It doesn’t happen very often, but occasionally a home seller will decide that they don’t really want to sell their home after all.
What can they do?
If your home is only listed for sale and there isn’t a pending offer, then you can cancel your listing agreement. Maybe. It depends on the brokerage you have listed your home with and how your listing agreement is written.
Thompson’s Realty will let a home seller cancel their listing agreement with no strings attached. We realize that sometimes situations change. Be advised, not all brokerages will let you cancel a listing agreement. You should be able to at least take your home off the market. Check your listing agreement. Some brokerages may charge you for expenses they have incurred to market your home. Your options should be spelled out in your listing agreement. Read it carefully…
What if my home is under contract for purchase?
Well, you’ve got a problem. The purchase contract you signed is a legally binding agreement to sell your property under the terms of the contract. Breaking such a contract is generally considered a breach of contract:
Breach of contract n. failing to perform any term of a contract, written or oral, without a legitimate legal excuse … Breach of contract is one of the most common causes of law suits for damages and/or court-ordered “specific performance” of the contract.
Ugh. Law suits for damages. Court orders. Sounds expensive, and it is.
What is the home buyers recourse if you breach your contract and decide not to sell your home?
Typically the home buyer will seek court-ordered relief in the form of “specific performance”. In short, they take you to court and ask the judge to force you to uphold your end of the deal. And the vast majority of the time, they will get exactly that. Should you fail to sell the home after the judge tells you to, well now you are looking at contempt of court charges and all the fun and expense that entails. In this case, you might not need your home anyway as you may well have a new place to stay in The Big House.
What exactly is “Specific Performance”?
From the law.com dictionary:
Specific performance n. the right of a party to a contract to demand that the defendant (the party who it is claimed breached the contract) be ordered in the judgment to perform the contract. Specific performance may be ordered instead of (or in addition to) a judgment for money if the contract can still be performed and money cannot sufficiently reward the plaintiff.
Here is a great article, written by an attorney, with more information on specific performance.
The vast majority of the time, a seller being sued for specific performance is going to lose. After all, you entered into a contractual agreement to sell your home. The buyer has more than likely paid out of their own pocket for inspections, an appraisal, and possibly some mortgage fees. In addition, they may have sold their own home, or arranged to terminate their lease. Not to mention that they stopped looking for a home because you promised to sell them yours. Your real estate agent or the buyer’s agent might even be able to come after you for commissions due since they procured a willing, able and ready buyer for your home.
Occasionally a seller might win a specific cause complaint, but typically that only happens if the seller can’t sell the home. Not because they don’t want to, but because they can’t — as in they no longer can convey clear title.
Any other options?
You could always try asking the buyer if they would agree to a mutual cancellation of the purchase contract. It’s pretty unlikely that will fly because, as previously mentioned, the buyer already has significant monetary “skin in the game”. Maybe if you agree to reimburse them for their costs, and maybe if they are getting cold feet and/or are the nicest people on the planet then they might agree to a mutual cancellation. In the current Phoenix real estate market where many buyers have submitted offers on multiple homes, only to have their hopes and dreams dashed by being outbid, I think that it is pretty unlikely that a home buyer under contract is going to say, “No problem. I’ll just go back to the stress and pressure of finding another home”.
If you do manage to get a buyer to agree to a mutual cancellation, I would strongly suggest having an attorney draft the cancellation agreement so that you are ensured the buyer can’t come back later and sue for specific performance anyway.
If you are a seller looking for a way out of selling your home, you need to speak to an attorney. Breach of contract can have serious legal and financial implications. Don’t screw around with it. Your agent probably isn’t an attorney. Seek your agent’s advice (which should be, “speak to an attorney…”). If your agent says, “Eh, no big deal, happens all the time!” then… well, good luck. You’re going to need it (and a healthy checking account balance as well).
Disclosure: I am not an attorney, in any way shape form or fashion. And an attorney is exactly who you need to be speaking to if you’re considering breaching your home sale purchase agreement. The above is based on my professional experience. Laws and real estate purchase contracts vary by state and possibly city. Get off the Internet now and find an attorney if you are considering breaching a contract.
Photo Credit: By controlarms on Flickr. CC Licensed.