Q: I am under contract to sell my house and the buyer is telling me they cannot close because they are unable to leave their house for the closing. With all that is going on, I am sympathetic, but I need to sell my home. What can I do? – Miriam
A: A national emergency, such as the coronavirus pandemic, does not automatically cancel contracts nor stop the rule of law. You will need to look at your purchase and sale contract to determine your rights.
Since nothing like the current crisis has happened before, it is unlikely you will find anything directly addressing this issue.
Most agreements contain a “force majeure” clause that addresses what happens if the unexpected occurs. Earthquakes, severe weather, fire and even acts of terrorism are discussed, but not world-wide pandemics, and the protections under the contract concern systemic failures, such not being able to bind hazard insurance due to an impending hurricane, rather than calamities that hurt an individual buyer, such as unemployment or illness. When the force majeure clause comes into play, the parties get to delay the closing for about a month, before it can be canceled.
Since it is unlikely that the force majeure clause will get your buyer off the hook, they will need to use their best efforts to get the deal closed or face losing their deposit.
While they may be unable attend the walk-through or closing in-person, there are electronic options that can be substituted. For example, their real estate agent, or even the seller, can do a live video walk-through from their smartphone, and many closing agents can notarize the closing documents over the internet.
Many states, including Florida, have passed “Remote Online Notarization” laws creating a secure method using special software to notarize critical legal documents remotely. Some mortgage lenders have been slow to accept this new technology, despite it being legally enforceable and more secure than the traditional way, so this option might not be available to your buyer. Fortunately, many states and the federal government are now considering legislation to resolve this issue, so it may soon be an option for more people.
If your buyer has tried every avenue to close on your home, and still cannot due to the crisis, I recommend agreeing to an extension to the purchase contract that allows you to continue marketing your property and even take back-up offers.
Realistically, your buyer will probably be able to close long before you find a new buyer who can, and even if not, you can still look for another prospect in the meantime.
It is much better to find a solution than a fight.
ABOUT THE WRITER
Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.
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