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Loren
Loren, Attorney
Category: Estate Law
Satisfied Customers: 29118
Experience:  30 years experience in the practice of estate law.
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In Kansas can a Trust be sued Performance if Owner of the

Customer Question

In Kansas can a Trust be sued for Specific Performance if Owner of the Trust dies and Inspection Contingencies have not been removed? Inspections had been scheduled but not performed at time of death.
Submitted: 9 months ago.
Category: Estate Law
Expert:  Loren replied 9 months ago.

Good afternoon. I am Loren, a licensed attorney, and I look forward to assisting you.

Expert:  Loren replied 9 months ago.

Does the contract specify or waive any remedies for seller breach?

Customer: replied 9 months ago.
It is Buyer that died and contract states forfeiture of earnest money (liquidated damages).
Expert:  Loren replied 9 months ago.

Thank you for the additional information.

Specific performance is a buyer's remedy. Is the forfeiture of the earnest money stated as the exclusive remedy. In other words, is it a liquidated damages provision?

Expert:  Loren replied 9 months ago.

Are you still online with me?

Customer: replied 9 months ago.
Contract states that both Buyer and Seller shall have the option of specific performance in addition to forfeiture of earnest money. Does all of this apply to a Trust and what is the likelihood is Sellers success when Buyer died before scheduled inspections?
Expert:  Loren replied 9 months ago.

Yes, a trust can be held liable for breach, and be subject to all the same remedies, the same as an individual. The likelihood of success, if the seller is ready willing and able to convey clear and merchantable title, is very good.

However, specific performance is an equitable remedy for the buyer in the event of seller breach. Even if the contract states it is available for the seller to exercise, it is unlikely a judge would do so, since the seller may be made whole by the payment of money damages.

For a buyer, however, all real estate is unique and they will want the actual property, in the event of a seller breach.

Customer: replied 9 months ago.
Even though inspection language has not been satisfied?
Expert:  Loren replied 9 months ago.

Does the inspection contingency have an expiration or other time limit?

Expert:  Loren replied 9 months ago.

In any event, it is the buyer's obligation to complete the inspection by the closing date or whatever time frame is in the contract . Otherwise, it is waived.

Customer: replied 9 months ago.
15 business days from 3-6-16.
Expert:  Loren replied 9 months ago.

The contract is not likely in breach until the the closing date.

Expert:  Loren replied 9 months ago.

When the buyer dies, unless the agreement states otherwise, the contract becomes an obligation of the estate.

Expert:  Loren replied 9 months ago.

However, if the buyer is a trust, then the obligation of the trust just continues seamlessly. The trust is its own entity.

Expert:  Loren replied 9 months ago.

I am going to need to sign off shortly. Did you have further questions? Have I answered your question?

Expert:  Loren replied 9 months ago.

If you have no further questions, and have not yet done so, please remember to leave a favorable rating (Excellent or Good) so that I am credited for assisting you. A bonus is not required, but is always appreciated.

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