Seller wont sign title documents due to fight with his agent

Asked by Dilbertic, 95118 Fri Jul 10, 2009

I am the buyer and I just signed all the title documents and gave them my funds for the house. The Seller has been fighting with his agent and after looking at the title company final paperwork now refuses to pay his agents fee's, got up and left the signing and left me hanging... He wont talk to his agent anymore..

We planned to close today and I had roofers and a painter all set to start working on the house when it closed, but I had to tell them to hold off

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21
Dilbertic, Home Buyer, 95118
Mon Jul 13, 2009
Now kids play nice.... The real estate system is no worse then the voting system for each state, that said let me give you the filling in the cake:

The seller, once again pushed out signing the paper work becuase this time the title company attorney didn't like the date or something, so that needs to be changed and he has a Appt to sign at 9am Tuesday..

We have a realestate attorney on standby, becuase I am tried of the date being moved and moved and moved, so I said by 12 ( Lunch time Tuesday ) we light the guns up!!

Meantime, as for why his agent ticked him off so bad, I think this is the 2nd time he has been burned by her, 1st over paying for the house when he lived out of the area and trusted her on the price of the house and a few of the following reasons; Her roof inspectors missed that the roof was incorrectly installed and now need to be replaced, verifed by the factory reb and a number of roofers becuase she thought we were all lieing.. She lied to the seller saying and my agent by saying she was taking a reduced fee, and instead she is charging a high fee then she stated, She didnt present counter offers to the sellers, only later to drop them on them saying we demanded it since they had a bad roof.

It's a long list from my side and it's made buying this house one of the most stressful and down right messy deals I have had to deal with.. As for the seller he is so ticked off he wont even talk to her anymore and her bosses dont seem to be helping anymore, beside the fact she is not even returning my agents text or calls nows.

Anyways, enough said, again thanks everyone for your input and please keep it friendly, we have enough bad blood going around, lets keep it as a learning / information forum :)

Take Care

Dilbertic
1 vote
Victor Kamin…, Agent, Edison, NJ
Mon Jul 13, 2009
Geeze, Dilbertic I feel for you, I'm getting the feeling how dense some CA real estate agents really are, what part about DO NOT EMAIL ME YOUR COMMENTS, MAKE THE POSTS ON TRULIA CANT YOU UNDERSTAND?

Another dense CA agent wrote me:
"I just read your comment on the question of the seller not wanting to sell, and while I can appreciate your understanding of the New Jersey contract, the arbitration section of the California Association of Realtors contract is specified in two sections of the contract in bold type. 99 percent of the time, both parties will initial this section which will bind BOTH parties to binding arbitration first before suit. The problem, as my own attorney explained it to me (and he is a real estate attorney) is that despite the breach of contract, should a seller decide NOT to sell, the most muscle we can flex here in California would be the the arbitration followed by a lawsuit. Suing for specific performance is seldom actually possible in this state unless the home in question was so unique as to render a comparable home unlocatable. We have a few of these here in Los Altos, Palo Alto, Saratoga and sections where homes are more custom than standard.

So, unfortunately, had the Seller not decided to sign on Monday, the only recourse both parties would have under law in the California and using the standard CAR contract would have been arbitration. Lawsuits may ONLY take place after unsuccessful arbitration. "


My whole point was that if the seller doesn't sign the buyer does have legal recourse for breach of contract (the legal stuff is simple, focus on the details and pounce on them when the specifics in a deal are broken) and thus can sue for damages stemming from...whatever!

Arbitration is a joke, if I wanted to sue somebody but first had to go through binding arbitration, I simply would not settle or come to an agreement in that arbitration unless it satisfied me with the desired result I was seeking ultimately allowing me to sue.

You speak as if breach of contract is no big deal, no wonder why California is so backward and the state is writing IOU's lol... Nobody knows how to honor their word even when written in contract form and all the Realtors answering me here act like they are attorneys offering a lot of legal advice after giving their disclosure that they are not attorneys and would never dream of doing so. Stick with that idea because the rational I am seeing doesn't say much for the legal system in CA that breach of contract is no big deal and that you really cant sue for specific damages and other comments like that. Yikes!

I guess the moral of the story for buyers here is DO NOT USE THE STANDARD REALTORS CONTRACT to purchase or sell a home in California as it has no benefit to you. Have a real estate attorney draw one up for you instead.

