Seller died prior to sale.

[James Mc Ree]

My scenario is a parent and child own a PA property, but live in another state. Both list it for sale in the MLS in November 2019. Parent passes away a couple weeks later. I offer on the property and offer is accepted. No one notices that only the child signed the contract. We go through the normal purchase and sale process over about 50 days. Settlement company calls us 2 hours before settlement, "Hey, one of the sellers is dead and hasn't signed anything. Can't settle!" We hear from the seller's agent the child is the executor/trix, but the will has not yet been probated in the state the parent died in, nor in PA where the property is. It needs to be probated in both before the sale can occur. Seller's agent says it was her or her agency's miss since they should have known they needed to setup the estate as the seller. Seller's agent/agency says they will absorb any additional fees caused by this miss.

Current state is our settlement was blown 2 weeks ago.  We heard we will be ready to settle "tomorrow", "in a couple days", and now is "at least 7-10 days".  We currently do not have a reliable timeline nor new settlement date.  We did sign an extension to this Friday, but that was only signed by myself and the seller's child.

I am thinking I have either a void or voidable contract:

Void - Seller never really had the right to sell since the estate was not established nor on contract, so contract can't be offered.

Voidable - Seller (child) is owner and supposedly executor/trix.  While currently invalid, since we proceeded in good faith, I could get out of the contract, but seller is bound.

Any thoughts on the status of this contract?

Though the contract says, "time is of the essence", there is no value in the contract associated with "time" that entitles me to a payment.  My quick reading on this situation found courts do not consistently attach a value unless there is a significant delay and "significant" varies.  It seems that I could make a demand for compensation, like $50/day, by seller could decline and we could litigate it with no certainty of the outcome.  I am not especially bothered by the delay as I would rather not carry the property through the winter, so a 30 day delay could be a wonderful thing.

Any thoughts on getting compensation for the delay?  Deal is for about $125,000 and it would rent for $1,450 with virtually no work required.  I was thinking I could claim I lost a month's income if there is a 30 day delay if I went this path.  I don't think I will have an actual loss besides opportunity since the agent/agency is covering that.

Two of my lessons learned are: (1) Ensure all sellers sign the contract! (2) Add a value for "time is of the essence" in the contract.

[JD Martin]

Your only avenue is either walk or wait. Hypothetical rent is not an actual loss to you. Funds spent on inspections, title searches, etc. are real and should be reimbursed if you walk.