What should I do?

What are you waiting for? Get on the horn with your attorney ASAP! What do you think you are paying an attorney for? Unfortunately, the bottom line is the broker can continue showing the apartment until there is a signed contract so that's why your attorney should be pro-active. I can only say you get what you pay for when it comes to an attorney. Maybe your lawyer isn't as hungry for your fee as you are for the apartment. CALL NOW!!!

I just spoke to my attorney and he said that there is not much we can do about this and it doen’t make much difference if we have the contract yesterday vs. next Wednesday. Seller can always sell the apartment to someone else even after he receives my contract and deposit.

Your lawyer is right. Until you have a signed contract you are out of luck. It is not unusual for brokers to present offers when there is an accepted offer on an apartment.

You can threaten to withdraw your offer and not go to contract if an open house takes place, particularly since you are acting in good faith and they are the cause of the delay. They are playing games. Don't let them do it.

I don't agree with the last comment about threats, however, again, a pro-active lawyer would have at least begun the contract negotiation with something like, please have the contract sent to us within x number of hours (48, 72 whatever) and we'll turn it around in the same amount of time, otherwise we'll withdraw our offer. When we bought our apartment last summer, the attorney was right on top of the broker. He made it clear to the broker that we wanted the contract in our hands quickly. Our situation was relatively easy because the seller had already moved and was in a hurry to sell. But again, until both sides sign, the broker is free to show the apartment. I realise your lawyer said there wasn't a difference whether you received the contract Wednesday or Thursday, but there really IS a difference. Had the contract been sent to your attorney on Wednesday, and he looked at it, it could have been signed and executed by you today and you would go into the weekend not asking this question. Hang in there! Most of us have done real estate purchases, some more often than others, and you have to remain calm and let the chips fall where they may. One other thing I learned is you really have to have the right attorney. I remember when buying our first home I wish I had the seller's attorney representing us rather then the seller. He was really top notch. After that first experience I promised never to make that mistake again and things have gone well since. Plus I'm no longer a virgin home buyer. Take a breath and keep your fingers crossed over the weekend. Good luck.

"It is not unusual for brokers to present offers when there is an accepted offer on an apartment."

Agreed. I've seen it on a few occasions. Although, I don't think that sort of behavior is common outside of NY.

The right attorney makes a huge difference.

I would agree with the person who said to withdrawl your offer if the open house takes place. As a buyer I would view their open house as an insult to your offer and I would let them know you aren't interested in negotiating this way. if they aren't happy with your offer they should not have accepted it.

If you're offended by the behavior, walk away.

If you're afraid of being outbid, and are at the top of your willingness to pay, send him a "sign or expire" ultimatum. (Warning: you really need to be prepared to walk if you do)

If you still want the property despite the heartache, then suck it up and hope that you're the best game in town. There's a good chance you might be right.

Apartments are always shown UNTIL they go into contract. Keep in mind the broker works for the seller and they are not doing their full job if they don't try to get that seller the highest price possible, hence the open house.

You should walk if the open house takes place. Your seller is not acting in good faith and the stuff about the broker doing his (or her) duty is utter nonsense. The "right" attorney makes no difference if you are dealing with people who will welch on a deal because they have not yet signed on the dotted line or who try to squeeze you for an extra few thousand dollars through another open house. By the way, I don't know why people say that there is no deal until the contract is signed. The statute of frauds, to my memory, only requires a writing evidencing an agreement and a draft contract would seem to be such a writing. It seems to me that there would have to be a disagreement about a material term in order to back out of an agreement. If it were me (and yes I'm a lawyer) I would threaten to sue them if they agreed to sell to someone else and would actually follow through if they did so. The new purchaser will walk and that would teach the seller a nice lesson.

whats the address? i wanna look at it to and maybe bid like a grand more and see what happens.

walk away!!!

wait and you can get the same place cheaper
trust me

Anonymous poster (three posts up from here) When you mention that fraud "only requires a writing evidencing an agreement" and that a "draft contract" would seem to be such a writing, you're forgetting that the original poster didn't have a contract in their hands yet! Could you please clarify what you mean by a a"draft contract?" Could you be referring to a "binder?" Again, what the poster originally said was that they were supposed to get a contract in the middle of the week and hadn't received one and was told they would get one the following week, AFTER the broker would have another open house. The buyer's attorney should have said that we expect a contract within x number of hours or the offer is recinded.

Glad he's not MY lawyer.

"...Seller can always sell the apartment to someone else even after he receives my contract and deposit."

Can you clarify? That would mean you'd get your deposit back, right?

a fully executed contract occurs once both sides sign and the deposit check clears. That's why the original poster's lawyer should have requested the contract immediately so the buyer could sign it quickly and turn it around quickly and have the seller sign and deposit the check. That's why it pays to have a good lawyer representing you!

By the way, original poster, what's the status?

I am likewise curious about the status. Did they have the open house? have you seen the counter-signed contract yet?

This kind of practice is really infuriating. It has happened to me before and I retracted my offer until the seller was willing to sign it within a specified amount of time (48 hours). The risk for the buyer is particularly great if you have done a lot of work negotiating a good price that the broker can now use as an anchor for a competing buyer ("an offer over $X will get the seller's attention"). Your offer is simply a stalking horse that the broker can use to get a somewhat higher price at the open house - preferably from someone not working with a buyer's broker.

Cheasy business.

if someone bids higher, the original poster still gets stuck with having to pay the lawyer for his time?
right?

You're kidding me right? I find it extremely hard to believe that you're a lawyer and you not only don't understand the Statute of Frauds, but completely mistook (or misrepresented) its entire meaning.

As any first year law student can tell you, the Statute of Frauds neither applies to frauds nor invalidates any type of contract. Rather, it DENIES enforceability of contracts that do not comply with its requirements. In the most relevant application, the Statute of Frauds states that no contract involving real estate (more accurately real property) is valid unless evidenced IN WRITING. (As an aside, the other elements of the statute basically say that contracts that require more than a year to perform, involve collateral, involve marriage, or involve a UCC sale of goods of $500 or more all require written contracts to be enforceable - that's ALL that the statute of frauds covers. But nice try on the "I'm a lawyer" thing).

In this case, the buyer has no executed contract - a "draft" of a proposal clearly does not apply under the Statute of Frauds. Only a final, fully executed contract is valid and enforceable. In all cases, the Statute of Frauds operates only as a DEFENSE to the enforcement of an oral contract for the sale of real property.

I think what the other poster means is that he can sell away from you until he signs your contract, after which you have an enforceable contract that he cannot break except under the termination provisions of that contract.

Up until that point, he can sign a deal with someone else, in which case he obviously must return your deposit.

Last poster before me: yes, if he gets outbid, he still has to pay his lawyer (depending on his fee arrangement).

i'm really starting to dig this banker fella, even if he shorts Harlem