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Answers (19)
- Naima Sumner, "Dallas Ft. Worth PRO"
- Contributions:2847
In a short sale the seller doesn't get a single penny back. whatever was held in his escrow account, if there was an escrow account, that money is gone already paying for insurance and taxes.
The seller is pissed because he isn't getting his downpayment, may have applied for a modification and got turned down and obviously has gone through a hardship that he can't afford his home.
In TX, escrow companies or as they are referred to here, Title companies, will not just hold any money without either a court order, or an agreement signed by both parties. If a claim is brought up by either party, they will not close the transaction until it is resolved in writing.
Naima
The seller is pissed because he isn't getting his downpayment, may have applied for a modification and got turned down and obviously has gone through a hardship that he can't afford his home.
In TX, escrow companies or as they are referred to here, Title companies, will not just hold any money without either a court order, or an agreement signed by both parties. If a claim is brought up by either party, they will not close the transaction until it is resolved in writing.
Naima
- Ann Rudd, "AnnRudd"
- Contributions:11
Have the listing agent go back to the bank and tell them the situation and that the buyer might walk if they don't at least give the buyer a credit for the appliances (or whatever the buyer wants, but a credit is your best bet). Once you get close and the loss mitigator sees a settlement in sight, you might be successful in getting something from them (they have quotas they have to meet).
Those approval letters detail what funds are to be sent to the bank at settlement and having the escrow agent hold funds because of missing appliances won't work. The house won't settle unless the bank gets exactly what is spelled out in that short sale approval letter. One other thing to try is your agent can check with the escrow agent to see if there is any extra money they have "padded" into the preliminary HUD. If there is extra money there, you probably can get it at settlement for the appliances. If you are not successful with either two, you'll probably have to make a decision as to whether or not you want the house. You can't get water out of a rock, so you probably won't be able to recoup the home inspection money from the seller, even though removing the appliances is a breach of contract (at least it is in my state). Good luck!
Those approval letters detail what funds are to be sent to the bank at settlement and having the escrow agent hold funds because of missing appliances won't work. The house won't settle unless the bank gets exactly what is spelled out in that short sale approval letter. One other thing to try is your agent can check with the escrow agent to see if there is any extra money they have "padded" into the preliminary HUD. If there is extra money there, you probably can get it at settlement for the appliances. If you are not successful with either two, you'll probably have to make a decision as to whether or not you want the house. You can't get water out of a rock, so you probably won't be able to recoup the home inspection money from the seller, even though removing the appliances is a breach of contract (at least it is in my state). Good luck!
- sunnyview
- Contributions:25139
I would call the escrow company and ask how you can get them to hold the money from the sellers end of the close to cover the appliances. In my state, the escrow company will hold whatever funds you request as long as you submit a letter making a claim and provide basic documentation.
Then, they will release the funds to the buyer once you sue the seller for the money in small claims or other court. Escrow's job is to hold the money until the contract is settled as agreed. Get a 30 minute consult with an attorney if you intend to close on the house and see what options you have in your state.
Then, they will release the funds to the buyer once you sue the seller for the money in small claims or other court. Escrow's job is to hold the money until the contract is settled as agreed. Get a 30 minute consult with an attorney if you intend to close on the house and see what options you have in your state.
- Naima Sumner, "Dallas Ft. Worth PRO"
- Contributions:2847
Guys anwers are spot on.
As agents, we don't have special powers to make people do what they don't want to do. We can only give advice and make recommendations and ultimately it's the client's decision.
OP, your agent is also correct, you can back out and cut your losses and move on to another house unless you feel you are getting a deal.
What this seller did actually happens very often and I've been in a situation where the owner took ALL the fixtures as well as blinds and even the planted shrubs.
If you are doing an FHA or VA loan, the appraiser will very likely require that a stove be present.
Naima
- Guy Gimenez, "Broker and Investor"
- Contributions:58
In Texas, the listing agent has no responsibility for the actions of their client anymore than an attorney has legal liability if their client lies during a court proceeding. The agent is only responsible for disclosing facts known to him or her that are material in nature.
To make an agent responsible for another client's actions would defy common sense.
To make an agent responsible for another client's actions would defy common sense.
- SoCal_Engr
- Contributions:5666
Can anyone explain to me why the listing REA doesn't have any exposure if they are unable to see to it that their client abides by the contract?
