Home Buying in Marlborough>Question Details

Rita Vazquez…, Both Buyer and Seller in Hudson, MA

My agent has advised me to "keep my mouth shut and be nice about bringing up issues" Meaning not saying anything, because the sellers agent

Asked by Rita Vazquez-Torres, Hudson, MA Tue Nov 1, 2011

has the power to back us all out of the deal. It is clear the sellers agent does not like us, does not like the fact that we are educated and ask questions, and that we had an attorney negotiate our P&S (which took about 3 weeks). I have a feeling the sellers will back out based on the agent, as I have been vocal about the things that need to be addressed, and now that there is structural damage to the house due to the storm (the house has been vacant since April), and no one is talking to us (our broker is on Vacation and didn't have the listing agents number, and we really can't reach her), we have no clue what is going to happen. We were supposed to close in 29 days. Can a sellers agent really exercise that? The P&S is signed, she has our earnest check and the check we gave when we made the offer, she knows we're approved and the house will appraise (well if they fix the damage! the sellers live in another state!) Do I have to sit quiet? Do I have ANY options?

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Kevin Vitali’s answer
Rita- Assuming you have a Purchase and Sale signed, the purchase and sale spells out what exactly will happen in this case. If you have a purchase and sale, and you yourself are meeting all dates and contingincies then the listing agent can't do a damn thing.

Usually, but every contract is different, the sellers must notify you if the repair is over a certain amount and you may decide to back out, there are provisions also for the seller to try and deliver the property the way it was or assign the insurance proceeds to the buyer (that does get sticky as the damage may prevent financing)

The best thing for you to do is sit back and allow your attorney to assess your rights and negotiate the terms. You obviously are emotionally charged and you communicating with the listing agent and seller may not be in your best interest.

At this point it is a bit complicated. With out knowing exactly what is in your contract or what you are sitting quiet about.... it boils down to the contract and what the contract says. Let your attorney do their job and if you don't have one.... get one immediately.
1 vote Thank Flag Link Wed Nov 9, 2011
Mack you are right. The deal fell through because of two lax attorneys and one HORRENDOUS and LAZY seller broker. We were left with our condo rented and living in a hotel for 2 weeks and our stuff in storage. We fired our attorney and contacted the sellers directly. We rented the house and with OUR new attorney, did all the legwork and got the title cleared. We closed on Feb 14 2012. And love our home. I dont know what Maureen Harmonay is up to, but we wouldnt let her sell dog food (she is also a dog whisperer who meditavely tends to ill pets - no joke you can google it!). We LOVE the home and neighbors. It was worth the fight. And NO - NO client should shut up. We fought hard and got our home. I am sorry some brokers give the profession such a black eye
1 vote Thank Flag Link Mon Mar 4, 2013
Would it be fair to say that your AGENT has CONTROL issues?

Are you so in love with this property that you must ignore the RED FLAGS?

Are you good at answering your own questions?

Good luck and may God bless
1 vote Thank Flag Link Wed Nov 2, 2011
- Call the broker

Yeah, Lynne; it's good to check the date of the questions. It's great that you're willing and eager to help, but this homebuyer has this problem long behind her.
0 votes Thank Flag Link Sun Mar 3, 2013
hmmm... for some reason this popped up and I assumed it was recent. Thanks for the FYI.
Flag Mon Mar 4, 2013
As stated by other agents, your agent should have provided coverage in her absence, in advance of her departure. I would not leave my clients without an agent to rely on - things don't stop happening because of vacations! I would suggest contacting her broker, and asking for a meeting to explain the circumstances. I didn't see where you said how you know there is 'structural' damage - I assume this is documented. If it involves insurance payments, you may find your closing delayed until remedies can be made. I do question why a P&S would take 3 weeks - probably not endearing you to the sellers, and calls into question whether you can rely on your attorney. A P&S should be turned around inside of a week. You should not have to resort to relying on advice from other realtors. Call the broker - their office is making a commission on this sale.
0 votes Thank Flag Link Sun Mar 3, 2013
Hi Rita:

The Seller cannot unilaterally back out of the deal if the buyer has complied with the terms of the purchase and sales agreement. There's a legal term called 'specific performance' which means that one party or the other can be compelled to complete a previously established transaction. If the P&S states that the Seller must fix this or that, then the seller must do it or face legal action from you. The only exception might be if there's a title issue which the seller can't fix; then your lender wouldn't give you a loan for the house.

