I would have to read the contract to see if all time lines had been met (due deligence period, appraisal exhibit, etc.). otherwise it depends on whether or the sellers mutually agree in writing (Termination and Release). If not they could possibly sue for you to perform.

Wed Jun 11 2008, 18:31

Thank you all for the help. I have consulted my attorney. We are trying to work this out with the seller to ensure we meet their needs as well as mine. Thanks, again !

Tue Oct 23 2007, 09:05

Hi Lohi,

SInce you did not notify that your were unable to obtain financing by the date set in your contract, that contingency was in essence removed by your silence. Therefore, it is assumed you met the contingency (which you did, since you are now approved).

If there are no other contingencies in the contract, and you are simply suffering from 'buyer's remorse', it may be difficult to back out without losing your deposit. It will depend very much on this FSBO's savvy and whether or not there is an attorney involved looking out for his best interests.

The creek running behind the house was always there, you just didn't see it. I think you will have a hard time proving that the seller 'hid' this fact from you. The room sizes being too small... not a reason to default on a contract.

Basically, as previously stated, your reasons are all based on buyer's remorse, and, unless you are basically still in attorney review due to unmet contingencies, as Ruth said, the outcome will depend on the good grace of the FSBO.

Good luck.

Tue Oct 23 2007, 07:20

The loan approval lapsing could go either way depending on what the contract says. Some will say, you must have it or the contract is void others will say if you can't get it you have to inform us by that date or the contract is in full affect without the contingency.

Call your attorney!!!

What do you know about the seller? Is he a FSBO because he is a Real Estate Attorney or a high powered negotiator that feels he can do a better job than a Realtor? Or is he a FSBO because he wanted to save the money on commission? See if you can search county court records on-line to find out if he has ever been party to a lawsuit? Google is name, find out what you can. Emotions can play as great of a role in this as legal issues. Has your title search been done yet? Has he been given a notice of default? You need to get inside his head to know what you might be up against.
Good luck,
Ruth

Tue Oct 23 2007, 07:06

Does your Realtor represent you in the transaction? Many states offer Agency. In my state, the people I casually meet are Customers. I owe them honesty and treat them fairly. They become Clients when we enter a Buyer's Representation contract. I represent them and give them a higher degree of service. If a
Client asked me to get them out of a contract on a home, I would be obligated. I would meet them and try to understand their concerns. I would disclose the situation to the other agent. The Seller might understand and agree to part ways, or offer to put up a fence (or some other concession that would ease your mind). Other options might come up while consulting my Broker or legal help. In my opinion, commissions are not due until there is an actual sale.

Tue Oct 23 2007, 06:47

In addition, the contract technically lapsed 5 days after the offer since the contingency was that i secure a loan APPROVAL within 5 days of the offer. This contingency was not met during that time frame as i was not approved for the loan until about 3 weeks later. Does this make any difference?

Tue Oct 23 2007, 06:28

Yes, we did have an inspection but no mention was made on the creek. I have also talked to my realtor and she says she doesn't know what to do and recommends me seeing my attorney. Yes, i have a loan approval. Property on the market for about 1 month prior to my offer. Seller is a FSBO. Thanks for all the advise.

Tue Oct 23 2007, 06:22

In Idaho the fact you do not intend to close is considered an "actual material fact". This would need to be disclosed to the seller even if youir agent is working for you. The best out is a contingency that could not be resolved. That should include financing. Can you lender write a letter stating your inability to get the loan? I do not like that option if it is not true but how could the seller prove otherwise?
Your agent is your best resource to resolve this. You may wish to just offer the earnest money. As far as the seller taking you to court for specific performance only an attorney can comment on that. I do know though many contracts written by agents can be voided bay a court for the many mistakes in them
Good luck
Kelly

Tue Oct 23 2007, 06:16

It sounds as though you never had any inspections? Do you have a Realtor? Was the seller a FSBO? How long was the house on the market before you put an offer on it? If the house was on the market for say 6 months, the seller might feel it will take another 6 months to sell it. Is he going to think $3000 is enough? You need to talk to an attorney right away.
Ruth

Tue Oct 23 2007, 05:28

Talk this over with your Realtor ASAP...be honest and upfront...if your Realtor recognizes that you will continue to work with him/her/them and they wish to maintain there own integrity you should be able to work out a solution that would amenable to all parties. As for the earnest deposit...that may be something will have to forfeit. Again, get with your Realtor straight away and get REAL NOW! Sincerest and best wishes!

Tue Oct 23 2007, 05:26

Jack,
Good point on the commisison. I knew that, but missed it in my answer. If the listing broker hold the seller accountable for commission, the seller will look to the buyer to cover that as part of his/her damages of the failed perfromance. TU to you, Jack!
Deborah

Tue Oct 23 2007, 04:28

I think Deborah hit it on the head as not only an option, but a reasonable offer on your part. Please keep in mind though, that depending on the circumstances there is specific performance to worry about, and, the brokers may also sue for their commission as well. My advice - check with an attorney to cover your bases. Better safe than sorry.

Tue Oct 23 2007, 04:24

You can sttempt to negotiate a settlement. Just because a seller can sue for specific perfromance won't mean they will.

Tue Oct 23 2007, 04:02

The ernest money is large enough to cover 1 month's mortgage $3000.- which is about how long we have been in the offer/contract process. I am not sure if the seller has bought their next home yet but i know they are still in the current property we offered for. We only saw the property once and made an offer for it- our mistake. The sellers then travelled and just came back so we took our kids to see the property and they dont like it due to the small backyard, rooms etc . We agree with them now that we have had another opportunity to look through the property. Most importantly, we also we just found out on this second visit to the property that there is a creek behind the house - we have little kids and feel strongly against that . With all of these negatives plus we are not getting any real gains based on current value of home , makes us want to walk out.

Tue Oct 23 2007, 03:58

The seller can sue you for "specific performance" meaning you have to buy the house or for "damages" such as attorney fees, moving expenses, etc. I guess the question is how much earnest money is it? If it is a small enough amount that you are willing to lose it, will it be a large enough amount to compensate the seller for you walking a way? Lawsuits are expensive but so is sitting on a vacant house and paying two mortgages. Has the seller already bought their next home? Why don't you think it is a good deal anymore? Have prices in the area dropped or do you feel as though the seller or agent was trying to con you?

Has your loan been approved?
Ruth

Tue Oct 23 2007, 03:24

yes, thanks, they were minor. i just dont think it is a good deal so, what are the consequences of walking away?

Tue Oct 23 2007, 03:10

Have you removed any of the contingencies yet? Have you talked to your realtor and let them know your concerns. Alot of buyers feel this way during the contract process, sometimes it is legitimate and sometimes just nervousness. I would suggest talking your realtor, and letting him know your concerns. I would also if you still like the house see if there is a way to negotiate a price you are comfortable at. I dont usually suggest this to anyone, but if your willing to walk away from your ernest money, then why not ask for what you want. They might not want to take this risk of not getting another offer.

Good luck

Tue Oct 23 2007, 02:53