See details below, trying to figure out if the seller can take my deposit?

Asked by Ocdodger, 90278 Tue Oct 19, 2010

We are in escrow on a house, the seller had agreed to fix all section 1 termite damage. He had a change of heart and refused to do it. He then gave us a notice to perform, to remove our contingencies, which we refused to do because of the termite damage. We thing the seller did this, so he can back out of the sale, which is fine by us, I just want to make sure he doesn't try and keep the deposit. Can someone give me some piece of mind? My wife is my agent, but she is not 100% sure. I think we are fine if he just cancels the sale. Could he be trying to do something else. At this point we just want this to go away. Thanks for your help

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David White, Agent, Manhattan Beach, CA
Tue Oct 19, 2010
The release of funds held in escrow require written authorization by both parties to the transaction. While in the fact situation you describe you would be entitled to receive the funds, you're not looking for entitlement, you want the funds. So after confirming with your broker (owner of the office where your wife hangs her license) and escrow officer, and offer to cancel the sale without penalty to the seller upon his/her written release of your full deposit. Note, I realized your purchase wqas to be in North Redondo. There are MANY homes for sale there now, including a listing of mine on Speyer Lane, with very willing sellers. Pick one of those!
1 vote
Ellis Posner, Agent, Manhattan Beach, CA
Wed Jan 29, 2014
Sounds to me like the seller may have received a better offer and is trying to get out of the deal. He can not unilaterally decide to change the terms and conditions he agreed to. Otherwise what's the point of a contract! If you have not removed your contingencies you should be fine.
0 votes
, ,
Thu Oct 31, 2013
If she said she would fix the termite work in writing, and now is refusing to you may back out and keep your deposit. In fact I would ask the seller to pay for your expenses, appraisals and inspections that you incurred in good faith.
0 votes
Maureen Mego…, Agent, Palos Verdes Estates, CA
Tue Oct 19, 2010
I answered this inquiry yesterday where you asked what you could do if the seller refused to pay Section 1 termite repairs as agreed and decided not to sell. Now it seems that you are fine with just canceling the escrow. In that case, your best course of action may be to send the seller CAR Form CC: "Cancellation of contract, Release of Deposit and Joint Escorw Instructions". In that form, I would insert under paragraph !.A. ( after putting an "x" in the box) the fact that Seller would not pay for Section 1 termite repairs as agreed, and then put an "x" on the box for line 2C as well as 2D, and add to line 2D the statement such as "Buyer is pursuing reimbursement from Seller of Buyer's Costs including Inspection fees, Escrow fees, etc. " if you want to recover expenses. You should of course confer with an attorney regarding this issue. Keep in mind that if you do try to recover your expenses, you may be in for a huge hassle of the arbitration or mediation if that was included in the contract, or a trial . In any case, you may incur legal fees far in excess of what you are trying to recover. As for the return of your deposit, I think that it is important that you give him the Cancellation of Sale form showing that he was in default under the contract, and that it wasn't you that defaulted. If you really don't care that much about recovering costs, you could use that as a negotiating point to get him to agree to cancel the contract and to return your deposit without going to arbitration. Given what you say above, it appears to me ( keep in mind that I am not an attorney and that this does constitute legal advice ) that you would have a very strong case to get your deposit back.
0 votes
Cricket Yee, Agent, Sherman Oaks, CA
Tue Oct 19, 2010
This is interesting-- someone posted a similar question a few days ago. First of all, if you have NOT removed contingencies, you should be able to back out based on one or all of your contingencies, which entitles you to your deposit back. You definitely need to consult an attorney-- your agent's brokerage may have one on staff that can assist you and your agent. But I'm with Emily, you may have the ability to go after him, because he agreed to pay Sec 1 termite-- he can't just change it because he feels like it. If you paid for an appraiser and inspection, it doesn't feel fair that he can force you to back out.
0 votes
Emily Knell, Agent, Huntington Beach, CA
Tue Oct 19, 2010
My opinion is that you can shoot right back to him a Notice to Perform, since he's the one breaching the contract by not paying for the Section 1 damage which IS in your contract for HIM to pay for.

There's no reason for him to give YOU a Notice to Perform, that's crazy, however anyone can file paperwork on another party, it's whether or not it's enforceable, which I don't think his is.

If you really like the house, don't back off on this. The seller is the one that needs to perform. And, you could probably Sue him to close (check with attorney)

However, if you want to back out, just know that any seller has the right to Not sign cancellation instructions & hold you up from getting your deposit back. If they want to be a jerk about it they can & escrow can't release your deposit without both signatures. This is where you would end up filing for and going to a Mediation or Arbitration, which can be done at the local Board of Realtors, prior to stepping foot in a courtroom.
There ARE fees involved and at this point, a strongly worded letter from your Wife's broker is the way to go, showing Mr. Jerk Seller that YOU"RE in the right & He's in the wrong & would lose in any court, arbitration or meeting room.

*I am not an attorney, these are my logical & completely sane opinions, you should seek the advice of an attorney*

EmilyKnell1@yahoo.com
562-430-3053 cell
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