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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Real Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin
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I am a seller. Buyer was already 4 days late on additional

Customer Question

I am a seller. Buyer was already 4 days late on additional escrow and now the 30 day loan committment deadline is Monday and this last Friday the buyers agent senta conditional loan approval with 4 conditions. Which is not a loan committment j Once which was that home appraises for offer price. I want to cancel as this is twice they have missed deadlines. My circumstances have also changed and we don't want to sell anymore. Can I cancel as this is conditional
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Loren replied 1 year ago.
Thank you for using JustAnswer. I am Loren, a Florida licensed attorney, and I will do whatever I can to answer your question.
Before I answer a bit more detail would be helpful please.
Have they agreed to release the financing contingency?
Customer: replied 1 year ago.
No. I just told my broker this is not a loan committment Friday. and she said we can get an extension. I do not want one. I wanted to cancel this contract due some personal issues. Husband lost job day contract signed and my father had two strokes and may need to go into home. They breached contract. I just want to cancel
Expert:  Loren replied 1 year ago.

Thank you for the additional information. If they will not move forward without releasing the financing contingency then they have to terminate. Otherwise, if you do not agree to extend the financing contingency, it expires and they will lose their earnest money if they can not close.

Customer: replied 1 year ago.
Do I have to ask for,them to release it first. The farbar contracts says 30 days loan committment. They signed July 24. Me July 25
Expert:  Loren replied 1 year ago.

no, just refuse any extension.

Expert:  Loren replied 1 year ago.

Without an extension it will just expire if they do not terminate.

Customer: replied 1 year ago.
What do I have to do. Can I just not send a cancellation of contract. I don't want them to release. Just want to cancel
Expert:  Loren replied 1 year ago.

You can not cancel. Only the buyer may elect to cancel or move forward without the financing contingency.

Expert:  Loren replied 1 year ago.

Most buyers do not want their earnest money at risk, though, without a loan commitment.

Customer: replied 1 year ago.
I have to ask for a firm loan committment or a release of loan contingency??? And it must be by tomorrow's deadline? Why can't I cancel. They breached
Expert:  Loren replied 1 year ago.

Most of the form contracts have a notice and cure period. So, if they were just late on a deposit it is not enough to be able to cancel.

Expert:  Loren replied 1 year ago.

If you refuse to extend the financing contingency then there is a very good chance they will cancel.

Customer: replied 1 year ago.
I tried to cancel withinf a few days of contract but they said they thought I had better offer.
Please just tell me what form ormwhat I have to do to getDo I tell my agent I need firm committment letter or release of finance contingency by 5 pm Monday. And if they don't do release I can cancel ?
Expert:  Loren replied 1 year ago.

If they do not terminate then you can not cancel.

Expert:  Loren replied 1 year ago.

There is no form. Just tell your agent that you will not agree to extend the contingency. That is all you have to do.

Customer: replied 1 year ago.
Please tell me exactly what form I need to seem and verbiage as my broker (boss) is not helping and making me do all contracts etc. do I just need to,send in an email and say finance contingency must be met by 5 pm Monday. ???
Customer: replied 1 year ago.
If they do not send back a release of finance contingency by 5'pm what are my options
Expert:  Loren replied 1 year ago.

There is no form. The terms are in the contract. If you do not extend it then it just expires without anything else from you.

Customer: replied 1 year ago.
if it expires then what. Contract cancels
Expert:  Loren replied 1 year ago.

Your options are to either agree to an extension or close on the date specified in the contract. If they do not cancel and can not close then you get the earnest money.

Expert:  Loren replied 1 year ago.

You do not have the right to cancel under the financing contingency. That is the buyer's right.

Customer: replied 1 year ago.
That's not the contract. It says loan cimmitment in 30 days They did not meet. I am really confused. I need to know sooner than later if I have to move or not. Preferred not.
Customer: replied 1 year ago.
What if they do not release the contingency.
Expert:  Loren replied 1 year ago.

Does it say they can cancel if there is no commitment?

Expert:  Loren replied 1 year ago.

They do not have a choice if it expires. You would need to agree to an extension.

Expert:  Loren replied 1 year ago.

Do you understand? It just expires after 30 days unless you agree to extend it. The buyer can terminate the contract or move forward with their earnest money at risk.

Expert:  Loren replied 1 year ago.

