Expert: Dick Dennis - 7/10/2006

Question
Sorry to bother again, but since the title company has cashed/and is holding the funds, we would not techincally sue for $1000, but ask that the contract be upheld, which would then include the seller  agreeing to the release of the held funds?  Thank you SO much for your help!
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Followup To

Question -
Hi there,
Recently my husband and I were in a contract to purchase a home.  There were inspection issues that they agreed to fix/address by May 8th.  We went to the home to inspect it before closing, on May 18th, and not one repair had been completed (major things like electrical and plumbing issues).  We considered this as a breach of contract and decided not to proceed with the purchase.  We paid $1000 earnest money, which is being held at the title company.  The seller is refusing to have it released to us, and has also refused mediation.  I know we can sue him in small claims court, but do you feel 1. we're in the right, and 2. should we go to arbitration.  Our broker has told us that she is no longer working for/with us and will not give us advice on how to proceed, other than supply some info about how to file a small claim.  She feels that arbitration is something both parties have to agree to, and the seller will likely not agree.  Any guidance you can give would be so appreciated!

Answer -
You did right, Jessica. Don't bother with the agent. Just take the matter to small claims court. When the seller is served the subpoena, I submit before you have to go to court, a check will be forthcoming. However, you're going to have court costs. The seller has to include those, too.

I do wish you well.

Dick Dennis          dixiedee13@aol.com

Answer
You can't have it both ways, Jessica. You either go to small claims court to retrieve your earnest money deposit and go look for another house. Or, you go engage a REAL ESTATE attorney to sue for "specific performance." If you and the seller initialed the mediation clause, then you can press that with your attorney as well.

One thing you must realize, Jessica, is that seller CANNOT sell his house to anyone else until your case is settled either with a court case or giving back your deposit.

And remind the real estate agent, too, that he nor anyone else can sell that property until this whole matter is settled. Your attorney will probably put a "lis pendens" against the title of the propeprty. That is what stops the seller from selling.

I do wish you well.

Dick Dennis