Real Estate Contract, any way to back out?

[PinkEsPanda]

What is the name of your state? AZ

Can anyone tell me if there is anyway that a seller can back out of a signed contract, is it legal, and if so what are the consequences (meaning potential for being sued and for what expenses/damages)?

Here are a couple of technical details:

The contract was signed by buyer then faxed to seller. The seller signed the contract but added 2 conditions/notes in the terms of sale for buyer to review and initial off. The buyer's agent then, for the purposes of saving time, wiped the extra notes with the white out and faxed the contract to escrow & loan processing. Theoretically, the buyer's agent can say that they never had those 2 comments to begin with. unless the white out would show off on the line, but with faxes/copying it can be easily wiped off completely.

At a meeting 5 days later the contract was not resigned without fax as both parties have thought that the faxed version is still valid.

If seller backs out at this point what damages etc would he be responsible for? Would the contract be non valid or breached by seller?

Thanks in advance

 

[PinkEsPanda]

P.S.

I'm the seller.

There are 2 more terms in the contract:
"Seller agrees to have all repairs done before COE"
"Seller will make a list of repairs & go over with buyer before close of escrow"

The 2 things i added which were wiped out are:
"- list of repairs will be agreed upon no later than 12/11/2006
- the seller has made a counter offer of XXXX with all other terms and conditions remaining the same"

(the last one i added because i didn't want to put my signature on a contract even though the counteroffer was attached.. u never know ...)

Here's a quote from the contract:
"Breach: in the event of a breach of contract, the non breaching party may cancel this contract and/or proceed against breaching party in any claim or remedy that the nonbreaching party may have in law or equity, subject to the [unreadable] dispute resolution obligations set forth herein. [then it goes on saying that if buyer breaches (by not getting the loan or otherwise) the seller gets the earnest money. Nothing is said regarding seller's breach. There is also a paragraph about 3 days cure period for noncompliance. 2 more paragraphs on ADR that are unreadable]

To the best of my understanding they will be entitled to actual damages, i.e. termite inspection and appraiser fee (building inspector just happened not to fulfill his obligations, and probably will not be paid). And they should not be entitled to any undefined damages like looking for another place, missing buying another place by being in contract on this one, or the fact that they would have to live in a rental vs. own a home or hypothetical real estate apperciation (the market is going down so that may be a good thing). I'm willing to pay their termite inspection fees and their appraisal fee.

Please help & Thanks again

 

[justalayman]

If it is as you say then there never was a contract to begin. Whomever changed the contract is in deep stuff with this one.

I presume you do have a copy of your counter offer, correct?

Even if you do not, then the origianl should surely show this fraud.

No contract, no liability on your part. The only one that needs to worry is when this blows up is the buyers agent for altering a contract.

 

[BelizeBreeze]

Write the agent's broker a certified (RRR) letter outlining the fraud and telling them that if the contract is NOT presented as sent, you will file a formal complaint with the state licensing board and sue both the agent and the broker.

 

[PinkEsPanda]

Ok, just to clarify things a bit..

The agent did whipe out the lines that said about list being agreed upon a certain date, but we sort of both agreed on the phone that that's fine. At that time, which was about 10 days ago, i actually wanted the contract to go through and was planning to sign a hard copy within days. The fraud issue has not yet come up, and hopefully will not, i'm just planning for it. But in that case it will be my word against theirs i suppose.

Now I would like to back out on a technicality, because i realized that they completely lowballed my price and are continuing to bend in their direction with repairs and even something like HOA transfer fee which they agreed to pay. I have 2 offers at full listing price waiting for me to back out.

The real question is: is the faxed contract valid as signed? and can they take me to court for anything more than apprisal and termite fees.

As i mentioned, i'm willing to compensate them for those fees as i don't want them to be out any money based on me changing my mind.

If i can simply say to them "contract not valid" i'll send the RRR tomorrow and be done with it and accept the another offer.

Thanx

 

[PinkEsPanda]

justa,

The counter offer was a front page attached to the original offer..., and i have a faxed copy. It's not a problem, i just want to back out out of the counter offer that refers back to the original offer for the terms and conditions (where the changes were made). The technical question here is really faxed copy vs original.

P.S. they also spelled my name wrong on the contract, but i spelled it right were i signed it. Don't think that makes any difference. The buyers agent was drawing all the paperwork, since i don't have an agent, and she is just... well... sloppy.

 

[IndianaOwner]

There should be no contract here...

First, the buyer made an offer, then seller rejected that offer and made a counter-offer which the buyer has not accepted yet. The only argument now is if the buyer is estopped from denying there is a contract...

