From the BiggerPockets Blog

 BiggerPockets Blog »

Jump to Forum View All

Click a category below to view different forum categories.


General Info

BiggerPockets Q&A, Site Questions, & Announcements

1514 topics, 14412 posts — Last Post 04/24/14, 05:53PM

BiggerPockets Exclusive PRO Area

117 topics, 841 posts — Last Post 04/23/14, 08:28AM

New Member Introductions

11000 topics, 86706 posts — Last Post 04/24/14, 09:43PM

Real Estate Success Stories

400 topics, 6221 posts — Last Post 04/24/14, 05:13PM

General Real Estate

General Real Estate

Buying & Selling Real Estate

6007 topics, 47313 posts — Last Post 04/24/14, 09:45PM


651 topics, 5873 posts — Last Post 04/24/14, 03:20PM

Get Foreclosure Help - Help Stop Foreclosure Forum

317 topics, 2561 posts — Last Post 04/23/14, 08:28PM

Home Owner Association (HOA) Issues & Problems Forum

238 topics, 1611 posts — Last Post 04/23/14, 04:02AM

Do it Yourself

660 topics, 6334 posts — Last Post 04/24/14, 08:31PM

Reviews & Feedback

Real Estate Deal Analysis and Advice

3718 topics, 29817 posts — Last Post 04/24/14, 09:08PM

Real Estate Guru, Book & Course Reviews and Discussions

1140 topics, 11616 posts — Last Post 04/24/14, 08:58PM

Ask About A Real Estate Company

743 topics, 7348 posts — Last Post 04/24/14, 03:12PM

Real Estate Investing

Real Estate Strategies


5646 topics, 44018 posts — Last Post 04/24/14, 09:33PM

Rehabbing and House Flipping

3354 topics, 31121 posts — Last Post 04/24/14, 08:41PM

Real Estate Development & New Home Construction

554 topics, 4696 posts — Last Post 04/24/14, 09:03PM

Innovative Strategies

705 topics, 6044 posts — Last Post 04/22/14, 04:06PM

Tax Liens, Notes, Paper, & Cash Flows Discussion

869 topics, 6706 posts — Last Post 04/24/14, 08:29PM

Rent to Own a.k.a. Lease Purchase, Lease Options

700 topics, 4961 posts — Last Post 04/24/14, 11:26AM

1031 Exchanges

143 topics, 1063 posts — Last Post 04/24/14, 11:10AM

Foreclosure Investing

General Foreclosure & Pre-Foreclosure Forums

1693 topics, 11320 posts — Last Post 04/24/14, 06:10PM

HUD, VA, and Tax Sales

416 topics, 3103 posts — Last Post 04/23/14, 02:29PM


1217 topics, 10604 posts — Last Post 04/24/14, 07:13AM

Short Sales

1539 topics, 13154 posts — Last Post 04/23/14, 08:25PM

Landlord & Tenant Forums

Landlord & Rental Property Questions

7260 topics, 71291 posts — Last Post 04/24/14, 09:37PM

Mobile Homes & Mobile Home Park Investing

639 topics, 5146 posts — Last Post 04/24/14, 05:13AM

Investor Basics

Starting Out

7739 topics, 60737 posts — Last Post 04/24/14, 09:18PM

Investor Psychology

434 topics, 6132 posts — Last Post 04/24/14, 09:03PM

General Real Estate Investing

4733 topics, 37339 posts — Last Post 04/24/14, 09:09PM

Real Estate Investor Marketing

1740 topics, 14165 posts — Last Post 04/24/14, 05:08PM

Commercial Real Estate

Commercial Real Estate Investing Forum

1414 topics, 9022 posts — Last Post 04/24/14, 04:12PM

Multi-Family and Apartment Investing

1124 topics, 9418 posts — Last Post 04/24/14, 09:28PM

The Business of Real Estate

Real Estate Technology and the Internet

Real Estate Technology, Social Media & Blogging

645 topics, 4913 posts — Last Post 04/24/14, 12:21PM

Business Basics

Goals, Business Plans & Entities

836 topics, 7599 posts — Last Post 04/24/14, 08:45PM

Real Estate Finance & Legal

Financial, Tax, and Legal

Tax, Legal Issues, Contracts, Self-Directed IRA

2806 topics, 20152 posts — Last Post 04/24/14, 08:36PM

Property Insurance

312 topics, 2059 posts — Last Post 04/24/14, 10:22AM

Personal Finance Discussion

330 topics, 2754 posts — Last Post 04/22/14, 12:06PM

Loans, Mortgages, Credit Lines

Private & Conventional Lending Discussion

2854 topics, 19852 posts — Last Post 04/24/14, 09:30PM

Creative Real Estate Financing

1221 topics, 8872 posts — Last Post 04/24/14, 07:36PM

Crowdfunding Real Estate

35 topics, 463 posts — Last Post 04/19/14, 06:24PM

Real Estate Professionals

Real Estate Professionals

Real Estate Agents

1219 topics, 8054 posts — Last Post 04/24/14, 09:40PM

Bankers, Lenders, and Mortgage Brokers

442 topics, 1931 posts — Last Post 04/23/14, 09:04PM


268 topics, 1689 posts — Last Post 04/24/14, 05:05PM

Local Real Estate

Local Real Estate

Local Real Estate Networking & Recommendations

2023 topics, 11776 posts — Last Post 04/24/14, 06:51PM

Americans & International Real Estate

