Can You Get Out of That Contract?
A seller is best-advised to be absolutely firm about wanting to sell real estate. It’s indeed good advice because sellers face high hurdles if they want to back out of a contract to sell their home.
Sellers sometimes change their minds because they’re unhappy about the sale price or the cost of repairs, have lost a job, decided not to relocate to another state or are involved in a loan modification, short sale, or foreclosure. However, not one of those excuses makes canceling a deal easy.
Sellers who need an out should look first to the “contingencies” or, conditions, that are part of the sales contract. Such contingencies as the inability to get a mortgage, a bad appraisal and problems with the home inspection generally protect the buyer, but other conditions may work in the seller’s favor.
If the contingencies don’t offer an escape, the seller is stuck with breach of contract as the only way to not sell the home, and that’s a risky strategy. Breaching a contract is almost always taken as a show of bad faith.
What’s more, the buyer might bring a lawsuit for specific performance, in which a court would order the seller to complete the sale. The buyer can say that they met all of the conditions, and have the check ready, as well as the financing. They can say, “I am going to give you this check, and you are going to give me the house.”
Then again, a seller may have some psychological high-ground if they are currently living in the house. A buyer’s effort to force a seller out of his or her home might not succeed. The buyer also might sue to recover consequential damages, which are reasonably foreseeable costs the buyer has had to pay as a result of the seller’s breach of the contract. An example would be temporary housing costs if the buyer ended up without a place to live because of the seller’s actions.
If a lawsuit ensues, the seller could try to argue that the contract or portions of it were invalid or unenforceable. A lawsuit could be quite costly, and some contracts award attorney’s fees to the winner. That means a seller who breaches a contract and loses in court might have to pay the buyer’s attorney’s fees as well.
Another risk is that the seller’s real estate broker might insist that the seller pay the sales commission, even if the home isn’t sold. That’s a reasonable claim if the broker found a ready, willing and able buyer, but the seller took the home off the market.
Most brokers or agents won’t let them off the hook on that. In fairness, they did all this work: They marketed the house. They got a value you could live with, and now you don’t want to pay them for it.
Some buyers will accept a seller’s apology and move on to another house, but others won’t be so understanding, even if the seller’s excuse seems valid to the seller. All things considered, the best option for some sellers may be to try to compensate the buyers for their lost time, effort, expense and opportunity to purchase the home.