Author Topic: Buying a new House - Seller issues - any Real Estate attorneys here???  (Read 6246 times)

boarder42

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So we are buying a house. 

story.

1. he bought it in august never moved in
2. we got a copy of his inspection.
3. we put that he must make repairs to the deck because the supports are rotting.  - in the original contact/offer
4. we're less than a month to close and repairs still havent been made.
5. he offered us 1500 to go.
6. i had 2 quotes both for over 6k to repair the deck properly.
7. My agent told their agent its in your contract you have to fix it, but my client will split the difference with you and take 3500
8. My agent tells me today the other agent keeps saying "we can get more if we make some interior fixes and sell it in the spring.
9. to which my agent responds "we have a contract.  you're required to fix these items per contract.  if they arent fixed by close we will just postpone close until you get them fixed."
10.  Other agent says fine we'll fix them but our way
11. My agent "then we have a right to reinspect if they arent fixed per our reinspection you will have to fix its in the contract"

Anyone know if we risk losing this house?

Tabitha

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #1 on: January 31, 2016, 10:22:13 AM »
Well yes, you are at risk for losing the house. The sellers RE told your RE agent that. The true question is how much of a mud fight are you up for?  (Next time, ask for credit for repairs You will have done after close - repairs for sellers are rarely done to buyers standards.) do you want the house enough to forgo the $3500? Can you afford to tie up the house weeks past closing just to make it tough for him too?  Sometimes it's not what's right or even what's legal, it's how much will it cost to enforce the right.

I'm not an attorney or a real estate agent.  Suggest you post your location as that might affect the opinion of anyone else who weighs in.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #2 on: January 31, 2016, 10:38:02 AM »
We're in mo.

This guy paid for the house in cash. Violation of contract has to be worth something in the realm of punitive damages on top of everything else. I can move back in with my parents in the mean time so the cost to me of tying this guy up is little to nothing.  This guy even during negotiations was an I have to have the last word kinda guy. He's been looking for a way to back out since the contract was signed.

I'd really like to know what I can gain from it if he continues to be a moron. Am I talking a 5k settlement or a 50k settlement.

I work industrial contracts and understand them and very rarely is something this hard to negotiate. But there have to be ramifications for backing out of a real estate contract.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #3 on: January 31, 2016, 11:32:45 AM »
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. 


GizmoTX

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #4 on: January 31, 2016, 01:38:03 PM »
Winning a lawsuit is only half the battle -- you still have to collect, which is not guaranteed.

Personally, I'd take what the seller was offering to kill the contract & look for another house. Next time, don't expect the seller to do anything once the contract is in effect; negotiate a credit so that you can do any repairs to your standards. Make the contract pending upon an inspection period (usually 2 weeks) where you can cancel without penalty, in case the inspection shows many more problems than you want to deal with. In Texas, the buyer typically pays several hundred dollars for this inspection period to compensate the seller for having the property off the market during this time.

Nickels Dimes Quarters

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #5 on: January 31, 2016, 01:49:21 PM »
I'm not an attorney.

I would never, ever base any purchase decision on the seller's inspection report. I always hire my own, trusted inspector who will tell me what I'm getting into and he works for me. Not all home inspectors are good, and some are too tied to RE companies or even owned by them.

NDQ

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #6 on: January 31, 2016, 02:26:53 PM »
we hired our own as well and added to the list our inspector found the same things theirs did.

to the point of it can be tied up for a while and they dont have to pay.  Pay what?  they are required to fix the deck per our inspector and sell me the house.  the house will be tied up in littigation they wont be allowed to resell it to someone else as soon as i hire an attorney and press charges for failure to perform.  they will have to pay taxes and insurance on the property etc. and then when i win which i would win. they would be required to pay all the fees i incurred as a part of this.  The seller happens to be COO of a startup that is starting to make waves too so i'm sure they would love some media attention of their COO disputing 5k on a house he never lived in. 

