Home Buying in New York>Question Details

Jenny Borisov, Home Buyer in Bellerose, NY

The seller is backing out of the sale, what type of compensation we can seek for pain and suffering after being in contract for 3 months?

Asked by Jenny Borisov, Bellerose, NY Tue Nov 20, 2012

My attorney says that we can't get any money for that? Please advice!

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24
Armen Meschian’s answer
I think you just answered your own question. The seller did not breech an agreement but rather exercised his right given to him by the contract. From the getgo you should have considered the alternative that the may not find a house. More contingencies you have in the contract , higher the likelihood of a deal to blow up.
1 vote Thank Flag Link Wed Nov 21, 2012
Hi Jenny,

How are you? I hope the loss of your contract hasn't caused you too much stress. I say, chalk it up to a lesson learned. Everything in life happens for a reason so I'm sure there's a better place with a better deal waiting for you right around the corner! In the spirit of this Thanksgiving holiday, count yourself fortunate that you're even in a position to buy a home & move on. Remain positive :-)

Looking forward,

Christine Gordon
Licensed Real Estate Salesperson
Cell: 917.881.2924
Fax: 347.328.9352
Apartment updates available at http://www.christinegordon.postlets.com
"Home is where the heart is."
6 votes Thank Flag Link Sun Nov 25, 2012
So, it is in the contract as you state:

The seller had a contingency clause in the purchase contract stating that they have to find another house to buy/move in. by Dec 20th, 2012. - which was set to be the Closing Date. The had a maximum of 4 months to do that. After 3 months the told our attorney that they want to default on the contract. "

The seller obvoiusly had an out. Th ere is no "pain and suffering" on your part as the you agreed to the terms. I am betting it read more like, a contingency that "the seller find suitable housing" They did not or could not find suitable housing.. you are out. period.

"They are willing to pay our financial expenses" You should be happy with that! what did you really do? As noted, you waited for a house that "could" have been sold to you.. it was not. be happy with the expenses.

Find another house. deals fall aprat all the time without any compensation t anyone not looking to pay their attorney to enter litigation and in this case, even your attorney is telling you you do not have a case.
1 vote Thank Flag Link Sun Nov 25, 2012
If you used a buyer agent, you were ill served by them. You can't get money for pain and suffering. Honestly, you suffered frustration and loss of hope but surely not pain. Take the money offered and move on.

A decent and competent buyer agent would have advised you to counter to any seller contingency with a compensation clause. Realize though that unless an agent is also an attorney, they aren't qualified in any manner to write a contingency. Contingencies must be enforceable in court (or mediation if you choose that) and the only people qualified to write such a contingency is an attorney.

I know some agents will say they write contingencies all the time. Few are challenged so they get away with it if everything goes smoothly. If they don't your position is very precarious.

Before you ever write an offer or accept a counter, have your real estate attorney review it and give you a read to make sure you are't giving away something you'll regret if things don't go right.

Every contingency can have a compensation clause to provide you with relief if the other party doesn't perform. Most buyers don't add compensation to seller contingencies for fear of losing the house. Not so. When buyers start insisting on controlling their home purchases then these things will change.
1 vote Thank Flag Link Fri Nov 23, 2012
If your attorney is not being helpful, consider consulting with another who specializes in real estate....
1 vote Thank Flag Link Tue Nov 20, 2012
It all depends on the language in your sales contract...if your attorney says you can't get any money then I'd go with that. Only an attorney can give you legal advice, agents can't.

Chris
1 vote Thank Flag Link Tue Nov 20, 2012
You won't be able to get accurate legal information on here. You need to consult another attorney if you think the first one may be wrong.
Tom Brady SFR, e-PRO, SRES, GREEN, BPOR
Licensed Real Estate Salesperson
Notary Public, Retired N.Y.P.D. Lt.
631-682-8660
Tom@BradyFamilyRealty.com
http://www.BradyFamilyRealty.com
#1 Listing & Selling Brokerage in NY
Charles Rutenberg Realty, Inc.
255 Executive Drive - Suite 104
Plainview, New York 11803
1 vote Thank Flag Link Tue Nov 20, 2012
I would get a second opinion from an attorney since they would know best.
1 vote Thank Flag Link Tue Nov 20, 2012
Your sales contract will usually state what happens in this situation, and we must assume that your attorney has given you his advice based on that. Unfortunately deals do fall apart for a variety of reasons. It is a part of the business. It is best to accept and move on. Your future home ownership will be worth the stress of the journey. I wish you luck.
1 vote Thank Flag Link Tue Nov 20, 2012
Jenny,
Sorry to hear about your loss! As others have stated a sharp buyers agent or attorney would have warned you about the “finding another house contingency” and if you had your heart set on it recommended some sort of penalty if they didn’t find another home in time. Though I’m not sure how that would have worked unless they were already in contract on the new home -but in any case I am not an attorney and cannot give legal advice. As it can take months these days to close on a home that needs financing and even longer to find the home of your dreams, I suspect you bought this house from the listing agent?? Maybe they also recommended the lawyer you used?
I guess you are lucky that they backed out in 3 months rather than four. The good news is that after the holidays in the dead of winter you might get yourself an even better deal as many people get fed up with the weather when it’s cold and decide to move somewhere warmer..
Something similar is an issue here in Manhattan when there is a tenant in place and I find the listing agents always assure you the tenant will move out when the apartment is sold.. When finding condos and coops for buyers I will tend to avoid those with a tenant in place because in NYC, it can be very difficult to get a tenant out that doesn’t want to leave..Do consider getting a local buyers agent in the future (I believe some have answered your question here)
Best of luck to you in the future!

