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Category: Real Estate Law
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Experience:  Over 11 years litigation experience including eminent domain and real estate disputes
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Entered into a contract to purchase a NEW home in a Robson

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Entered into a contract to purchase a NEW home in a Robson Community, Tucson, AZ. Dec 16, 2009. We gave them a $24,750 non refundable deposit and scheduled an appt for options/upgrades and were told they would not start production on the home anytime before out appt Jan 20, 2010. We emailed a cancellation on Jan 7, 2010, and advised that we would be unable to complete the purchase due to family issues. They said sorry, no refund of any kind will be returned.

Our question is...we signed the contract in their office Dec 16, 2009 but did not receive a signed copy by the seller until after our attempt to cancel. We actually received the signed acceptance on Jan 16...it was mailed from Tucson on Jan 12, 2010. Since we had only a contact signed by us, wouldn't that constitute a "unilateral contract" and not a "bilateral contract". Is that legal for them to keep our entire deposit even though their seller had not signed an acceptance
Submitted: 4 years ago.
Category: Real Estate Law
Expert:  JD replied 4 years ago.

Actually it would not form a unilateral contract, it either formed a contract or it formed an offer by you to enter a contract with the seller. If it formed a contract then you may be bound by the provisions (though you can certainly challenge the propriety of the liquidated damages provision). If it formed only an offer to enter a contract, and you withdrew the offer before it was accepted then no contract was formed.

 

A bilateral contract is a promise for a promise. This means an offer is made and then an acceptance is tendered. Nothing actually happens except mutual promises... this is how a bilateral contract is formed. A unilateral contract is a promise made for an action... the offer is accepted by performance of the action. So if I offer to pay you $50 to mow my lawn, and you mow my lawn then a contract is formed after you mow it... I am now obligated to pay you as promised.

 

You need a local attorney to review your documentation carefully. With this much money at stake it is certainly worth a careful review as to what exactly transpired with each execution and delivery. My hope would be that your initial signature would be construed an offer to enter the contract and your cancellation was received before the seller formally accepted the contract. In that scenario you should prevail.

 

Please reply if I can help further.

 

________________________

Customer: replied 4 years ago.

Before we contact an AZ state atty, I will tell you that it was a Purchase Agreement between us, buyers and Saddlebrook Resort Community (Robson, seller). On page 3 or this agreement item 26 states "Offer Only: Execution of the Agreement by buyer shall constitute only an offer to purchae. Acceptance or execution of this Agreement by a sales representative or broker shall not constitute approval or acceptance by Seller. This Agreement shall not be binding upon Seller until executed by Seller. This Agreement shall be dated and effective as of the date Seller executes this Agreement."

 

The Seller did sign and date this on January 6, 2010, but it was not mailed until Jan 12 to us so we did not receive sellers execution until Jan 16, 2010 long after we asked to cancel. Do you think the seller signed and actually dated this after our cancellation and do you think we should pay an AZ atty to contest it? And is there a local attorney that you might recommend?

 

 

Expert:  JD replied 4 years ago.

It may be that the seller never accepted the contract (signed it) until after receiving your cancellation, but I have no idea how you would ever prove it unless an office staffer would agree to testify. On the other hand, the liquidated damages provision still troubles me and I do think you should consult a local attorney about the possibility of challenging it. With this amount of money involved, I think it would be worth a few hours of evaluation with a good local lawyer and all the relevant documentation.

 

I have no associates in Arizona and never make referrals to attorneys that I do not know personally. You are correct in your feeling that referrals usually bring about the best legal representation and you should check with friends, family, business associates, etc... if that is not fruitful then try looking on http://www.lawyers.com/ (I use this) where you can search by practice area and geographical location. Attorneys listed here are also peer reviewed... which can prove helpful in your decision making process.

 

Please reply if I can help further.

 

________________________

JD, Lawyer
Category: Real Estate Law
Satisfied Customers: 1335
Experience: Over 11 years litigation experience including eminent domain and real estate disputes
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