Are you still online with me?

Customer: replied 1 year ago.
It's the farbar 3 florida residentialSo if they do not turn in committmentnletter or release finance contingency. What happens A. I have to wait to see if they get financed. Or if they refuse to release or I refuse to extend ???
I need to know this week preerrably Tuesday as I have to fly to Oregon for dad and still pack and find a temp,house.
Customer: replied 1 year ago.
What if they request an ext. I refuse. But we still have to continue ?
I am just confused how they can just cancel
Expert:  Loren replied 1 year ago.
You do not have to wait for them to get financing. If they do not terminate then the deal closes on the closing date specified in the contract. If they are unable to close then they are in default and you get the earnest money.
Expert:  Loren replied 1 year ago.
Is the buyer still in default with their deposit?
Customer: replied 1 year ago.
no matter what I have to wait But I still need to tell my agent I am not extending fiancee contingency and need a release Which in a sense kind of pushes then to make a decision to go forward or cancel. Correct. Very odd that it's not a cancel on sellers part. They failed to meet contract date and florida has the time is of Essenes clause
Customer: replied 1 year ago.
No they made it a week late. Additional deposit.
Customer: replied 1 year ago.
no matter what I have to wait????? But I still need to tell my agent I am not extending fiancee contingency and need a release Which in a sense kind of pushes then to make a decision to go forward or cancel. Correct. Very odd that it's not a cancel on sellers part. They failed to meet contract date and florida has the time is of Essenes clause
Customer: replied 1 year ago.
This stinks. I thought this was my one loophole. Just a very tough month and not looking better
Expert:  Loren replied 1 year ago.

Those are the terms of the financing contingency.

I realize this is probably not the answer you were hoping to receive. Also, please remember that this is not necessarily a moral judgement on my part. As a professional, however, I am sometimes placed in the position of having to deliver news which is not favorable to a customer's legal position, but accurately reflects their position under the law. I hate it, but it happens and I only ask that you not penalize me with a bad or poor rating for having to deliver less than favorable news.

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.

Customer: replied 1 year ago.
If they refuse to release the finance contingency. What happens. It just continues ?
I just need to know what to expect? And what I need to do?
Customer: replied 1 year ago.
But risking the deposit.
I saw one of the conditions of the loan was that it appraises for full price of home that was gotten. What if the appraisal is lower but the financing underwriters condition was that it appraise for said value
Customer: replied 1 year ago.
Hello
Customer: replied 1 year ago.
I was not done. Is that how that happens. You just finish and
Expert:  Loren replied 1 year ago.

If the financing contingency had expired and the buyers do not cancel then it is their problem and they would be in default if they could not close because of the appraisal.

Customer: replied 1 year ago.
just tell broker I am not going to extend finance loan committment and request a release of finance contingency. ? By 5 pm Monday as that is 30 days.
Customer: replied 1 year ago.
What happens if they do not provide me a release of contingency.
Expert:  Loren replied 1 year ago.

It expires.

Expert:  Loren replied 1 year ago.

Have I answered your question?

Customer: replied 1 year ago.
Don't understand the expiring Plus I can request a relase of finance comtimgency. Correct. Which may push the buyers hand
Expert:  Loren replied 1 year ago.
it just expires. That means they can no longer cancel the contract and get their earnest money back if they can not close on the set date because they did not get their mortgage. You do not have to do anything other than refuse to extend the contingency period. You do not have to FORCE the release because after 30 days it is over. If they have not terminated then they have to close or lose their earnest money.
Expert:  Loren replied 1 year ago.
Are you still online with me? Have I answered your question?
Customer: replied 1 year ago.
Have asked numerous time. Tell then no extension and need a signed release of finance contingency. Correct. But if they refuse to sign Have no recourse?
Expert:  Loren replied 1 year ago.

They do not have to sign anything. The contingency just expires after 30 days unless you agree to extend it. There is nothing else for you to do if the contingency expires. The buyer will be expected to close on the closing date, whether or not they have a mortgage. If they can not close then they are in default and you get the earnest money.

Expert:  Loren replied 1 year ago.

Do you understand?

Expert:  Loren replied 1 year ago.

Still there?

Expert:  Loren replied 1 year ago.
Good luck. I hope it works out ok for you.
Expert:  Loren replied 1 year ago.