I'm done with CA, stop emailing me you can be as vague as you'd like with the people in your own area. Its not as if I was seeking out questions in CA to answer (You done run me out of town, one I never wanted to be in to begin with.) I just read the questions on the main page and began to offer my opinion. Pat yourselves on the back, if I get more emails from you guys expect a lot of junk mail you don't want in your own mailboxes, two can play at that game!

Dilbertic your on your own now!
1 vote
Victor Kamin…, Agent, Edison, NJ
Fri Jul 10, 2009
With all due respect to Grace, the seller is obligated to sell once they signed a binding contract and going through and meeting all the contingencies, if they do not have good reason to back out literally at the last minute you already have specific damages.

I'm not familiar with California contracts requiring arbitration, that is a ridiculous stipulation if it exists, I'd rather sue them for damages, several kinds of damages, for deals you missed out on while tied up in contract with them, for mortgage interest rates rising in the interim, for inspections, title work & survey, home owners insurance and any other damages your attorney can think up.

Having your OWN attorney in a situation like this in my opinion is key!
1 vote
Grace Hanamo…, Agent, Cupertino, CA
Fri Jul 10, 2009
Hello Dilbert and I'm so sorry to hear about this situation.

Unfortunately, there are no easy answers, and having just experienced an extremely, uncomfortably similar situation where I, too, represented the buyer and the seller was refusing to sell, I can tell you what the attorney told us:

1. The CAR contract calls for binding arbitration to settle matters arising from the contract. In this case, since the seller does not agree to sign the contract, a notice should be presented to the seller requesting mediation or arbitration. If you both initialed the "binding arbitration" area, then may need to defer to binding arbitration.

2. Failing a successful outcome in binding arbitration, you may have the option to sue the seller for specific performance and damages.

As far as having your agent talk with the seller directly, my advice would be NOT to do this, and it was rather ludicrous (in my opinion) that the other broker should recommend that your agent call the seller. Unfortunately, since all agents are considered "employees" of the broker, your agent's broker needs to be involved in this transaction starting now.

Finally, you may wish to consider--as offensive as these next words are going to be to you--possibly offering the seller some money to consummate and close this deal. There are two reasons that I am suggesting this: 1) any legal action, including arbitration, is going to cost you time and money, far more than a few thousand to make this situation go away; and 2) there is no law--according to the attorney--that can force a seller to sell or a buyer to buy, so if you really like this home (and it sounds as if you might) , digging in is likely to cause the deal to fall through and for you to lose this home and perhaps a really favorable interest loan rate.

By all means, talk with a real estate attorney on Monday, there are many excellent ones in Palo Alto and San Jose. In the meantime, your agent should be calling the CAR legal hotline for assistance as this may provide you with a faster list of possible options.

Good luck!!

Sincerely,
Grace Morioka, SRES, e-Pro
Area Pro Realty
1 vote
Dilbertic, Home Buyer, 95118
Fri Jul 10, 2009
Hi Mark and everyone,

Thank you for all the feedback, my agent is attempting to talk to the seller directly at this time. I asked which contract he usd and he said CARS. I asked him to setup an appt with a realestate legal guy and we have an appt monday am. I will up date you all on the status..

Thanks,
Dilbertic
1 vote
Bill Mccord, Agent, San Jose, CA
Fri Jul 10, 2009
Mike has given you excellent advice relevant to a California transaction. A number of other anwswers are obviously well intentioned, but East Coast states have a very different Real Estate legal system, so stick with the advice from a well experienced California agent such as Mike.
Bill
1 vote
Mission Viejo…, , Mission Viejo, CA
Fri Jul 10, 2009
Your agent's broker has an attorney on contract that should be able to get it resolved quickly.
1 vote
Mark Burns, , Cupertino, CA
Fri Jul 10, 2009
It sounds like there could have been some hints ahead of time about this coming up (there usually is). Your agent might have seen this problem in conversations with the other agent. Regardless of personality issues, the seller has to follow what is in the contract. Is the contractual close of escrow today?

Now he's costing you money. As long as you have performed according to the contract the fault lies with him. He can make whatever provisions he wants with his agent to hold the commission and have the dispute resolved separately but that is not your problem.

If your agent cannot convince the seller and agent to close within the contract parameters then it is time to consult with a 'real estate' attorney. As long as you have complied with the contract on your side and performed, that's the next step. Not a personal injury attorney, not a family attorney, not a trusts and estate attorney; a Real Estate Attorney.

