Home Buying in 59701>Question Details

Red_as_copper, Home Buyer in Butte, MT

I have asked a couple times before, and I think I must be asking the wrong questions, so I'm giving it one more shot: I went under contract

Asked by Red_as_copper, Butte, MT Wed Jul 7, 2010

06/10/10. I had a home inspection which found a water leakage issue into the finished basement. Also, due to the water leak, there is now mold. The seller agreed unconditionally to my requests on the inspection notice, which included repairing the water damage. The document states, "If sellers and buyers agree to the remedies specified above, this document shall constitute an amendment to the Agreement to Buy-Sell . . . All performance required of sellers by this document shall be completed by 5:00 p.m. on July 6, 2010." It is signed by me and the seller. The work was just started July 6, and is nowhere near completion. We were supposed to close July 9 according to the original contract, now I am being told it will be the end of July. I planned my whole month based on the July 9 date: took time off school, worked to get my current home ready to rent. Does anyone think I can cancel the contract based on the work not being completed by July 9 and get my earnest money back? Thanks

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Debra B. Albert, PA’s answer
Please contact the listing agent on the property and/or the broker of the real estate office. This is a contract issue that needs to be completed. It appears that you are covered by the contract to have the property fixed by the seller and if it is not happening their agents need to look into this and have them complete the repairs as to the contract.

Good Luck!

Debbie Albert, PA
Coldwell Banker Residential
Web Reference: http://www.ronanddebbie.net
0 votes Thank Flag Link Thu Jul 8, 2010
I appreciate everyone's feedback and it is all good advice, lots of it I didn't even know about. The reason it seems to me it might be worth walking away is we were not actively looking to buy a house anyway - that's why we didn't have a buyer's agent. We just happened to drive by this house and liked it, so we called the selling agent to look at it and made an offer. It kind of just happened. Anyway, thanks again for all the great information and taking the time to answer me.
0 votes Thank Flag Link Thu Jul 8, 2010
Guys it also depends on Montana real estate law.

Here in Arizona, if a contract is breached the breachee is served a "Cure Period Notice" that basically gives them a mini-extension to "cure" the breach.

But if you're being told it won't happen until end of July than it seems unlikely you fall into this category.
0 votes Thank Flag Link Wed Jul 7, 2010
Technically if the seller does not perform by the dates on the contract, they could be in breach of contract.

That being said, I can understand your frustration with the situation. However, is this really something that you want to pass on if the repairs will be made? You could ask for some consession from the seller for the inconvienance and delay.

Also, if the agent is treating you in this manner, I would contact her broker and voice your concerns. Another agent could be assigned to you so that you have someone working in your best interest.
0 votes Thank Flag Link Wed Jul 7, 2010

This situation is one that needs to be reviewed by the Title company who has your transaction in escrow. They will review the contract, addendum and determine whether you are entitled to have your Earnest Money returned.

Best of Luck,
0 votes Thank Flag Link Wed Jul 7, 2010
Having a dual agent is not a recommended idea.

I would consider this a bit differently.

Even if you could walk away from this house and get all of your earnest money back is the loss of 3 weeks buying time worth walking away? I know it is an inconvenience. It is annoying. But is it worth having to find another house, take perhaps months more to find what you want to avoid a few weeks of waiting?

A contract is written with final dates for things to be done. If those dates pass and the contract is not completed the contract is no longer in force. You could choose to extend it or not.

p.s. "Just tell me if you don't want the house because I will sell it out from under you in a minute. I don't have time for this." Sounds to me like a hard sell push. You had the best (perhaps only?) offer. That means they are trying to make you feel that staying with the property is the only way not to lose it. There is no guarantee that there are ANY other offers on the table.

Do you want this car? I have 3 other buyers interested but if you buy right now I can get you this beauty for only... It sounds like the same kind of sales pitch... total b.s.
0 votes Thank Flag Link Wed Jul 7, 2010
When I say the seller agreed "unconditionally" I mean she signed the inspection notice agreeing to my request to negotiate the conditions I cited from the inspection: diagnosis of a basement water leak, mold test, repair or replacement of water damaged materials. She did not reject the inspection notice, or counter-offer. The reason I am afraid to ask my current agent is that she is a dual agent (originally the seller's agent) and she got really nasty with me when I expressed my concerns about the closing getting pushed back and basically told me she wouldn't talk to me anymore, only my husband. She actually said, "Just tell me if you don't want the house because I will sell it out from under you in a minute. I don't have time for this."

I want to say thanks to both of you for your advice. I don't have a lawyer - in Montana, it is not required and I rea;;y can't afford to retain one since all my savings is going for the earnest money and closing costs. Thanks anyway.
0 votes Thank Flag Link Wed Jul 7, 2010
You're correct. You're asking the wrong questions. Or the right questions to the wrong people.

You're asking for a legal opinion. We're not lawyers. We can't give legal opinions.

Nor are we your Realtor and thus we don't have access to your paperwork. So we can't advise you on that.

OK, OK. I agree that based on what you presented it sounds as if the seller may not have lived up to the contract. But you say the seller "agreed unconditionally." Really? That's an awfully broad statement. It's language like that that scares us off.

Can you get your earnest money back? Maybe. Usually--depending on your paperwork which none of us has--it requires the approval of both the buyer and seller. In other words, the seller must agree to the release and return of your earnest money (if the provisions in your contract are standard . . . but we don't know if they are.)

Your Realtor would be the person to consult, since he/she has access to all your paperwork.
0 votes Thank Flag Link Wed Jul 7, 2010
Don Tepper, Real Estate Pro in Burke, VA
Hello Red_as_copper,
I recomend that you talk to your lawyer. It seems that contract gives you right to cancel because the seller didn't meet the dead line. But it's better to talk to your lawyer about your concerns.
0 votes Thank Flag Link Wed Jul 7, 2010
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