Current deal just took a strange turn

Current deal just took a strange turn

Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes

Went under contract on a 5-unit office/retail property this past week. Was on the market for a year, few offers made but none good enough for seller to accept.

Was able to talk seller into a lease with option (seller financing) at a good price and very low interest rate that banks can’t touch.

This is a turnkey property, all five units occupied but two leases expiring soon. I was told both of those tenants intend to renew so I’d be taking ownership fully leased.

Today, out of nowhere the broker is telling me one of those tenants does not intend to renew and another is probably leaving as well (both expire end of April). Also informed me they received a cash offer that the seller is very interested in and kind of what he wanted all along versus seller financing due to his age and health. They are asking for a mutual release from the contract so he can take the cash offer.

Obviously it’s up to me to decide what to do since we’re under contract. Seems that they’re trying hard to get me to back out of the deal. I hate the thought of taking ownership with two vacancies but I can also get new, longer leases in there at market rates. Just always a risk not knowing how long I’ll have to float those vacancies.

Really wasn’t expecting any of this and kind of blindsided today, expecting to close around April 13th.  I know it’s my decision ultimately, but I guess I’m just looking for advice or opinions...? 

This is my first commercial office/retail deal, in a great location and I don’t want to screw it up. I liked the idea of a fully leased property, and the idea of two vacancies from the start are kind of scaring me a little.

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Investor · Greenville, SC · Member since 2016 · 5k+ posts · 13k+ votes
8y

The biggest issue is not the tenants leaving or the all cash offer...it's that your future business partner no longer wants to be your partner.  Tough way to start a relationship.  

Not sure how long the seller has had this asset and if they have a large capital gain and/or depreciation recapture or what they plan to do with the proceeds with an all cash offer.

I'd recommend moving forward with the deal if the numbers still meet your criteria.  And see if you can strengthen the relationship with the seller (your partner) by having open professional conversations and trying to solve any problems he has (taxes, access to cash, reinvestment of the proceeds, etc.).  Good luck.

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    8y

    Now I know your in Kokomo I have done quite A bit of business there personally so I understand that this would be a larger project for the area.

    although in the future you may want to consider leading with larger EM it gives you a bunch of credibility.

    only risk is if you can't get mutual releases your EM can be tied up..  so use common sense.

  • Land O Lakes, FL · Member since 2013 · 17 posts · 3 votes
    8y

    I would calculate how much positive cash flow I would make in a year. Now take that number and wholesale it to the new cash buyer for that amount.  You basically made what you were going to make in a year and reduced your risk to zero. The seller will take a hit but at the same time this is business and you got in first 

  • Dan H.Pro Member
    Investor · Poway, CA · Member since 2015 · 7k+ posts · 8k+ votes
    8y
    Originally posted by @Joseph Parker:

    @Tom Burns@Mike Dymski @Matt Lefebvre 

    UPDATE: may have learned a valuable lesson, but not experienced enough to know!

    Question - is the earnest money time frame specified within a purchase agreement based on "business" days, or just general days?

    Contract signed and dated Wednesday, March 28th, 4:00pm

    Specifies 2 days to submit earnest money, and broker told me"no rush at all" with that since it is a seller financing deal, we'll be closing quickly so it won't be cashed until close to closing date and that we've all had good communication with each other during the process.

    I was out of town Thursday. Went to agency on Friday to give check to broker, realized it was Good Friday and they were closed. Left in dropbox over the weekend and was picked up this morning when their office opened. Is that 2 day time frame referring to actual days, or "business" days? I had always assumed business days so was in no rush. It was only $1,000 on a $400,000 deal.

    Obviously, as stated earlier, the broker and seller have been trying to get me to agree to a mutual release of the contract since Saturday afternoon so that the seller can take the cash offer he received Friday while under contract with me.

    Received email around noon today stating "Unfortunately my seller has decided to terminate this agreement based on the fact that the Earnest Money was not delivered in the time frame that is allotted within the Purchase Agreement. I am terribly sorry that we have worked so long and hard to make this come together and in the end, it is not going to happen. If you take a look at Section D of the contract is stats "If the buyer fails for any reason to timely submit Earnest Money, Seller may terminate this agreement upon notice to Buyer." It is the decision of my seller at this time to terminate. Attached is the documentation for that."

    The dates and signature times within that document are incorrect (future signature date after 5pm today?), but that's not important I guess.

    Was emailed the Mutual Release agreement shortly afterward, again showing an electronic signature time of after 5pm, which might just be a computer error on their part but still strange.

