Legal Question in Real Estate Law in California

Our escrow was supposed to close on 2/22/10, We extended the escrow for one week past that, but the Seller wants us to sign a document that if it does not close on that exact date, March 5, we authorize them to cancel the escrow and to keep our $15,000 good faith deposit. We know that anything can happen, but if we sign this amendment, and our loan is not ready to close exactly on that date, we are losing quite a lot. Is this legal? Our lender states that we are about 95% sure we will close on time, but what if the Seller or Buyer (us) dies before March 5th, or something happens beyond our control and we cannot close until the following Monday?


Asked on 2/25/10, 7:32 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Huh? If someone dies between now and March 5, I doubt there will be a closing on the following Monday or anytime soon. This seller is obviously impatient, and from my point of view I cannot say why; they may need to pay for another house, or they may have another offer waiting in the wings. One week past 2/22 was March 1, so I guess you are already in a weak bargaining position, having missed that date. It'll be March 3 by the time you receive, or can act upon, any advice I (or another LawGuru attorney) gives - It's a gamble either way, but I'd check with the lender early a.m. 2/3 and see if there is any new development, then sign the document to preserve your $15K at least through Friday. Even if you can't close until Monday, if your deal looked good to the seller on 2/22 and on 3/1, it may still look good on 3/8. We are not exactly in a bull market for resale homes. As to whether it is legal, I cannot say for sure; if the deposit is less than 3% of the purchase price, it may legally be subject to forfeiture if you fail to close per your agreement. Also, you may have other grounds (such as un-met contingencies) to terminate the deal without a forfeiture. You are probably doing this deal without a buyer's agent, but if you have one (and you should), you need to involve your agent in the decision-making process. Agents aren't lawyers, but they are supposed to have special knowledge and training that allows them to assist their clients in emergencies like this.

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Answered on 3/02/10, 9:09 pm
Terry A. Nelson Nelson & Lawless

No way. Your broker should be educating you in this. If you don't have one, that was your first mistake. Real estate sales are always subject to 'reasonable' delays for funding. They seldom close on time, regardless of what the seller demands. Escrow can not be canceled without all parties signing off. They can not re-list or re-sell the property without you signing to cancel escrow. They are 'stuck' with you. Get your loan asap and demand they close then. If they refuse, you'd probably have grounds for a specific performance lawsuit to force the sale.

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Answered on 3/03/10, 9:57 am


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