Jolie Muss
Licensed Real Estate Broker & Brokerage
"The Upper West Side's Buyer Broker"
331 Columbus Avenue, New York, NY 10023
Office: 212 721-3301 Email: broker@joliemuss.com
Website: http://joliemuss.com Trulia: http://www.trulia.com/profile/jolie
Twitter: http://www.twitter.com/jojomuss LinkedIn: http://www.linkedin.com/in/joliemuss
0 votes Thank Flag Link Fri Nov 30, 2012
You can't force the sale & the seller has an out clause in the contract. Use the knowledge that you gained in this transaction to make the next purchase less painful. Take the financial expenses offered & start looking again. Rates are probably even better now than they were 4 months ago so you may be in a better position. Good luck!
0 votes Thank Flag Link Wed Nov 21, 2012
Dear Jenny,
I have no doubt that the trasaction was a "pain" for you..but you will not be able to be compensated for it. There is no way to force a sale if the owner changes their minds. You will have your Good Faith deposit returned and hopefull, you will do better next time around.
0 votes Thank Flag Link Wed Nov 21, 2012
Ok, since people want to hear more of the story...here it is:

The seller had a contingency clause in the purchase contract stating that they have to find another house to buy/move in. by Dec 20th, 2012. - which was set to be the Closing Date. The had a maximum of 4 months to do that. After 3 months the told our attorney that they want to default on the contract.
They are willing to pay our financial expenses but nothing for the time we've waisted by waiting and not looking at other houses. It seams unfair to me..that's why I want to ask if anyone had a similar case.

My attorney is saying that we need to get the down payment and the expenses back and not worry too much about the pain and suffering we've experienced with the deal falling through.

Thanks again for all of your help!

Jenny
0 votes Thank Flag Link Wed Nov 21, 2012
Only a small piece of the story here, why did it drag on for 3 months?

Jim Simms
NMLS # 6395
JSimms@cmcloans.com
Financing Kentucky One Home at a Time
Web Reference: http://jamessimms.com/
0 votes Thank Flag Link Wed Nov 21, 2012
Jim,
In New York, 90 days is the norm not an exception.
Michael Richman
Licensed Real Estate Associate Broker
Bellmarc Realty.
681 Lexington Avenue
New York, NY 10022
Phone 212-688-8530 x223 Cell 917-991-2528 Fax 212-758-7495
Email mrichman@bellmarc.com
Flag Wed Nov 21, 2012
You attorney already answered the question for you. There is no pain and suffering. all you can do is have them reimburse you all your legitimate expenses (inspection fees, earnest money, mortgage application fees etc) and if you want likely waste your time and money you could possibly pursue a specific performance suit.

You could always speak to another attorney but there's no reason to assume you'll get any different answer. Asking for help online isn't going to really help you. There's at least two sides to every story and my guess is the Seller has a differing perspective on things. Without knowing all the details no one on Trulia is going to be able to give you a really detailed cogent answer.
0 votes Thank Flag Link Wed Nov 21, 2012
I would hope that your attorney also explained to you that your options are limited to letting the seller off the hook or suing for specific performance to compel the seller to honor the contract and sell to you.
0 votes Thank Flag Link Wed Nov 21, 2012
I suspect that in the course of three months....stuff happened.
No one likes a prolonged contract period BECAUSE stuff happens.
The sound bite provided unlikely tells the complete story.

This appears very much like the event I recently experienced. The buyer, having waited patiently for many complications to be resolved with a waterfront condo, communicates they are going to gut the place and start over with the creation of the place of their dreams. Not uncommon.

However, the opportunity I arranged for them have access and measure for the coming renovation, turned into an Uncle Bill inspection, which they felt was a good time to begin new negotiations and make a few demands. The seller was waiting for just such an opportunity. NO SALE! Instead the buyer in effect paid a penalty. The seller moved to a much, much better deal.

Moral to the story: It's no longer a buyers market in Palm Harbor Florida. Take care before starting new negotiations.

So, tell us the full story.
0 votes Thank Flag Link Tue Nov 20, 2012
First of all, how can the seller back out of a signed and binding contract?

Perhaps a consultation with another attorney might prove interesting.

I would be happy to provide you with two of the finest I know...give me a call or email me.

Gail@GladstoneGroupRealty.com
631-425-6150
0 votes Thank Flag Link Tue Nov 20, 2012
You should ask for help a specialist in this field.
Seek for an attorney that speciliazes in Real Estate
0 votes Thank Flag Link Tue Nov 20, 2012
It is all in the purchase and sale agreement. I would start there. Check with your broker or a real estate attorney if the contract is not clear.
0 votes Thank Flag Link Tue Nov 20, 2012
Seems odd that the seller can change mind without any repercussions. I recommend that you speak with another real estate attorney, we can't advise you. Good luck.
0 votes Thank Flag Link Tue Nov 20, 2012
This is legal... Ask your attorney.. That what he is there for.
0 votes Thank Flag Link Tue Nov 20, 2012
As stated below, if the contract has been fully executed (signed by both you and the seller) there may be a case here. If the seller never signed, there is absolutely nothing you can do.
0 votes Thank Flag Link Tue Nov 20, 2012
Sorry to hear. If the contract is fully signed by both you AND the seller you may be able to force the sale through litigation. I represented a buyer once that took the matter to court. Ask your attorney about that if you really want the property.
0 votes Thank Flag Link Tue Nov 20, 2012
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