162 topics, 572 posts — Last Post 04/24/14, 03:31AM

Foreigners Buying in the USA

62 topics, 409 posts — Last Post 04/10/14, 06:27AM

Canadian Real Estate

66 topics, 441 posts — Last Post 04/24/14, 08:06PM


Real Estate Marketplace

Real Estate Marketplace

15102 topics, 54174 posts — Last Post 04/24/14, 09:44PM

Real Estate Events and Happenings

169 topics, 2627 posts — Last Post 04/24/14, 09:13PM


Off Topic


2909 topics, 32451 posts — Last Post 04/24/14, 07:22PM

Housing News & Real Estate Market

923 topics, 8398 posts — Last Post 04/24/14, 09:05PM

BiggerPockets Real Estate Investing Summit

97 topics, 1752 posts — Last Post 04/23/14, 04:51AM

BiggerPockets Resources

Forums » Rehabbing and House Flipping » If at first you don't succeed...

If at first you don't succeed...

23 posts by 10 users


Residential Real Estate Agent · Newport Beach, California

... then the late Aaliyah would advise you to dust yourself off and try again.

But how does this work with regard to selling your flip to your end user? If your first buyer is not able to obtain financing (fairly commonplace) yet refuses to sign a cancellation (less common), then what do you need to do to sell the property? Can you simply open escrow (presumably with a different escrow company that has no knowledge of your first escrow) again and close it like there isn't somebody with a claim to the property?

Do you open yourself up to (non-frivolous) litigation by doing this? Is the claim the first buyer has to the property valid? Would the second escrow company have any trouble recording the closing (I'm thinking this would be the case if a Lis Pendens is filed)?

If any of you have previously dealt with this, would be great to hear about your experience.

Real Estate Investor · Garland, Texas

When is the close by date in the contract?

Jon Klaus, SellPropertyFast
E-Mail: [email protected]
Telephone: 214-929-6545

Residential Real Estate Agent · Newport Beach, California


Real Estate Investor · Garland, Texas

July, 2012? They are in breach, aren't they? What's the attorney at the title co. say? I think I'd push for an answer. You might want to spring for a consultation with your own lawyer if the title company won't support the terms of the contract.

Jon Klaus, SellPropertyFast
E-Mail: [email protected]
Telephone: 214-929-6545

Residential Real Estate Agent · Newport Beach, California

Of course they're in breach. No one is debating that.

I guess I should have prefaced it by saying the property is in CA, the land of bilateral cancellations (and no closing attorneys). The escrow company is a neutral party, so they're not really allowed to have an opinion.

Real Estate Investor · Garland, Texas

Bummer, sounds like you need to pay a lawyer. Then move to Texas.

Jon Klaus, SellPropertyFast
E-Mail: [email protected]
Telephone: 214-929-6545

Accountant · Kingwood, Texas

If the contract stated July was the end date. And you BOTH agreed to that date to close by, then that seems pretty bi-lateral to me. I may be seeing why California is such a rough place to do business.

Residential Real Estate Agent · Newport Beach, California

To explain that further... the purchase contract needs to be fully executed and thus bilateral to be a valid contract. However, the way CA views canceling a contract, is that while technically either side can cancel unilaterally, the cancellation carries no weight and cannot be executed by escrow unless it is bilateral.

The scenario you end up with is that when one of the parties refuses to sign the cancellation, the EMD stays in escrow for seven years, and if a resolution is still not reached through arbitration, mediation, litigation, or castration, the EMD is given to the state of CA.

Texas is starting to sound pretty good, now that I think about it.

Residential Real Estate Agent · Jacksonville, Florida

@Jake Kucheck That sounds insane. Since your the seller and they presumably put up the deposit, no reason to worry about it. As far as getting it sold being that your a real estate agent I would speak to your broker about the situation. I imagine that it must be fairly commonplace. You could also speak with the board of realtors. Here in Florida realtors have access to an attorney for questions free of charge, you might check that out to. Lastly if your working with an experienced title company I would think they could give you some advice as to how to handle it.

