Home Buying in 94506>Question Details

Sue Bloom, Home Buyer in Danville, CA

Seller and Buyer trying to work out CAR CC agreed escrow instructions yet Seller Agent holding up terms. Please advise.

Asked by Sue Bloom, Danville, CA Sun Nov 18, 2012

Buyer signed CAR CC sent sent to Seller Day 17 (continguency removal deadline). Seller then creates new CAR CC with para 1 reason to cancel per mutual agreement. Seller then stated to Buyer via e-mail: " If the buyers sign clean "[Seller] mutual agreement" Cancellation document unchanged, then seller will pay to buyers $500., will release $10,000. deposit to buyers, and will release buyers of the $695. inspections fees." Yet, Seller Agent states to Seller, "There is no agreed upon $10,000. The contract is very clear that their deposit goes back to them if they don't remove contingencies...You have the option of sending a cancellations to them which authorizes release of their depos to them and you sign the escrow release and then they can't argue you are holding their money. The other major issue is whether you are safe to put the back up offer in to first position. The risk is with selling the property twice. The other risk is that they file a Lis pendens and hold up escrow."

Help the community by answering this question:

Answers

9
BEST ANSWER
Without seeing all the contractual documentation, it’s impossible for anyone here to offer concrete advice. To be honest, I’m not sure what you are asking. If you have not removed your contingencies, then the buyer technically does not have a claim to your deposit.

It sounds like you wanted to cancel the contract by sending a Cancellation of Contract, but the seller was not willing to sign the one you originated. Instead, they filled out one of their own and asked you to sign theirs – but it sounds like you don’t want to sign theirs either. You might have a stalemate on your hands.

In the meantime, the Tina pointed out, no funds can be released from escrow by you OR the seller until you agree on a Cancelation of Contract (with instructions to escrow) and both sign it. Additionally, the seller cannot proceed with a new buyer until this is resolved. To do so would place them in extreme jeopardy.


Without seeing all the contractual documentation, it’s impossible for anyone here to offer concrete advice. If you have not removed your contingencies, then the buyer technically does not have a claim to your deposit.

It sounds like you, after discovering that the seller was not willing or able to correctly disclose water related issues, wanted to cancel the contract by sending a Cancellation of Contract, but the seller was not willing to sign the one you originated. Instead, they filled out one of their own and asked you to sign theirs – but it sounds like you don’t want to sign theirs either. You might have a stalemate on your hands.

No funds can be released from escrow by you OR the seller until you agree on a Cancelation of Contract (with instructions to escrow) and both sign it. It sounds to me like you might be putting more on the CC Cancellation of Contract than is actually necessary. The point here is to cancel the contract and get your funds back, not make a point about the seller’s integrity or lack therein. All that is required is “Cancelled by mutual agreement” and an explanation of what funds are to go where.

Additionally, the seller cannot proceed with a new buyer until this is resolved. To do so would place them in extreme jeopardy. If you cannot get this resolved to your satisfaction, then you have the right to file a lis pendens to keep the seller from proceeding until this has been resolved.
1 vote Thank Flag Link Sun Nov 18, 2012
Hi Sue,

It's time to involve the Brokers to pull this transaction out of the mud; and/or, put this agreement out of its misery!

There's just too much "he said, she said" for any of us to provide a clear path to resolution.

Good Luck!

-Steve
1 vote Thank Flag Link Mon Nov 19, 2012
I am confused about the part where you state your Realtor has withdrawn themselves – are they working for a Broker?
1 vote Thank Flag Link Mon Nov 19, 2012
No it's two Realtors (who sold my Mom a home in Blackhawk a few years ago) who work for a well respected firm.
Flag Tue Nov 20, 2012
You absolutely cannot be serious!
1 vote Thank Flag Link Sun Nov 18, 2012
Hi Ron, I am serious and title company and Seller has the email from Selller Agent (actually the Seller Agent's VP sent e-mail to Seller). I am reading it now. Also, The house went off market even though Seller Buyer in stale over CAR CC, so looks like Seller accepted back up offer. We the Buyers want to put closure to this as Seller did not disclose water damage and Seller stated CLUE report false. We are now afraid if we sign Seller new clean CAR CC, we will be duped and not get our deposit back. feel like if we sign Seller's newly created "clean" CAR CC, we will not get our deposit back. We have never received NBP yet Seller Agent and Seller implies we did. Our Buyer Agent removed themselves from this situation but Buyer Agent told me no NBP sent. We are in limbo but still not out of escrow, correct?
Flag Sun Nov 18, 2012
So, even Seller Agent recommended us Buyers see a Real Estate Attorney. Thus, yesterday, I told all involved that since we were at a stalemate, I would contact a Real Estate Attorney to file a lis pendens to get a resolution which I feel is the right thing at this time. Seller Agent replied back requesting immediate signature CAR CC; Title Rep sending escrow instructions for immediate deposit back. Yet, Jeff, Real Estate Attorney was unavail Monday, so will try again today. Looks like Seller may have put back-up offer in first position because house was BOM and now is not showing on market. We still have not removed contingencies or received a NBP. Also, this is just a regular sale, standard contract...Day 17 contingencies...loan funding on track; we were fine with negotiation of home inspection repairs...COE was 35 days with close next week. The nondisclosure and improper water disclosure even after addendum sent to Seller put us at a halt and intitiated the CAR CC since Seller basically mute about water claim. We have acted in good faith entire time. My husband really likes this house...decisions and hope Real Estate Attorney avail. Thanks everyone!!
0 votes Thank Flag Link Tue Nov 20, 2012
I agree whole heartily with the other Realtors.Seek advice from your Realtor and maybe a REAL ESTATE ATTORNEY. Every deal is different . And without viewing the documents we have no way of knowing what is the correct action to take .
0 votes Thank Flag Link Sun Nov 18, 2012
Seller stated this to Seller Agent (keep in mind neither Buyer nor Buyer Agent ever given NBP and all Buyer requested was TDS and SPQ's to properly disclose water damage or Seller Sign Buyer created CAR CC as permitted paragraph 14 and Calif Sec Code 1102.3): "If the buyers do Not promptly sign and fax [Seller Agent] clean "per mutual agreement" Cancellation document unchanged, then the deal is off, and then seller would demand $10,000. agreed upon damages to seller per contract, for buyers non-compliance with Notice to Perform, and then seller would demand buyers pay for buyers own inspections, and no payment of $500. would be forthcoming. Buyers either accept this Last and Final offer, or buyers risk getting no money from the deal."
0 votes Thank Flag Link Sun Nov 18, 2012
Our Buyer Realtor removed themselves last week, stating, "We apparently have reached an impasse which we have not been able to resolve. We kindly withdraw from any further action and from this point on we suggest you take your issues to [Title Rep] at Pacific Coast Title Company. It has been suggested to us that they can assist in the cancellation of the contract and escrow and return your initial deposit. " Though after I viewed Seller Agent emails yesterday to Seller and Title Rep, I spoke to Buyer Agent who told me today no NBP ever given to us.
0 votes Thank Flag Link Sun Nov 18, 2012
Sue,

You should be discussing the situation with your Realtor. We can't provide any useful advice based on the information provided.
Web Reference: http://www.archershomes.com
0 votes Thank Flag Link Sun Nov 18, 2012
Search Advice
Ask our community a question
Email me when…

Learn more

Copyright © 2015 Trulia, Inc. All rights reserved.   |  
Have a question? Visit our Help Center to find the answer