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When a Sacramento Buyer Cancels Escrow it Opens the Door
Another door can open when a Sacramento buyer cancels escrow.
When a Sacramento buyer cancels escrow, it can be hard on everybody all around. I’ve recently had to resell three homes due to buyers who ultimately did not perform. In one case, the buyer had wanted to buy a different home but the seller of that home had chosen a better offer, so the buyer lost out. When that seller lost her buyer, her agent notified our buyer, and enticed that buyer to cancel and buy the home the buyer wanted in the first place.
It worked out for that particular buyer but my poor sellers, living in a mobile home in the middle of South Dakota and praying for a closing, are distressed. That listing is back on the market. Buyers don’t care much about the ramifications of the hurricane they leave behind.
In another escrow, the buyer decided the sales price was too high halfway through. We had several appraisals, one of which exceeded the sales price, but the buyer refused to close. The buyer’s agent was so certain it was closing, we thought it was OK to remove the home staging. We had to re-stage. Fortunately, we found another buyer who liked the home enough to step up to the table. But it delayed closing for another 30 days.
The escrow that just closed yesterday was a shining example of what happens when a Sacramento buyer cancels escrow. The buyer’s agent had stopped all communication. Both my TC and I emailed, called and sent text messages almost daily, and the agent simply ignored all communication attempts. Finally, after dragging it out, sending a Demand to Close escrow, the agent finally called to say her buyer can’t get the loan.
My seller was furious. After he calmed down, he offered to pay me extra to get him a higher sales price. That in itself would be called a net listing. It means if a seller wants, say, $300,000 and I bring him an offer of $350,000, I make $50,000. Which is ridiculous. I get paid enough. It’s called a commission. I rejected the seller’s offer and simply found him another buyer.
We had an FHA appraisal at our sales price. The buyer’s agent knew this, and his buyer was FHA, still he wrote the offer for more than the sales price. It won’t appraise for more. An FHA appraisal is assigned a case number and the next buyer will get the same appraisal. Instead, I suggested the seller counter with the buyer paying the difference in hard cold cash, in addition to making the sale strictly AS IS.
The buyer sent a request for repair and we countered with Notice to Buyer to Perform to remove inspection contingencies. The buyer realized the error of his ways and backed off. We closed yesterday.
When I called the seller to confirm our recording, he was ecstatic. All of a sudden, having gone through two escrows was no big deal. Hey, I sold the house twice and was paid only once. But that comes with the territory. When a Sacramento buyer cancels escrow, it means we don’t abandon our sellers because of it and they should not abandon their listing agent either. It’s a two-way street.
In the end, my buyer received another $3,000 for his property for waiting another 30 days to close. Although he was unhappy at the time with the buyer who could not close, the next buyer paid even more. As long as he is happy, I am happy.
What Happens After the Notice to Buyer to Perform?
Buyers who receive the Notice to Buyer to Perform could be subject to cancellation.
Few home sellers in Sacramento really look forward to executing a Notice to Buyer to Perform, but sometimes that real estate document can become a necessity. ¡Si, yo necesito! That generally come about because the buyer has not taken some sort of contractual action arising from the California Residential Purchase Agreement. Things such as removing the inspection contingencies or appraisal contingency. Just because the contract by default gives the buyer 17 days to remove inspection contingencies does not mean those contingencies automatically expire on Day 17. NO, contingencies can continue until closing if not released.
(I say NO like el Español. With emphasis. The thing I love about my Español lessons is the native speaker uses such passion. He says NO like NOH! Short and sweet. Like he means it. Don’t bother him anymore. Go away. Stop talking. End of story. It’s an attitude, people, that goes into speaking Spanish.)
Back to my story. If the buyer has not released contingencies, and we’ve made several requests to the buyer’s agent, the next step is to issue a Notice to Buyer to Perform. The document gives the buyer another chance to perform prior to cancellation of the contract. The seller is not required to cancel the contract, but most sellers will issue a unilateral cancellation if the buyer fails to take action.