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #7 on: January 31, 2016, 02:29:58 PM »
canceling isnt an option. our search area is so small. very few houses come on market and this is what we want.  i have 2 choices force him to follwo contract or back out .. i'm not backing out due to his failure to perform.  i'm going to force him to perform.  if he fails and cant meet close he will pay ... lots of money ... plus wage garnishments would go into affect for this i assume as it wouldnt be small claims ... if he continues to fail in hopes i back out it will be 20-30k of his money by the time this is over.

Tabitha

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #8 on: January 31, 2016, 03:07:13 PM »
Will your RE attorney do a holdback of the $6k? Out of the amount that will be turned over at closing?

If you don't already have an attorney, it's time to get one. This does not sound like a DiY purchase anymore.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #9 on: January 31, 2016, 03:25:05 PM »
I have an agent. I'll let some dust settle. I have some attorney friends. I'll give the guy a chance. The point of the op was to understand my contract rights and after researching online I hold all the balls. And that's really what I wanted to know.

As long as I want the house it will be mine. And it may take some extra litigation to get it right at this point but I won't lose the house. The seller can't back out. He has a contract to fullfil if he doesn't I force him to fullfil it. Not to his idea but to my inspector's. Bc its in the contract.

If he wants to try to throw his perceived power around and threaten putting it back on the market. That's fine. But he can't. He has a contract to fullfil and I'll win in court so he is just costing himself in the long run.  And he really cost himself not accepting my 3500. Bc now it has been withdrawn. Bc I researched and understand the contract now. And he is in a bind. Really just posting to let other buyers know what cards they hold. Which is all of them.

Blatant

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #10 on: January 31, 2016, 03:29:48 PM »
You appear to have a hard-on for this particular course of action. Curious why you even posted this thread?

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #11 on: January 31, 2016, 03:56:14 PM »
As I said in my last lost I posted to figure this path out. In the mean time of waiting I read contracts and figured out my rights and now know I can take this path

Weedy Acres

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #12 on: January 31, 2016, 04:03:21 PM »
Yes, you can sue for specific performance, and make the purchase go through. 

Keep in mind that attorney's fees are nowhere near a given.  If your purchase contract awards attorney's fees to the prevailing party, then you've got a chance, but in general litigation it's "everyone pays their own attorney" unless your state has laws that say otherwise, which is usually for specific types of actions or findings.

And punitive damages?  No chance in hell.  Those are for huge, egregious violations, and while what this guy is doing may seem egregious in your personal universe, they wouldn't get applied here. 

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #13 on: January 31, 2016, 04:07:53 PM »
Yeah attorney fees are outlined as being paid for by the at fault party in our contract.  Our contract basically outlines that everything is paid for by the at fault party and everything is covered.

I should also note I am just preparing for worst case bc I found it mildly amusing the listing agent thought they could get more for it in the spring when we back out bc of repairs.

Unfortunately for them I don't have to back out. I can file for performance and they have to pay all my costs bc they didn't perform.

It doesn't bother me to go down this path. As I said in 2 posts now the original post was to obtain this knowledge I found online.

Now if anyone has experience in this as a buyer or lawyer that would be appreciated. 

ender

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #14 on: January 31, 2016, 04:28:43 PM »
Really just posting to let other buyers know what cards they hold. Which is all of them.

I hope it works out for you.

I can say I sure wouldn't want to be forcing someone who lives in a home to sell it to me via force/lawsuit...

Cassie

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #15 on: January 31, 2016, 04:30:02 PM »
Some friends of ours experienced something similar and in the end they got the house but not attorney's fees which were big.  Also you never knows what will happen in court. WE had a rental house that had fruit trees in the back that produced fruit. They cut them down and put in a brick paver wall/patio because they had a contract to buy house in a year if they wanted. They changed their mind about that and asked if we wanted to buy the stuff. I said no you have to leave the stuff because it is permanent according to my attorney.  They took it all apart and left with it. I sued being told that by our state law we would get 3x's what the trees were worth etc , plus lawyer fees and that we could not lose. They represented themselves and I paid $10,000 for my lawyer. In our state you do not have to be a lawyer to be a judge and just our luck we got the only one in this town that was a law clerk and won an election to be judge. She gave us nothing and wrote a paragraph saying basically the people had reasons for what they did and did not cite any law.  Yes we could have appealed but decided not to because of the high cost of lawyer and no guarantee to win.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #16 on: January 31, 2016, 04:31:05 PM »
The people don't live there. They bought it got relocated and never moved in. It is vacant.

