You have the sellerâ€™s signature on the original contract, this is all you need.
You procured a ready willing and able buyer, sellers agreed to made repairs and you have their signatures.
No need to look any further, if the sellers back out of performing said repairs you should immediately have your broker and theirs talk to see where mediation would take place.
If mediation does not help, then arbitration is the next step.
But please, the first step is to have your broker explain that you have the proof for a successful estoppel case, and if deemed necessary your buyers will litigate. This will at least ensure that a hearing by the seller's broker can take place.
On another note, the seller's agent probably does not want to get into a legal mess, I would level with this agent, and explain what "estoppel" is, and how, even if the seller looses in court, this agent could get sued for this losses by the seller on the basis that the seller was misrepresented. Simply put, the sellers could say that this agent did not advice them properly, and that he/she is under qualified in the Law of Contracts field, which happens to be one of the three pillars of our Real Estate education for certification.
I believe that seeking the advice of a Real Estate Lawyer is warranted, BUT I also believe our contracts have a mediation, and arbitration clause, which would stop a Real Estate lawyer from litigating until these two (less expensive) options have been exhausted.
So, it would not hurt to save your client this out of pocket expense for the time being until you have both brokers talk. Remember Joe, you have the upper hand; you have the almighty written proof!
Ramon Viggiani â€“Realtor- http://www.BuyingAndSellingUSA.com
My client signed the list that was sent by the sellers, which is was also forwarded to the title company.. I used the TAR-1903/TREC-39-6. However, obviously there is not enough room on the promulgated form to enter all repair items if they are numerous. I thereby created an attachment as instructed by the TAR. I merely retyped the list that was agreed to as an attachment and forwarded that list again with the TAR-1930/TREC-39-6. Besides, there is no law or legal presidence requiring the use of TAR forms. The "Statue of Frauds" requires that real estate transactions be in writing. Which in this case is.
The fact that the sellers sent you a list of what they (at that moment) would complete, and instead of having your clients sign the list they provided, you completed a new shiny list and when the sellers changed their mind, the previous list was not accepted and signed by your client, you could be considered an error on your part for not having your client sign the list they sent you and conveying the acceptance of that list at that time. The sellers changed their mind prior to your clients accepting the changes. The sellers in effect rescinded their offer of repairs prior to your clientsâ€™ acceptance. (Nothing wrong with that) In addition what do you have that ties the list to the contract? Is it listed as an addendum? Did you title and number it?
Lesson learned: contracts don't have to be pretty to be enforceable, but they have to be in writing.
Thanks again!!! Joe B.
You must have your buyers sign on the list originally returned to you, and take your contract to the title company. Initial to the side of any changes.
Once the contract is at title if the seller changes their mind and breach, they could be liable for up to "Xâ€ times the earnest money (I think it is three)
You need to understand, sellers can change their mind at any time, and there is no contract in the world that can make them sell anything.
But buyers have rights too! and it is your fiduciary duty to point them in the right direction. Please dust off your Law of Contracts book, your buyers have a right to be indemnified for any suffering and monetary loss, a sellers breach can cause them. Search for a term called "Estoppel".
You should write a letter in coordination with your broker, and explain to the sellers that backing out from the repairs they have already signed to get fixed for the buyer would enter both parties into a legal fight where the buyers can claim "estoppel".
This is how it works in case you end up in a small claims court:
You go to the small claims court and present your case, you are granted a date and they send a letter to the sellers saying that they must be present at said time.
By this time a Real Estate Lawyer should, but not "must" be hired, an estoppel in a small claims court is not that big of a deal and judges see this kind of issues fairly often.
Its very simple, the defense must demonstrate that the plaintiff's own statements or actions (THEY ALREADY SIGN THE REPAIR LIST) go against established facts (NOW THEY WON'T DO THE REPAIRS) in order to claim an estoppel. There must also be evidence that the defendant based his actions strictly on the reliance of truth and that he suffered damages because of it (YOUR CLIENT STOPPED LOOKING AT OTHER OPTIONS, GOD FORBID THEY LOST THE 1ST TIME HOME BUYERS BENEFIT, THEIR EARNEST MONEY HAVE BEEN TIED UP, THEY PROBABLY WILL NEED TO PAY RENT FOR ANOTHER MONTH, YOUR CLIENT COULD HAVE BEEN LOOKING TO RELOCATE DUE TO A JOB IN ANOTHER PART OF TOWN, SO COMMUTING CAN BE A PAIN. ALL BECAUSE THEY RELIED ON THE SELLER PERFORMING THE REPAIRS AS IT SHOWS IN THE EVIDENCE PRESENTED TO THE COURT, AND THEY HAVE REFUSED TO DO THEM.
Enforcement of an estoppel is generally left up to the discretion of the individual judge hearing the case. But the remedies could be many times the earnest money.
Simply put: With this tool you can make them do the repairs as agreed (which is good), or almost surely have a judge return the earnest money MANY TIMES OVER to your buyer.
Both ways your client comes out a winner.
Ramon Viggiani -Realtor-
P.S: I am not a lawyer, and my views should not replace, nor deviate anyone from seeking the interpretation of a certified Real Estate Attorney.