    I haven't signed anything yet.

    Could someone PLEASE just let me know if I learned a valuable lesson here? Or are they being creative by using this to get out of the deal in order for the seller to accept the cash offer he received Friday??

    I have lost out on deals a few times over minor things such as yours; I lost a deal once in negotiations over a estoppel because I did not accept contract without Estoppel and a cash buyer made offer.  That is just one example of losing big over something small; unfortunately I have a few of these examples of losing large over something small.  

    I like your mindset that it could be a learning opportunity but before you conclude that make sure that you in fact did miss your EM window.  It seems terrible to have missed the EM window because the business was closed.  Maybe even pay for a real estate attorney to get their view.

    Good luck

  • Investor · Salt Lake City · Member since 2017 · 52 posts · 23 votes
    8y

    @Joseph Parker did you end up pursuing the matter or just take a the loss? I'm not a wealth of experience but I've done a lot of contracts. Usually the days referred to are always business days, weekends and public holidays are not included. HOWEVER. All offices keep different hours. You would think if they wanted to do the right thing by you, they would let you know if they are closing early or on a day that isn't an official public holiday. Around here everyone was open Friday but some people closed Monday. They may not have told you becuase they wanted the deal to fall through (that would be what I would imagine if we aren't giving them benefit of the doubt). I just closed on a place and the EM was due before Easter, the sale was in another country and the agent working with me made sure to remind me that the office would be closing early over the holiday (not a public holiday). I needed to show that EM money had left my account prior to 5pm on the Public holiday. 

  • Rental Property Investor · Edison, NJ · Member since 2016 · 753 posts · 565 votes
    8y
    If this deal falls thru drop the broker and find a new one. This broker is handling your situation poorly. This is not a professional that you should continue working with and let it be known to the broker why you would not use him again.
  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Jay Hinrichs @Dan H. @Lala Weiss

    I have not signed anything yet. Broker and managing broker want to meet with me tomorrow to go over everything, tell me my options (saying there aren’t many) and sign papers if necessary.

    I may ask a local real estate attorney for a one hour review.

    99% of communication for this deal was done through messaging, so I’ve gone back to look at certain wording. For example, below is the broker’s response when I told him I need to get him the earnest money check. Again, his response...

    “Yea, I forgot to ask for it when you were here. There's no rush bc it won't be cashed actually since we're closing so quickly. It would barely clear by the time of closing.”

    I took that as not too important so I’ll drop it by when I’m near his office. Tried Friday, door locked, closed for Good Friday. So I had planned to wait until Monday (today) but learned there was a dropbox around back so I stuck it in there, which means it was received sometime this morning when the office opens. Just frustrated that they’re trying to take advantage of that time frame so he can take that cash offer received while under contract.

    Don’t want to look like a fool, but didn’t want to sign the release right away either.

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    8y

    @Joseph Parker  was this broker representing you did he establish agency with you?? if so I think he may have a little problem there..   and at worst horrible advice.

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Jay Hinrichs yes, first time I’ve ever used sellers agent. Knew him vaguely from school, knew he’d give me way more information about the property in order to get a deal done since he’d get both sides of commission.

    I received appraisals, wvery lease detail you can imagine, was able to get inspection before ever being under contract, and this was well before I knew that the seller was his father in law.

    Everything went very smoothly until Saturday when the seller received the cash offer, for cold feet about our deal and wanted me to back out. A lot of pressure put on me through text messages sent to me this weekend, asking to sign the mutual release.

    My mistake on the earnest money but after his message about “no rush” and after trying Friday when they were closed, I truly thought it’d be ok to drop off today. But they took advantage of that time frame to  terminate the contract.

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    Agent and managing broker/owner of agency want me to come in tomorrow to talk it over, discuss my options (saying there aren’t many) and sign papers if necessary.

    May ask attorney to review but last thing I want to do is spend more money if I really have no case. Feel like I received pretty poor representation from the agent between being pushed to back out over the weekend plus everything that occurred today.

  • Mike CumbieBusiness Member
    REALTOR® · Brockport, NY · Member since 2015 · 3k+ posts · 4k+ votes
    8y

    @Joseph Parker

    You used the sellers agent. 

    Was it a "dual agent relationship" or were they "representing the seller, but went ahead and did the paperwork"?

