Expert: Todd C. Menard - 9/24/2008

Question
Our realtor told us we had reached a deal on our purchase.  After asking for a copy of the contract for several days, we found out that the contract was NEVER signed by the sellers, and they were waiting for us to be out of attorney review on our sale.  I now don't even believe him that there is any agreement at all.  In our sale of our current home, we added a contingency based on our purchase.  There is not even a contract.  I have 3 kids, where would we go!?  He yelled at me that this is all normal procedure (seller not signing contract until attorney review on my sale over, and my removing contingency) is this true?  What can I do?

Answer
Hello Melissa - You did not indicate as to whether your property is located in Arizona. In general, you always want to get everything in writing. 'Normal procedure' is when the agreements are in writing and it says what you want it to say, and it says what the sellers want it to say, and all parties sign the document. If you have nothing in writing this would NOT be considered normal procedure. Are you represented by a real estate agent? If the sellers agent is a member of the National Association of REALTORS then he/she is obligated to perform in accordance with the NAR Code of Ethics. This is available online at realtor.com. Article 1 indicates that an agents must always protect and promote their clients best interests. If you are unrepresented then this 'client' is not you, it's the seller. The Code requires the seller's agent to deal 'honestly' with ALL parties. If you signed an Arizona Residential Purchase Contract then there is a 'Time For Acceptance' clause. This means if the seller does not sign and 'deliver' (aja return to you) a signed copy by the expiration date and tiem indicated the contract is considered withdrawn... Which means at this point (in AZ), since you have not received a copy, the offer was considered 'withdrawn' and you have no offer or contract in force. If you are not in AZ then you should check the offer you signed and submitted to investigate the terms of the offer such as time periods for acceptance. I can't imagine there isn't a time period after which the offer is no longer an offer. I said it this way because each state has their own legal language and use of the word withdrawn may be inappropriate in your state. Of course, without a signed agreement/contract there is no deal. Worst case you still have what is called an 'offer' which you should have the right to rescind before the seller accepts it. I understand you want this property. But at this point the seller is deciding not to accept your offer until you release the contingency (remember.. in AZ this means you do not have an 'offer' or contract at this point if the time for acceptance has expired). This tactic is possibly a poor strategy to allow the seller to continue to market their property looking for a buyer who has a 'better' offer. a better offer may be considered an offer without a contingency... but it could be any other reason as well such as a sooner closing date, higher price, etc. So your primary objective is to get the seller to accept your current offer, or submit a new offer, which will secure your place in first position. Usually, a buyer's REALTOR would be able to negotiate this position on your behalf. At this point, securing representation for yourself will probably cost you out of pocket since the seller's agent is considered the procuring cause, and is no longer obligated to compensate a buyer's agent. I would recommend first contacting the seller's agent and asking if the seller ever signed the offer. If not, then you have no contract. If the seller did sign it obtain a copy. If the seller's agent is uncooperative then call the designated broker at the seller's agents office. Discuss the matter with the DB and take notes. The DB is responsible for supervising the licensees and is concerned about the firms goodwill and treating all parties fairly. The DB will tell you the situation. If you like you can reply to this email and provide me with an update as to what you discover and I will be happy to reply wit additional specificity. Please remember I am not an attorney and therefore this is not to be considered legal advice. Rather, this is to be considered real estate information that a professional REALTOR should be able to provide. I hope this has assisted somewhat. Let me know how I can assist you further. - Todd