Any time you have a RE question about "legal rights" it's best to consult a RE Lawyer.
This said, and assuming you used the most recent CAR Residential Purchase Agreement, Para 14F, "Effect Of Cancellation On Deposits" states: "If Buyer or Seller gives written notice of cancellation â€¦.A Buyer or Seller may be subject to a civil penalty of up to $1,000 for refusal to sign such instructions if no good faith dispute exists as to who is entitled to the deposited funds (Civil Code Â§1057.3)."
Also, the CAR Residential Purchase Agreement has a "mitigation of legal risk" protection via Para 26C1. While Para 26 (Dispute Resolution) speaks to the arbitration and mediation of disputes, Para 26C(1) allows one to bypass Arbitration/Mediation if damages are with Small Claims Court jurisdiction, $5K or $7.5K depending on whether you are suing a corporation or individual.
If you want to read up on Arbitration/Mediation I would suggest you review Kenny Tanâ€™s blog post on the subject as itâ€™s somewhat rare to have a lawyerâ€™s perspective here on Trulia. The direct link is: http://www.kennytanlawblog.com/tp-100724063949/post-10122114
Read your contract and especially the contingency times. If a CAR or PRDS contract and property contingency was removed, it would seem you have potential grounds for keeping some/all of deposit.
If buyer still had contingencies in place, you are out of luck.
RE/MAX Westside Properties
I am not sure if Valencian go with PRDS. Anyway, "what does the contract say?" is a famous point in contract disputes. Also LA court and judges' custom is another main factor.
You provide a lot info here. That is good but not enough. We always can see that the info we ignored, are useful in lawyers' mind. That is why they can charge your that much.
When did the buyer request extension of the contingency period and how long did she request and what was the reason? How many times did she come into the allergy areas in the property before cancellation? Did she feel uncomfortable and when or just get the recommendation from the doctor? Did the doctor go to your property and when? Did she provide the doctor's letter first or after you asked her? What date was it on the letter? How long can a doctor to determine yes or no with/without on field checking? Did she look at other listings during the contingency period? Did her current house have the same allergy issue?
Was the purchase price $166,667? If it was higher than this, why was there only $5,000 deposit? Did the selling agent (buyer's agent) have obvious back-out records? Is there any listing similar to yours but cheaper or any listing same price but better? How was the market in May and Jun?
If Liq-Dmg clause is the 25th item, does that mean we have a long way to fight before we touch the 25th?
Sorry, I would not give you any legal or real estate advice
Take her to small claims court tomoorow. You have all the facts on your side.
DAVID COOPER Foreclosure Specialist with 35 Years Experience. For your FREE
list of bargain homes see http://www.lasvegaswinner.org or Call +1-7024997037
Wow! A "hypochondriac" huh?!
Your Realtor should have the answer to this based on the point in the closing process you had reached when the Buyer chose to withdrawl from the escrow. If there was a contingency removal executed it certainly makes your claim stronger.
Kathleen brings up the most important point regarding Liquidated Damages. If this was a standard C.A.R. RPA (Residential Purchase Agreement) both Buyer & Seller (all parties) must initial paragraph 25 that commits the Buyer to Liquidated Damages. Of course you have to prove damages. In the case of a Probate, I don't believe the Liquidated Damages clause exists.
Sounds like you need a good real estate attorney. Hopefully your realtor will have one for you.
Ryan Ole Hass | Realtor, MBA
The Red Door Group L.A. | Keller Williams Realty Larchmont
DRE Lic# 01417826
You have to revert back to your purchase contract. Did she remove all of her contingencies in writing? Did she sign the liquidated damages clause in the contract? These are two key issues to look at.
You may have a good case if she did both above. Contact a real estate attorney for legal advice.
All the best.
Kat Becker, Agent
Prudential California Realty
I can certainly appreciate the stress you are feeling and possibly not receiving comforting information from your agent.
In my earlier response I recommended you talk to your realtor, their broker & company attorney. Depending if the buyer removed all contingencies (if they
Had contingencies)and other terms of the purchase contract, it appears you may be entitled to the $5000.00. However, without seeing the contract, this is the best any of us will be able to assist. What did your agent say? Assuming you are working with an agent. If you are not, this situation underscores the reason it is so important you always work with an experienced agent.
All the best,
REMAX Westside Properties
First of all, Brett's answer is wrong. Once you give the buyer a "notice to perform", you can cancel the escrow without refunding the deposit, and have escrow hold the deposit pending dispute resolution. Then, you CAN in fact sell the house while you wait to mediate, arbitrate, or litigate. (The path depends on which clauses are part of your contract.) The buyer simply cannot refuse to close escrow AND at the same time keep you from selling to another.
For your information, small claims court litigates issues up to $7500.00. It is inexpensive to file, and you DO NOT need an attorney.
Walk through the contract with your Realtor, to see what path you should take. This may not be the instance to spend money on an attorney.
The Bremner Group at Coldwell Banker
REALTOR, 00588885, ABR, CDPE, eAgent, CSP, SFR, HRC, CRE
(O) 310-571-1364 DIRECT
Accredited Buyer Representative|Certified Distressed Property Expert |Pre-Foreclosure Specialist Certified
I want you to know that I appreciate any referrals from friends and associates who may be in the market to buy or sell real estate. You can count on me giving them the same high-quality service I provide to all of my clients.
Best of Luck,
REMAX Westside Properties
I hope it all works out for you.
Be realistic, try to negotiate for any monetary damages you have incurred, and get this over with. You will be way ahead by putting this behind you. You are upset right now, but you need to approach this as a business problem and resolve it.
Lynn911 Dallas Realtor & Consultant, Loan Officer, Credit Repair Advisor
The Michael Group - Dallas Business Journal Top Ranked Realtors
You need to read your Residential Purchase Agreement. This will tell you under what circumstance you can retain the ernest money deposit. Were all contingencies removed (in writing)? You might want to consult a Real Estate Attorney for clarification.