Imagine finding the perfect home. After weeks, maybe months, of searching, it’s just what you’ve been seeking. You get it under contract and have it inspected. After jumping through all the hoops for the mortgage, hiring movers, packing, and more, you’re ready to close. Then the seller decides they don’t want to sell it to you after all.
Wait, you say. They can’t do that. You would be right.
But what if they do it anyway? What options does a homebuyer have when a seller changes their mind?
For the seller who changes their mind, there are consequences. For the would-be buyer, there are a couple of options.
Written real estate contracts are binding and can be enforced. The parties to the contract must perform their obligations under the contract as long as all contingencies in the contract are met or waived. Failure to perform means the non-performing party is in default. I’ll skip the witty remarks about performance anxiety. This failure to perform is much more serious.
If the buyer has fulfilled all of their obligations under the contract and is ready and able to close the transaction, then the seller’s refusal to sign documents and close the transaction means the seller is in default.
Paragraph 15 of the standard TREC contract sets forth the remedies allowed to the buyer for the seller’s default. It states “If seller fails to comply with this contract, Seller will be in default the Buyer may (a) enforce specific performance, see such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money, thereby releasing both parties from this contract.” While the legal aspects are spelled out pretty clearly, other real-life options can exist.
In my experience, most sellers just need to be reminded of their duty and the ramifications of default. Once they realize that their default is going to cost them money – and maybe a lot of it – they often choose to go ahead and sell.
Or if the seller really doesn’t want to go through with the sale, they might offer the buyer a sum of money to simply walk away from the contract by mutual termination. This usually involves paying the buyer’s inspection costs, appraisal, loan application expenses, and other out-of-pocket costs along with some additional money for their time, effort, disappointment, and hassle.
If the buyer wishes to enforce the contract, they may sue the seller for damages and/or for specific performance. Specific performance is a remedy to enforce a contract for the sale of a property. The buyer asks the court to order the seller to transfer title to the buyer.
The buyer will often go ahead and appear at the title company on closing day with their funds and sign any documents the title company has available for them to sign. The “tender of performance” by the buyer may put the buyer in a better position to successfully sue the seller for specific performance.
It may be easier for the buyer to win in court If the sales proceeds are sufficient to pay all of the debts against the property, including closings costs and commissions. Consult an attorney on the details and litigation options.
When faced with the choices of being sued, paying a buyer to walk away, or just going through with the sale, many sellers will opt to stick with the contract they signed and sell the property.
When a would-be buyer is faced with the challenge of a faltering seller, they are often advised to let the seller know that they are ready, willing, and able to close under the terms of the contract and that they expect the seller to abide by the terms of the contract as well.
If you’re a home seller, the time to change your mind is before you sign a contract.
The opinions expressed are of the individual author for informational purposes only and not for the purpose of providing legal advice. Contact an attorney to obtain advice for any particular issue or problem.
Lydia Blair (formerly Lydia Player) was a successful Realtor for 10 years before jumping to the title side of the business in 2015. Prior to selling real estate, she bought, remodeled and sold homes (before house flipping was an expression). She’s been through the real estate closing process countless times as either a buyer, a seller, a Realtor, and an Escrow Officer. As an Escrow Officer for Allegiance Title at Preston Center, she likes solving problems and cutting through red tape. The most fun part of her job is handing people keys or a check.