Sometimes buyers stop responding to their agent. But what happens if the buyer’s agent stops responding? That could be a different story. It’s not unusual for an agent not to reply to an email, text and voicemail, especially if that agent is occupied elsewhere, like some are, yet I’m not condoning that kind of behavior. It’s triste. On the other hand, an agent could be in the hospital, out of the country or involved in an emergency. It’s not a good idea to cancel the buyer simply because the listing agent has received zero communication from the buyer’s agent.
In that instance, I will call the buyer myself to inquire. Por supuesto, I first tell the buyer’s agent what I propose to do. If he or she does not respond to me, though, ¡qué pena! It’s not always the buyer who is failing to perform. It could very well be the buyer’s agent. As a Sacramento listing agent and a Realtor, I am required to be fair to all parties. No sense in penalizing a buyer because the buyer’s agent dropped off the face of the earth. I’m just here to get the job done for my sellers.
Home Buying Contingency Removal Under CA Purchase Contract
Contingency Removal Dates are in the Purchase Contract
If anything, this Sacramento REALTOR is a stickler for adhering to the terms of the California Residential Purchase Agreement between her sellers and another agent’s buyers. Yeah, yeah, I hear from other transaction coordinators around town that many listing agents never ever ask for a contingency release, and they just blow it off, like some buyer’s agents will also blow off adhering to the buyer’s duties under the terms of the purchase contract — oh, those pesky legal documents — but that doesn’t make it right much less legal.
A listing agent has a fiduciary relationship according to California Civil Code and the California Bureau of Real Estate. The Agency Disclosure describes a listing agent’s fiduciary as “a fiduciary duty of utmost care, integrity, honesty and loyalty when dealing with the seller.” It goes on to say the agent must show diligent exercise of reasonable skill and care, and the same fiduciary pertains to buyer’s agent and even dual agents to their respective parties, if you can believe that.
Yet, who gives a crap about this, you might ask? That’s a reasonable question that should have a reasonable answer, but I don’t have one. I know I care deeply about my fiduciary.
When I represent a seller who enters into a residential purchase agreement with the buyer to sell a home, I remind the buyer’s agent when the contract contingencies are to be released. We remind the buyer’s agent when we enter into the contract, and again, a day prior to the contingency removal. I can’t count the numbers of times we have asked for a contingency release and been ignored. Oh, just don’t worry about it, seems to be the prevailing attitude from some buyer’s agents.
Someday those agents will be a listing agent. Someday these same agents might discover the unfortunate experience of standing in front of a judge, head hung, to answer: Did you show utmost care, integrity, honesty and loyalty? It’s not a place I have ever been nor a place I ever want to visit. But fear of reprisal is not my reason for following the terms of the purchase contact.
It is my fiduciary duty as a listing agent to request a home buying contingency removal for the sellers. If the buyers need more time, then buyers should consider submitting an Extension of Time Addendum for the sellers to entertain. If you were to read paragraph 14-B-3 of the RPA, it states: By the end of the time specified in 14-b-1, which is the number of days available to a buyer to complete all investigations,?”Buyer shall deliver to Seller a removal of the applicable contingency.” It goes on to state that if the buyer refuses, the seller can ultimately issue a Notice to Perform and then cancel the contract.
It’s nothing personal when I ask for a contingency removal under the terms of the purchase contract. I am just doing my job and asking that the buyer’s agent do the same thing. If the sellers elect to cancel the transaction due to non-response, hand over the deposit to the buyer and send the buyer on his merry little way, that’s up to the sellers. In situations in which buyers fail to perform, I do have to give the sellers that option. It’s my fiduciary duty.
A Solution for Home Buyers Facing a Contingency Release Deadline
A Sacramento real estate agent who represents sellers is generally vigilant about following the terms of the purchase contract and asking buyers for a contingency release upon the specified dates. Unless otherwise altered, buyers typically agree to release inspection contingencies, loan and appraisal contingencies by the 17th day. The listing agent is sometimes viewed as an ogre or a downright meanie if her seller asks the buyer to perform in accordance with the contract.
