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Sellers Delaying

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Helpme2move

Junior Member
What is the name of your state (only U.S. law)? New York

Good afternoon everyone!
My apologies if this has been posted here already.

My situation:

I put an offer on a house back in August. The offer was accepted and the binder was signed immediately by the sellers. The process then moved to meeting with a real estate attorney and drafting the 'formal documents'. I had signed the formal documents on 8/21/2010 and the delaying started. The delaying occurred until I told my real estate attorney to inform their attorney that if contracts were not signed by xx/xx/xxxx date I was going to pull my offer. Given, the contracts were signed by the date I had provided.

Once the contracts were signed and sent to the banks the appraisal was completed by the bank, mortgage insurance was obtained, proof of home owner's insurance was obtained, title verification run, etc... I received "clear to close" from the bank.

Now on to the question, The Bank Attorney and my Attorney have been ready to close. We have contacted the sellers attorney and no call back. I've spoke to the Real Estate Agent and asked her to reach out to the sellers and she can't get them either. I find it difficult to believe that a Real Estate Attorney for the Sellers would ignore calls and emails at the request of his clients. It is my understanding per previous discussions that the Sellers were awaiting the completion of their new home and assume that as of this time they are not "move in ready". So... is it legal for the sellers to delay 'my closing' so that they can retain a residence until their 'new home' is ready to move into. There are no contingencies in the contract that related to them needing a mortgage on their new home, a Cert. of Occup., etc... so... what am I to do?
Everyone is ready and I do not think it is fair for someone who agreed to sell me their house to delay at my expense. The formal documents read, "On or around 9/30" for the closing date. I am aware I can file "Time of Essence" with my attorney. Why would the sellers be asked if a 'closing date' is okay if they have already agreed to sell the house. Why would the law leave this in their hands when they have signed that they want to sell?

Thanks for your help in advance.

Kindest regards,
BWhat is the name of your state (only U.S. law)?
 


Dave1952

Senior Member
In reading your post I so not see any mention of a mutually agreed upon closing date. On or about 9/30? Sorry but that's rather nebulous.
Was the term "time is of the essence" used in a mutually signed agreement? What advice have you been given by the lawyer who is handling the closing for you? Why do you believe that "everyone is ready" when the sellers aren't?
Sorry, something is going on here.

Good luck
 

Helpme2move

Junior Member
Maybe I should rephrase my question:

Is it okay for a seller, someone who signed formal contracts, to be the only delay that remains in order to close?

So.... essentially the question is, "If we have both signed the formal contracts that state, "on or around", then I must either wait it out (regardless of the reason for delays) or tell my lawyer to file 'time of the essence' and step away if they continue to delay beyond the timeframe listed in that document"?

I guess once a seller and buyer both sigh formal contracts the buyer can't really delay without reason and if he does the seller can pull the plug. But if the seller delays for no apparent reason then the buyer has to just be patient.

Am I interpreting this wrong?
No specific date was agreed upon by the parties. But both parties agreed to close "on or around 9/30" and now because of that verbiage I don't have any footing or position to say anything, just wait. The point of my post for the most part is... no parties are waiting on anything.

The only thing that we are waiting on is the sellers to agree to a closing date. And because of their own personal (not related to our transaction) matters (to be able to move into their new home) I am being delayed. I think its garbage that someone can agree to sell me their house and then delay selling it (while I am held prisoner to the agreement) until they are ready. Given the time I wait at my expense and their benefit.

Does that make more sense?
 

Helpme2move

Junior Member
Or if it helps... as simple as I can.....

"Is it okay for the sellers to delay closing because it benefits them because their new house is not complete?" - (New house for them has nothing to do with my agreement with them)

and....

"What can I do if they continue to drag this on and on...?"

Is my only option...

"Filing time of essence paperwork with my attorney and having it sent to their attorney"?

Thanks for your patience with me!
 

Dave1952

Senior Member
I see no reason why the seller must close before it suits him. What does your lawyer mean by "filing time is of the essence paperwork"? That should have been in a mutually signed agreement. You can not unilaterally impose this term now.
Have you spoken to the owner? Is there a guesstimate for a closing date?

Good luck
 

justalayman

Senior Member
yes, you can now serve the seller with a time is of the essence notice.

It is generally acceptable to issue such a notice with a new date. Especially due to the financing, time is now of the essence as delaying the closing will possibly affect your mortgage rate or other specifics.

Such post contract notices have been held to be binding on both parties in some cases but your notice must be very specific for it to meet any requirements making it so.

Other than sending the notice, all you can do is wait.

"What can I do if they continue to drag this on and on...?"
that depends on what you want to do.
 

stevesellers

Junior Member
You may be waiting a while

As a Realtor I deal with contracts daily. I know that in your situation you had attorneys draft the contract (something I'd never do, but I don't have to) and it seems that the seller's attorney is unwilling to persuade his clients to act.

You cannot impose any conditions on the contract (ie imposing a closing date now) that weren't part of the contract which both parties (seller and buyer) ratified.

You can sue to enforce 'specific performance' but the cost would be high and it would take a while to get in to court. Even if you did a judge would usually not require someone to leave their home if they didn't want to. You may be awarded damages but good luck in collecting them.

My advice is have your attorney write a letter to the seller requesting a specific date for closing and informing the seller that failure to communicate on this point will be seen as abandonment of the contract (that actually already occurred when the sale date came and went without closing).

You should probably begin to look for another home.
 

justalayman

Senior Member
My advice is have your attorney write a letter to the seller requesting a specific date for closing and informing the seller that failure to communicate on this point will be seen as abandonment of the contract (that actually already occurred when the sale date came and went without closing).
.
the first half of the advice here is a watered down version of issuing a time is of the essence statement, which can be issued at this time. New York case law supports that action as being proper.

The second is simply incorrect. The fact the closing date was set "on or about" means that passing the date does not terminated the contract. The courts have already ruled that the indefinite date means there is no actual date of termination of the contract and if either party believes it has gone beyond "or about" they must seek a courts opinion to define it for the parties to the contract.
 

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