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Roger
Roger, Lawyer
Category: Real Estate Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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We have the following clause included in our contract to sell

Customer Question

We have the following clause included in our contract to sell "as is" our house:

"Buyer and Seller agree to 7 month lease befinning day of closing with no cancellation penalty if 30 days notice is given. Rental rate is $1,300/mo."

Nothing else. Seller took for ever to give us copy of their lease. The lease has several things we don't agree with; such as "no pets" and we have 2 cats, and nothing on the "no penalty if 30 days. We have been waiting for 3 weeks for changes on lease, but the leasing agent for the Buyer is "slow-rolling us to the closing date of 12-17-12 (4 business days from now). Now they are asking for background checks from my wife, 23-year-old daughter and myself at a cost of $150.00 total AND THEN, they will send the new lease with addenda.

Should I have the right to ask to be release from the contract on the basis that the seller is not providing me with a "workable lease" and being subjected to additional requirements that we didn't agreed upon when we signed the original contract for sale of my house?

If I ask my real estate agent/broker to ask for a cancellation on said grounds, and make a claim for the escrow money, DOES HE HAS THE OBLIGATION TO DO SO?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question.

I do have a question of my own. Who is the buyer and the seller? You've made reference to both - - and neither of them being you. I just want to make sure I understand who all the parties to this deal are. Thanks.
Customer: replied 1 year ago.

Ok, I understand. My name isXXXXX and my wife is Sylvia Fernandez. My wife and I both signed the contract as the SELLER of our house.


 


The Buyer, AH4R-FL 11 LLC is the other party. A limited liability corporation.


 


I realize that a couple of times I made reference to myself and my wife as the "Buyer" and to the other party as the Seller.


 


We are the sellers and the other party is the buyer. The buyer, AH4R-FL 11 LLC, has a leasing agent name ARRICO. This leasing agent, it appears, are the ones imposing the lease. Said lease is not acceptable to us.


 


The buyer, the other party in this, not us, needs to provide us with a 7 month lease so that we can stay living in our house for a few months until we get another house.


 


The leasing agent, through the Buyer's real estate agent, is the one that is "slow-rolling us to the closing date of 12-17-12 (4 business days from now). Now they are asking for background checks from my wife, 23-year-old daughter and myself at a cost of $150.00 total AND THEN, they will send the new lease with addenda that we don't know what will look like and will not have any time to respond to.

Customer: replied 1 year ago.

My wife and I, the seller(s) have the following clause included in our contract to sell "as is" our house:

"Buyer and Seller agree to 7 month lease befinning day of closing with no cancellation penalty if 30 days notice is given. Rental rate is $1,300/mo."

Nothing else. BUYER took for ever to give us copy of their lease. The lease has several things we don't agree with; such as "no pets" and we have 2 cats, and nothing on the "no penalty if 30 days. We have been waiting for 3 weeks for changes on lease, but the leasing agent for the Buyer is "slow-rolling us to the closing date of 12-17-12 (4 business days from now). Now they are asking for background checks from my wife, 23-year-old daughter and myself at a cost of $150.00 total AND THEN, they will send the new lease with addenda.

Should I have the right to ask to be release from the contract on the basis that the BUYER is not providing me with a "workable lease" and being subjected to additional requirements that we didn't agreed upon when we signed the original contract for sale of our house?

If I ask my real estate agent/broker to ask for a cancellation on said grounds, and make a claim for the escrow money, DOES HE HAS THE OBLIGATION TO DO SO?

Expert:  Roger replied 1 year ago.
Ok. Thanks for the information. I thought the references were just typos, but I wanted to make sure I understood correctly.

I do think you can claim that the clause in your contract IS YOUR LEASE AGREEMENT. The clause doesn't say that you agree to enter into a separate lease agreement, etc. Instead, it lays out the lease terms that you agreed to - - that's it.

Thus, you can claim that you've got a valid lease based on the clause in the contract, and that's all you're going to agree to. If you are unwilling to enter into a new contract, and if the buyer is not willing to proceed under the lease in place, you would have grounds to claim that the contract has been breached by the buyer, which would give you grounds to cancel the contract. IF it's a deal-breaker, it's a deal-breaker.

That said, if you were to do this, it may result in the buyer filing suit to force you to honor your contact (specific performance). However, you have a defensible position to this claim.

Before taking any action, the best thing is to allow an attorney to review the contract to make sure there's no language or provisions that would prevent you from making this claim. However, based on what you've posted here, you have a lease agreement, and if you don't agree to enter into a more elaborate lease, and if the buyer can't agree to an alternative, then the contract can't be fulfilled because of the breach.

Also, if you demand that your agent perform these tasks, he/she should have a duty to do as you required.
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 26960
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

What would you say are my chances if we go to mediation that I will get a favorable decision?


 


Can I put a claim for the escrow money that the buyer put with the title company? If so, is there a form for that or my agent will be able to claim it on my behalf?

Customer: replied 1 year ago.

What would you say are my chances if we go to mediation that I will get a favorable decision?


 


 


 


Can I put a claim for the escrow money that the buyer put with the title company? If so, is there a form for that or my agent will be able to claim it on my behalf?

Expert:  Roger replied 1 year ago.
There are way too many factors that come into play for me to forecast whether you would win or lose this argument. However, based in the facts you've posted here, you have a legitimate claim that the provision in the contract is your lease agreement and that there's no need for a new lease. Also, you have a legitimate claim that you cancelled the agreement because of the buyers breach by failing to honor the lesse agreement. Thus, you have a legitimate claim.

Also, if you can prove a breach by the buyer, you would have a claim to the escrow money. I'm not aware of any specific forms. However, as I said before, you should likely have an attorney review the documents before you take action.

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Roger
Roger
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BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters