Reply to 3 days before closing and I want to back out..can I?

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Contact a real estate Attorney and discuss options.

The chance you will get sued is low. The reason being is its not worth it to the seller for the cost of retaining their own council and then going to court in a few months and preparing for the case.

If the sellers goal is to sell the house and the house is in a decent location, their real estate agent will likely advise them to just return the EM and move on. The agent knows that the buyer can easily stall at closing or find some issue to prevent closing. Better to not waste everyone's time going to a closing that will likely not happen. In the time it will take the seller to get to court, the probability is high that they will have already sold the to someone else and it won't be worth their time and expense to go through a drawn out court case. [/quote]

OP:  Please do not take legal advice from someone who doesn't know the difference between "council" and "counsel."  [/quote]

I had an experience similar to what the PP has described: a buyer wanted to walk away, our realtor had weak knees and insisted that we return the earnest money. We had a big argument about it but the funds ultimately were not in our bank account. It seemed that he just didn't want to be caught up in any legal battle, and wanted to play nice with the buyer's realtor. We did finally agree to return the EM and promptly fired our realtor.

So I do believe it depends on how strong your realtor is. [/quote]

Why did you cave to your realtor's wishes?  There are pros and cons to holding out for the EMD and/or suing to get damages.  But the position of your realtor on this should be virtually irrelevant.  If you wanted to fight, you should have reminded your realtor that he worked for you and you were going to stand by your contractual rights even if it made things awkward for him with the other realtor, which it really shouldn't have since the other realtor should have understood you were well within your rights to insist on the EMD.[/quote]

Because the seller realtor is a part of the transaction. It's not a productive endeavor to go into a battle where I have no allies. It became apparent to me that my realtor was willing to lose me as a customer than to help me keep the EM. Whatever his reasons, I did not care. My goal as a seller was to sell the house. I had already wasted time up to that point, I did not want to get drawn into a prolonged battle - lawyers do not take these type of cases on contingency. [/quote]

So, it sounds like it wasn't your realtor wanting to play nice with the other realtor.  You wanted to sell your house and you didn't want to incur legal fees - both very reasonable objectives.  And you understood that by trying to keep the EMD and/or sue, you wouldn't be able to sell your house until the dispute was resolved and you would likely incur legal fess.  So, given your priorities, you decided to return the EMD.

What you did was perfectly reasonable given your priorities, but I don't think it was reasonable to say that you acted because your realtor had "weak knees and insisted" you return the EMD.  You acted in your best interest, as you now describe them, which is fine.[/quote]

Thanks for your feedback, I see you are just discussing the situation and not trying to argue for argument's sake. We did want to keep the EM, and would have if our realtor was on our side and took a strong stance with the buyer's realtor. In our case, when we tried contacting the buyer realtor directly, he simply told us to talk to our selling realtor. And our selling realtor simply refused to try and keep the EM for us. In a situation like this, we had limited options. If we had a strong realtor, I would have absolutely pushed to keep the EM - it's only fair.[/quote]

It would be fair, but fair doesn't always matter.  You say you would have pushed to keep the EMD.  Great, but what happens when the buyer refuses?  Then you can't sell your house and you have to incur litigation costs - two things you said you didn't want.  Even a mor aggressive realtor may not have been able to change that reality given your (again perfectly reasonable) priorities.

Plus, you did have options.  You could have explicitly instructed your realtor, in writing, that he was to push for the EMD's return since he was your agent and you could have made clear to him you were not simply going to relent. (Posturing is not only for dealing with the other side.). If he refused, you could have fired him, which I think you said you did right after anyway.  You also could have threatened to report him for not representing your interests as he was required to do.

None of these are the easiest thing to do and can have complications, but you did have options.  In your shoes, I would have absolutely saber rattled - with my agent and the buyer - even if I would not have actually followed through with litigation given the downsides.  It might have worked, it might not have, but it would have been an option.[/quote]

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