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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101731
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I am currently in a contract with a new home. I am having an

Customer Question

Hi- I am currently in a contract with a new home. I am having an issue with the mortgage company and my insurance carrier. The mortgage company will not close on the loan until repairs are made to the decks because they deem them a safety hazard (based on the home appraiser's report). In addition my insurance company will not insure the property for the same reason. I have a $5000. Deposit on the home and about another 1500 in inspection and appraisal fees. According to my attorney my deposit is at risk of being taken by the seller. I am having a hard time understanding how my deposit can be at risk due to a safety hazard on the property.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only 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.

I am sorry to hear about this situation. Do you have a copy of the contract you can upload, per chance? Or at the very least copy the verbiage about the deposit? This is because this verbiage is very important.

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
Thanks for your quick reply, see attached.
Expert:  Ely replied 1 year ago.

Thank you. While I look at this, can you please tell me if the seller is refusing to fix the issue? Or they will, but only if you pay for it? Or what is their position?

Customer: replied 1 year ago.
At this time they have agreed to nothing, I imagine if we agreed to pay for the $7000. in estimated repairs they would accommodate that. Obviously this is problematic because we can't dump that money into a home we do not own yet. Thoughts?
Customer: replied 1 year ago.
Our original intention was to do the repairs sometime next summer after our current house sells.
Expert:  Ely replied 1 year ago.
Thank you.
Deposits are very much on a contract by contract basis. Arguably, the following paragraphs from the contract apply:
#5, beginning with "If a buyer obtain a written commitment..."
And, #5, beginning with "If a Buyer does not elect to so terminate..."
In the first paragraph, the Buyer may terminate the contract without fault or liability if they cannot fulfill the commitment. It can be argued that the fixing of this issue is part of that commitment. In the second paragraph mentioned, it states that all deposits shall be returned to buyer with exception to #17 which does not apply.
So the buyer can make an argument to the seller, stating that unless the issue is fixed, there is no commitment, and if there is no commitment, the Buyer can walk away AND get their deposit back. So it is in the seller's best interest to fix this issue now.
I hope this helps and clarifies. Please 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 experts get credit for our time. 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 with a positive rating.
Expert:  Ely replied 1 year ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never rated positively. I am simply touching base. Let me know. Thanks!

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