Man the torpedoes!

July 21, 2005 12:04 PM

I have the distinct feeling that the seller of the house I was supposed to close on today is deliberately trying to kill the deal in the eleventh hour. What are my options?

Forty days or so ago I signed a purchase agreement on a house. After the inspection three weeks ago the seller had agreed to replace the water heater (among other things). Since he's had tenants in the house until last Friday, I did an early walk through on Monday to ensure that things had been corrected. All appeared to be okay except for the water heater which hadn't been touched.

My agent advised his that it would have to be corrected before we made it to closing (previously scheduled for today at 1:00 PM). To which we received no response until last night at 7:30. And then it was little more than "I'll go by the house to look at it myself in the morning and let you know."

This morning came and went without any response from the seller. After much frustration and multiple conversations with my agent, I finally called my agent again and had him inform the seller's agent that they had until 6:00 PM tonight to agree to non-negotiable terms I laid out -- basically I want cashier's check to cover the work and my time or I walk.

It's really been getting to me to think that this guy might be trying to intentionally kill the deal. If I walk and discover he's had another offer which precipitated his foot-dragging, do I have any recourse? Yeah, it'll suck to be back at square one, but I'm fully prepared to walk away from this house.

posted by friezer to home & garden (21 comments total)

Whatever recourse you have is explicitly spelled out in your purchase agreement, which should say what the penalties are for backing out. Your agent should be able to answer this question if the agreement's legal-ese is too thick.
posted by Zed_Lopez at 12:09 PM on July 21, 2005

Is the water heater the only point of contention? Find out how much a good one costs, deduct that much from your offer, and finish the deal. Futsing around with a seller who apparently can't get anything done is a lot more of a hassle than just calling Home Depot and telling them to bring you a new water heater. If you force the seller to do it, he'll just get the cheapest one he can find anyway, and then do a crap job of installing it.
posted by spilon at 12:09 PM on July 21, 2005

I agree with spilon. This is so much easier than legal action to enforce your agreement.
posted by caddis at 12:25 PM on July 21, 2005

Reread your offer to purchase. Presumably there is a clause there specifying something like, "If problems are discovered, Seller can correct them or not. If Seller doesn't correct them, Buyer can get his deposit back and walk away."

Given that, things are simple. Either the guy wants to do business or he does not. Wanting to do business would be indicated by things like fixing the water heater or knocking down the purchase price by the cost of a new water heater so you can replace it yourself. Not wanting to do business would be indicated by things like not taking your calls and not caring about closing dates.

In the end, you can suck it up and buy the house with busted water heater, or you can reach a negotiated settlement of some sort, or you can walk away. Do you want it enough to buy it with busted water heater and no compensation? If not, okay, work towards the other possible endings. But in the end, if the Seller doesn't want to sign on the dotted line, he doesn't have to and you can't make him - all you can do is decide whether you want to keep wasting your time waiting for him to come to the table, or not. For all you know, there's some random personal reason why the guy doesn't really want to sell the house now.

Anyway, I'd say to spend a little more time with this guy and figure out if he wants to do business or not. Make sure you're falling squarely into one of the exemptions in your purchase offer so that there's no question that you can get your deposit back from whoever is holding it in escrow.
posted by jellicle at 12:26 PM on July 21, 2005

In the grand scheme of things, water heaters are a pittance compared to the price of a house. If the deadline comes and he hasn't done anything, just deduct the fair cost of a water heater from the purchase price and drive on. Do not deduct the cost of "your time", that is unnecessary and petty. True, he may be being an a*hole at the most, flakey at the least, but karma will get him back. Pick your battles. If a water heater is worth a battle to you, you might have your pride meter set a bit too high. IMHO of course.
posted by dness2 at 12:44 PM on July 21, 2005

But in the end, if the Seller doesn't want to sign on the dotted line, he doesn't have to

Technically that's not correct. You can sue for specific performance of the contract and force him to sell you the house, but this is almost never a good option.
posted by ereshkigal45 at 1:13 PM on July 21, 2005

Blech! I blame it on JRUN.

...can sue for specific performance of the contract and force him to sell you the house, but this is almost never a good option.
posted by ereshkigal45 at 1:15 PM on July 21, 2005

I agree that it's a pittance, which is why I'm scratching my head as to why this guy has been dragging his feet.