That was not the way to handle things...

 

[PinkEsPanda]

The seller has accepted the counter offer by signing it at sending it to title company and loan people. Although maybe there is a point there, since now that i think about it, I never received even a faxed copy of signed counter offer acceptance. But since i signed it, it might be valid.

 

[lcannister]

If the buyers wanted to pursue it and IF there was a legitimate contract they could go to court and pursue all kinds of things including forcing you to live up to the terms of a LEGITIMATE contract.

The contracts should have been rewritten or at MINIMUM you should have initialed the change that was sloppily whited out.

However you are not faultless in this as you agreed to the agent's request to do it this way.

Long and short, pure and simple, you were offered more money and want out of this so called contract.

 

[nextwife]

justa,

The counter offer was a front page attached to the original offer..., and i have a faxed copy. It's not a problem, i just want to back out out of the counter offer that refers back to the original offer for the terms and conditions (where the changes were made). The technical question here is really faxed copy vs original.

P.S. they also spelled my name wrong on the contract, but i spelled it right were i signed it. Don't think that makes any difference. The buyers agent was drawing all the paperwork, since i don't have an agent, and she is just... well... sloppy.

Faxed is acceptable. Did you carefully read the state preprinted offer form to see if faxing is considered a "form of delivery"? Misspelling the name in the offer doesn't matter - the title company can be informed of any name changes (Showing middle initial, mispells, adding a co-borrower as buyer).

 

[MercuryRising]

you need to get a real estate attorney. Well worth the money.

 

[PinkEsPanda]

I read a copy of a standard contract today. Faxed is acceptable as it states there. Even though it should have been resigned. She was still obligated by law to have the final version, signed by both parties, and delivering one way or another a mutually signed version to both parties. She has never sent or given me a final copy. Not to mention whiting out additional terms and conditions. She also did not include my agent in the contract, which i believe she was suppose to do. Acceptance is not an acceptance unless i get it in writing within reasonable time period.

Other things that were not done: the list of repairs that they were suppose to submit within 5 days was not submitted and now they are trying to hold me accountable for "ALL" repairs... ALL meaning??? The buyer has not sent me any paperwork regarding loans etc. I think that deadline was up to 5 days after signing.

I 'm stll turning down the deal as today the agent emailed me to get another 1200 out of me in fees that the contract states that the buyer has to pay. She quoted the line that says prorated taxes and HOA monthly dues, vs specifically stated paid by buyer transfer fees.

it's turning into a mess... I will get a lawyer if she challenges any of this, but for now i'm just gonna follow advice here. RRR followed by a friendly call to the escrow company.

 

[lcannister]

The seller has accepted the counter offer by signing it at sending it to title company and loan people. Although maybe there is a point there, since now that i think about it, I never received even a faxed copy of signed counter offer acceptance. But since i signed it, it might be valid.

WHAT counter offer you said you verbally approved whiting out that section?

 

[PinkEsPanda]

I verbally approved whiting out additional terms and conditions section on the original offer. We did agree on resigning the contract on the phone, and on actually meeting those conditions, but for the purposes of saving time it went through to escrow as is (with the white out). The counteroffer referred to the original offer for terms and conditions.

is anyone a lawyer here? i've been tring to get a very specific piece and I seem to be getting conflicting info, or no specific reason as to why. It's been a work in progress so i contributed to the confusion... but still

all i need to know is does signing of the offer/contract in such matter constitutes a void contract BY LAW

Here's the list of possible violation and circumstances in a nutshell:
- white out of terms and conditions not initialed or signed by both parties, and after my signature was placed below it
- not faxing back acceptance with buyers/seller signatures (especially buyers)
- the counteroffer was sent out LATER than original offer allowed time to respond (24hrs)
- no loan progress papers provided by buyer's agent (not sure what their obligation there is)
- no list of repairs provided within allowed time period (5 days?), even though they are holding me accountable for "all" repairs
- if my additional conditions were not wiped out it would have made the contract void, as both parties did not have an "agreed upon list of repairs" by specified date
- all of this though was followed by opening of escrow by the buyer and me letting the appraiser and inspectors in (4th and 5th day after signing)
- I did not sign any papers with the escrow company

BelizeBreeze? lcannister? If you guys are lawyers, please help


if so, what's the best way to close the existing escrow ASAP without any complications

Thanx


clarification regarding loans: they were supposed to attach that info to the contract that they sent me, and they never did

 

[lcannister]

There is just NO WAY we can further clarify the situation without going over EVERY contract and HEARING every conversation.

Get a local attorney who can go over all the info and advise you properly!