Handyman · Forest Grove, Oregon

I still don't understand why you need both to cancel. Shouldn't the contract be void now under it's own origination conditions, which both parties agreed to?

Real Estate Investor · Central Valley, California

Jake isn't having a contract issue, he's having an escrow issue in CA. Escrow here will not usually cancel an escrow, even if the terms of the contract provide for cancellation because of breach or failure to perform, without agreement in writing from both parties.

@Jake Kucheck Does your buyer still plan/want to buy? Will they release if you refund their EM in full? Why haven't they received at least a letter from your attorney stating they are in breach and to release? Why haven't you filed an LP?

Residential Real Estate Agent · Newport Beach, California

@K. Marie Poe- Yes the new buyer still wants to buy. The old one wants their EMD released in full, which is ridiculous. Not going to do that. They have received such a letter. Just being difficult, to no rational end. Not sure how filing an LP helps me here... as the seller. The goal is to sell the property to the new buyer... an LP would make that harder, not easier. And I'd be filing it... against myself?

Real Estate Investor · Central Valley, California

I misunderstood. I didn't understand that you have new buyer in place. You are holding out for keeping EMD when you have a buyer in place and ready to close? How much EMD are we talking about? Is it just the principal of thing? The only times I've been able to keep EMD is when the other party agreed that they owed me for keeping the property off the market. Not sure how much EMD would be worth suing for....if it's $10K or less, I'd let it go and get the deal done with the new buyer.

Real Estate Investor · Portland, Oregon

Simple, refund the EMD. Isn't your time more valuable?

Wasn't the transaction subject to financing? If not then why not? Something isn't right here.

Residential Real Estate Agent · Jacksonville, Florida

I Agree

Residential Real Estate Agent · Newport Beach, California

I'd rather not refund on the EMD on principal, but was trying to determine whether or not doing so would incur any unnecessary liability.

Yes, clearly if I refund the EMD the first buyer will go away. Until I was able to close with a new buyer, I have no incentive to do that. Now that I am, I'm still not sure I have an incentive to do that. That's what I am trying to figure out, but it seems like everyone that lives in another state has trouble understanding this concept.

Of course there was a financing contingency. It was removed, along with all other contingencies. . Thus, the buyer has no right to their EMD. However, unless the buyer also sees it that way, escrow cannot simply release their EMD to the seller (in CA). I don't know how much clearer I can be about the process than that.

Real Estate Investor · Ellicott City, Maryland

I have no good advice except to say that I'm pissed off for you. Ugh.

Do you have grounds to sue for punitive damages, as the first buyer is essentially blackmailing you by not allowing you to sell unless he gets his EM back.

Is the broker for the first buyer willing to do anything?

I have to imagine this happens all the time. What if the buyer refused to ever sign a termination agreement, no matter what? There has to be some recourse, I would think.

Small_lishproplogoJ Scott, Lish Properties, LLC
E-Mail: [email protected]
Telephone: 770-906-6358

Private Money Lender · Los Angeles, California

@Jake Kucheck, you could refund EMD then file in small claims court to get it back. Not the best solution obviously but at least it gives you opportunity to follow through on the principal of the thing.

Also, what is stopping you from opening up another escrow and selling to the new buyer that way. If first buyer doesn't file LP and title will insure then you are on your way, hmmm, you may have to disclose the open escrow to new buyer. You can litigate with first buyer 'till the cows come home after closing.

Residential Real Estate Agent · Jacksonville, Florida

@Jake Kucheck Have you spoken to your broker or title company about it? I would think either of them would have plenty of experience with this. Also your broker may be able to put some pressure on the broker for the buyer. As I said before I'm sure real estate board could give you some advise and probably provides free telephone access to a real estate attorney. I'm interested to know how it's handled when you clearly are owed the deposit by the contract but the seller is holding it up. As @J Scott said I'm sure there is some recourse. You have to decide whether the deposit is worth the time, hassle, and possibly money up front to get it resolved. Maybe you can make a deal with them and give back a portion of it to get it taken care of now rather than later. You should use the in state resources your license provides. Keep us updated.

Real Estate Investor · Michigan

In my area, offers are always contingent upon getting financing. Why was the financing contingency removed if the loan is not approved? It sounds like either the mortgage company lied to you or the buyer went out and bought a new car or spent their down payment at the casino and can't close.

If you have a new buyer lined up, I would just refund the money to the first clowns and sell it and be done. Why have a pissing contest when you can be on to your next deal?

Sign up