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Buyer/seller needs to check contracts for options

July 6, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

We were so excited to move into a new home for us and our three kids (soon to be four) and we signed a contract to buy it. We made it contingent on selling our current home, and we signed a contract for it. Both contracts were signed back in May. The closings were both scheduled for July 11th. All was going smoothly, until yesterday, when we received an e-mail from the buyers saying that a family member had a serious medical crisis, and needed to stay where they live (currently in New York). With me expecting sometime in September, I don't know what we will do if we can't move soon. What can we do?

-Carole H.

Dear Carol:

It sounds like a very exciting time for you and your family, and I wish you great health and happiness for your newborn and family. As in most cases, a review of the contracts will provide a baseline for your options. In a standard contract, the buyers put down a deposit (typically around 5 percent of the purchase price). The contract usually provides for two remedies - that you can keep the deposit as agreed-upon damages and let them out of the contract, or you can sue them for Specific Performance. The latter action, if successful, would compel the buyers to go through with the purchase. Unfortunately in your case, the legal action would take months or longer to resolve, and there are several risks involved in proceeding with a lawsuit. Therefore, the vast majority of owners in this situation choose to retain the deposits.

Assuming you need the funds from your sale to help with your purchase, your options are somewhat limited in proceeding now. You could consider financing (or further financing) the purchase of the new home now, and continue to hold your current home. You could consider renting out the current home to help pay for the costs of doing so. Of course, you can re-list the current home immediately and find another buyer, preferably one with the ability to close with cash rather than financing, and to do so quickly. Finally, you could speak with the buyers directly (or through your Realtor if you have one) to get specifics on their concerns. Maybe the buyers are simply concerned about the upkeep on the new house and concerned they will be absent, and that they do intend to move to Cape Coral, just later in the year. You could give them information on service providers to make sure the house is in order when they do arrive. Finally, once you decide on how to go forward, let your new home owners know the situation, because they could be in a bad situation without the sale going through as well.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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