So what would you do?? both legally and as a buyer

We have been house shopping for the last several months. It has been a frustrating process as we have not found any that WOW us, and most that make us "go WTF is this?". Probably looked at 50 houses. So on Monday of this week we find the one that does check ALL the boxes (New roof, custom kitchen, large fenced lot, pool, etc....). House has been on market for less than a week and had 4 offers so we know it is going to take a strong offer. We literally walked thru the house, talked with our realtor in the street out front, and offered just under asking right then and there, which the owners took verbally. The following day we presented written contract which sellers signed. This past week I did all the leg work, put down earnest money, got mortgage quotes and putting in applications, etc (of course I was pre-approved months ago, prior to our looking... and had a major issue with that once we put in the offer... but that is a different story). And we have the inspection scheduled for today, closing in early Aurgust. Plus I started prepping our current house for the market, as in rented a storage unit for crap so we can show the house, scheduled a "deep cleaning" of our home, having presale inspection to find problems and fix (this is Monday) and even have my contractor coming Monday to fix some known issues, as well as the moving people coming to give a quote (also on Monday)...you get the picture, right?

Last night, my realtor calls. Seller reconsidered and does not want to sell. Initially it was "wife changed mind", then it was "decided to get divorce"....however we think they may have gotten a better offer but don't know.

So what do you do?

We are going forward with inspection today, and I forewarned inspector they may not allow it.
We have consulted with attorney who says we have a case but would go to mitigation before court, and even if we won, odds are we can't force the sale, just "compensation" ---- which who knows.

I am leaning towards enforcing the contract.

WWYD??

If you feel like you can get them to perform by leaning on them or threatening litigation, you could give it a shot and see if you can get them to come off their current position. If they insist on not performing, I agree with your attorney on how it will likely go. Sounds like you have a case for default/breach, but you'll probably be limited to monetary damages (usually the difference between what you would've paid for that house and what you ended up paying for a similar house, plus consequential damages--but you have to mitigate). It can be tough to get specific performance.

All the usual caveats: real estate law is state-specific, consult with an attorney in your state like you already have, blah blah blah.

I'd walk away and make them pay for the inspection. If they don't, tell them you will enforce the contract. I'd walk away just because I'd be pissed about it every time I walked into the house. But that is just me :)

I'd once again lower my opinion of people in general. Not sure how much lower I can go.

I'd rely on your attorney's advice, but I'd ask them to give me the odds of requiring specific performance here. The general rule* in a breach of contract is that money damages are all that is available. The general rule is that there is an exception for mandating specific performance where money damages will not adequately compensate the non-breaching party. This is an equitable remedy that applies when you have a sufficiently unique contract subject matter--a one-of-a-kind Pablo Picasso painting, for example. The more common sufficiently unique subject matter is real estate.

There's only 1 house in the world located at 123 Maple Street, Anytown, USA, and that makes it unique, even if there are 10,000 houses just like it in the metropolitan area. That's why specific performance may apply in contracts for the sale of real estate.

*Two caveats for this entire post--same one KSRBEvans gave--every state's laws are different, a general rule means nothing if your state treats the area differently, etc., AND no matter what the general rule is, parties are almost always free to provide differently by contract. The contract that you signed and the seller signed may outline what the remedy is in the case of breach. If it says something like, "Upon noncompliance by Seller, Purchaser's damages are limited to return of the earnest money deposit, blah, blah, blah," then those are your damages--you agreed to that when you signed the paperwork, they agreed to the same. Parties' freedom to contract generally overrides most general statements of law.

so latest update.....

the contract stated we would put down $XXX in earnest money, but the our realtor got verbal for slightly less, which is what I wired. Listing agent is now denying that verbal agreement. They have verbally agreed to cover my out of pocket expenses (my inspection cost even though he did not inspect, as I called him before he arrived and told him they were not allowing it, wiring money, etc.....). Funny that she "verbally" agreed, and I'm supposed to take that at value.

Anyway, we are walking away...

Just a bit of unsolicited advice that may/may not apply to anyone, and is for general information only, not legal advice to be relied upon.

If you get a verbal modification of an agreement, make sure you get a writing binding the other party to that modification. Sometimes an email confirmation sent by them--not by you/your agent--will suffice.

Otherwise, the other party, in a situation like this, has a legal defense. The contract says pay $X, other party paid $X-y and breached the agreement, therefore cannot hold us liable for breaching the agreement. You may lose your contract rights that way.

Just academic, general information, could be modified by state law, too.

Quote:

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Originally Posted by Darrell KSR

Just a bit of unsolicited advice that may/may not apply to anyone, and is for general information only, not legal advice to be relied upon.

If you get a verbal modification of an agreement, make sure you get a writing binding the other party to that modification. Sometimes an email confirmation sent by them--not by you/your agent--will suffice.

Otherwise, the other party, in a situation like this, has a legal defense. The contract says pay $X, other party paid $X-y and breached the agreement, therefore cannot hold us liable for breaching the agreement. You may lose your contract rights that way.

Just academic, general information, could be modified by state law, too.

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Yep...lesson learned. However we may have found a better place. Bigger, better location, signifantly less money...... going to see tomorrow, and if it's what we think then offer on site

Usually in these situations it’s best to tell them you’re a Kentucky fan and you solve stuff like this in the court of im gonna whoop your arse if you don’t sell me that house of yours like you promised. Verbally of course.

Quote:

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Originally Posted by Darrell KSR

Just a bit of unsolicited advice that may/may not apply to anyone, and is for general information only, not legal advice to be relied upon.

If you get a verbal modification of an agreement, make sure you get a writing binding the other party to that modification. Sometimes an email confirmation sent by them--not by you/your agent--will suffice.

Otherwise, the other party, in a situation like this, has a legal defense. The contract says pay $X, other party paid $X-y and breached the agreement, therefore cannot hold us liable for breaching the agreement. You may lose your contract rights that way.

Just academic, general information, could be modified by state law, too.

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IN real estate if it's not in writing, it's worthless. Period.

On the seller side if the buyer breaches you typically get damages in Kentucky, which usually is any difference in value if you sell the house to someone else for less. I don't recall being on the reverse of that where the seller balks on selling. I've heard tales of specific performance being enforced but never involved in one.

I wouldn't be at all surprised if the seller's agent didn't do the verbal on the earnest money intentionally to give them an out. Any Realtor worth anything knows that a verbal doesn't count.

Also Doc I don't know your agent but they really didn't do their job. Seriously every Realtor knows that everything, but everything, must be in writing. In this case the listing agent wouldn't even have authority to do such a thing without written consent from the seller if the amount is in the contract, and he/she and your agent would both know it.

IMO the listing agent possibly did it on purpose if he/she knew this was going to be an issue with the seller going through with it, and your agent didn't do their job. They wanted you to breach so they can walk away and you have no claim to performance or damages.

I will tell you you have a case against your agent. That is against all kinds of ethics and real estate laws and I'm pretty confident that is the case in Florida as Florida and Kentucky have reciprocity and their laws are pretty similar.

If for example the seller doesn't pay your expenses, your agent would be potentially liable for it.

For real estate doing a verbal change to a contract like that after the fact is considered extremely shady for Realtors. That is just not done.

You as the buyer is understandable, but the agents have some real ethics questions, both of them. No good agent would ever verbally alter a real estate purchase contract and expect it to stick.

You can have a verbal negotiation of course, they can both negotiate that number after the fact, but it's not valid until there is a paper trail at a minimum of seller approval, etc. At a minimum a text, email, but I'm betting there is a standard form for such things there as there is in Kentucky for amendments and changes.