Almost every day I receive calls from buyers who are having a tough time closing their real estate deals. It is a combination of either not being able to sell their existing home for what they expected, to the lender reappraising the property they bought for lower than what they paid, resulting in a lower mortgage being approved. Either way, the deal cannot close without further negotiations. Here are some things to remember as you try to save the deal.
1. No situation is the same.
No two buyers are in the same position, as are no two sellers. Sellers who need the money from their sale to close a purchase may not have the same leverage on the buyer who cannot close as a seller who is not buying right away, or who has already purchased with bridge financing.
Similarly, when your buyer is a first-timer with little down payment, a seller’s chances of recovering major damages in a lawsuit are far more remote than when the buyer has assets, including an existing home with lots of equity. You need to understand exactly where you stand before deciding what course of action you want to take.
2. Whenever possible, keep the deal alive.
In my experience, keeping a deal alive, no matter what the cost, is still better for buyers and sellers than cancelling and going to court. It has always been my experience that whenever deals break down and end up in court, only the lawyers win. People just don’t appreciate the time, costs and stress of a real estate lawsuit. It is brutal on everyone, except the lawyers, who always get paid in advance.
3. Clients should forget about blaming the real estate agent.
When deals go bad, it is easy to try and blame the real estate agent for the client’s misfortune. In my experience, the problems are rarely the agent’s fault. It is not the agent’s fault a buyer put in an offer without any conditions during the crazy bidding wars we witnessed just a few months ago in Toronto and now cannot close.
Buyers and sellers must remember that while they must pay for their lawyers, up front, in any lawsuit the real estate agent has virtually all their legal fees paid for through their insurance. Whenever a client threatens to sue you because of their troubles, they are just trying to bully you. Once they see the costs of litigation, they almost always back down.
4. Remember what to ask for in an extension.
If the seller is going to agree to keep a deal alive by extending it, sellers should try and ask for two main terms. The first is an additional deposit, usually non-refundable, to be paid to the seller immediately and to be credited to the purchase price on closing. This is not a penalty – the seller will be able to use these funds to help pay for unanticipated costs they incur because of the extension.
Also ask for interest on the balance due on closing, at anywhere from three to seven per cent. This compensates the seller for not having the use of their closing balance during the extension period and helps pay extra interest the seller may be paying on their own mortgage.
5. Get lawyers involved early in the process.
Sometimes you will have no choice but to put the home back on the market, to try and reduce everyone’s losses, without agreeing to a mutual release. This involves a more complicated agreement, as the parties will not want to place any conditions on the listing, such as the deal being subject to a release of a prior agreement, as this may scare away some of the few buyers in this tougher market.
Your clients need a lawyer to assist who not only understands the legal process, but also understands the MLS listing and selling process. Anyone can close a real estate deal. When it gets tough, you need someone in your corner who can get the deal done.
Mark Weisleder is a senior partner, author and speaker at the law firm RealEstateLawyers.ca LLP. Contact him at mark@realestatelawyers.ca or toll free at 1-888-876-5529.
