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Buyer can claim seller breached contract

By Staff | Dec 5, 2019

Dear Mr. Feichthaler:

We were under contract to sell our house in Cape Coral last Friday. The buyer was purchasing without financing. We realized we would not be able to move out Friday, so I called the buyer last week and asked if he would postpone a week to allow us time to move and he said he would.

Now, he calls and says that the contract is now void since the closing date already passed, and he isn’t buying the house now. We have an agreement to this Friday, can he do this?

– Carl M.

Dear Carl:

I often write about the importance of the written contract and the terms it contains. All real estate contracts in Florida are required to be in writing to be enforceable. This includes amendments to the contract for items like change in closing date. Although it is nice to get a verbal OK on extending the time to close, it is not an official change to the contract. If you were not ready and willing to close on the date stated in the contract, the buyer can claim you were in breach, and be entitled to a full return of the escrow deposit.

Although you may attempt to argue that the buyer wasn’t ready, either, based on the facts you present, it would likely fail, since you asked for the extension. In a situation like this, I would recommend not relying on emails agreeing to extend, but to actually prepare a document clearly indicating the extended closing date, or any other changes. Depending on your situation, I would see if the buyer would still be willing to go forward, perhaps with additional time or a small reduction in sales price. If it doesn’t work, you have the benefit of entering season with excellent interest rates. Another buyer is waiting in the wings.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.