Seller default

**mechanic** · 07-10-2008, 06:43 PM

We have a legal binding contract on our house. The appraisal and inspection on buyer's part has been done. We have two weeks before closing. We are now not wanting to go through with the sale and want to stay as we cannot find another home. The contract mentions a letter that can be written to give buyer to see if they will agree to not buying. How should such a letter be written and is it too late to back out? We are torn up about this and depressed. Our real estate agent told us that they (our agent) and the buyer and their agent could all sue us. We are willing to reimburse buyer for their costs of appraisal and inspection. Our agent also told us we would have to pay the commission. What are our options? Help...

**axelfox** · 07-15-2008, 12:30 PM

I assume that your offer to sell was not contingent on you buying another house.

Check your contract; there may be a liquidated damages clause where you may lose your deposit (perhaps even more).

In any case, you may want to consult an attorney on this matter.

**Herwolfman** · 08-18-2008, 11:14 AM

You have two contracts. 1st is the Listing Contract, 2nd is the Contract of Sale. The Listing Agency is not a party to the Sales Contract which is between Buyer & Seller! Both have legal recorse if they have a problem that one or the other refuses to settel out of court and the sale fails to close.

Under your Listing Contract you agree to pay a commission NOT IF A SALE AND CLOISING TAKES PLACE, but simply if the the agency brings you a ready, willing and able buyer who made an offer that met all of the terms of the listing contract OR such other terms as accepted by you through signing of the offer, subject to contingincies of Buyer or Seller being met or vaived! It seems that the agency did that.

If the Buyer is willing to release you from the Contract of Sale in writting fine, you get to keep your hom. But, the Agency did their job and earned the commission. They can't make a Seller or a Buyer clost! Only the Seller or Buyer can do that! - In either case, you'll need to pay the commission or risk 1 or more legal actions (Buyer & Agency) if you do not complete the Sale. Note: If the Buyer or Sellers Contingencies were not met or waived in a timely manner as per contract, the injured party may be able to deem the contracr null & void with out a commission due,, but this does not seem to be the case here.

**TomAnto** · 08-22-2008, 07:58 AM

Every state is different on this issue and why there is a debate over attorney involvement and broker only. Read the listing agreement carefully.

Some states only require that the listing agent merely presents a willing and able buyer who made an offer that met all of the terms of the listing contract or such other terms as accepted by you through signing of the offer. This presents a potential conflict of interest for the listing agent and is a point of contention in the industry.

Many contracts require the sale to be complete before any commission is earned. All attorney deals should have this provision to protect their client, the seller, from any problem on that contract.

The second contract, for sale of the home to the buyer, is another issue. For private residences the buyer could sue, however damages are rarely awarded for residential contract disputes. They would most likely sue for an equitable remedy with means forcing you to sell.

If you have any contingency in your contract that would allow you to back out of the deal you should be free to exercise it without fear of being sued by either the buyer or the agent. Since your agent is threatening a law suit for the potential sale commission you should seek the advice of a lawyer. The agent does not appear to be impartial or holding your best interest in mind at this point.