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We entered into a purchase agreement to sell our previous…

We entered into a...

We entered into a purchase agreement to sell our previous home in Dunwoody GA and asked the buyers agent if we would have any other costs other than stated on the agreement.

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

We were told no but no see that a 3% GA sales tax will be required so question is can we cancel the agreement. It was signed off on Sunday 1/21/18. Is there a 3 day cancel in Georgia. We live in SC.

Lawyer's Assistant: Has anything been filed or reported?

A purchase agreement to sell as is with zero closing costs but they wiggled in us paying 2.5% to the buyers agent. we did agree to that but were not fold of the 3%

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Not that i can think of

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1/23/2018
legalgems
legalgems, Arbitrator
Category: Real Estate Law
Satisfied Customers: 13,960
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Customer reply replied 6 months ago
Thanks will I be receiving an answer today? Here is the agreement we signed electronically this Sunday 1/21/18. I asked directly if there would be any other costs for us and the buyers agent stated emphatically NO.

I am sorry to hear this; unfortunately the 3 day rescission ("buyer's remorse") does not apply to real estate transactions; they apply to very limited transactions, such as door to door sales due to the high pressure inherent in those transactions.

That information is here:

https://www.consumer.ftc.gov/articles/0176-buyers-remorse-when-ftcs-cooling-rule-may-help

The buyer's agent does not have a fiduciary duty to the seller so it would be difficult to hold the buyer's agent responsible for any representations made to the seller.

Here is information on the transfer tax which is often paid by the buyer, but that requires the contract to state that specifically:

https://dor.georgia.gov/real-estate-transfer-tax

There are additional taxes for nonresidents:

http://dor.georgia.gov/sites/dor.georgia.gov/files/related_files/document/TSD/Form/TSD_Withholding_on_Sales_or_Transfers_of_Real_Property_Non-Residents_G2RP_1.pdf

So since the 3 day rescission does not apply to real estate contracts the seller would have the burden of proving that the buyer's agent had a duty to the sellers and breached that duty by misrepresenting the net closing costs, in order to prevail in a suit against the agent.

If the seller pulled out of the transaction the buyer could sue for breach, since the 3% is not considered material given the overall price of the transaction and the fact that the court considers real estate to be unique; therefore the court will normally afford the buyer the benefit of the bargain-ie the transfer of the home per the contract.

The elements the plaintiff must prove are as follows:

1. Duty of care: The defendant owed a legal duty of care to the plaintiff.

2. Breach of that duty: A violation of a law or duty.

3. Causation: The breach caused harm (damages) to the Plaintiff.

4. Plaintiff suffered harm- generally economic.

The court will typically allow the plaintiff to sue for "reasonably foreseable" and "proximately caused" economic damages, so that would be the cost of repair-to repair it to the position it was in prior to the negligent act.

The plaintiff has a duty to mitigate damages so they must be reasonable damages and not excessive.

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legalgems
legalgems, Arbitrator
Category: Real Estate Law
Satisfied Customers: 13,960
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Customer reply replied 6 months ago
Thanks that is what I was concerned (afraid) of. Seems since we are paying the buyers agent there would be some fiduciary duty to the seller but I understand perhaps not legally.

You are welcome; yes the buyer's agent would need to have a contract/agreement with the seller's to have a fiduciary duty as the buyer's agent would likely argue that the seller's paid the buyer's agent commission and that is standard (normally the seller will pay for both commissions) and the buyer's agent has a contractual relationship with the buyer.

If the buyer gave the idea that they were "dual agency" that is a different story and can give rise to a conflict of interest. That is discussed here:

http://www.grec.state.ga.us/infobase/tableofcontents/chapter9.html

and is very fact specific.

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Customer reply replied 6 months ago
Thanks for the quick reply. I guess we will just go ahead with it and take it as a lesson learned.

You are most welcome.

One can always have the entire contract reviewed to see if there is a loophole as well; but at the later stages ofthe closing process it is typically much more difficult to void the deal (it usually require a breach by the other party to relieve the seller of the duty to close).

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Customer reply replied 6 months ago
Thanks I thought I did upload the purchase agreement which is all we have but that isn't what you are referring to correct? Did you get a chance to review it?

Yes, a limited review to see if there discussion of the 3% tax addressed or a contractual time frame to cancel (those can be built into contracts in addition to any statutory rights).

Full document review for all possible causes of action would require an attorney client relationship and is beyond the scope of the site. When a retained attorney reviews a contract in depth they will review the documents that led up to the formation of the contract (as that goes to the "meeting of the minds" and can provide perception) and will look at it from all angles (ie possibility of failure to disclose relevant information, etc).

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