The more time you give them and feel you are being nice, the more this will drag out and cost you money. What contract did you use? PRDS or CAR? PRDS provides for a variety of defaults both for buyer and seller. Look into the language of your contract for further details about that.

One quick letter from a reputable and knowledgeable real estate attorney might motivate the seller to sign off and stop damaging you. Hesitation on your part could ruin the locked rate on your loan, cause your lender to redraw docs and charge you for that, cost you money in moving expenses, you'll have additional rental charges where you live, etc., etc.

If you email me I can provide you the names of a couple of good real estate attorneys. If you don't follow through on asserting your rights in the contract, you will only have yourself to blame when it costs more money later.

Mark Burns, Realtor
Coldwell Banker Premier - Top 2% Worldwide
President - Silicon Valley Association of Realtors 2007
President - PRDS, Contracts and Forms for Silicon Valley Real Estate 2008, 2009
Realtor of the Year - SilVAR 2006
DRE #00896552 licensed since 1985
Web Reference:  http://www.markburns.com
1 vote
Victor Kamin…, Agent, Edison, NJ
Fri Jul 10, 2009
Don't you have attorney representation?

Sounds like you'll need one now because at this point you can sue the seller for damages walking away at the closing table.
1 vote
Bill Eckler, Agent, Venice, FL
Fri Jul 10, 2009
Dilbertic,

This is a most unfortunate situation....and certainly one that should be able to be resolved. Our recommendation is to contact a real estate attorney for their advice. It may be able to be resolved by simply contacting the lister's broker buy your message would be able to be heard "loud and clear," if presented by an attorney.

Best wishes,
The Eckler Team
1 vote
Dallas Texas, Agent, Dallas, TN
Fri Jul 10, 2009
Confer with your buyer's agent, contact listing agent broker direct.

It does not matter if there is a problem between seller & agent, per executed sale agreement both buyer and seller has a performance clause . Seller could be sued does not comply with executed sales agreement and penalized.

Sorry hear about the drama,

National Featured Realtor and Consultant, Mortgage Loan Officer, Credit Repair Lecturer
Lynn911
Web Reference:  http://www.lynn911.com
1 vote
Rathodalpesh…, Home Buyer, San Jose, CA
Fri Aug 11, 2017
sir, my uncle house shoud be purchased in full price and totally price of house should be given to a seller ,but a seller refuse to given a house document, please sir give advice for this condition
0 votes
Robert Lei, Agent, Cupertino, CA
Thu Jul 5, 2012
Hi Dilbertic,
Sorry to hear about your troubles in this transaction. How did it all turn out?

Usually when people fight, both (or multiple) sides get hurt. I've found that striving for a win-win harmonious transaction is the best way for all sides to end up happy and getting what they want.
0 votes
Terri Vellios, Agent, Campbell, CA
Tue Jul 14, 2009
So very sorry to read about this. I hope your agent can find you a better home and quickly. Keep us posted.
Web Reference:  http://www.terrivellios.com
0 votes
Dilbertic, Home Buyer, 95118
Tue Jul 14, 2009
So I guess being a nice guy doesn't pay off...... Sad to say I just got a email from the title company saying the guy called and canceled escrow on me :(

I guess it's a legal matter now and I am left trying to find a place to live in under 2 weeks

Take Care all

Dilbertic
0 votes
Victor Kamin…, Agent, Edison, NJ
Sun Jul 12, 2009
To clear things up, I received a private email correcting my statement with regard to commissions which must have not been clear enough caution some level of confusion.
(Next time just post your comments here, it would serve all better to see and discuss)

The agent wrote:
"That seller owes the buyer's broker a commission even if he defaults on the contract. It's part of the civila code and that's the way our contracts are written. "

To clear up any possible confusion in my wording, in NJ as most places listing agents don't collect then redistribute commissions, they do however set with the seller how much commission will be paid and split when the listing is taken in an agreement called the Listing Contract which specifies all commissions and how they will be split (full disclosure)

If there is a last minute commission dispute it must be settled "before" the closing occurs so that the closing documents HUD1 correctly reflects all closing costs as required by Federal law (not state specific). You can't change the HUD1 "after" closing and California is not an exception to the rule.
(Pay special attention to section 700 Agency Commissions.)

Having a closing while there is an active commission dispute saying we'll do the closing and figure out the pesky details later is not a good idea, then again CA can be backward sometimes I suppose.

