Profile picture for user8250466

Seller refuses to give us earnest money back. The pool is encroaching on neighbor's property.

Our insurance company requires a 6 foot fence around a pool.  There is a chain link fence around it (but not 6 foot.)  We can't buy the neighbor's ground around the pool.  We can't erect a fence on his property either. We asked to cancel the contract and the seller refuses to release our earnest money.  Now what???
  • August 27 2013 - US
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Answers (9)

Profile picture for Sally English
Dont let them push you around on this matter and stay "in their face"

1. Meet with your real agent's managing Broker ASAP (today) and ask them what they plan to do.  Ask them about your options.
2. If no resolution in 3 days - file a claim in small claims court (if your earnest money deposit is under the limit of the court)
3. If Small Claims court is not an option, hire an attorney within the next three days to write a letter to the entity holding the earnest money demanding immediate release. Copy everybody on the letter - owners, all brokers involved, insurance company etc.

Waiting for a resolution is not a good option.
  • August 28 2013
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Every state is different, but in the contract I use, it states that the seller must provide a clear and marketable title to the home free of title defects. I don't see how they can provide clear title or get a title insurance policy for the property with an encroachment onto another person's property.
  • August 27 2013
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Profile picture for Ofe Polack
I would consult with an attorney, the issue seems to be lack of disclosure since according to what you say the seller knew that the pool was encroaching on the neighbors land. By the way is this an above ground pool?
  • August 27 2013
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Go into the office of the agent that is representing you and ask for a face to face with the broker, explain your situation and ask what your options are.
  • August 27 2013
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In our area it depends on how your contract was written.  Do you have a clause subject to obtaining favorable insurance?  You might want to seek legal council.
  • August 27 2013
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I suggest talking to your agent's manager/broker. In cases like this, the brokers from both sides talking to each other, followed by the listing broker talking to the seller, frequently results in a solution.

If you have met all deadlines (in particular, if you have not yet removed inspection contingency), then you are free to cancel the contract and get your deposit back.
  • August 27 2013
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Profile picture for wetdawgs
It sounds like it is time for small claims court.  Good luck.
  • August 27 2013
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Profile picture for user8250466
Agents are involved.  But they say they've never had this happen before. They said the contract states we have to go to small claims court to get our money back.
 We met all deadlines.  The property line is the issue.  Half of the pool is in the neighbor's yard. The sellers discovered this at the time our offer was accepted..
Seems a little odd that they know the property line is the issue and still refuse to release earnest money.
  • August 27 2013
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Profile picture for wetdawgs
Are there agents involved in this process?   What do they say?  

Did you meet all deadlines in your purchase offer for inspections and requests?

  • August 27 2013
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