If you have no further questions please remember to rate my service to you. Thank you.

Customer: replied 1 year ago.
I am requsting to work with another attorney
Expert:  Loren replied 1 year ago.

How come?

Customer: replied 1 year ago.
please put me in touch with another attorney
Expert:  Loren replied 1 year ago.

I will opt out. Good luck. Though I am pretty sure any other attorney will not tell you anything different.

Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

While I am reviewing the thread, please tell me what more questions you have for me?

Customer: replied 1 year ago.
I am the seller of a property in Florida FARBAR 3 residential contract.
There is a 30 day finance contingency on the sale. I know time is of the essense. Contract was signed by buyer 7/24 7/25 by me and returned to me on 7/26. The 30 day timeline for the finance contingency was up yesterday or today (unsure)
I work for the broker who listed my home as an office asst, not realtor. So I really cannot ask her as she is more worried about her reputation.
The buyer delivered over the weekend a conditional pre approval letter for the finance contingency - which lists many condtions, and in looking at it is not the same bank they had for the preapproval letter. at the bottom of the letter they sent it actually states THIS IS NOT A LOAN COMMITMENT LETTER.
My husband and I are wanting to just cancel the sale for various reasons and per the contract line 100-102, it states if either party files to meet the deadline we can cancel. I do not have to give them an extension or even ask for a better letter, just can cancel. I have spoke with many agents, etc and have been told this and just clarifying.
I know it stinks, but we are reading we have that right without recourse.
FYi I own the home soley, but am married. My broker did not have him sign anything
Customer: replied 1 year ago.
Here are a few of the files
My broker when I questioned the letter saying this is not a loan commitment told me I just had to give them an extension.
Expert:  Ely replied 1 year ago.

Okay. So, then, what are you asking exactly of me?

Customer: replied 1 year ago.
Am I correct that I have the right to cancel and do not have to afford them anymore time and what I should actually say to my broker. Also if they do not sign the cancellation what happens to the escrow deposit. I am willing to have that returned to them, but want the cancellation signed so there is no recourse to me. I don't see how that could happen as they missed the deadline and I do not have to stay in the contract
Expert:  Ely replied 1 year ago.

Thank you.

Look, we know that once the 30 days financial deadline is up, then the sale is arguably off, correct?

What is not know is if the letter that they delivered satisfies that contingency. We just do not know this. And this is the question.

Someone in your situation can take the position that it does not, and that the sale is off. Any earnest money paid in is kept IF THE CONTRACT STATES SO, or is returned IF THE CONTRACT STATES SO. So the contract controls what happens to the earnest money if the contingency for the financing is not fulfilled.

The buyer can disagree. They can try suing for breach of contract, arguing that the letter WAS enough to satisfy the contingency. The onus is on them to do so. If so, then the Court decides whether that letter was enough for what the contract required, and this is on a case by case basis. I am afraid that I cannot say what the Court will decide (or even if the buyer would sue, or decide to simply walk away).

The Court would decide based on the intent of the parties, the common verbiage meaning of the document, and equity (fairness) when applicable to the contract.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.

Customer: replied 1 year ago.
Did you look at the letter I states this is not a loan commitment...and my contract states LOAN COMMITTEMENT within 30 days. My own agent said we would need to give them an extension on the Finance contingency, which to me meant it was not a loan committlment.
In your experience how have courts dealt with this type of situation? And how long would it take to get this thru a normal court? on the short side of things.
Customer: replied 1 year ago.
If you had a client how would you respond to there request to cancel based on the information I gave you. Contract that states 30 DAYS loan committlment and a letter stating this is NOT A LOAN COMMITTMENT. ALso so many conditions, including an appraisal amount. Which was not part of our contract verbage.
Expert:  Ely replied 1 year ago.

Right, I did. I am not saying that he would be successful. However, I cannot rule out the possibility that he would make a claim that this was a letter of commitment. He can claim that this is what the lender would give in such a scenario and that this is "standard," and that you are playing semantics. Then the Court decides. However, chances are unlikely that this would happen. am simply being thorough here in my answer (or am attempting to be, rather).

