To update. Buyer agreed to cancel. Seller is thrilled he didn't have to sell, I'm out of commission :-(. Oh well, maybe next year :-)...
I guess the bottom line was that signatures or not, one can involve a lawyer, depending on the value of the deal and even at a high cost, to argue the validity of this agreement.
Lesson learned... Make sure seller wants to sell before signing any contracts, counters or even verbal agreements.
Best wishes to all!
As a practical matter, it's hard enough to enforce a properly signed contract if the parties are unwilling to close, let alone one that's questionable.
I do not subscribe to journals of real estate law, but all of the cases I've heard about that have found their way to a judge or arbitrator have been decided less on the preparation of the contract and more on the intent of the parties and the harm that non-performance has caused.
Frankly, I think there's an argument that by signing the counter-offer addendum, you are agreeing to all of the terms in the underlying contract. I wouldn't bet on that holding up in court, however.
I think if we look at contracts less like binding instruments and more like a written representation of an agreement between the parties, we'll also realize that enforcing contracts can be a difficult and time-consuming process.
The counter is just an adjunct to the purchase agreement. It usually only address items like price, and closing date.
The purchae agreement is the real binding contact and must be signed by all parties. If it s not, their is no deal.
Your lender will even require a fully executed purchase agreement for funding, so again if the purchase agreement is not fully executed you have no deal!
Kawain Payne, Realtor
He KNEW he should have signed the original PC and if he didn't, it was your job to tell him to sign and THEN he could also send a counter back at a higher price that ALSO has to be signed.
Obviously he had NO problem signing THAT...
If the buyer accepted the higher price and THEN this seller decided NOT to sell...then he had this..
"I don't think I want to sell" idea in his head for a while and was looking for a way out and basically now just wanted to rent..but didn't have the heart to tell you this.
If the buyer is ok with this and is moving on...consider yourself lucky.
Technically, there never was a fully executed contract and escrow and the buyer's lender, and your brokerage and theirs would have all demanded a fully executed contract be submitted in order to continue escrow and close.
I would still send over a cancellation of offer to all sides to make sure all parties understand this is cancelled and put this to bed...or if one or both sides won't sign anything else at this point..then try to at least get something in writing via an email, etc..that the transaction is completely cancelled
so you can put this to bed. And keep that for your records.
You mentioned below the seller decided not to sell after all, I would issue a withdrawl of offer since escrow was never opened..
As noted below, this is a question for an attorney. But, regardless of the legal realities, don't let this keep you up at night. Just take the non-initialed docs back the the person/people who did not initial and ask him/her/them to do it now.
If you want out of the contract, then you really ought to talk to that lawyer, because walking away from the deal over a technicality like this could be very dangerous.
Many of us follow the same practice, especially in a multiple offer situation. Once weâ€™ve accepted a Counter, we then go back and get all parties to sign the original PA. We do this because if we donâ€™t, there is no deal. This practice often confuses sellers because the details in the accepted counter are different than the original offer. We explain the â€œSubject Toâ€ clause on page 8 and, after checking the â€œsubject toâ€ check box, have them sign the original PA. If they refuse to sign, the deal is dead.
Seller wanted to counter before signing the original PC.
He signed the counter which was accepted.
Right after buyer communicated back his acceptance, seller decided not to sell due to low personal reasons He'll be renting the place for now.
Escrow was never opened and no EMD was sent.
I talked to buyer and he's fine with dropping his offer and move forward looking for another home. An e-mail from him confirming this.
The question: Was this contract inforsable by buyer even with no signatures from seller on original PC? Should a cancel contract be used? Or since buyer consented by e-mail to cancel be enough?
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