a third party and the difference in the sales price.
B. IF SELLER DEFAULTS: If Seller defaults in performance under this Agreement, Buyer reserves all legal and/or equitable rights (such as specific performance) against Seller, and Buyer may seek to recover Buyer's actual damages incurred by Buyer due to Seller's default.
Arizona Escrow payout...
Release of Earnest Money: In the event of a dispute between Buyer and Seller regarding any Earnest Money deposited with Escrow
Company, Buyer and Seller authorize Escrow Company to release Earnest Money pursuant to the terms and conditions of this Contract
in its sole and absolute discretion. Buyer and Seller agree to hold harmless and indemnify Escrow Company against any claim, action
or lawsuit of any kind, and from any loss, judgment, or expense, including costs and attorney fees, arising from or relating in any way to
the release of Earnest Money.
Nevada Escrow payout...
C. ESCROW: If this Agreement or any matter relating hereto shall become the subject of any litigation or controversy, Buyer and Seller agree, jointly and severally, to hold Escrow Holder free and harmless from any loss or expense, except losses or xpenses as may arise from Escrow Holder's negligence or willful misconduct. If conflicting demands are made or notices served pon Escrow Holder with respect to this Agreement, the parties expressly agree that Escrow is entitled to file a suit in interpleader and obtain an order from the Court authorizing Escrow Holder to deposit all such documents and monies with the Court, and obtain n order from the court requiring the parties to interplead and litigate their several claims and rights among themselves. Upon the ntry of an order authorizing such Interpleader, Escrow Holder shall be fully released and discharged from any obligations imposed pon it by this Agreement; and Escrow Holder shall not be liable for the sufficiency or correctness as to form, manner, execution or alidity of any instrument deposited with it, nor as to the identity, authority or rights of any person executing such instrument, nor for failure of Buyer or Seller to comply with any of the provisions of any agreement, contract or other instrument filed with Escrow holder or referred to herein. Escrow Holder's duties hereunder shall be limited to the safekeeping of all monies, instruments or other documents received by it as Escrow Holder, and for their disposition in accordance with the terms of this Agreement. In the event an action is instituted in connection with this escrow, in which ESCROW HOLDER is named as a party or is otherwise compelled to make an appearance, all costs, expenses, attorney fees, and judgments ESCROW HOLDER may expend or incur in said action, shall be the responsibility of the parties hereto.
I find absolutely nothing in the AZ procedure that resolves conflicting or claimed conflicting breaches. And it is an ugly piece of prose.
How the escrow company gets to pay out the earnest money in AZ is strikingly unclear. It is however clear that if they do so they are held harmless whereas in Nevada they would be liable if the Escrow company was negligent or dishonest. But apparently in AZ escrow companies are always competent and never dishonest. I wonder how they do that in AZ?
There appears to be no significant difference in the ADR between Nevada and Arizona. Both provide mediation prior to a suit and both provide optional Arbitration.
Finally kindly cite a source showing that AZ suits are less prevalent than elsewhere. I don't believe it.
There appears to be no significant difference in the ADR between Nevada and Arizona. Both provide mediation prior to a suit and both provide optional Arbitration.
Finally kindly cite a source showing that AZ suits are less prevalent than elsewhere. I don't believe it.
First I should note, you did not take the entire AAR contract in full context -
Next, as for your "source" request: The absolute best source I can give you is Michelle Lind, Chief Legal Counsel for the Arizona Association of REALTORS. Her telephone number is (602) 248-7787. I spoke to Michelle at the Region 11 meetings today about your questiioning the reduction in litigation numbers. I asked her if could give out her contact info (I specifically described your questioning) and she said sure - she would be happy to provide you with all the information you could want.
Too bad you were not at the Region 11 meetings - you could have asked her face to face - but, I guess a phone call will do. Give her a call - she is expecting it
First I should note, you did not take the entire AAR contract in full context -
Next, as for your "source" request: The absolute best source I can give you is Michelle Lind, Chief Legal Counsel for the Arizona Association of REALTORS. Her telephone number is (602) 248-7787. I spoke to Michelle at the Region 11 meetings today about your questiioning the reduction in litigation numbers. I asked her if could give out her contact info (I specifically described your questioning) and she said sure - she would be happy to provide you with all the information you could want.
Too bad you were not at the Region 11 meetings - you could have asked her face to face - but, I guess a phone call will do. Give her a call - she is expecting it
The full content of the AZ contract was not under discussion. The parts dealing with resolving breaches and return of earnest money were.
The position I took was that the AZ clause was woefully deficient and did not actually deal with the resolution of conflicting breaches at all. Gretchen claimed it did and you agreed. I published the section showing it does nothing of the sort. I do agree it allows escrow to dispose of escrow money without liability. It also specifically relieves the escrow company of any duty of competence or honesty in the process. I asked if you thought this a good thing.
I would point out that if there were missing clauses of importance you could add them.
What you did was duck, knowing that it was an accurate portrayal, and threw in a little obfuscation to avoid admitting it.
Send me an email address for the lady. I like to have a written record when dealing with this sort of thing. That way neither she or you will have problems with exactly what the queston was. As she has this all close at hand I am sure she will not mind. Might even make a nice piece for the local RE magazine.
man, that was stressful... The way everything had gone thus far, I was almost certain that the buyer would find some excuse to not close... I was thinking maybe this whole thing was really a case of buyer's remorse... so when I saw those signed papers, HUGE relief. I move in Saturday.
thanks for letting me vent, and all advice is appreciated. I'm not taking them to small claims court; it's just too much trouble - and when I really put it into perspective, if they'd have made their offer and initially asked for $2500 in closing costs (which, since this was an FHA loan, was how they wrote in the change), I'd have still taken it.
I did tell my realtor to make sure the buyer's mom's boyfriend didn't show up until we were left, though. I do *NOT* want to meet that man! :P
YAY!!!!!!!!!!!!!!!! Good for you! Enjoy your new home!!!! How cool is that?!
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