Executable Contract - Posted by Becky Haverland

import · September 23, 2008, 4:39pm

Posted by John Merchant on September 24, 2008 at 07:18:20:

Ah, the S and his lawyer are now in the pot and things are likely to get hot for them.

FYI, S’s lawyer can not act as S’s lawyer against you, if he has in any way, represented you…and your new lawyer will spot this possibility in a flash since S’s lawyer has tried to act as the escrow agent and in so doing, it’s just possible he may have over-reached a little bit and actually represented you just a little bit.

I saw an identical situation where a lawyer and his firm, who do lots of escrows in his town, actually prepared a cute little 3 ring binder notebook with buyer’s name on the cover as “Our Great Client, Bob Buyer” in the process of an escrow.

Then later that same law firm and lawyer sued that walk-away buyer for their Seller client.

That Buyer answered the lawsuit by saying, along with other defenses, that the lawyer could not ethically now sue his own client (the Buyer)since he had previously been that B’s lawyer…and such a situation was an irreconcilable conflict of interest that actually disqualified the lawyer from being further involved in the case.

Although the S might have had a pretty good case against the walk-away B, that ugly conflict-of-interest situation was so ugly that it ruined B’s case and in short time succeeded in getting the case dimissed so B won by default.

When such a situation does develop it most often sours the whole barrel of apples, so as to destroy the lawsuit for all time.*

I think you’ve already won this battle if indeed you are ever sued, which is dubious. As I’ve previously said, the S rarely actually sues the walk-away Buyer.

It’s not time or money effective and it’s just easier and more cost effective to go find a good, new buyer.

*Once a lawsuit is dismissed, although legally it COULD be refiled, my guess is 95% of the time, it never is, as the momentum is now gone, client is discouraged and unwilling to pay for more lawyer time, etc. So the dismissed lawsuit is the “WON” lawsuit for the other side.

import · September 23, 2008, 4:39pm

Executable Contract - Posted by Becky Haverland

Posted by Becky Haverland on September 23, 2008 at 16:39:04:

If a real estate contract has X marks through certain parts and those parts have not been initialed by the buyer or seller, is the contract executable? The page has been initialed but not the specific “stricken” paragraphs.

import · September 23, 2008, 6:25pm

Recipe for legal stew? - Posted by John Merchant

Posted by John Merchant on September 23, 2008 at 18:25:40:

Don’t know what “executable” means but the obvious question is what would escrow do with this ?

Do the X’d portions cancel or change the terms of the deal or are they insignificant to the deal itself?

My guess is, if these portions do modify or change the basic terms, most escrow officers would say it’s too ambiguous to be close-able so they’d probably hand it back and say try again.

This kind of thing is why it pays to have an experienced RE agent involved so ambiguities are non-existent or at least insignificant.

Since the parties might be in actual agreement I’d try to nail these X’d out portions down as agreed to or agreed to delete, etc. before taking it to escrow.

The Uniform Electronic Transmission Acts (UETA)that have been enacted by virtually every state say that this can legally (and be as binding as if signed by all parties)be done by email and/or fax so you might be able to clear it up and make it agreeable to all parties in just minutes by email or fax.

Then, appending those emails or faxes to the “original” contract just as it now is, as attachments, and then giving that to escrow might just be all that’s needed.

import · September 23, 2008, 8:55pm

Re: Recipe for legal stew? - Posted by Becky Haverland

Posted by Becky Haverland on September 23, 2008 at 20:55:50:

Thank you for your reply. The X’d portions do change the terms and I want to terminate the contract but the realtor says the contract is binding. One part X’d out was “Title Policy and Survey” She wanted me to come back and sign another paper correcting that, but I told her I wanted to terminate the contract. Is the contract binding? I am going to a lawyer this week, but I wanted to know your opinion beforehand. Thanks!

import · September 23, 2008, 9:20pm

Re: Recipe for legal stew? - Posted by John Merchant

Posted by John Merchant on September 23, 2008 at 21:20:16:

Only a lawyer who can see the whole thing would be qualified to say if it’s binding the way it is.

But you should know that it’s very rare for a “walking away” buyer to get sued for not buying so its that’s you, I’d say do it and don’t worry about being sued.

If you’re the Seller there’s a much better chance of your getting sued if you don’t follow through as agreed.

So if you are the S, do have your lawyer look at the P&S and then advise you as to your situation.

Remember the RE Agent is no lawyer and has a financial interest (her commission if it sells) so don’t rely on her unqualified legal advice…and if she gives you any trouble, I’d call her broker and tell that B to back off that agent.

import · September 24, 2008, 3:43am

Re: Recipe for legal stew? - Posted by Becky Haverland

Posted by Becky Haverland on September 24, 2008 at 03:43:04:

Thank you. Yes, I am the “walk away” buyer and appreciate your information. The agent has been a bit intimidating. Even as the buyer I am getting a lawyer because the escrow agent is also the seller’s lawyer. Thank you again!