Suiing the seller

7 Replies

Folks

My seller isn't acting in good faith on this SFM property in a NYC borough I'm trying to buy. There is a provision in the title where she can cancel contract if it's over $500 and it's about $5000 but I've agreed to pay for all these costs. Also, the seller or his attorney has not called out on this provision to cancel (they are incompetent enough to not know off it is my guess) but have simply stopped responding to us and keep saying 'not acceptable' in their emails

My attorney thinks I can sue for them not acting in good faith but isn't sure about the length or the cost of such a lawsuit. Is there a basic lawsuit I can file to establish a lien on her house or should I sue her to bring her to court and force her to sell the house? What are the approximate costs to start the process and what sort of total costs would I be looking at? If it's too large, I may not go ahead with this as I deem my chances to be 50/50

Thanks

Suing should always be a last resort, of course.  Lots of headaches and unknown costs.  Please clarify a couple things @Sam Dal :  "There is a provision in the title" ?  Do you mean the purchase contract?  What provision in title?

"Cancel contract if over $500"  ?  Unless you are buying a skateboard, are you referring to earnest money?    "It's about $5000 but I've agreed to pay for all these costs."  Unclear what costs you mean.  

Maybe someone else can help?  Most deals aren't worth suing over.  Get your earnest money back and move on, generally.  Sorry I couldn't be more help.

@Sam Dal ,

From the sounds of it, it looks like the seller, for whatever reason, has decided not to sell you the house.

I don't think there is a point in trying to sue the seller, unless there was some form of earnest money paid, and then only to get the earnest money back due to breach of contract or something along those lines.  Trying to force someone to sell a house is not good business in my opinion.

I'm not a lawyer, and this is not legal advice.  If your attorney does not know of the answers to some of the questions you're asking here, you might want to look at getting a new attorney.  Additionally, any type of litigation is going to be $1,000s if not $10,000s, which is why it does not make sense to pursue (I think you're being optimistic with your 50/50 chances).  The fact that your attorney thinks you should sue is odd.  I would make a few phone calls to some other real estate attorneys, and explain the situation to them and see what they say about your situation.  Maybe they would agree with your attorney, maybe not, but at least you would have professional legal representatives providing advice, rather than strangers on an online forum (no offense BP!).

Getting earnest money back which is 10% of the home value is not a problem - the seller's attorney is in fact pushing us to make that request

This verbiage below is directly from contract of sale showing the $500 limit for the seller and I'm offering to take care of all the title costs.

Usually, if I sue and if it takes 2 years, if the court were to rule in my favor, would they force the seller to sell at current market prices or agreed upon price in the contract? Also, instead of a full lawsuit to force her to sell, can I simply place a lien on her house to simply recover for my costs with the appraisal & attorney fees

Thx

If the cost of removal of violations required to be removed by the Seller pursuant to the printed provisions of this Contract of Sale shall be in excess of five hundred ($500􀀉 00) doll􀀄􀀅s, the Seller is hereby granted the option to withdraw from this Contract of Sale, in which event the Seller shall refund to the Purchaser the monies paid on execution hereof, together with the net cost of exa􀀊ination of title and any survey actually incurred by the Purchaser, not exceeding rates usually charged by any major title company where no policy is issued and where title shall fail to close; whereupon this Contract of Sale shall become null and void without any further liability on either par􀀁y to the other unless the Purchaser shall agree to take title subject to said violations and assume the performance thereof and receive an abatement in reduction of the purchase price in the sum of five hundred ($500􀀂00) dollars􀀂 The options herein granted shall be exercised by notice in 􀀋riting by certified mail, return receipt requested􀀃

Can anybody recommend a local NYC attorney who will offer unbiased advice on the merits of this and if it's worth going forward?

Thx

Sam,

Usual disclaimer regarding that I am NOT a lawyer.

Firstly, I do not think you can get a Lien on the house (see definition below). From what you have explained, she does not 'owe' you money. You may be able to register the law suit on title which would prevent her from selling to anyone else (effectively the same thing); your lawyer should be able to advise you on this and as noted earlier, if he can't, find another lawyer.

Secondly, if you try to sue her, you will be suing for what is called 'specific performance'. This is not something for small claims court but rather a full blown law suit that will cost thousands and likely years at best if you intend to really pursue it. An alternative is to get them to agree to mediation / arbitration but it sounds like she just doesn't want to sell anymore.

The language in the paragraph you copied basically makes repair of any 'violations' a condition of the sale and contemplates three options;

1) The seller repairs violations

2) The contract is canceled with refund of deposit and specific expenses

3) Contract if fulfilled with a $500 abatement in price for non-repaired violations (I assume you sent the requisite notice for this option)

From what little I know, specific performance is difficult to win. Having said that, the language of the contract is fairly clear.

Just my 1 1/2 cents.


noun: lien; plural noun: liens

  1. a right to keep possession of property belonging to another person until a debt owed by that person is discharged.

The seller only understands an iron hand. If I file a lawsuit, instead of dragging it out for years, is there a route to mediation so that she can pay off my costs to remove my lawsuit on the title and allow her to sell to another party?

@Sam Dal - Unless the contract explicitly makes mediation / arbitration a right, there is no way to force it within the contract. Having said that, there is nothing to stop two arms length consenting parties from agreeing to arbitration / mediation (I define Mediation as a third party trying to bring the two sides together and Arbitration as agreeing to empower a third party to hear the two sides 'informally' and be bound by the arbitrators decision outside of the court system). This can be now without filing a law suit or after the law suit is filed.

In fact, in some (many?) jurisdiction, the court system may actually force an attempt at mediation but will not force you to accept the mediators recommendation - you get your day in court if you really want it.

If you are considering the lawsuit on principle, just remember that principles can be very expensive even if you win. If the deal is that good that you are willing to risk 000's, that is your right, but there is always the chance you will NOT win.

I think your need much more specific legal advice then you can expect on BP.

Good luck.

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