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Deal falls through and would-be buyer cannot be contacted

July 14, 2017
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

My husband and I signed a contract to sell our house about a year ago to a nice couple who was moving here from the east coast. Unfortunately, they were unable to complete the purchase, and they agreed that they would split the $2,000 deposit with us, rather than potentially fighting over the deposit.

We signed the cancellation and release, and our Realtor sent it to their Realtor. Their Realtor says he can no longer contact the buyer, and my Realtor says they can't find them, either. Weeks passed and nobody seems to know where they are. Now it has been nine months! I called the title company and they won't release the money without the buyer's signature. They claim to have contact information, but won't give it to me! I am so frustrated, what can we do to end this!

- Mary L.

Dear Mary:

I am sorry to hear about this trouble! I would expect the buyers would seek you out to make sure they received half their money back. Generally, the real estate agents representing you and the other party will easily work on these matters. When Realtors are unable to have clients agree, I usually step in as escrow and title agent to explain to the parties the situation, and the consequences to not signing such a release (lawsuits, attorney's fees, etc.), and usually that does the trick.

In this case, it sounds like your buyers understand they won't get any money back without signing, and that they are not against signing. Your real estate agent or the title company may not have made a significant effort to locate them.

The first thing you can do is do a simple Internet search for the names of the buyer. If you locate their phone number or address, contact them and send them the cancellation document. If they are acting logically, they will be happy you reached out to them, and to get part of their money back.

The title company is right to not distribute personal information on buyers and sellers, but I would expect that, if they have the ability to reach the buyer, they would do so on your behalf. I can tell you that the last thing I want is to have escrow monies sitting in my trust account when there is no pending transaction attached, and I do everything possible to get the money to the rightful owners quickly. If that can't be done, we ultimately have to look to the courts to deposit the funds, further costing all parties involved.

I have noted before the importance of the contract, including the amount of the escrow deposit. The $2,000 on the purchase of a home is inadequate, and for just this type of reason. As a buyer, it will be a lot harder to simply ignore $10,000 than it is to ignore $1,000 (Although, most of us would be keen to get back "only" $1,000!). In your case, getting back half of the deposit clearly was not important to your buyers. When you secure your next buyer, consider raising the deposit to at least $5,000, possibly more depending on the sales price. Especially in a cash transaction, if your buyer cannot come up with 5 percent of the total, that is a sign you may not have a serious buyer. If you can't get their signature, the courts are your last option to obtain the money, which will cost more of your time and money.

Even though it has been nine months, the sellers are likely still around, in fact they may have still moved to Cape Coral. Check the property and phone records, try to track them and send them a nice letter with the cancellation. Those simple steps can get you the $1,000 back, and you can have one less item to worry about.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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