Cassie

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #17 on: January 31, 2016, 04:33:12 PM »
What does that have to do with anything? I am confused.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #18 on: January 31, 2016, 04:34:09 PM »
I know bringing the law in is a last resort. I prefer for it not to go there but I plan for worst case. And this is a month out in preparation for worst case. I'll likely call an attorney this week just to see hownit worksnin mo.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #19 on: January 31, 2016, 04:34:44 PM »
What does that have to do with anything? I am confused.

See ender's post

Cassie

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #20 on: January 31, 2016, 04:43:09 PM »
My friends were in the same situation with the seller not living there. YOu should not list a house unless you want to sell and repairs have to be paid. When buying or selling we usually negotiate a repair amount that is set in the initial offer. Then if the buyer or seller want more we either negotiate or back out if we are the buyer. 

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #21 on: January 31, 2016, 04:52:18 PM »
My friends were in the same situation with the seller not living there. YOu should not list a house unless you want to sell and repairs have to be paid. When buying or selling we usually negotiate a repair amount that is set in the initial offer. Then if the buyer or seller want more we either negotiate or back out if we are the buyer.

The contract has been negotiated.  The seller opted to repair and signed the contract vs pay us money. Then tried to come back with a low offer to get us to accept it for repairs. I countered reasonably. But this was all verbal. Initial contract with ink on it stands.

Just trying to prepare for worst case. Ninreason to just assume they will do what's correct as they haven't to this point and their agent is of the impression that we'll just walk

At the op on this I didn't realize how inclusive my rights were.

I'm pretty sure I hold the cards. If it comes to pushing and shoving. I was just afraid we would lose it. But with the contract the house is ours and the cost to obtain it is likely what we have on the contract worst case ibpay some lawyer fees

Cassie

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #22 on: February 01, 2016, 05:02:56 PM »
Those lawyer fees can be huge.

Larabeth

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #23 on: February 01, 2016, 07:36:54 PM »
Disclaimer: I am NOT a lawyer and everything I'm saying below is just to give you a viewpoint you may not have already heard.  When it is all said and done, only you can decide what is best for your situation!!

I would never suggest to someone to go into a lawsuit.  I'm in a very cut and dry lawsuit currently that we are nearly guaranteed to win and, three years in, we are still dealing with the case.
Once we win (IF we win, which we should... but there is always the chance of failure), we will have to fight to collect.  It's not a simple process and it wears on everyone involved.  I felt I had to fight this situation because I lost my home and job and am out nearly $100,000 due to someone not following federal law (US).  Even now, part of me wishes I had cut losses and gone on my way.  That tune may change if I'm awarded the damages I feel like I am owed.

One thing you may be able to do is pay a lawyer to send a letter outlining your case and demands to the seller and their agent.  You're most likely going to have to send a demand letter to attempt to settle before a lawsuit would be filed anyway and this might allow them to see you're serious about not getting screwed over and they might acquiesce before you have to hire a lawyer for a hardcore case. 
Be wary of lawyers when it comes to deciding whether or not to pursue into a full blown case: if you are willing to pay them, they are going to go for it.

All that being said, I understand you wanting to hold someone to their word/contract, but if the threat of a lawsuit isn't enough to get them moving then I would consider cutting your "losses" (aka not being able to buy the house + the costs of inspection, etc) and finding a house elsewhere. You do risk some trouble/frustration because there was verbal contract discussion going on (which I'm guessing your RE agents were privy to and would have to testify about).
Also, attorneys fees being paid by the offending party is not always a given, even if it is outlined in the contract. 

Not that you can't win and it be awesome, but to be prepared for the "worst case scenario" if you move forward, you need to remember that at the end you might lose and you might not be awarded everything you would like.  There are all kinds of ways that contracts can be ruled null in court and there are all kinds of technicalities that can allow a to get the case thrown out.

After weighing the emotional toll and lawyers fees that can go along with this type of situation, you may find the risk of a lawsuit is not worth it.  Best of luck with whatever you decide!

