Can I force buyer to close escrow and keep the deposit? All contingencies were removed after 17 days.

Asked by sunwalkinn, San Diego, CA Thu Sep 27, 2012

The close of escrow on sale of my home has now been delayed for almost a month. I moved out of my home a few days before the closing date to comply with the contract's closing date. I was never given any clue that things were not on track to close on time. The bank lost papers, found problems AFTER the contingencies had been removed, failed to communicate with the Realtors and the buyer and basically did not perform. I had to pay an additional month's FHA interest and it costs me $50/day for every day past closing to rent another place. I'm not in a position to afford this. If I force the buyer to close, how many days does he have and can I keep the deposit money if he doesn't perform. He has put down 10% as a deposit. I'm being told that if I'm the one force the closing, then I will lose the money. Thanks for your help.

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Terry Bell, Agent, Santa Rosa, CA
Sun Sep 30, 2012
You don't mention your agent, and that's where the problem lies. communication! If you have an agent, ask to speak to your agent's broker or manager and try and find a resolution to keep the sale together if possible. If you don't have an agent, then you need to contact a real estate attorney.
1 vote
Laura Feghali, Agent, Stamford, CT
Thu Sep 27, 2012
Hi sunwalkinn,
Wow! Sounds like a sever case of no communication between the parties involved. If you are using a real estate agent to represent you, then why didn't he/she ask for mortgage status updates from the buyer's agent?
I suggest that you consult with a real estate attorney to help you in this matter.

Good luck to you!

Laura Feghali
Prudential Connecticut Realty
1 vote
Michael Alex, Agent, San Diego, CA
Thu Sep 27, 2012

I'm sorry to hear your frustrations. Jill is correct, your agent should have advised you, and seems like she/he is not communicating with you. If all contingencies have been removed and signed by all parties, then your agent already submitted a notice of perform.Which the buying side has usually three days to sign. BY LAW, if they have signed, then they lose their deposit, if they haven't, then they keep their deposit and escrow is cancelled . AGAIN,They can only lose their deposit if the notice to perform has been signed. Talk to your agent and see if the bank or buyer can just pay for the per deims you are charged, instead of the buyer losing their deposit. I would hate to see a buyer lose it, because of a bank error. It's not the buyers fault in most cases. IT’S THE LENDER'S WHO MAKE PROMISES AND DO NOT PERFORM A FULLY UNDERWRITTEN PRE-APPROVAL and when in escrow, problems arise. I’m more of a buyer's agent and have seen these problems, not in my transactions, but other’s. That why I use a trustworthy lender, by doing so, all my transactions are smooth and close with no issues.

Good luck and Warm Regards,

Michael Alex
Real Estate Consultant
cell. 619.581.9348
Pacific Sotheby’s International Realty
San Diego, CA
1 vote
Cory La Scala, Agent, San Diego, CA
Thu Sep 27, 2012
If you read your contract, you'll find the answers you need - all the terms are in there. Understanding them is a different matter, which is why you need to ask your agent for guidance.

Another problem here is that you didn't have a clue things weren't going right. Why wasn't the buyer's loan being monitored? Staying on top of these things is part of being a responsible listing agent.

As far as the deposit, read the contract. If your agent won't help you, call his/her broker and ask for help. Usually, the one who defaults loses the money. You'll find this addressed in your contract, and any counter-offers and addendums. Read carefully, and make notes along the way, making a reference to the paragraph.

Good luck to you!
1 vote
Dholmesb4, Home Buyer, San Diego, CA
Mon Apr 17, 2017
We are being told that we will lose our down payment due to not closing on a certain date. However, that was not part of the contingencies of our down payment they just came up with this. We have done everything that we needed to do it our loan originator who has dropped the ball. Upon us putting our payment down we was told that if the loan didn't go through we would get it back and if we pulled out of the deal we would lose it. We want the house and have no control of when we close. To tell us this I know that it's wrong and never agreed to closing on a certain date, we wouldn't be able to control that.
0 votes
Bill Hays, Agent, Cardiff, AL
Mon Oct 8, 2012
I am not sure how you "force" a buyer to close....unless you are referring to a notice to perform - which is really just putting them on notice that you will cancel the transaction unless they fulfill their overdue obligations. This is an example of why it is always a good thing to have backup offers and a good agent - hopefully you have at least one of the two.

CA DRE 01775528
(760) 525-8698
0 votes
MaryAnn Morr…, Agent, San Diego, CA
Fri Sep 28, 2012
This question should be answered by your agent or broker. Without knowing the details it is impossible to give you advice.
0 votes
Janet McCart…, Agent, San Diego, CA
Fri Sep 28, 2012
Once the buyer removes all contingencies they have fully committed to buying the house. As a rule a Realtor does not remove contingencies until fully approval of the loan has been received.
It looks like the buyer can't close because of the bank delays. What is your Realtor doing to move the process forward? Keep track of your expenses.You will probably need to consult an attorney.
Good Luck
Janet McCarthy
Connect Realty
0 votes
Hector Gaste…, Agent, Coronado, CA
Thu Sep 27, 2012
Read the purchase agreement. Are you using a REALTOR or did you try to do it yourself like so many people that think our job is a cakewalk?

Hector R. Gastelum
Realty Executives Dillon
REALTOR #01382940
efax 619-270-2516
0 votes
Cindy Davis, Agent, San Diego, CA
Thu Sep 27, 2012
I agree - it's hard to advise without seeing the contract. Do you have an agent? If so, consult that person. If you don't, you need to speak with an attorney.

You have the option of issuing a 'notice to perform.' This can be for 24 or 48 hours depending upon what your purchase contract states. If the buyer is indeed in breach by not closing, you may have recourse to collect your deposit. But please, consults a professional who can look at your contracts and better evaluate your situation.

Best of luck.
0 votes
Jill Miranda…, Agent, San Diego, CA
Thu Sep 27, 2012
Where is your agent and why isn't he/she advising you? Without seeing your contract I don't know all the details of your agreement. But in general terms your agent could've sent a Notice to Perform as well as a Demand to Close Escrow quite some time ago. Or could've written an addendum to extend the close with a provision of a daily penalty due from the buyer. You need to speak to your agent about moving things along. If the buyer is in breach of contract, has removed their contingencies and doesn't perform after being served there should be no reason you would lose the money. As for how many days he has that would be specified in your contract.

JIll Miranda
Pacific Sotheby's International Realty
DRE #01413799
0 votes
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