- Kile Properties, "KileProperties"
- Contributions:43
If you have time to wait, I would amend the contract to reflect a lower price to offset the cost of replacing the appliances.
If you are getting a really good deal on the house, just close on it and move on. It's not worth a few thousand dollars to hassle with attorneys and law suits.
If you really just don't want to try either option above, terminate the contract and go find another house.
- Guy Gimenez, "Broker and Investor"
- Contributions:58
1. Your contract is with the seller, not the listing agent, so the listing agent will have no liability unless he/she deliberately failed to disclose a known material defect.
2. The fact that the seller removed their own property does not constitute theft...at least not in Texas.
3. The title company will not close the transaction and keep some of the seller's proceeds in escrow simply because there's a dispute. That would put the title company smack in the middle of any future litigation so you can forget that option unless you and the seller amend the contract to reflect this.
4. The seller is required to deliver possession of the property in the same condition as when contracted, normal wear and tear excepted. In reality, the seller has not breached the contract until they've closed, or at least attempted to close, the transaction. You may not have a reason to terminate the contract at this point.
5. If you're getting a very good deal on the house, close the transaction and move on. If not, you can always consult with legal counsel for actual legal options. Even if you took the issue to small claims, what would you expect to get from the seller in the event you prevailed. Most sellers in short-sales have nothing left to give.
2. The fact that the seller removed their own property does not constitute theft...at least not in Texas.
3. The title company will not close the transaction and keep some of the seller's proceeds in escrow simply because there's a dispute. That would put the title company smack in the middle of any future litigation so you can forget that option unless you and the seller amend the contract to reflect this.
4. The seller is required to deliver possession of the property in the same condition as when contracted, normal wear and tear excepted. In reality, the seller has not breached the contract until they've closed, or at least attempted to close, the transaction. You may not have a reason to terminate the contract at this point.
5. If you're getting a very good deal on the house, close the transaction and move on. If not, you can always consult with legal counsel for actual legal options. Even if you took the issue to small claims, what would you expect to get from the seller in the event you prevailed. Most sellers in short-sales have nothing left to give.
- DanceDoctor
- Contributions:7
Unbelievable. I really feel for you. This world has gotten so crazy that someone could steal from you (which is really what it is) and then just get away with it because you want the property. Maybe you could file a small claims lawsuit after the escrow closes? Did you ask your broker about that possibility?
- David Barr, "dpbarr2000"
- Contributions:280
You agreed to purchase the property with certain personal property included in the deal. If that personal property isn't there, the seller has voided the contract.
Your agent is correct. Your only recourse is to void the sale and get your escrow deposit back, or accept the property as is. How much are the appliances? A grand? Three grand?
You'll have to determine if buying a property in this distressed marketplace is worth the replacement cost of the appliances, or you'll have to back out.
Your agent is correct. Your only recourse is to void the sale and get your escrow deposit back, or accept the property as is. How much are the appliances? A grand? Three grand?
You'll have to determine if buying a property in this distressed marketplace is worth the replacement cost of the appliances, or you'll have to back out.
- Michael Emery, "MikeEmery"
- Contributions:7298
The missing appliances shouldn't be an issue with the appraisal unless the personal property was included in the purchase agreement. Usually the lender doesn't want to see the personal property agreement as they can't lend on personal property. The property becomes uninhabitable when they remove toilets, tubs, sinks, etc.
Dan has a good point about requesting the sellers escrow funds to at least partially compensate you for the loss of the appliances. Technically they are in breach of contract by removing the appliances and especially since a built in dishwasher is a fixture due to it being plumbed and wired into place.
I saw a foreclosure listing online tonight where the previous owners stripped out all the appliances, including the dishwasher. Oddly enough they left an ugly wall mirror and some other personal possessions.
Dan has a good point about requesting the sellers escrow funds to at least partially compensate you for the loss of the appliances. Technically they are in breach of contract by removing the appliances and especially since a built in dishwasher is a fixture due to it being plumbed and wired into place.
I saw a foreclosure listing online tonight where the previous owners stripped out all the appliances, including the dishwasher. Oddly enough they left an ugly wall mirror and some other personal possessions.
- Albert Elhage, "aelhage"
- Contributions:33
Your agent gave you a good advice. If you want the house you go through with the sale if not you cut your losses and cancel the contract and get back your earnest money on the premises that the contract was breached by the seller by taking the stove,dishwasher,etc.
