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Posted by Jim V on November 19, 2003 at 12:51:52:
In Reply to: Specific Performance posted by Chris on November 18, 2003 at 18:33:10:
: I am trying to purchase a property. I have a valid contract and have rendered earnest money.
: It is becomming clear that the current owner of the title is not willing to follow through with the contract. Here are some of the issues that we are facing:
: The person who has right to the title does does not have loan in her name(The loan is owned by her soon to be ex spouse)
: The spouse of the person who owns the property is going through bancruptcy and forclosure. The title company is unable to obtain a clear title because of these court proceedings.
: I have spent a significant amount of funds obtaining financing to purchase this property.
: My questions :
: Can I or a lawyer force specific performance if the seller can not obtain clear title?
: Can I file a suit against the seller to recover my losses if this deal falls through?
: Can I file a suit against the seller to recover my losses if the property goes into forclosure and I file a lien against the title to negotiate purchase after the redemption period is exhausted?
: Is the listing agent responsible for any of my losses?
Keeping in mind that these answers are an opinion and not legal advice:
1. If clear title cannot be obtained, you will not be able to get a loan as the lender will require clear title for their own protection.
2. You can always file suit, but if the seller/spouse are in distress, as evidenced by foreclosure and bankruptcy proceedings, a satisfactory outcome for you isn't highly likely.
3. If you were to file suit, win a judgment and record an abstract of the judgment all before the foreclosure was completed, then you'd be able to redeem the property as a "wiped-out" junior lienholder. That would mostly likely take cash for the redemption as most lenders wouldn't be inclined to get involved in that kind of arrangement.
4. The listing agent should have been aware of the seller's issues and included language in the contract acknowledging those issues. An attorney in your state can give you a better idea whether you have a reasonable claim.
If you get your earnest money back, which shouldn't be too difficult, your actual losses, other than time, probably aren't much more than the cost of an appraisal. If you ask to have your actual losses covered, rather than threatening suit, you might get things resolved quicker. You can file suit later, if you have to. I suppose the real question is "How much energy do you want to put into trying to get this one property?"
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