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Law Pro
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 23669
Experience:  20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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How do I get out of a real estate sale as a buyer 6 days prior

Resolved Question:

How do I get out of a real estate sale as a buyer 6 days prior to closing?
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Law Pro replied 9 months ago.
Hi! My name is XXXXX XXXXX I'll be the attorney assisting you.

Did the purchase agreement have all the contingencies - the right to inspect, the mortgage contingency, etc.?


If so, have you had the inspections and made application for the mortgage?

If so what were the results of the inspection and your mortgage application?
Customer: replied 9 months ago.

Yes, the inspections are done and the mortgage has been approved. There were some issues with the inspection, mainly centered on the condition of the in ground swimming pool. My husband was in another state from the home in question, selling our other home. Now he's here and he saw the home yesterday and personally got a look at the pool and now he wants us to cancel our buying the home.


 

Expert:  Law Pro replied 9 months ago.
OK. What's wrong with the pool? Does it fall outside of the parameters of the inspection - that it's above a certain cost to correct which allows you to cancel/void the contract?
Customer: replied 9 months ago.


there were no provisions in the contract for what needs to be done to the pool. When the inspection report came back and said the heater was not working and couldn't be repaired, I made a request that the seller give us a $2000 concession, which they refused. The inspection said the marcite finish was old and needed to be replaced but I didn't make a request for that. Basically, we are now looking at the repairs that need to be made to the pool and also factoring in the fact that there needs to be a lot of updates made to the home and want to back out.

Expert:  Law Pro replied 9 months ago.
Then you should be able to get out of the contract because of the problems with the pool if they won't correct them or give you a concession to fix - that gives you a legal basis to cancel/void the contract.

In Florida, the buyer typically has 10 days in which to obtain and review a home inspection. The buyer can cancel the contract during this period by providing a written notice to the seller, or he can ask for an extension. But issues arise when the buyer tries to negotiate repair credits or actual repairs and the inspection period expires.


Are you within 10 days of having the inspection?
Customer: replied 9 months ago.

The inspection was performed more than 10 days ago.

Expert:  Law Pro replied 9 months ago.
How much hand money or earnest money did you put down?
Customer: replied 9 months ago.

$2500 and we are willing to forfeit that.

Expert:  Law Pro replied 9 months ago.
Just to be sure of my answer - what form was used for your purchase?

The "THIS FORM HAS BEEN APPROVED BY THE FLORIDA REALTORS AND THE FLORIDA BAR", with the notation on the bottom FloridaRealtors/FloridaBar-1 Rev. 6/10 © 2010?
Customer: replied 9 months ago.

I don't understand your question. What do you mean by what form was used for your purchase? The sales contract says at the top "AS IS" Residential Contract for Sale and Purchase.

Expert:  Law Pro replied 9 months ago.
Oh, I didn't know that.

Then although you had the right to have the property inspected - that regardless of what the inspection discovered you purchased the property "As Is".

That "As Is" doesn't give you the right to cancel or void the contract if there is anything wrong with the property - that you take the risk of any and all problems with the property.

Then, pursuant to #15 DEFAULT in that contract - the Seller may keep your deposit as liquidated damages (and that's it - they can't do anything more) OR may sue to enforce specific performance.


Usually, if you contact your lender or you can't finance the purchase - the Seller can't enforce specific performance because you can't pay them.


So, at this time I would inform your real estate agent that you want to cancel the contract and realize that you will lose your deposit.

Too, what you should do is also inform your agent that you don't think that your lender will now loan money given the problems with the pool from your latest communications with them (even though that may or may not be true - that's what you tell your agent regardless).

So you want to void the purchase.


I now understand why the Seller wouldn't work with you on the pool issue - you signed an "As Is" agreement - it didn't matter and the Seller didn't have to negotiate anything with you as concerns the pool.


Kindly do not forget to positively rate my answers so I can be compensated for assisting you this evening.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).
Customer: replied 9 months ago.


what's the "OR may sue to enforce specific performance" mean?

Expert:  Law Pro replied 9 months ago.
Specific performance is reallly only a remedy for a buyer - when a seller won't sell and transfer the property to the buyer.

Although it states that the Seller may demand specific performance - they usually don't.

The reason they don't is - that the buyer can usually thwart the loan with the lender under the circumstances and then they are in litigation for nothing.

The defn. of specific performance - is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually used to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction but there are mandatory injunctions which have a similar effect to specific performance.

In practice, specific performance is most often used as a remedy in transactions regarding land, such as in the sale of land where the vendor (the seller) refuses to convey title. The reason being that land is unique and that there is not another legal remedy available to put the non-breaching party in the same position had the contract been performed. [Wikipedia]


So, specific performance is rarely granted by the court to the Seller.

I would not worry about the Seller pursuing specific performance - that's not going to happen in reality.


Kindly do not forget to positively rate my answers so I can be compensated for assisting you this evening.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).




Customer: replied 9 months ago.


I'm not worried about my realtor, but, can the sellers realtor go after me?

Expert:  Law Pro replied 9 months ago.
Potentially but not usually.

They have to prove that you were a "ready, willing, AND able" buyer.

The problem is - the "able" - that the lender basically sent the loan monies to you for the deal.

If the seller's broker can't prove that - then you potentially were not a "ready, willing, and able" buyer.



Kindly do not forget to positively rate my answers so I can be compensated for assisting you.

Customer: replied 9 months ago.

Can I get a copy of this conversation?

Expert:  Law Pro replied 9 months ago.
What you need to do is "highlight" what I posted, then "copy" it, then "paste" it into your word processor (or Microsoft Notepad) for saving for later use and/or printing.

I would again ask you kindly that you rate my answers positively so I can be credited for and compensated for assisting you.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).
Customer: replied 9 months ago.


you've been a great help and I will give you a great review. Thank you so much.

Expert:  Law Pro replied 9 months ago.
You're welcome. Good luck!!
Law Pro, Lawyer
Category: Real Estate Law
Satisfied Customers: 23669
Experience: 20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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