- TylerDurden94
- Contributions:3
Should I be concerned that the lack of a stove could cause my lender to deem the property as uninhabitable during the upcoming appraisal? I'm in about $450 so far, I don't want to get in deeper for the appraisal fee if there's a good chance my bank is going to deny the loan because of this.
Also, the contract has 2 seller signatures...(newly divorced couple).
- Dan, "the_country_hick"
- Contributions:4699
Why not close and have the appliance replacement cost (new and delivered) be placed in escrow until this issue is finished? That way the seller has to take care of the appliances and the buyer is protected. Putting money into escrow for unresolved issues does happen.
Besides, the listing agent is responsible for the appliances being returned as shown in the article below.
Holmes v. Summer: dilatory disclosures and the damage done | first tuesday journal online
If the appliances were not included the buyer would have made a different offer. Even if the buyer were to get away without any recourse the listing agent can be in trouble with their E&O insurance. Small claims court costs very little and could resolve this. Now that the listing agent knows the appliances are missing they have a duty to either make the buyer whole by refunding their costs to date or making sure the appliances are there at the sale. At least that is how I read what the suit mentioned above means.
The seller having PTSD or just a bad attitude is no legal defense. Theft is punishable if the seller steals the appliances. If I bought the house I would have insured it and have my insurance company look at going after the seller for theft.
Besides, the listing agent is responsible for the appliances being returned as shown in the article below.
Holmes v. Summer: dilatory disclosures and the damage done | first tuesday journal online
If the appliances were not included the buyer would have made a different offer. Even if the buyer were to get away without any recourse the listing agent can be in trouble with their E&O insurance. Small claims court costs very little and could resolve this. Now that the listing agent knows the appliances are missing they have a duty to either make the buyer whole by refunding their costs to date or making sure the appliances are there at the sale. At least that is how I read what the suit mentioned above means.
The seller having PTSD or just a bad attitude is no legal defense. Theft is punishable if the seller steals the appliances. If I bought the house I would have insured it and have my insurance company look at going after the seller for theft.
- Matthew Dorsey, "Matt Dorsey"
- Contributions:30
Unfortunately your agent is pretty much right. Although it is in the contract your only sensible options are to back out due to breaking contract or accept it, it's not worth going to court and wasting time & lawyer fees over appliances. It sucks for you that the seller did that, being that it's a short sale they probably don't care much.
- Seth Captain, "CaptainSeth"
- Contributions:142
You, sir, have a great case for People's Court. It's the reason courts exist. Cause things don't always go the way they are suppose to.
Naturally, it's total B.S. that this happened to you. And there are fairly obvious alternative options, well depicted by Hollywood for generations. You might want to start reviewing some film, but the real good 'responses' didn't start happening until the 70's.
Naturally, it's total B.S. that this happened to you. And there are fairly obvious alternative options, well depicted by Hollywood for generations. You might want to start reviewing some film, but the real good 'responses' didn't start happening until the 70's.
- TylerDurden94
- Contributions:3
@Dan, supposedly the selling agent said the seller got a bit crazy when she tried to explain to him that he needed to return them. She told my agent that she thought the guy had PTSD. I'm starting to think the selling agent may just not be very good. I'll try pressing upon my agent the legal aspects of this.
@Guy, It is a TAR/TREC contract: "One to Four Family Residential Contract(Resale)". TAR 1601. TREC No. 20-10.
- Dan, "the_country_hick"
- Contributions:4699
" The signed resale contract contains a paragraph that covers these items as included."
If I sell you something with the guarantee that it includes certain things I am responsible for making sure those things are included. If I do not I am guilty of misrepresentation, fraud, and perhaps even theft if I remove them. Those are all legal issues that can lead to arrest, prosecution and jail time as well as being forced to pay restitution. If that was explained to me I would return those items as fast as possible.
Signed contracts are legal documents that can be legally enforced.
If I sell you something with the guarantee that it includes certain things I am responsible for making sure those things are included. If I do not I am guilty of misrepresentation, fraud, and perhaps even theft if I remove them. Those are all legal issues that can lead to arrest, prosecution and jail time as well as being forced to pay restitution. If that was explained to me I would return those items as fast as possible.
Signed contracts are legal documents that can be legally enforced.
- Guy Gimenez, "Broker and Investor"
- Contributions:58
If you're in Texas, did you use the TREC or TAR contract form?
Seller stole the kitchen appliances on a pending short sale...what can I do?
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