In my experience, I can say that the Courts are unpredictable. However, if they cannot prove that this was a letter of commitment or at least the MOST an applicant can do in such a circumstance, then they are likely to fail.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating. Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
but if they try and sue how long would that normally take in such a court. This has not been the most pleasant of circumstances. I know its may not seem right, but due to many personal issues, husband lost his local job within 2 hours of signing, and father has had 3 strokes and is needing to come to live with me and possible go into a home. I have abided by the terms of the contract, but see this is my one out. The letter they provided says this is NOT A LOAN committlent. Once I say cancel do I as a seller need to do anything else? My broker is really no help and has been pressuring me to just sell. I want to cancel. My husband does not want to continue. She did not have him sign anything.
What happens if they then in the next few days return a release of contingency or new letter from loan. This is beyond the 30 days.
ALso could you tell me what the actuall 30 days is on my contract? I am a little confused
Expert:  Ely replied 1 year ago.

This can take 6 months or more. Perhaps even a year.

Once the contract is cancelled via letter, there is nothing else that needs to be done.

Since the deadline passed, they cannot produce a new letter stating that it satisfied the contingency because the deadline has passed, unless that letter is a clarification to the original that states that indeed, it was a commitment.

I am not sure I understand what you mean when you ask "what the actual 30 days is...?"

Customer: replied 1 year ago.
I sent you my contract. Signed by Buyer 7/24 Signed by me 7/25 with changes and then returned to me on 7/26 by there agent. The last date on the contract was 7/25, I am unsure if they initialed on 7/25 or 7/26
I am just clarying what the 30 day deadline would actually be in FLORIDA. So I can send my letter of cancellation to them
Expert:  Ely replied 1 year ago.

Thank you.

The date begins to run from the date that the last party signed, which was 7/25.
FR/BAR contracts use calendar days when calculating time, not just business days.
The first day (7/25) does not count as day one, the next day (7/26) does.
There are more nuances - see HERE.

I hope this helps.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
Do I have timeline to send my letter of cancellation?
Expert:  Ely replied 1 year ago.

Not technically, although it should be sent as expediently as possible.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
Was emailing letter today to my agent. Also do I need to include the cancellation for them to sign
Expert:  Ely replied 1 year ago.

You mean does the agent have to sign the cancellation? No, unless they are the ones sending the letter. Honestly, it should be the agent that does all this, anyhow.

Of course, I would not do anything until speaking with a local attorney face to face.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
Thought that was what I was doing was speaking to an attorney?
I sent you my contract and the letter they gave me
I do not want to spend anything more on attorney. Do not have funds as need to concentrate on father
Expert:  Ely replied 1 year ago.

Well, you are getting general information here, not legal advice. Please review the disclaimers that are on this site and that you have to click through to speak with an expert. Speaking with someone online is never a substitute for person to person legal advice.

Customer: replied 1 year ago.
are you saying I do not have legal grounds?
Expert:  Ely replied 1 year ago.

No. I am saying that someone in your situation wants to speak with an attorney face to face before doing anything.

Expert:  Dimitry Esquire replied 1 year ago.

Thank you for your post. I am a licensed professional. Are you still seeking assistance at this time?

Customer: replied 1 year ago.
We'll found out my agent called the buyers agent and let her know she needed to get me the loan committment letter or I was going to cancel. The agent sent an email refusing to send the loan commitment letter and said She is confirming loan. What? I had very stern words with my agent and said this is not a loan committment. Nor is it from the buyers and I want a cancellation sent. The buyers agent has been shady on all things. During the general inspections they found a few cracked tiles but due to general couldn't ask for repairs. I walked in on her asking the wdo/termite inspector if he could put it on the report as termites and bugs could come up thru so I would have to repair. He did not comply with her requests
Am I ok with not proceeding with close I don't think they will sign cancellation and won't give letter of loan committment
Customer: replied 1 year ago.
We'll found out my agent called the buyers agent and let her know she needed to get me the loan committment letter or I was going to cancel. The agent sent an email refusing to send the loan commitment letter and said She is confirming loan. What? I had very stern words with my agent and said this is not a loan committment. Nor is it from the buyers and I want a cancellation sent. The buyers agent has been shady on all things. During the general inspections they found a few cracked tiles but due to general couldn't ask for repairs. I walked in on her asking the wdo/termite inspector if he could put it on the report as termites and bugs could come up thru so I would have to repair. He did not comply with her requests
Am I ok with not proceeding with close I don't think they will sign cancellation and won't give letter of loan committment
Customer: replied 1 year ago.
Is anyone there
Expert:  Dimitry Esquire replied 1 year ago.

