Expert: Sue Bernstein - 6/15/2005

Question
We bought a home in San Diego through a local agent.  He end up showed us a house not on market yet, owned by a friend of a friend.  
Escrow close on Apr 12, 04, the seller will stay on until Jun 30, 04.  The agent said the seller will pay us base by our PITI.  
He set up the contract for us, and tell us, it is best to do rent back contract separately, not through the loan company so the loan process will be smooth and fast.
He suggested we should not ask for deposit,
since this a proud owner, who have pride in his work (up keep the house,...), so of course he will clean up after he move out.  We trust our agent, so we agreed to all his suggestion.

We were so busy will moving and my weak health, so we did not pay attention to the payment.
Later we found out that the first ck send to us was also the last ck.
We bought the house for 439,888K, our 1 yr home owner insurante was $505.  Our mthly payment with the bank is $1457.45.  We believe the property tax would be around 1.25% for San Diego (later we found out total property tax + supplemental is $6026.10).

Around Mar 2005, we called and left message (with the agent's assistant) ask him to take a look into it.
We told the agent we received total $3027.60 from the seller for rent.  The seller should  still owned us about 2 thousand or so.
Several wk later, we called back and leave another message.  He called and talked to my husband.  He said, that was not his fault.  He used the number the loan company gave him.

Then he said the seller did called and tell us he is planning to move out earlier (he did called 10 days or so before end of June 30, )but we decline the offer, (our lease does not end till Aug 1 anyway.)  Since the contract stated that he rent from Apr 12 to June 30 anyway.  We did not get the keys from the seller till July 1.
A day after my husband talk to the agent, we receive a copy of the settlement statement from the agent with "friendly" letter told us he thought we might need a copy of this.

We tracked down our own loan agent, she said no one from that office call her regard that.

We talked to a real estate lawyer, he said this is such a small matter (money) under 5K , he is not interest in looking into.  If we want, we have to take to small court ourselves.

My husband said just let it go.  Since this is our first house, this will be our lesson for trusting real estate agent.  Next time we buy a house, we should have a real estate lawyer.

Is there anything I can do?  I feel like we have been cheated by our agent!  The reason we get an agent is that we have someone we can trust to take care of things for us, not for taking us for a ride!
Thank You .
Nguyen Keyes

Answer
Dear Nguyen,

You agreed to a rent back for a little under 3 months.  For this amount of time there should have been a written agreement stating the amount of the rent so it can be agreed upon by both parties. If you had it in writing while still in escrow, escrow could have figured out the PITI once they received all the documentation and could have credited you the entire amount out of the sellers proceeds directly from escrow.  It is not usual to take a deposit in these situations.
I don't think the situation arose because you used a real estate agent rather than an attorney (in many cases, most attorneys do not have the experience that agents do running escrows) but that there was a better way to handle this.  You can take both the agent and seller to small claims court to see if you can get the rest of the money.  Get the exact figures to determine amount owed from the escrow that handled the transaction.

I hope you find this helpful and good luck in your new home.

Sue Bernstein