Seller in dual-agency difficulty after cash buyer switches to financing and fails to close
Sep 26, 2022Marketwise for the Bay Area News Group and its flagships The Mercury News and East Bay Times
By Pat Kapowich | Published: July 1, 2022
Q: Dear Pat: I read your wonderfully informative online article recently on The Mercury News and East Bay Times, dated June 18, 2022: “When a buyer cancels the deal, who gets the deposit?” My father, a home seller, is finding himself in a similar situation outlined in the column.
Our real estate agent says my father is not entitled to any earnest money deposit, but I disagree. (The agent represents both the buyer and my father.)
I am hoping you can recommend any real estate attorneys or related resources who might review our specific situation and advise us.
We suffered a real financial burden by losing the sale. My father and brother are buying a next-generation home together. This failed real estate transaction is causing us to spend thousands of dollars on an additional loan. Not to mention extra monthly payments we did not expect to make.
This buyer made us wait three months while he tried to secure financing (on an original all-cash offer), only for him to continue dragging his feet. Please advise, and thanks in advance.
A: So sorry to hear about your situation. However, the details are needed for a real estate attorney to hear/see and render an opinion.
Real estate attorneys require a staff member to complete a brief intake form from callers. The information will eliminate any conflict of interest with the real estate agent or realty agency.
There is usually a consultation fee for one billable hour to review your storyline and any paperwork. It is money well spent.
For a host of reasons, I do not represent both buyer and seller (aka dual agent/dual agency) on the same transaction. Representing opposing buyer and seller clients in the same real estate transaction is legal in California. It requires more of an agent, not less. The dual agent needs three times the skill, four times the great communication and five times the diplomacy. Otherwise, real estate attorneys can often find flaws in the conduct of a dual agent’s standard of care.
If I were in your position, I would research real estate attorneys in your area. Only real estate attorneys know these situations well. Lawyers in other fields of specialty do not.
Questions? Or are you or someone you know navigating life’s transitions? Let lauded negotiator Pat Kapowich make your next move easy. Visit Kapowich’s website for free area housing data, insights and trends. Or put his artful blend of specialized credentials, decades of experience and endorsed skill set to work for you. Kapowich instills confidence when buying, selling, relocating or resizing homes. Do not just make a move — make the best move. Contact him today, Realtor Pat Kapowich, a career-long consumer-protection advocate.
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