Hi,

I have read the facts and I happen to agree with the other attorneys that you already spoke with. Once an offer is made and this offer is conditional on financing, the offer cannot be terminated by you if you received earnest money. But you also do not have to agree to sign for an extension if the terms of the offer were not completed. In this case if they do not obtain financing by a certain period as stated in your contract, you do not have to sign an extension. If they fail to obtain, they are then in breach, and you can walk away. You cannot terminate but you can wait for them to terminate, and the reason for that is because you accepted that earnest money--that acts as an ability to keep you from cancelling unless they violate terms of the offer.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
The is a 30 day finance contingency that says they have to have loan committment Which they sent a letter that was a pre approval. Which even said not a loan commitment. We asked for the seller to provide and actual letter of commitment. The buyers agent emailed back and refused to provide a letter and said her interpretation was that she (the
Agents email saying they have committment is all she needs. I will send you the farbar 3. I sent cancellation as per my right in contact
Expert:  Dimitry Esquire replied 1 year ago.

Hi,

If you are so set on your position then I am unclear as to what assistance I can provide. And the agent is correct, in this case. If you send a cancellation you would be seen as in violation as it would be a bad faith breach.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
its says loan committment in 30 days they did not provide that it also says either buyer or seller have the right cancel after 30 days if finance contigency and letter or committment is not received.
they sent a pre approval that said not a loan committment...we then asked for an actual loan committlment, buyers agent refused to give a us letter, but then said she is saying they have a committment, but buyer is working toward approval. I called Loan officer per my right in the contract and she stating they have not issued a loan committment yet. so the agent was not telling the truth
Expert:  Dimitry Esquire replied 1 year ago.

Oh, I see, that is a bit different. If they did not provide adequate proof of a loan commitment, then arguably they are in breach already, and you are able to cancel.

Please take care.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Now the finance company said they are not thru entire loan process but expect everything to go thru, but they have not issued a letter of commitment, just the preapproval, do not expect a committment to come until next week, which is well after the 30 days. Buyer is no threatening to sue me
Expert:  Dimitry Esquire replied 1 year ago.

As he should. You did not give him enough time to obtain financing. With all due respect you are asking us here to justify your position, and I cannot do that, because the contract clearly gives them 30 days to finalize. Not providing you with all information would be seen by the courts as a 'minor' breach, and not enough for you to justify cancelling the contract. Therefore you are vulnerable to a suit, which I have stated and so did the two attorneys before me.

At this time I would ask that you kindly rate our information to you. Even if it is not what you wanted to hear, it is correct, and we have patiently attempted to explain why this is likely a bad idea. It is your choice whether or not to accept this information, but I want to again state that the other buyer's position against you is stronger. Kindly rate and be well.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
now the loan officer just said she is doing the letter today, when i asked if this was done before the deadline she would not answer me.
Expert:  David L replied 1 year ago.

Hi. I'll take a shot here, acknowledging up front that you've received some good advice from all the other experts who have participated.

I am a Florida licensed attorney. The financing contingency paragraph in the FAR BAR (as you attached above) gives the buyer 30 days to produce a loan commitment. If that doesn't happen - such as in your case - each party has a few choices. Notice on line 100 that EITHER party may cancel the contract, subject to i and ii below. Thus, if you wanted to take an aggressive stance, pursuant to the terms of paragraph 8, you would send a notice of cancellation of contract BEFORE buyer gets you a loan commitment. If you do that, you have effectively canceled the contract per its terms.

Keep in mind that this is an aggressive position. The buyer may become angry and you may even get involved in unwanted litigation. But the contract does give you the right to take that action under paragraph 8, if you haven't timely received a valid loan commitment.

I hope that helps.

Expert:  Dimitry Esquire replied 1 year ago.

Hi,

You asked:

and now the loan officer just said she is doing the letter today, when i asked if this was done before the deadline she would not answer me.

---------------------------------------

To answer directly, she does not have to answer you--she does not represent you but represents the seller. What you can do is claim breach, but do so in writing. But again, if they file suit, it will cost you FAR FAR more money. If the point here is to avoid litigation, pursuing this position is the opposite of that ultimate goal.

Sincerely,

Dimitry, Esq.

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