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Dear Customer, thank you for using Just Answer. By the terms of the contract as you have posted them, the other party is entitled to sell the property after a single missed payment.
A Court may allow the delinquent party to make up the payment in equity (as opposed to "in law") such as in a "quantum meruit" judgment where the party is compensated for the money they have paid into the transaction at this very very late stage in the repayment plan, but from a strict legal interpretation, this is a strict penalty.
please define this answer i got last night from Just Answer's CalAttorney2: a court may allow the delinquent party to make up the payment in equity (as opposed to 'in law') such as in a 'quantum meruit' judgment where the party is compensated for the money they have paid into the transaction at this very very late stage in the repayment plan, but from a strict legal interpretation, this is a strict penalty.
Optional Information: Country relating to Question: United States State (if USA): Hawaii
Dear Customer, my apologies for the confusion. There are two separate types of remedies.
One is a remedy at law, in the set of facts as you have posted it, the buyer has failed to meet the terms of the contract (by missing even a single payment), and therefore not only does the seller get to sell the property under the terms you identified, but the buyer also forfeits all of the money he paid into it. (This is why I referred to it as a strict penalty, there is no room for "leniency" in a legal remedy).
The second is an equitable one. In the same scenario, while the seller will argue the right to sell, plus the forfeiture, the buyer may argue that "in equity" he be allowed to either "cure the breach" (make up the payments with interest, so long as he does not harm the seller in doing so); or ask for repayment of some of the money he paid (otherwise he would forfeit everything).
It may help if you were to identify what you are trying to do. If you are the seller and you want to sell - you can simply do so, although it is usually wise to give notice, if for no other reason than to document it for the Court.
If you are the buyer and are looking to try to recoup some of your investment, you can try to ask for a way to "cure" the default by making up the missed payments, plus interest or penalties (I don't know what would be offered or accepted, these are just terms that usually go with a cure in these types of cases).
What you are doing if you are the seller is a foreclosure. You are a lender, and you need to follow the appropriate rules for a non-judicial foreclosure (you can also pursue a judicial foreclosure, but it is a little more complex, and usually not necessary - you may want to check with local counsel if you think your matter is more complicated). The State Courts have put together a concise publication on the rules for doing a non-judicial foreclosure in Hawaii, you can find that document here: http://www.courts.state.hi.us/self-help/foreclosure/foreclosure_conversion_faqs.html
just ask a lawyer, a little more about this situation that i wrote you earlier: my father left his house (w/no mortgage, appraised value $660,00.00) to myself and my brother when he died 7 years ago. we put the Title to the house in my name only and i applied for an equity mortgage for $300,000.00 to take my money out of the property and my brother was going to make the loan payments. Bother has no established credit so we put the loan in my name to secure the equity loan. I own another home in Hawaii, approximate value $800,000.00, mortgage left $260,000.00. I'm a high school secretary, 30 years at present job, but not a large monthly income so the $1,500.00 my brother was paying monthly made a big difference. He backed out of the loan at the last minute and made me a side offer, $220,000.00, making monthly payments oa $1,500.00, a down payment of $40,000.00 (he increased that during the the first year and has currently made lump sums payments of $76,000.00). Additionally, he wrote into "the Agreement" that the house would come back to me upon his death ( he is a recovering addict, never married, no kids). he is 58 and in poor health, I'm 65 and in fairly good health. to date, he has made payments of $164,000.00 but he hasn't been working for 3 years now, is depressed and not able to work based on a medical malpractice lawsuit he is involved in which he thinks will pay him alot of money to settle. He has also had rentors in the home for 4-5 years now. Meanwhile, he has not paid me for a year and I am paying property taxes and insurance for the last 2 years ( at the time of our father's death, upon settlement of his Estate, we set aside $30,000.00 in an account for the payments of taxes and insurance and any maintenance/repairs to the home). I would like to sell the house now as I do not feel my brother can afford to buy me out; but he does not want to sell, thinking he only owes me $55,000.00.
Question: Can i sell the House, without his consent? Further more, what are my Options?
thank you< S.R.
Really appreciate the time you took to reply to this, Bill. I was thinking that I would eventually have to get local counsel and your answer was a good confirmation to that.
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