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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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We are in the final stages of purchasing a new home. We were

Customer Question

We are in the final stages of purchasing a new home. We were supposed to have closed escrow on 1/29/16 however due to extensive termite damage to the property needing to be repaired closing has been delayed. As it turns out these types of issues and the fact that our agent has behaved in a rude and unprofessional manner (probably because she is representing both parties) we would like to back out of the purchase. Can we use the sellers inability to close on time as a reason to back out and get our earnest money deposit back. All contingencies other than loan and funding have been lifted. We are in Southern California. Thank you
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 11 months ago.

The delay in the close of escrow in and of itself probably isn't going to be enough to allow you to back out of the sale at this point.

However, if there is "extensive termite damage" to the property - that may be enough for your lender to "pull funding" on the loan and allow you to back out due to inability to close due to your lender backing out.

Understand that this is a little tricky strategically, and with dual representation by the agent you aren't going to have very effective assistance. Knowing how big a purchase this is (you are probably buying into a 30 year mortgage!) you may want to consider retaining your own agent or even a real estate attorney to help negotiate a termination of contract for you. This can be done, but you are going to want some help on this to avoid claims of "breach of contract" against you. (I am not telling you to go hire someone else because I think it is frivolous, I really do think it is a worthwhile investment here, backing out of a sales contract exposes you to significant risk of litigation and claims that you owe the seller money due to breach of contract, not to mention claims by the realtor for the same. Hiring a professional in the industry that works only for you will help you do this effectively and minimize this risk, allowing you to preserve your capital so that you can purchase a home that you are happy with).

Customer: replied 11 months ago.
Can we retain our own agent at this late stage? The termite abatement process is supposed to start tomorrow morning and I don't want to be responsible to pay for that or quite frankly cost other people more money. I'm afraid if I say anything about my concerns to my agent she will find a way to use it against me. I don't feel like I have anyone in my corner.
Expert:  CalAttorney2 replied 11 months ago.

You need an agent to help you negotiate this - plan on paying that professional out of pocket for their time (they may be willing to do this as a "loss leader" to help get your business in the future, but you want to get out of the contract as quickly as possible.

You aren't hiring them to help you close the sale, you are hiring them to help you exit it.

Customer: replied 11 months ago.
Right. How much do you think it will cost us to hire an attorney for this sort of thing?
Expert:  CalAttorney2 replied 11 months ago.

Attorney's hourly rates vary, but you would only be asking them to write a few letters/make a few calls. You aren't looking for someone to represent you in protracted litigation. So your costs are going to be relatively limited.

How much it ends up being is going to depend somewhat heavily on how the other parties respond (for example, does your lender cooperate in help you out of a bad house, does the buyer want to stir up trouble with you, how hard does the agent push for you to get alternate funding, do you have to try alternatives to get out of the contract, does the matter go to mediation (unlikely, but possible)).

Expect an attorney to ask for a deposit (in CA, most deposits are about $5,000.00, but that doesn't mean they will actually use the whole thing (if this was litigation, I would tell you that this doesn't mean that is the total cost, that would just be the starter - but as noted above, this is a very limited engagement).

You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).