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Frozen Deal

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Posted On: 09/22/2010

QUESTION:

We're interested in buying a home that has a basement freezer - a very large basement freezer, a freezer big enough to hold a complete moose. The problem is that the freezer doesn't work. We don't really want a replacement freezer. How do we get the sellers to get rid of it?

ANSWER:

As part of your offer require that the freezer must be removed from the property 24 hours before closing. If accepted the sellers have effectively agreed to remove it for you and you can check before closing to assure that it's gone. If the freezer is still in place, have the settlement agent set aside money in an escrow account for removal.

QUESTION:

What happens if a purchaser backs out of a real estate sale before closing?

ANSWER:

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Real estate agreements are commonly "contingent" contracts, meaning that there may be reasons why a buyer or seller can cancel the deal before closing without penalty. For instance, maybe the home inspection is not satisfactory to the buyer or financing at a certain rate of interest is unavailable.

However, there are instances where buyers simply want out of the agreement for reasons which the contract does not allow, such as a change of heart or the location of a "better" property. In that case there's typically a "default" clause that may allow a seller to keep the deposit, sue for damages, or both. In some cases the default clause also permits the seller to seek "specific performance," a phrase that means a court will order the buyer to complete the sale. Specific performance, however, is rarely sought or granted.

In practice, each transaction is different. If the deposit is tied up and the house can't be sold for months on end while the matter is taken to court or mediated, then it may be that both parties will want to settle rather than fight. Speak with a real estate attorney for specifics.

Peter G. Miller is the author of The Common-Sense Mortgage and a veteran real estate columnist. Have a question? Please write to peter@ctwfeatures.com.

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