Me and my fiance got into contract on a house about 2 months ago and the seller does not want to close. They refuse to answer emails and phone calls and rejected a certified mail sent asking presenting a "time is of the essence" letter. in the contract it has a 1031 exchange clause that states there intent but are they allowed to hold off on closing for as long as they like. they said earlier in... [more]
Me and my fiance got into contract on a house about 2 months ago and the seller does not want to close. They refuse to answer emails and phone calls and rejected a certified mail sent asking presenting a "time is of the essence" letter. in the contract it has a 1031 exchange clause that states there intent but are they allowed to hold off on closing for as long as they like. they said earlier in the process they lost a property that they wanted to exchange and are looking for another one. can i sue for specific performance? how long and how expensive will it be? and can i also sue for other damages at the same time as suing for specific performance? they are clearly in breach aren't they? as the contract stated a closing date of on or about february 28 and it is now april 17th. any help would be appreciated
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Response by CliffordHShapiro
almost 13 years ago
Posts: 2
Member since: Jan 2013
Your Agent/broker is horrible if they are not keeping you in the loop.
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Response by truthskr10
almost 13 years ago
Posts: 4088
Member since: Jul 2009
It all depends on the exact language.
Where was your lawyer in this? Where is he/she now?
Unless there is a specific time of essence clause in the contract I'd guess your SH!t out of luck.
If the 1031 clause was addressed, I'd guess it was deemed a required step to go through before closing. It would have been on your lawyer to put language on whether or not there are penalties or time of essence.
I put this on your lawyer, they should have explained the risk and consequences.
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Response by truthskr10
almost 13 years ago
Posts: 4088
Member since: Jul 2009
Without a time of the essence clause, a closing date is merely a suggestion.
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Response by greensdale
over 12 years ago
Posts: 3804
Member since: Sep 2012
Any update?
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Response by columbiacounty
over 12 years ago
Posts: 12708
Member since: Jan 2009
SE, why?
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Response by rb345
over 12 years ago
Posts: 1273
Member since: Jun 2009
1. you can make time of the essence by sending the seller a letter setting a date
30 or more days in the future as a time of the essence date
2. if he/she fails to close on or before that date, you can move for specific performance
3. the reason the seller isnt closing probably has to do with IRS section 1031 like-kind' \
exchange rules, which require an exchanging seller to "designate" replacement property
within 45 days of closing on the property being aold or lose the benefit of section 1031
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Response by greensdale
over 12 years ago
Posts: 3804
Member since: Sep 2012
you see, rb234 can make a helpful post.
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Response by Jayjay926
over 12 years ago
Posts: 1
Member since: Apr 2013
Update I am ready to pull out of the deal and move on but now my own attorney is taking his sweet time getting back to me about getting the deposit back. I'm extremely frustrated and puzzled how people are still in business.
Your Agent/broker is horrible if they are not keeping you in the loop.
It all depends on the exact language.
Where was your lawyer in this? Where is he/she now?
Unless there is a specific time of essence clause in the contract I'd guess your SH!t out of luck.
If the 1031 clause was addressed, I'd guess it was deemed a required step to go through before closing. It would have been on your lawyer to put language on whether or not there are penalties or time of essence.
I put this on your lawyer, they should have explained the risk and consequences.
Without a time of the essence clause, a closing date is merely a suggestion.
Any update?
SE, why?
1. you can make time of the essence by sending the seller a letter setting a date
30 or more days in the future as a time of the essence date
2. if he/she fails to close on or before that date, you can move for specific performance
3. the reason the seller isnt closing probably has to do with IRS section 1031 like-kind' \
exchange rules, which require an exchanging seller to "designate" replacement property
within 45 days of closing on the property being aold or lose the benefit of section 1031
you see, rb234 can make a helpful post.
Update I am ready to pull out of the deal and move on but now my own attorney is taking his sweet time getting back to me about getting the deposit back. I'm extremely frustrated and puzzled how people are still in business.