If a seller doesn't want to pay the listing agent at closing for not doing their job (obviously they performed to some degree otherwise there wouldn't be an accepted contract or closing) then the seller would have to either not close and risk legal action from the buyer or close, pay the agents and file a lawsuit later. Thinking the agent lied does not cancel a commission contract but should warrant a complaint to the real estate commission for investigation.

Do the real estate agents perform the closings in CA or are Title Agency closing agents used?
In New Jersey we either use Attorney's or less commonly Title Agencies as the closing agent, real estate agents do not perform closings in NJ.

Either way I stand by my earlier comments advising you seek legal advice from your own attorney (real estate attorney to be more exact), after all it's always good advice to cover your backside isn't it?

Consult an attorney for legal advice....Consult an attorney for legal advice....Consult an attorney for legal advice....
0 votes
Victor Kamin…, Agent, Edison, NJ
Sat Jul 11, 2009
I hesitate to say congratulations because the realtor will be paid their commission at the closing and your realtor will not be paid either unless there is a commission collected by the listing agent. Word of caution, if you close and there is no commission paid, you may inadvertently be dragged into the legal issue as well.

If the agent lied to them about something, what could it have been that was so bad that it did not effect you as the buyer? Inspection issues? commission? (that is settled at the listing table and had plenty of time to re-examine those documents) also at closing it is common to find sellers no longer willing to pay the commission they agreed to (trying to re-negotiate). If that is the case the seller doesn't have a leg to stand on, I would however consult with your attorney how this "May" affect you? If the attorney is not talking about that, get your own attorney.
0 votes
Mark Burns, , Cupertino, CA
Sat Jul 11, 2009
Sounds like you're all set. The seller can work out the issues with the agent and her broker separately. That part should have nothing to do with you. He needs to perform. I would still stay on top of it with the help of an attorney. As I mentioned before, a 'Real Estate' Attorney. And not an attorney who thinks you can't compel the seller to perform or an attorney who suggests you might offer some money to coerce the seller into signing. Relaying those type of comments secondhand is tantamount to giving legal advice. And bad legal advice at that.

You're almost there.

Mark Burns
Coldwell Banker Premier - Top 2% Worldwide
President - Silicon Valley Association of Realtors 2007
President - PRDS, Contracts and Forms for Silicon Valley Real Estate 2008, 2009
Realtor of the Year - SilVAR 2006
More than 500 homes bought and sold in Silicon Valley
DRE #00896552 licensed since 1985

PS And if he doesn't sign on Monday, the next step is to immediately have your agent send the seller and his broker a demand to perform. Your agent can find this form in the CAR library online. You have follow the correct steps. It is incorrect to file for mediation or arbitration if he refuses to sign without having first made a demand to perform.
Web Reference:  http://www.markburns.com
0 votes
Dilbertic, Home Buyer, 95118
Sat Jul 11, 2009
Hi everyone,

So my agent called me after he went by the sellers house to find out what was really going on and if we had a chance to keep this outside of legal system. The seller told my agent he is completely ticked off at his agent do to a number of lies, communication and a number of other reasons. he told my agent he is going to sign the papers Monday at the title company, now the catch 22

He said he was seeing a legal attorney about getting all the commission fee's place on hold so he can take his agent to court. The guy is really really ticked off at his agent and doesn't want her to get one red cent and will do whatever is takes so she doesn't get anything..

So now i wait till Monday to see if he really is going to sign the paperwork, my agent told him my loan exp is Weds and this delay is causing a delay for the roofers, painters and placing me in a very stressful crazy place, being that I also have to be out of my current rental by the end of the month.

Thanks for all the great feed back from everyone
0 votes
Dilbertic, Home Buyer, 95118
Fri Jul 10, 2009
The seller is talking with his agents broker ( the boss ), the issue is he no longer trusts them becuase his agent proved to be lieing and withholding information from him. The sellers brokers asked that my agent talk to the seller and see what he can do, the issue is besides the work to be performed on the house, my loan expires 5 days...

So how do I handle a drop dead date, what my legal stands, and did I add the fact I have to be out of my current house by the end of the month, so 20 days from now and I would have to find a rental

Thanks,

Dilbertic
0 votes
Marge Bennett, Agent, Fort Myers, FL
Fri Jul 10, 2009
get the other agent's broker involved.
0 votes
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