In order to file a case for non-performance under a contract, you must have followed through on your end of the deal by having your documents signed and your money in place, ready to close the deal on or before the closing date. If your seller still refuses to close, you will need to employ the services of a real estate attorney who can handle this matter for you. If you close with a real estate attorney or a title company who has a real estate attorney on staff, they will be able to handle this situation for you.
The first thing the attorney will do is to file a lis pendens on the property and cloud title to the property until the situation is decided by a judge. At this point they will probably notify the seller by letter, giving them the opportunity to remedy the situation first without any further legal action. Once the title has been clouded, this prevents the seller from doing anything with the property until the current situation is remedied.
If the seller still will not close, the next thing the attorney will do for you is to file suit for non-performance under the contract. Just a note here; anytime I deal with a seller, I give them a copy of the signed contracts and I keep the originals or give them to the attorney who is handling the closing for me. It is important to have the original contracts in your posesssion.
Even though this type of suit may take some time, if you have followed through on your end of the deal and “performed†as required under the terms of the contract, you will almost always win your case. I will also mention here that I have been lucky enough so far that I have never had to follow through with one of these cases. The threat of a lawsuit either by me or by my attorney has been enough to push the seller to closing.
Let me also mention here that I would never do anything to purposely take advantage of any seller. There are times however that you need to stand your ground and get the closing done, especially when you have a valid contract with a seller and you have upheld your end of the deal. Also keep in mind that as you are moving toward a closing with a seller, you may be incurring costs such as a home inspection, a survey, pest inspection, etc. and you need to either close on the deal or be reimbursed for your expenses.
This is one of those scenarios they don’t usually cover in the real estate seminars so I thought it was necessary for me to take the time to share this important piece of information with you. Always make sure you use a real estate attorney or a title company with an attorney on staff. This makes it so much easier to handle this type of situation should it arise.
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