Legal Question in Real Estate Law in California

Cancelling escrow and purchase contract

I went into escrow to purchase a new home. We picked out upgrades and paid a deposit. We also paid for half of the upgrades up front, which later can be credited towards the down payment. We signed a contract and within that contract it states we will have a tubular steel fence. The model has a tubular steel fence which has 4 inch spacing. They put in our actual fence and the spacing is 2 inches apart which totally distorts the view. We purchased the house for the view and now it is partially gone. Can we legally cancel the purchase and get all out money back since they did not give us what we expected or signed for.

Asked on 3/26/06, 2:16 pm

2 Answers from Attorneys


Re: Cancelling escrow and purchase contract

Has escrow actually closed? If so, you cannot cancel escrow. You will either sue the builder/seller to rescind the contract or for damages for the diminution in value of the property (if any). (Caveat: Lawsuits for rescission are generally expensive, time consuming, complicated, and almost undoubtedly will require an attorney.)

Do you have an express representation from the builder/seller that your fence was to be the 4-inch variety as opposed to the 2-inch variety? If so, your case is bolstered immensely. Without such an express representation, it's going to be he said/she said. (Or he said/he said, as the case might be.) Because of the Statute of Frauds, I suspect that the actual agreement concerning the fence is in writing and is probably spelled out clearly somewhere in the undoubtedly large volume of purchase documents and/or escrow documents and/or -- if applicable -- HOA documents.

Can't you simply replace the fence with the 4-inch variety? If so, that is likely the route to take, and then if the builder/seller won't pay for it, you sue for damages. If the amount is within the jurisdiction of the Small Claims court, it will be a fairly straightforward and inexpensive filing.

Finally, if there is an HOA involved, you need to find out what the CC&Rs provide in such situations. To replace a fence will likely require the permission of the HOA.

For additional information, consult a qualified real estate transactional or litigation attorney.

Good luck.

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Answered on 3/26/06, 2:55 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Cancelling escrow and purchase contract

On a purchase contract for a house, a deviation from an implied term for fence style "X" in which fence style "Y" is supplied instead is probably not a sufficent breach to warrant the remedy of rescission. You are probably entitled only to money damages, and the likely measure is the cost to replace the fence. Even this would require some degree of admissible evidence to show that fence style "X" was indeed part of the contract. If the fence style is anywhere specified in writing, that would be helpful.

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Answered on 3/26/06, 3:29 pm

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