I'm not really clear how I can reduce the purchase price without his agreement. I was more than willing to do that, which is essentially what we offered on Monday (after they had not done anything about the situation for three weeks).

I realize I can't force this guy to sign anything, but at this point if the deal goes south I've lost nearly a month and a half, not to mention a few vacation days, and the $300 to get the place inspected.

Certainly I have grounds for being pissed. Maybe the better question would have been, what do I do to relax and get over this... since it appears I've been fucked without so much as a friendly reach around.
posted by friezer at 1:20 PM on July 21, 2005

I also don't see how you can give less money than you agreed to give. When you show up at the Escrow office to sign the closing documents, they are going to want to see the amount of money it says on the papers, and they surely won't listen to a line about a water heater.

You should ask yourself how much you want the house. If you want it, the price of a water heater is a pittance, like other said. If you don't want it enough to fix a water heater to get it, why are you buying it in the first place?

As for how to get over it... if you love the house, you can think "This is sure a great house. Dealing with that jerk was worth it to get it!" If you don't love the house, maybe you should walk away.
posted by agropyron at 1:43 PM on July 21, 2005

If you do want the house, maybe you could take him to small claims court after the signing is done. That would be a lot of time and effort, and probably wouldn't be worth the cost of a water heater -- but maybe a formal letter threatening him with small claims court would get him to cough up the money for you.
posted by agropyron at 1:44 PM on July 21, 2005

what do I do to relax and get over this... since it appears I've been fucked without so much as a friendly reach around.

You will relax and get over it once you are sitting inside your beautiful new house. With a little luck you will feel so great about the house you may understand a little why the seller was dragging his feet. In a few hours you will find out just what the seller is thinking. If the water heater isn't in the paperwork (my inspection reports all stipulated in writing what had to be fixed or else the purchase price would be adjusted, I hope yours did too) be prepared to graciously write it off just to get the seller to sign on the line. Then cheerfully make your way over to Sears and get yourself a beautiful new heater, better than would've been put in, all lined up for your beautiful new house.
If this is the biggest f*ck you have to take to get the house, count yourself as lucky. Again, karma will take care of petty people. Meanwhile, you're getting a house!!!

PS. Let us know how it goes tonight so we can celebrate with you.
posted by dness2 at 1:56 PM on July 21, 2005

I went through the closing from hell last year, friezer, so I really feel for you. I know the desire to cause at least as much pain and anguish to the seller as he has caused you, the anxiety, the frustration--oy!

Of course, much depends on your contract and its contingencies. What does your attorney have to say? Is your agent in constant contact with the seller's agent? I believe that if a seller's agent brings the seller a buyer, the terms are agreed upon, and then through the seller's actions, the property is not sold, the seller can be liable to the agent the cost of his/her commission. So I would think that's a heck of an incentive for your seller to move through with the sale.

If you're trying to rationalize the seller's behavior, here's a word of advice: Don't. (Or don't bother.) People are so often freakshows when it comes to buying and selling real estate. Tons of money is involved, emotions run high. It can just get ugly.

Is the water heater worth killing the deal over? You need to think about the reasons for wanting this place and if they outweigh the new water heater and your desire to stick it to the owner. (I'm not judging, I have been there and understand that feeling entirely.)

In my case, my husband and I had seen about a hundred homes and this was the first place that had all the things we wanted and was well within our budget. Keeping those things in mind, we pushed through with the sale, even though I wanted to claw the eyes out of the seller and his agent at the closing table.

Hang in there.
posted by Sully6 at 2:25 PM on July 21, 2005

I also happened to think--If the deal is really about to fall apart because of the water heater, the seller's agent may step up to the plate to cover some of the cost. This is an unusual step but if he or she can't bring the deal to a close otherwise, they may do it to get their commission faster.

In my experience, the agent agreed to cover a $1,000 fee I incurred when our lender extended our financing another month so the seller could work on meeting the terms of our contract. We refused to close without someone covering this fee, the seller refused to pay it and ultimately his agent broke the stalemate by offering to cover it. We got a check at closing.

Also, if you want to read about a horror closing, jeanmari's got one of the worst ones I've ever heard at House in Progress.
posted by Sully6 at 2:37 PM on July 21, 2005

Sully6 writes "Is the water heater worth killing the deal over?"

