Voided Contract Leads To Suit
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 748
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A ThinkGlink reader was in a contract
to purchase a home but was denied financing by the mortgage company. The seller
has refused to void the contract and has not returned the deposited money. Ilyce
and Sam explain what options this reader has in order to move forward.
Q: I recently signed a purchase agreement with a seller. A week after we signed
the contract, the mortgage company sent out a loan denial letter because they
couldn't get the rate that was written on the purchase agreement (the contract
was contingent on my being able to get that rate).
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I asked the seller to void the contract but they want to sue me for specific
performance and have not responded to my request for the last couple of weeks.
Do you know how long they can hold on to the contract? What action can I take
to make the seller release me from the agreement so that I can go to buy a different
house? Can I make an offer for another house now?
A: If your contract has a provision that allows you to terminate the contract
under certain circumstances – such as your inability to obtain financing
on terms that you have agreed upon – and you notify the seller as required
under the contract, you should not need to do anything else.
Your written notice will terminate the contract and you can move on. If your
seller contests your notice, or the method in which you gave notice, or your
right to give such notice, you are left arguing about the issue or suing each
other to finalize the transaction.
Presumably, you deposited some money for the purchase of the home and the seller
has refused to give it back. In that case, you can only force the seller to
give you the money by going to court and having a judge order the seller to
release the money.
Finally, it’s unlikely that the seller can sue you for specific performance
under the contract. A suit for specific performance is one in which the seller
would claim that the only way to make him or her whole under the contract is
to force you to buy the home. But that would be an unlikely scenario. The seller
may have damages and may even lose money if he or she sells the home to another
person, but those damages could be obtained without suing you for specific performance.
If the seller has still not given you your money back or has threatened to
sue you under the contract, you’ll need to talk to a litigation attorney
and sue the seller to get your money back and get the situation resolved.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com