Seller should give buyer a fair chance

Seller should give buyer a fair chance
Date Published: May 9, 2014

Dear Sue,
My house is in escrow with a buyer that I don’t trust. I haven’t had a good feeling about this buyer since day one.
I just learned that his deposit check bounced. I told my agent to get my house back on the market immediately but she said that we couldn’t without first asking the buyer to perform.
Since the deposit is a condition of our contract I think it’s pretty obvious that the buyer isn’t performing. I think I should just be able to put my property back on the market immediately! Don’t you?
~Furious Frank

Dear Frank,
You have every right to be furious.
Frank, before you fly off the handle make sure that there’s not some innocent mistake.
Give your buyer a chance to bring in good funds. In view of what has occurred you can insist that the funds be in the form of a cashier’s check or a wire transfer. This will ensure that the funds are in fact good.
If your buyer is unable to bring in good funds you can cancel the contract.
Do not rush the process of canceling. Rushing often leads to a defective or questionable cancellation. According to the California Association of Realtor’s legal counsel every “i” must be dotted and every “t” must be crossed.
You do not want your cancellation to be challenged by the buyer.
The California residential purchase agreement prescribes exactly 10 reasons why a seller may cancel. All of the reasons require some type of notice to be given to the buyer before issuing a cancellation. The seller must issue a notice to perform or demand to close escrow prior to canceling.
In your case your agent needs to issue a notice to perform. The form puts the buyer on notice to show you the money within two days.
I advise you to make absolutely sure that you yourself have complied with the terms of the contract on your side before issuing a notice to perform.
The form must be correctly filled out indicating what the buyer has failed to do and you must sign it.
Your agent should obtain some type of verification that the form was received. A text, voicemail or email will constitute solid proof of actual receipt.
Start counting. The day after the last day to perform you may then sign and deliver a cancellation using a cancellation of contract form.
If you think there’s a possibility that the buyer may perform you may not want to cancel. It may be a good idea to consider putting the buyer in a contingency position. In other words you can put your property back on the market keeping your previous buyer in escrow until you get another acceptable offer. You can then give your current buyer 24 hours to perform or cancel the contract.
Not rushing into a cancellation will be a matter of good Home $$$s and Sense.

Sue Thompson is the owner of HomeTown Realtors in Auburn. She can be reached at seesue@mac.com, or at www.homedollarsandsense.com.