Seller is holding my deposite and wont answer his call!

General Real Estate Investing
1

Hi Please help.

Just suggestion not as a lawyer. I need to know how can I get my deposite back.

I have made an offer of a house which the seller accepted the offer.
The contract was signed with the sentence “PER ADDENDUM” next to my signiture since I know I have a few clauses that I needed to add.

My lawyer sent them the addendum. We signed it but the seller did not.

The addendum stated that if the inspection report come back with $1000 or more worth of damage, we as the buyer has the option to withdraw or renegociate.

Also stated that all earnest $ has to refund to buyer if withdrew within 5 business day.

Now the report came back with $30K worth of damage… of course I as a buyer has notified the seller that we are withdrawing from the contract that I signed with the word per addendum on it.

OK.

My Agent said the seller is not signing the release letter so the deposite can not be refunded.

The Seller Agent put the house back on Market. as prooved on MLS.

I am not getting my deposite Back…

SO THE QUESTIONS ARE.

Since he did not sign the addendum. There is NO CONTRACT right?? And I should not have to wait for the releast letter from the seller.

If he decided to sign the addendum now, He has 5 days to return the money or I can charge him interest or sue.

I am dealing directly with the listing realtor. And the seller actually an agent working in this realtor.

The broker is no where to be found.
The listing agent is not returning my call.

What can I do?

$ is held in the realtor’s escrow. And has been cashed.

Any help would be greatly appreciated!

Thanks.

Anthony

2

You may be out of luck.

I assume that your contract language never referred to an addendum in the body of the contract. In my mind, putting PER ADDENDUM after your signature is meaningless since no addendum was included with the offer you presented to the seller.

I believe you will just have to forfeit your deposit. Hope it was not very much.

I am not an attorney. Have your attorney review your contract and then come back and tell us what advice you are given.

3

An addendum was prepared by my lawyer and was faxed to the seller agent.

However it was NOT sign.

Ant.

4
I have made an offer of a house which the seller accepted the offer. The contract was signed with the sentence "PER ADDENDUM" next to my signiture since I know I have a few clauses that I needed to add.

My lawyer sent them the addendum.

Sounds like the addendum did not accompany your original offer, but was added after the seller accepted the offer you did submit. Your addendum after the seller’s acceptance is an attempt to reopen negotiations on an accepted contract. The seller’s refusal to sign the addendum is a refusal to reopen negotiations.

Your original purchase offer should have included the addendum when initially presented, and something should have been written in the special provisions language of the basic offer that referenced an addendum. It is not clear from your chronology of events, but if you failed on both these counts, I say you should just consider your deposit as the cost of learning a lesson on contracts.

If I have the wrong impression and the addendum was included with the basic contract offer AND referenced in the language of the basic offer, then the seller’s refusal to accept the addendum is a rejection of the entire contract.

Just how I see it. What does your lawyer say?

5

I agree with DaveT. My understanding, at least for PA, is that an addendum must be attached to and incorporated by reference in the main contract and it must be signed by all parties. It doesn’t sound as if any of this was done. So, unfortunately, if the addendum was added after the main contract was signed by you and the seller, it’s as if the addendum doesn’t exist–in other words, there is no modification of the main contract. I would definitely talk with your attorney about this.

As for your deposit, the listing broker is probably required to pay it into court if buyer and seller can’t agree and sign mutual releases.

6

Thanks for all your inputs…

My lawyer advise me to sue the realtor (since they represent the seller agent) with the lawyyer fee added to it. Our lawyer is a very respectable lawyer referred by our investor group.

The $ is being held in the realtor’s escrow. And the realty agree to refund my $ when they receive the release letter from the seller agent where they cant contact. (I think its bull.)

The original contract was signed which started the 3 days review period. My lawyer reviewed this contract and issue a letter to have the addendum Drafted by the seller.

Seller agreed 4 out of 5 items which my lawyer has suggested. and presented me with the modified addendum to sign.

We sign the addendum, but the seller did not. (The addendum was drafted by the seller agent as directed by my lawyer.)

House is listing on the market now as Active.

Hope that clears it up a bit.

Ant.

7

How much was the deposit? How much are your attorney fees? Might it end up costing you more in the long run. It may just be one of those lessons learned.

If it is worth pursuing, and you are still unable to contact the broker, you may want to file a complaint with the Board of Realtors to which the broker belongs. Check also about filing a complaint with the state, whichever department handles licensing. You may or may not have a complaint that would actually hold up, but the broker might return the deposit to avoid further action.

