Bill, Home Buyer in Saint Augustine, FL

In Florida - I bought a house as is pending inspection, then after the inspection I did not like some things

Asked by Bill, Saint Augustine, FL Wed Jul 9, 2008

I discovered, I then cancelled my contract and supplied the realtor a list of reasons stated in the report that prompted me to back away from the contract.
Now the seller got an Attorney and refuses to release my 5,000 escrow deposit. What grounds does the seller have to my deposit. The sellers realtor cannot reason with her and it appears to be greed on the seller part.
What is your advice???

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Answers

8
It seems like, if the only contingency on your contract was that of an inspection, then you are entitled to your deposit. One question I would ask your agent (or the agent of the seller), is WHO is holding the escrow money. If the real estate brokerage is holding the escrow, then you can contact that broker, because there are certain guidelines they must follow with disbursement. Also, because a real estate broker is under the guidelines of FREC (FL Real Estate Commission), it will have to go into mediation first (which normally saves the headache of going through lawyers, etc).

But, if that brokerage doesn't hold the escrow, and instead turns the money over to a closing company (title co., closing attorney), then they are not regulated under FREC, and you may just have to fight in court. Hopefully it won't get to that point, and the broker can read the contract and follow what it says in order to disperse the money justly.
1 vote Thank Flag Link Wed Jul 9, 2008
Bill,

The contract will specifically spell out how escrow funds will be handled in a situation such as this one. If you feel you are entitled to your deposit, the best course of action for you is to see an attorney.

I'm sure your reasons for walking away from the purchase of this property were well founded but you must give the seller an opportunity to correct the problems identified in the home inspection up to the specified repair limits.

Good luck,

The "Eckler Team"
0 votes Thank Flag Link Fri Jul 11, 2008
The seller is not holding your deposit money. Either it is in your agent's brokerage escrow account or with an attorney or a title company. The Seller cannot therefore just pocket it. The organization to whom you made out the deposit check is the one now holding it. All these organizations have to get signed releases from both buyer and seller before release of deposit. However, you can run into a problem if a Title Company is holding your check as they operate to a different set of rules and could release your check. Your own agent should be able to help you with this. If the seller has contacted an attorney and they have demanded the deposit, I'm guessing you did not adhere to the time schedules in the contract. For example, did you get the inspection done within the time frame allowed? Did you notify the seller of the discrepancies within the prescribed time frame? It is a good learning experience for you, hopefully not an expensive one! The best plan for future deals is to do what Barbara suggests below, which is to ensure any future contracts written on your behalf contain a Right to Inspect/Right to Cancel Addendum.

Phil Orrill
Certified International Property Specialist (CIPS)
Transnational Referral Certification (TRC)
Accredited Buyer's Representative (ABR)
Broker Associate
New World Realty
St Augustine
904 377 1016
0 votes Thank Flag Link Fri Jul 11, 2008
The best Attorney for this type of issue is Hank Sorensen http://www.HankSorensen.com or Broker@HankSorensen.com

He has an office in that area and only works in this line of Real Estate.

The only thing that I can think of is that if your inspections were not done within the lines of the contract. Without giving away my secrets, I have denied this a couple of times. In the eyes of the law, the inspection never happened because it didn't happen the way the contract specified it was supposed to.


I hope it works out for you.

Gary@DePury.com

Gary De Pury
Broker-Owner
Bay Vista Realty & Investments, Inc.
Chairman, Communications Committee
Greater Tampa Association of REALTORS
0 votes Thank Flag Link Thu Jul 10, 2008
The seller is not holding your deposit money. Either it is in your agent's brokerage escrow account or with an attorney or a title company. The Seller cannot therefore just pocket it. The organization to whom you made out the deposit check is the one now holding it. All these organizations have to get signed releases from both buyer and seller before release of deposit. However, you can run into a problem if a Title Company is holding your check as they operate to a different set of rules and could release your check. Your own agent should be able to help you with this. If the seller has contacted an attorney and they have demanded the deposit, I'm guessing you did not adhere to the time schedules in the contract. For example, did you get the inspection done within the time frame allowed? Did you notify the seller of the discrepancies within the prescribed time frame? It is a good learning experience for you, hopefully not an expensive one! The best plan for future deals is to do what Barbara suggests below, which is to ensure any future contracts written on your behalf contain a Right to Inspect/Right to Cancel Addendum.

Phil Orrill
Certified International Property Specialist (CIPS)
Transnational Referral Certification (TRC)
Accredited Buyer's Representative (ABR)
Broker Associate
New World Realty
St Augustine
904 377 1016
0 votes Thank Flag Link Thu Jul 10, 2008
Bill,
Please read your contract carefully. As mentioned, we cannot practice law.
Just because you have the right to inspect the property doesn’t necessarily mean you have the right to cancel. There are many pieces to the puzzle, so please read your contract thoroughly and consult with a real estate attorney.
I use the Right to Inspect/Right to Cancel Addendum with my offers.
Do you know if your agent used such an addendum?

Best of luck to you.

Barbara Jenness, P.A., ABR, e-PRO, GRI, TRC
Broker Associate
Accredited Buyer's Representative
Web Reference: http://BarbaraJenness.com
0 votes Thank Flag Link Wed Jul 9, 2008
Yes BIll, Tobias is right...no matter what advice you receive on here, it is best to consult an attorney as we are not licensed to give legal advice. Your agent may have a legal team they can consult at their office, or also all Florida Realtors are able to call the 'legal hotline'.
0 votes Thank Flag Link Wed Jul 9, 2008
Bill,
first off, realtors including me are not allowed to give legal advice or practice law, so please check with a real estate attorney if this can't be solved very quickly, especially since the seller has retained counsel.

From what you describe, and IF your contract is as-is and you used a FAR-BAR or other contract with a cancellation provision, and IF you cancelled in time and in the proper manner (probably in writing with receipt or by fax), you should be able to get your deposit back. Who holds the escrow? Please tell me not the seller! And what is the seller's reason for not returning your deposit?

Not knowing that reason, I would - if you are on solid ground - first have your realtor (or the seller's realtor, she seems to be reasonable) call the FAR legal hotline and get advice there (you as a consumer can't call them).

Then you could proceed as the hotline advises or make one last attempt and request in writing the escrow returned. If all fails you may have to request an Escrow Disbursement Order and/or get your own attorney.

Sorry to read about your plight! Please post on this forum what the outcome is, and all the best of luck to you,

Tobias Kaiser, MS, CIPS
Greater Fort Lauderdale Real Estate Broker + Consultant
Certified International Property Specialist
0 votes Thank Flag Link Wed Jul 9, 2008
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