It’s not unusual after a request for contingency release for this listing agent to receive from the buyer’s agent a tirade of blistering words, mish-mashed together in a denunciatory nature, sounding as though the buyer’s agent is angry but lacks an ability to grasp the right words to get the point across. Sort of reminds me of Daffy Duck sputtering you’re despicable. The buyer’s agent generally ends the diatribe with the supposed justification of: I’m just protecting my buyer.
One can’t help but wonder that if an agent is protecting the buyer, why is the agent advising the buyer to breach the contract?
As a standard of practice and care for my clients, we send buyer’s agents an email notice as a courtesy the day before a contingency release is coming up. We ask politely to send us the CR form and remind the agent that a contingency needs to be released. In some cases, you’d think we asked them to strip naked and dance in the streets. Shield the eyes. Some agents have never heard of the contingency release. Some prefer to explode over it. Fortunately, most buyer’s agents respond in an appropriate manner. But some don’t.
If we don’t receive a contingency release, though, the next step is to ask our sellers if they want to issue a Notice to the Buyer to Perform. This gives the buyers 2 days to produce the document or the seller may have the right to cancel the transaction. Will the seller cancel if the buyer doesn’t perform? Some sellers will cancel the purchase contract faster than you can say sore losers shouldn’t talk to the press after losing at Belmont Stakes — especially if the sellers have backup buyers willing to pay more.
The biggest issue is generally not the inspection contingency that generates the reluctance, it’s releasing the loan contingency. Not to mention, there’s a whole ‘nother discussion as to whether a Small Claims Court judge would even award an earnest money deposit to a seller, but buyers and their agents don’t know that. The simple solution is if a buyer needs more time — due to the way loans are scrutinized with all the delays going on in today’s market — then the buyer, through her buyer’s agent, can ask to extend the contingency through an Extension of Time addendum.
It’s not the listing agent’s job, however, to tell the buyer’s agent what to do or how to protect the agent’s buyer. An Extension of Time (ETA), if agreed to by all parties, can extend a particular contingency period in the purchase contract. Stay in contract. Don’t breach it, don’t let it expire, stay in contract.
It’s Just Business, Nothing Personal
I hear some agents grumble that Elizabeth Weintraub is one tough cookie, but I am actually an extremely happy-go-lucky Sacramento real estate agent. Even though every day selling short sales is a fresh new day in hell. I look forward to it. Bring it on. Hey, ask any of my clients. They’ll tell you I am cheery almost to a fault, always anxious to help or to explain something. I suspect agents equate my toughness with my non-tolerance for purchase contract violations. I practice zero tolerance for possible breaches of contract.
For example, our purchase contracts state by default that all earnest money deposits are to go into escrow within 72 hours of the sellers’ acceptance. It’s right there in paragraph 3A1 on the first page. That means we expect the deposit to be in escrow. It doesn’t matter if it’s a short sale or a regular sale for a seller with equity. You make an offer on a home, you put your money into escrow. No exceptions. After 35-some years in this business, it’s simple: you’re a buyer or you’re not.
An agent from the city of Davis objected to this a while back. He did not want his buyer to release his deposit. Or, maybe his buyer didn’t want to release. Said they don’t do that in Davis. What? They don’t close escrow in Davis? That hasn’t been my experience. In either case, that’s not an offer we considered. Because that’s not an offer. It’s just business, nothing personal.
I don’t enjoy advising sellers that we need to cancel buyers from a purchase contract. But, if a buyer does not perform, I will suggest that the seller submit a Notice to the Buyer to Perform, and follow that up with a cancellation. It makes no sense to be in escrow with an individual who is not acting like a buyer. Another buyer could not produce his updated proof of funds last week to buy a short sale. He could not produce the document because that document did not exist. He gave us all kinds of excuses and reasons and promises. It was noise. A buzzing in my ear. T’weren’t tinnitus.
This did not mean he could not close escrow, either. By the time we received short sale approval, he probably could have found the money somewhere. In his mattress. His wife’s checking account. A deal in the back alley, maybe. But we don’t operate on wouldja, couldja, didja. If you can’t show us the money, we will cancel your short sale. It’s just business, nothing personal.