8

Earnest money = $10,000
And the lawyer is going to sue the realtor for the $10k + lawyer fee.

Will daft out the lawyer letter on monday and hand deliver to the realtor office on Monday afternoon.

Ant.

9

I’d be doing the same thing. Good luck on Monday. Let us know how it turns out.

10

You say that you gave the seller a signed purchase offer, with a three day attorney review period. If the seller signed the purchase offer then did not rescind the contract within the review period, don’t you have a binding contract?

Having your attorney review the contract after you have already submitted it sounds like you put the cart before the horse. Having your attorney ask the seller to add an addendum seems flakey to me, too.

I’m sorry, but I still don’t see where you have a case. Of course, we don’t have your contract language to review, but from the information you provided, I just don’t see that you have a strong case. You might want to get a second legal opinion from another attorney before you run up a large legal bill for what might be a very weak case.

11

I have a case in this because the section within the original contract that we both signed reads.

Paragraph 17.

HOME INSPECTION AND REPORT

Although the premises described in this Agreement is being purchased “AS IS”, the Seller, in additon to the other inspections permitted by this Agreement, will make the property available to Buyer or his qualified inspector’(s) or risk assessors for inspection or risk assessment at BUyer’s expense to assure that;

(A) the heating, air conditioning (if applicable), plumbing and electrical systems are functioning as well as can be expected (without being deficient) for system of their age;

(B) foundation and buildings are structurally sound;

(C) roof and flashings do not leak;

(D) there are no environmental conditions as defined by the New Jersey Department of Environmental conditions as defined by the New Jersey Department of Environmental Protection, negatively affecting the buildings such as unacceptable level of radon gas, formaldehyde gas, airborne asbestros fibers, toxic chemicals, mold or other pollutants in the surrounding soil, air or underwater . (If additional inforamtion is needed, Buyer should contact DEP directly.)

All inspections are to be performed within 10 DAYS from the expiration of the Attorney Review Period. If this inspection option is not exercised by the Buyer witihin the 10 DAY period, it shall be deemed waived and this Contract shall remail binding. The time for this report being delivered to the Seller’s agent is reaffirmed as being deemed of the essence.

Buyer’s home inspector must prepare a written home inspection report. The home inspection reporrt is limited to identify only those unsatisfactory conditions, defects, or deficient or inoperable systems related to those items listed in Paragraph 17 (A,B,C,D) above. The Buyer may not terminte this Agreement of Sale or request corrective action by the Seller unless the problems, unsatisfactory conditions, defect, or deficient or inoperable systems are related to those items listedin Paragraph 17 (A,B,C,D) above. If the Buyer’s home inspector fails to reveal existing deffects in the property, Buyer’s sole and exclusive remedy shall be against the companies providing such services.

Inspection report found:

A. A leaky roof
B. An underground oil tank
C. Unsatisfactory plumbling

This report was delivered to the Seller agent within the 10 days period. And the contract was notified as terminated.

This is beyond the scope of the addendum said in my earlier posts.

So, do you think I still have a weak case?

Anthony.

12

Yep, still do.

I see that you have the right to terminate the agreement if you get an unsatisfactory inspection report, but nothing in your language says that the deposits have to be returned.

Terminating the agreement, says to me, that you are not going to perform and you relinquish your contract interest.

Voiding the agreement might have a different connotation with respect to refund of the deposit, but your language says nothing about voiding the agreement and is silent on disposition of the earnest money deposit.

I am not a lawyer, so don’t take my word as gospel. I still think you should get a second, independent legal opinion.

13

Thanks for all your inputs and comments…

The Deposit was refunded without consulting a lawyer. The release letter was signed by the seller yesterday and a refund check is in the mail.

Again. Thanks! Now I have learn my lesson that with my credit being way above 700, I should just leave a $500 deposit next time.

Ant.

14

Just remember, It’s a deposit not a downpayment. Deposit could be 10 bucks then a downpayment at closing when you get title could be the greater amount.

15

Wait… at closing I need all the funds. Sell Price + Closing Cost less earnest.

In my understanding…

After you saw a house and like it… you make a deposite like $100. (refundable if you change your mind.)

At the sign of contract you need to put down more $ till closing, usually they ask for 10% (refundable until the 3 days review period has expired. And if you have subject to inspection clause or subject to partner clause. They are refundable if those terms are not satisfactory.)

At closing you need all the money. less any earnest $ to put up front. (No Refund)

Thats the general practice? I know all these amount are negociable.

Ant.