  • Bjorn AhlbladPro Member
    Investor · Shelton, WA · Member since 2017 · 6k+ posts · 6k+ votes
    8y

    @Joseph Parker you had a deal your broker screwed up. The whole reason to have a broker in the first place is to avoid basic mistakes. They are inviting you to come to the office to talk things over and make sure you do not publicize this situation, or worse.

  • Investor · Des Moines, IA · Member since 2015 · 380 posts · 201 votes
    8y
    Hmm. You placed it in drop box on Friday? I'm not a lawyer but I would think if you made good attempt to deliver earnest money but no one was there to receive it and you placed in drop box, then you "submitted" the earnest money within 2 days.
  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Mike Cumbie This was my second deal so still fairly new...but the agent stated time and time again throughout the process that he was representing both me as the buyer along with the seller. That we were both his clients. I asked him for info on the property from day one and went through him the entire time as far as offers, counter offers, etc.

    Looking at paperwork, he was listed as both “listing agent” and “selling agent”.

    Based on that, I viewed it as a “dual agent relationship”. Am I thinking correctly, and does that make a difference?

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Chase Gochnauer I went to the office Friday, but doors were locked and then I noticed no cars behind building, realizing they must be closed for the holiday.

    I was then told about the dropbox on the back side of their building this morning when I asked when the office was open, stating I tried to drop the envelope off Friday but they must have been closed. I then dropped it in the dropbox this morning after I found out they had one.

  • Mike CumbieBusiness Member
    REALTOR® · Brockport, NY · Member since 2015 · 3k+ posts · 4k+ votes
    8y

    @Joseph Parker

    If they are representing the seller then they have a duty to them (If they can shank you and get an extra $.82 then they do it). Which in this case if they were my client and you were not, then I would have found any way to throw your offer out like yesterdays news for a better one. 

    If they have a "Dual Agent" relationship it will be based on your states requirements. They may simply be a "bobble head", which gives you some leverage. 

    Good luck but my general recommendation is to find out what relationship you and the agent have. Because they may have liability or none.

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Bjorn Ahlblad I’m starting to agree that I was misrepresented by my agent who was representing us both, but also trying hard to get me to back out if he deal over the weekend so the seller could take another offer before using the earnest money timing excuse (previously saying no rush and that it won’t even be cashed until close to closing anyway) to take advantage and terminate.

  • Mike CumbieBusiness Member
    REALTOR® · Brockport, NY · Member since 2015 · 3k+ posts · 4k+ votes
    8y

    @Joseph Parker

    I’m starting to agree that I was misrepresented by my agent who was representing us both

    I’m starting to agree that I was misrepresented by MY agent who was representing us BOTH

    I’m starting to agree that I was misrepresented by MY SPY who was representing us BOTH

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Mike Cumbie I see what you’re saying. I honestly do not know what his legal role was regarding my interest.

    Looking back at his most recent messages, he said things like “being your realtor” and “I am here to represent you as well”. Many instances in which he said those things, but again, I don’t know what that technically means when push comes to shove.

  • Investor · Inver Grove Heights, MN · Member since 2016 · 29 posts · 20 votes
    8y

    Thanks for sharing your lessons with us.  I can't wait to find out how this ends.  I hope it's a good ending for you!

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    @Aaron Abraham it’s a lesson for sure.

    Not expecting much to happen in my favor, but supposed to meet with agent and managing broker at their office tomorrow to discuss. I simply asked what there is to discuss and his answer was that they “just want to sit face to face, talk about your options (there aren’t many) and sign papers if necessary”.

  • Multifamily Syndicator · Houston, TX · Member since 2016 · 1k+ posts · 2k+ votes
    8y
    Originally posted by @Joseph Parker:

    @Aaron Abraham it’s a lesson for sure.

    Not expecting much to happen in my favor, but supposed to meet with agent and managing broker at their office tomorrow to discuss. I simply asked what there is to discuss and his answer was that they “just want to sit face to face, talk about your options (there aren’t many) and sign papers if necessary”.

     I think this is exactly what you want. Take control of your nerves as you try to articulate your thoughts to the seller. 

    Let me know how it all pans out. Goodluck. Thanks! - Ola 

  • Dan H.Pro Member
    Investor · Poway, CA · Member since 2015 · 7k+ posts · 8k+ votes
    8y
    Originally posted by @Joseph Parker:

    @Aaron Abraham it’s a lesson for sure.

    Not expecting much to happen in my favor, but supposed to meet with agent and managing broker at their office tomorrow to discuss. I simply asked what there is to discuss and his answer was that they “just want to sit face to face, talk about your options (there aren’t many) and sign papers if necessary”.

