i read the contract
For anyone else that is interested or has this happen to them. Here is how i understand it
If he does not repair the house per contract he is in violation of contract.
I'm allowed to hold him to the contract. ie sue for performance OR
walk away.
obviously we wnat the house so we would sue for performance:
So what happens when we do this.
If we win (and typically the buyer wins this case) we would be reimbursed all attorney fees incurred. they would also have to pay all of our expenses incurred due to a delay in the closing on teh property. ie storage/housing/boarding of dogs. and any other costs we incurred due to his breach of contract.
at this point and the understanding i currently have, he must fix per contract or pay me the amount of the estimate i received to complete this work. he cannot walk away at this point. it is our house the contract says so and he must fix the things outlined in said contract to the approval of our inspector.
and all costs incurred by us should he not complete before the closing date will be paid for by him.
I am an attorney in Ohio. This is not legal advice, but I'll just let you know the following general points:
(1) I don't care what your contract says, there's a very good chance you won't get awarded your attorneys' fees. The general rule is that attorneys' fees are only awarded in cases involving truly egregious conduct or fraudulent behavior, and your case is absolutely nowhere near that threshold. Furthermore, it might be 2-3 years before this gets sorted out. Your attorney isn't going to work for free during that time frame.
If I were the other side, I'd argue "I don't care what the contract says--there's obviously not a meeting of the minds here and no contract has been formed." Would that argument hold up? I don't know. But be prepared to pay your own attorney, because getting reimbursed rarely happens.
(2) You will not get awarded punitive damages, either. Punitive damages are only awarded if compensatory damages do not adequately compensate the plaintiff and, in some cases, where the defendant's conduct deserves to be "punished" by the court. Again, we're not even close to that threshold in this case.
(3) I cannot stand clients who do a couple minutes of online research and think they are a legal expert. You are making this out to be black and white when I can guarantee you that there are half a dozen gray areas that you aren't even considering.
(4) This type of litigation is seriously expensive and could last years. It would be cost prohibitive to bring such a lawsuit. I'm not even sure an attorney would bring this case unless you paid a decent retainer ($5,000 or so).
(5) On a similar note, I don't think you understand winning and losing a court case. I'm involved in a case now with a $220,000 judgment from 2006 (ten years!!!!) and we haven't collected a cent. And that's not because we're incompetent, it's because the other side is very smart about where he keeps his investments (money is all in wife's checking account, house is in an LLC's name, he's retired and doesn't have an income to garnish, tons of other things). Just because you "win" doesn't mean you'll get anything.
(6) Lastly, and most importantly, my favorite expression in my young legal career is this: principles are really fucking expensive. You seem to be involved in a real life dick measuring contest with this seller and aren't seeing the forest from the trees. He's apparently willing to fix the deck so this deal can go through. You want the house, not the deck repair, remember?
Yet you are getting your panties in a bunch and standing on this mountaintop named PRINCIPLE and refusing to be anywhere close to rational about this because you want everything done on YOUR terms. That's not how negotiating a house purchase works. If you want the house as bad as you say you do, let him fix the deck and then if it's not to your standards, fix it later. In other words, fighting over a deck repair like this when your end game is wanting the house just doesn't make much sense.
If you walked into my office with this case, the most I would do is write a letter for you and hope to (a) force them to perform (albeit I'd be okay with their guys doing the work, subject to your inspection) or (b) work out a credit number so the sale could go through. Then you guys can complete the sale without the stress and costs associated with litigation, which again, would be cost prohibitive. Some ideas: split the difference in deck repair and let you repair it? Have three estimates and pick the average and make that a setoff? I don't know exactly, but I'd try to get this resolved amicably before thinking about the nuclear option.
And if things didn't work out, I'd advise you to back out because, for the fourth or fifth time, this litigation would be cost prohibitive (i.e., the costs associated with litigation outweigh what's at stake). If settlement didn't work out I'd ask for a $7,500-$10,000 retainer straight out of the gate.
And if you went on your little rant about your right to attorneys' fees, punitive damages, etc., I'd tell you to have a nice day and refer you to the local bar association so you could find another attorney.