This is the key question. The house inspection on your next house, if you decide to fold this deal, is going to be more than the heater replacement cost.
posted by Mitheral at 3:03 PM on July 21, 2005

I also don't see how you can give less money than you agreed to give.

Well, yes, technically you have to pay what you agreed to pay, because that's how all the loan papers will have been drawn up and all that. But outside of that, you can get a check from their side for $500 or whatever you agreed to in lieu of a water heater. Make the deal before you sign anything. Probably all you have to do is have your agent tell their agent, "Look, your guy didn't replace the water heater, so we're going to need $500 to do it ourselves, cool?" and it won't be a problem. I went thru this exact same thing last year, except it involved kitchen cabinets... they installed the wrong ones and didn't feel like doing the job over. Doh! We just kept the money and learned to love the cabinets as they were. A win-win as far as I'm concerned. Just remember that there are a lot of people who have an interest in seeing this sale get finished -- you are the one who is spending the money and the one with the power to walk away. You'll get your water heater one way or another -- don't worry about it, just keep repeating the fact that you expect to have a new water heater in this house, and eventually you'll get it.
posted by spilon at 3:15 PM on July 21, 2005

Ask for the funds to cover the repair/replacement to be put into trust with the title company. You get the repair done. Any funds left over go back to the seller. This way, it can be agreed to at the table and the seller knows he's protected from you ripping him off. (I know, I know... however, it may be part of his thought process.)

We did this with the house we currently own. When we did the final walk through the morning of the closing, we found damage to the carpet which wasn't there when we put a contract on the house. The family had owned an ancient dog with no bladder control. The sellers were terribly angry that we were asking for the carpets to be professionally cleaned and deoderized. It took an additional hour or so of negotiations with our realtor even offering to pick up any additional cost incurred beyond what the seller would agree to. We closed. Funds were placed in trust. Carpets were cleaned. It was angsty, but we got the house.
posted by onhazier at 3:22 PM on July 21, 2005

If the heater replacement is clearly indicated in the deal, you might consider completing the deal, replacing the heater on your own and then billing the seller for the work. I'm not really sure if that would work (legally I mean, the practical issues are obvious), but it is a possibility, and it gets you out of the mess.
posted by Chuckles at 3:36 PM on July 21, 2005

you might consider completing the deal, replacing the heater on your own and then billing the seller for the work.

Nah, that's not going to work. If it doesn't happen at closing, it's not going to happen. I've been through two closings in the last two years, and it's always a messy, angst-ridden experience; furthermore, we had to give up on one house we were interested in because it turned out at the last minute the people who were "selling" it hadn't actually found anyplace to move to (we guessed their kids had insisted they sell their house—"it's way too big for the two of you"—and they'd agreed but didn't really want to go through with it). Try to distance yourself from the emotional issues and do a cold-blooded calculation. If you can live with the cost of eating the water-heater expense, go ahead (obviously, hoping that won't be necessary); if not, forget about suing and all that. It's not worth it.
posted by languagehat at 5:42 PM on July 21, 2005

If the house is selling for $200,000, a $300 water heater represents 0.0015% of the house value. Don't let your pride get in the way here, just close on the house, buy a new water heater, and enjoy.
posted by LarryC at 5:56 PM on July 21, 2005

I went through a closing recently, and our agent had the distinct impression that the seller had gotten a better offer after accepting our offer. The seller refused to do any repairs identified by the inspection, as the seller had the right to do. We decided to do the repairs ourselves (more than $5,000), because the price for the house was good, and we hadn't seen other houses on the market that met our needs.

In this case, if the seller agreed, in writing, to make the repairs, then there presumably is recourse (either spelled out in the contract, or via small claims or otherwise) to get the money involved. Even if that were not the case, as others have commented (above), walking away from the deal, now, doesn't seem rational. [Some interesting animal experiments, recently, have shown that other primates - like us - will often refuse a deal even at personal loss rather than participate in something that isn't fair. That's can be a good evolutionary trait - groups that cooperate well also can do better in competitive struggles against other groups - but sometimes it gets in the way when major decisions are called for.]
posted by WestCoaster at 11:05 AM on July 22, 2005

We finally did get the water heater straightened out, but at this point it seems that the deal may fall through anyway because of title issues.

I swear... this is has been the worst experience of my life. I feel like I've been kicked squarely in the nuts twice an hour, every hour, for the last three days.
posted by friezer at 1:16 PM on July 22, 2005