If something happened to the house; let's say it burned down before the closing, or structural damage due to a storm. See if the Seller had insurance on the house. If the damage is very bad and the Seller can't fix it, then most likely your lender isn't going to give you mortgage.

As others have said, if the agent representing you is away, contact that agent's principal, the person who owns the agency, and have that person deal with the broker representing the seller.
0 votes Thank Flag Link Sat Nov 12, 2011

Yes the P&S has the clause that stipulates that if they can't deliver the property the way it was, the proceeds come to us. The financing is 100% VA, and the appraiser was recently out at the house - it doesn't seem that will become an issue. The poor sellers are stuck in the tsunami of claims that have gone into the insurance system, thus nothing can be done until the insurance comes out to assess the situation and looks at all the quotes. In the meantime, the clock is ticking and our attorney has not returned a single call or email to speak with him. The P&S also stipulates that whatever actions are taken are to come to us in writing. In the meantime, the only way of getting an update is IF our broker calls the sellers broker, who we feel does not show the professional courtesy to her colleague of keeping her informed. We found out "defacto" that the VA appraiser had been out, because my agent got tired of the radio silence from attorneys and the other agent and called. Which only serves to increase everyone's stress levels. We are dumb founded by the entire process. And it seems, we may have to get another attorney, one who is responsive.
0 votes Thank Flag Link Wed Nov 9, 2011
Christine - the owners live in TX and they should be talking to us through the attorneys. The house is vacant and their agent left a
0 votes Thank Flag Link Thu Nov 3, 2011
Ron, I would say both agents have control issues. The house doesn't have red flags, it's the process, and the difference between one agent and another (generational/experience). The agents should be keeping eachother informed and in those instances where there is a legal impact leave that to the attorneys
0 votes Thank Flag Link Thu Nov 3, 2011
We have a term for that. "Micky the Moap" just stand there and don't say anything. If the home owner is home the other agent should not grill them with questions. I advise my clients and other peoples clients to direct all questions to their agents and vice versa.

You situation seems to go beyond that if it is affecting the transaction. Speak with your attorney. The seller have their own attorney and yours can speak to theirs. No one can force someone to sell or not. Or buy.
0 votes Thank Flag Link Thu Nov 3, 2011
What we have learned in this process is that there are great real estate agents and others that create more problems than they solved. P&S covers us, and after discussions with our attorney, local police and MA state police - walking up to a property listed for sale without further markings such as
0 votes Thank Flag Link Wed Nov 2, 2011
First of all someone should be covering for your buyers agent while he/she is on vacation. I am sure all the agents here can attest that if you have an active deal and go on vacation we are either sleeping with our blackberrys/iphones (i.e. in touch regardless of whereabouts) or -if we knew we were going to be out of touch- planned in advance to have someone for you who is available. I am so sorry about that.

This sounds like one of those scenarios where emotions get inflamed, especially because so many parties involved, such that people just stop communicating. I suggest you get your real estate attorney on the phone tell him/her your agent is out of town and that you would like his/her help in communicating to the other side. I would also ask your attorney about the language in the PS and how it protects your money in a dispute-type situation like yours. My guess is, if there was additional damage to the home that was not there when the PS was signed, your money will likely be protected.

Bottom line, get your attorney on the phone tell him/her your fears and that you need help communicating to the other side (sellers)
Web Reference: http://territory.com/
0 votes Thank Flag Link Wed Nov 2, 2011
I'll try not to repeat what others have contributed.

Have you look at the P+S? It is not necessarily that easy for the sellers to back out of this binding contract--they certainly can't do so jus because they don't like you (and don't forget that they likely won't want to put their house back on the market with the real estate market being what it is, not to mention that we're getting close to the holiday/winter slow down).

Oftentimes there is a provision in the P+S re: damage to the house post-P+S signing and pre-closing. Look at that provision--sellers are usually required to make reasonable efforts to fix it or they might be required to assign the homeowner's insurance payment to you. Also, you will likely have to let your mortgage broker know about the damage. The important thing to find out now is what's in your P+S (consult w/your atty) and the true extent of the damage.

