Delay in closing date puts homeowners in a quandary
Q. My husband and I have been attempting to buy a new house. We had a contract to sell our existing house and found a house we really liked. We made an offer that was contingent on our closing our existing house on or before Nov. 15.
Our buyers had some problems with their loan and our closing date got pushed back toward the end of the month. So our attorney sent a letter to the attorney for the owners of the house we want to buy. We asked that our closing contingency be extended to the end of the month. The sellers refused to extend the closing contingency and closing date and demanded we either drop the closing contingency and close as scheduled or terminate the contract.
There was no way we could buy the new house without closing on the old house first. We had to terminate the contract and now they are threatening to keep our earnest money deposit. We have also learned they had a backup offer all along for more money than what we paid. It looks like they were happy to get rid of us so they could sell for more.
Our attorney does not do litigation and told us we may have to sue to get our $5,000 deposit back. This seems so unfair. First, we lose the house we really wanted and now we may lose our deposit. Any help you could offer would be appreciated.
A. Presuming your contract contained a properly written closing contingency and the seller was served notice on or before the date of the closing contingency that you would not be closing on your present property on or before the closing contingency date, I do not see any basis for the seller to retain the earnest money deposit.
I would have your current attorney write the seller's attorney a letter demanding the return of the earnest money. In the event the seller refuses, speak to a real estate attorney that handles these types of matters. The form contract most commonly used in our area contains a provision that the prevailing party in litigation may collect attorneys fees and costs from the non-prevailing party. Pointing this out to the seller may entice the seller to return the deposit.
Q. I was renting a condominium from a guy for the past year. The lease was up at the end of October. In early September, I asked if I could extend the lease through the end of the year and the owner said no - either sign up for another year or leave at the end of October.
I did not sign up for another year and I didn't leave at the end of October. I sent my rent check for November on Nov. 1 and he cashed it a few days later.
Now he is threatening to evict me if I don't immediately sign another one-year lease. I don't mind leaving but I need a little time. Where do I stand here, legally?
A. I am presuming you had a written lease through Oct. 31. If that was the case, I believe by the owner cashing your November check, you and he established a month-to-month tenancy. A month-to-month tenancy can only be terminated by mutual agreement of the parties or by either party giving a 30-day notice to the other that they are terminating the lease effective the last day of the following month that notice is given. For example, if you wish to terminate your month-to-month lease effective Dec. 31, notice must be given to the other party on or before Nov. 30. So, even though this is referred to as a 30-day notice, in reality, notice must be given at least 30 days ahead of the desired termination date and as a general rule, one can only terminate a month-to-month lease at the end of any given month.
Bottom line, I don't see any basis here for an eviction absent other relevant facts. However, be aware, for you to properly terminate your legal obligation, you should give notice to the owner as indicated above.
• Send your questions to attorney Tom Resnick, 910 E. Oak St., Lake in the Hills, IL 60156, by email to tom@thomasresnicklaw.com or call (847) 359-8983.