     Talk to an RE lawyer prior to the meeting.  Regardless what the RE lawyer indicates your rights are make sure the agent knows that you are up satisfied with his representation of you and that you plan on submitting a complaint to the realtor association.   Nothing will likely result from it but if it can provide a little angst that may be the best that could happen.  

    Heed the advice of the RE lawyer.  Definitely consult one. 

    Good luck

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    8y
    Originally posted by @Mike Cumbie:

    @Joseph Parker

    If they are representing the seller then they have a duty to them (If they can shank you and get an extra $.82 then they do it). Which in this case if they were my client and you were not, then I would have found any way to throw your offer out like yesterdays news for a better one. 

    If they have a "Dual Agent" relationship it will be based on your states requirements. They may simply be a "bobble head", which gives you some leverage. 

    Good luck but my general recommendation is to find out what relationship you and the agent have. Because they may have liability or none.

    most states these days the first thing the agent does is hand you a representation form that you sign establishing agency.. I suspect IN has it.. some agents do it others don't  .. one could also look at the contract there is usually a check the box in who the agent is representing.. 

    Now the agent may have had a form that says he is representing the seller exclusively and that is in our RMLS contracts a check the box item.. I know I got hit on it once.. and one little check mark can get you in front of a state regulator.. 

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    8y
    Originally posted by @Dan H.:
    Originally posted by @Joseph Parker:

    @Aaron Abraham it’s a lesson for sure.

    Not expecting much to happen in my favor, but supposed to meet with agent and managing broker at their office tomorrow to discuss. I simply asked what there is to discuss and his answer was that they “just want to sit face to face, talk about your options (there aren’t many) and sign papers if necessary”.

     Talk to an RE lawyer prior to the meeting.  Regardless what the RE lawyer indicates your rights are make sure the agent knows that you are up satisfied with his representation of you and that you plan on submitting a complaint to the realtor association.   Nothing will likely result from it but if it can provide a little angst that may be the best that could happen.  

    Heed the advice of the RE lawyer.  Definitely consult one. 

    Good luck

    Real estate association does not get into these types of squabbles this would go right to the state department of real estate.. the association referre's squabbles between agents and brokers.. no contractual issues like this.  Just a minor clarification..   a simple review of the paper work will determine who established agency or not.

  • Real Estate Agent · Kokomo, IN · Member since 2018 · 129 posts · 69 votes
    8y

    I've been copying and saving all of the written email/messaging communication between the broker and myself in a Word doc this morning.

    I can count at least a dozen times where the broker states that he is representing us both, and that while the seller is his father-in-law, he is a client just as I am a client and he wants what is best for both of us. While I did not sign anything naming him as my agent (I've never done that in any RE purchase, at least here in Indiana), it seems pretty evident that it was understood he was my agent as well as the seller's agent.

    I plan to sit with the agent and managing broker at lunch today, share my concerns and thoughts, but NOT sign anything and simply tell them I need to look over it by myself at home. 

    How much does "good faith" matter in this situation?

    I've shared the messages from the agent regarding the earnest money "Yea, I forgot to ask for it when you were here. There's no rush bc it won't be cashed actually since we're closing so quickly. It would barely clear by the time of closing."

    In addition to Saturday when I was told about the cash offer received while we were under contract, "that the seller is really interested in. That was obviously the way he wanted to sell it originally with his age and current health situation. I know we've put a lot of time into this but would you consider a mutual release so the seller could pursue the other deal that is better for him?" "He'd like an answer ASAP so we can move forward and know which direction we're going."

    Followed by being sent other listings "in case we go our separate ways on this property".

    I asked if I could let him know by the end of the day Monday, to which he replied "That's acceptable."

    Monday morning rolls around, I ask what time the office is open because I tried dropping off the earnest money both Friday and early Monday around 8am - was told "Yea we were closed for Good Friday and office open 9-5, there is a dropbox in the back by employee entrance that you can use, or always call me and we can meet."

    He then asks me what my current thoughts are a far as if I plan to move forward with the purchase or sign the mutual release to which I respond how I've put so much time and effort into it that I can't just walk away.

    So I drop earnest money off in the box around 11:30 on my way to a meeting and receive the termination email just after noon.

    Pretty shi**y way to take advantage after acting in good faith for so long, just so the seller can take another offer. And regardless of whether or not the agent legally "represented" me, he did a terrible job.

    I've gotten pretty fired up about it again this morning, and need to try and collect myself.

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