Best wishes. As long as everyone is dealt with in a calm and respectful manner, things can get worked out better than expected.
0 votes Thank Flag Link Wed Nov 2, 2011
Hi Rita, well things are done differently out here in California. We save the attorneys until real trouble starts! Anyway, I just thought I would throw in my two cents, to try and get you to relax. It's unfortuanate that your own agent has resorted to yelling at you, but I am sure they are trying to do what they think will work best for negotiations. If you were my client, I would remind you that sellers really don't like to fall out of escrow and have to start all over.. Plus they have a buyer that likes the place and is willing to work with them even though the house was damaged in a storm. And the seller's agent, I am sure wants the deal to close so they get paid, just like your agent! So I would suggest that you focus on the estimates for the damage and let your agent know that you have faith in their negotiating the repairs, and try to let the professionals do their jobs. You may be very educated, but you have professionals paid to represent your interests, and you should talk with your advisors and let them talk to the other side. Best, Terry Bell, Realtor, Santa Rosa, CA
0 votes Thank Flag Link Tue Nov 1, 2011
Generally speaking, Rita, while we know how negotiations "generally" go, each one is an individual and needs to be treated as such.

With that in mind, the seller's agent is not a principal to the transaction and can't exercise anything. Your agent is not technically the broker, the real estate company is technically the broker and they have assigned someone licensed by the state to supervise your agent, so if your agent isn't available, that's the person to speak to.

As to whether you sit on the sidelines or not, that's really up to you. You are a principal to the transaction, and you are the one who reaps the benefits of speaking up and suffers the consequences, as well.

All the best,
0 votes Thank Flag Link Tue Nov 1, 2011
It seems like your attorney has already been involved, try to talk to your agent's broker and then work with the broker and your attorney to walk through this situation. A structural issue can be very important, so you need to have this throughly investigated.
0 votes Thank Flag Link Tue Nov 1, 2011
I would contact the broker of record for your agent and see what he/she can do. No reputable agent goes on vacation with nobody to cover for them.
0 votes Thank Flag Link Tue Nov 1, 2011
Hi Rita,

If you have reason to believe that the seller's agent is obstructing your ability to obtain information about the house you are buying, I would find out who is covering for your buyer agent (or even better, his/her broker of record) and have that person get in touch with the broker of record of the listing agency.

You deserve full disclosure on your property. You have already put funds into escrow so deal cannot terminate outside of the terms in your Purchase and Sale Agreement. Stick with it!

Good luck!
0 votes Thank Flag Link Tue Nov 1, 2011
I agree with the previous advice about speaking to your attorney.

However . . .

No. Don't "be nice about bringing up issues." Don't "keep your mouth shut." Now, certainly listen to your attorney. You don't want to compromise or weaken your position. But you have every right to raise issues that concern you. You're spending a lot of money. You're making a major commitment--one that will affect your life. You have every right to raise questions and concerns.

Your lawyer is a professional, so you should listen to him/her. Your real estate agent knows more about real estate than you, so certainly take your agent's opinion into consideration. But your lawyer works for you. Your agent has a duty to represent you. You're the boss. Don't be bullied or intimidated by the seller's agent . . . or by your own agent. Again: Pay attention to your lawyer and your agent. They know more about real estate and the law than you do. But, ultimately, you're the one spending the money and you're the one making the commitment. A month later, both the lawyer and the agent will be working on other deals with other clients. But you'll be living with the results, perhaps for decades to come.

Hope that helps.
0 votes Thank Flag Link Tue Nov 1, 2011
Don Tepper, Real Estate Pro in Burke, VA
Since your agent is on vacation, why not simply consult with your attorney...
0 votes Thank Flag Link Tue Nov 1, 2011
Some real estate agents are use to being pushy, bossy, arrogant and aggressive. Sounds like you have one you are dealing with. Speak to your attorney.
0 votes Thank Flag Link Tue Nov 1, 2011
You have an attorney and should be speaking to him or her.
0 votes Thank Flag Link Tue Nov 1, 2011

If your agent is out of town, I would call her managing broker and ask her who you are supposed to talk to while she is gone.

Does your purchase agreement contain something that says the house should be in the same condition it was in when you inspected it?

Review your contract with your attorney/agent/broker to determine your remedies and the sellers' responsibilities.
0 votes Thank Flag Link Tue Nov 1, 2011
Maureen Fran…, Real Estate Pro in Birmingham, MI

I am sure there are provisions in your PnS agreement - have you contacted your lawyer?

0 votes Thank Flag Link Tue Nov 1, 2011
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