Can We Get Earnest Money Back?

[jimmymarcia]

What is the name of your state? Wisconsin

We have been dealing with an easement dispute with a property that is supposed to close this Friday. The house's driveway leads to a private road -- the owners of this road (seller's neighbors) will not sign a written easement which legally allows us to use the road.

We have decided NOT to purchase the property if they cannot come up with the easement.

Question: Can we get our earnest money back? Here is what our contract states about the easement--

"This Offer is contingent upon the Seller delivering to Buyer a copy of any applicaable joint driveway agreement within 7 days of acceptance. This contingency shall be deemed satisfied unless Buyer delivers to Seller, within 5 days of receipt of said agreement, a notice terminating this offer, identifying those terms of the agreement which will significantly and adversely affect Buyer's intended use of the property, or which are unacceptable to Buyer's lender."

This offer was accepted in April -- not long after acceptance, they needed more time to get the easement. So we signed an ammendment stating "RE Addendum 'A' Line 13 Seller to deliver joint driveway agreement within 21 days of acceptance."

21 days past -- still no easement. It is now 1 day till closing and no easement. Time IS of the essence.

The sellers are acting like its our fault this won't close because we put this in our contract. They think they should be able to sell the house without an easement, since the neighbors have given them verbal permission to use their road. Are we in the right to want RUN from this because there is no easement?

[Charles11]

Originally Posted by jimmymarcia

"This Offer is contingent upon the Seller delivering to Buyer a copy of any applicaable joint driveway agreement within 7 days of acceptance. This contingency shall be deemed satisfied unless Buyer delivers to Seller, within 5 days of receipt of said agreement, a notice terminating this offer, identifying those terms of the agreement which will significantly and adversely affect Buyer's intended use of the property, or which are unacceptable to Buyer's lender."

This contingency would have been better crafted by stating what happens if the seller FAILS to deliver the driveway agreement within the 7 days.

Originally Posted by jimmymarcia

This offer was accepted in April -- not long after acceptance, they needed more time to get the easement. So we signed an ammendment stating "RE Addendum 'A' Line 13 Seller to deliver joint driveway agreement within 21 days of acceptance." 21 days past -- still no easement. It is now 1 day till closing and no easement. Time IS of the essence.

What is your position that the seller failed to deliver the driveway agreement in the first place? A better argument would probably be that even if the seller failed to deliver as promised (after the 21 day extension) it would be your obligation to terminate within 5 days after the receipt (or failure to receive) the driveway agreement.

With this said your remedy for return of EM may be with your financing contingency, what is the status of it?

Ultimately you could not get your financing because of this issue that is beyond your control. This is the angle I would pursue. If it were me I would give notice of inability to get financing with termination notice requesting return of EM and I would do so before the agreement is kaput. (Like have your agent go and deliver to the listing office before the end of business tomorrow, or before what time is specified on the agreement, the proper notices and have them acknowledged by the secretary as having been received, then call the other agent etc - to complete notification procedures. If the agreement requires notice of failure from the lender you better have them get it to you right away if you go this route so you can provide it with the other notice.

Where is your agent in all this????

[jimmymarcia]

"With this said your remedy for return of EM may be with your financing contingency, what is the status of it?" -- The financing contigency was already satisfied - within 30 days of acceptance. However, our lender deemed this satisfied because the sellers wrote in the contract that they will deliver the easement. But now, we cannot get financing because of their failure to deliver the easement.

Our agent drafted another ammendment this morning, extending closing to July 13 and terminating the contract if the easement is not obtained by this date, with prompt return of EM. She said they have to sign this, before closing can be extended. We don't know if they signed yet.