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #24 on: February 02, 2016, 05:33:11 AM »
yeah like i said this is worst case.  b/c we're not losing the house.  Its a decent deal and houses like this in our price range come up 1-2 times a year if that.  I just wanted to make sure i had rights to the property.  And i do albeit i dont want to go the path, but it sounds like the sellers agent is going to get him to play ball.  Basically since he bought this house and never moved in she is reselling it for him at no sellers agent cost.  But she told my agent she was going to tell him that if this fell apart she woulnt relist if for him for free.  So he stands to lose another 12k in realestate fees while trying to make an extra 5k on a contract maybe 10k?  It sounds like they are going down the right path.  I just wanted to know my rights as far as what i could do if he didnt want to play ball. 

NOTE:  They were also unaware of the severity of the deck rott.  I think they may be more open to settling once they have it investigated.

Drifterrider

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #25 on: February 02, 2016, 06:50:58 AM »
Anyone know if we risk losing this house?

I am not an attorney but I know this.  Assuming you live in the US:  neither the buyer nor the seller may force a sale.  The seller can pull the house off the market at any time.  The buyer can walk away at any time.  The most either party can be held to is "liquidating damages (plus legal fees)".  That is to say if either party spent money based on a contract and the contract was breached, the money spent may be recovered by the aggrieved party.

So, how badly do you want this house?

ReadySetMillionaire

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #26 on: February 02, 2016, 07:48:32 AM »
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.
« Last Edit: February 02, 2016, 09:55:06 AM by ReadySetMillionaire »

Blatant

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #27 on: February 02, 2016, 08:16:39 AM »
RSM: Bravo, sir. What an excellent post. You stated eloquently what I was thinking. Hopefully it'll help set the OP on a more fruitful course of action.

eyePod

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #28 on: February 02, 2016, 09:27:32 AM »
Wow, that was a great response RSM.

Honestly, on the seller's end, he's making a good (albeit morally gray) move to get the most bang for his buck.

Buying a house is the worst. Even if you're on the same page with the seller. It just takes forever, the paperwork is terrible, and the whole process blows. Tedious, costs a lot of money, and impacts you for a very long time.

This is something that you're going to dwell on for YEARS if you go through with it.

ohana

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #29 on: February 02, 2016, 09:41:07 AM »
It's never worth your time to pursue a sum like this in court.  You will be embroiled in this for years, and you are unlikely to get what you want.  Get out of this deal and move on.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #30 on: February 02, 2016, 11:04:37 AM »
yeah just going to absolute worst case.  I'm an engineer i have to figure out what absolute worst case is.  I got answers that i was looking for thanks RSM.  obviously a squabble over 2k isnt worth all that mess, but as stated above the listing agent talked with my agent and they are going to complete the work.  i was just trying to figure out worst case scenario.  and the worst case is worse than i figured it would be. .

and yeah this seller has been i have to have the last word guy the whole time - his agent has called him very stubborn numerous times. etc

ReadySetMillionaire

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #31 on: February 02, 2016, 11:08:49 AM »
yeah just going to absolute worst case.  I'm an engineer i have to figure out what absolute worst case is.  I got answers that i was looking for thanks RSM.  obviously a squabble over 2k isnt worth all that mess, but as stated above the listing agent talked with my agent and they are going to complete the work.  i was just trying to figure out worst case scenario.  and the worst case is worse than i figured it would be. .

and yeah this seller has been i have to have the last word guy the whole time - his agent has called him very stubborn numerous times. etc

I understand. And as an attorney, my job is also to anticipate worst case. If this guy has been this big of a dickhead about repairing a deck, imagine how he'd be during litigation?

Hopefully you've been talked off the ledge, and hopefully this sale goes through. Buying a home SUCKS.

boarder42

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Re: Buying a new House - Seller issues - any Real Estate attorneys here???
« Reply #32 on: February 02, 2016, 11:32:26 AM »
it wasnt bad last time. people say banks suck.  people are worse at least with a bank you know its as is and there is none of this BS ... much easier the last time i purchased thru a bank.