Eric P. Feichthaler

Dear Mr. Feichthaler,

I have decided to sell my Cape Coral home and head up north to be near the grandkids. I am selling my home furnished. My Realtor said I should have a separate agreement for the furniture, so I wouldn’t have to pay documentary stamps on them. So, there is a contract to sell the home, and a separate contract to sell the furniture.

Closing day is coming up Monday, and the buyers say they changed their mind and don’t want the furniture. Not only will I not get the money for it, they say I need to move it all out by Monday. I don’t have any need for this furniture, and have nowhere to put it. Can I cancel the sale over this and find a new buyer?

Lonnie T.

Dear Lonnie:

The standard Florida real estate contract typically addresses personal property to be included in the sale. Since these items are not part of the real property, documentary stamps do not apply to the sale of it. How-ever, if the personal property is wrapped into the sales price, it is all taxable at .7%.

Some sellers, like you, elect to have a separate agreement covering sale of furniture and other personal property to save some money on these taxes. Your issue will turn on a key question — do both agreements state they are contingent on the other occurring? That is, that you would not be required to sell the home if they do not come through on the furniture. From my experience, most sellers and Realtors do not consider this prior to preparing contracts, and that they are two separate, independent contracts. There is the potential to argue that it was implied they were contingent on each other, but that argument will be in court.

Assuming the agreements do not reference each other, it is likely the sale must still go through and you vacate by the closing date, pursuant to the real estate contract. However, you would have an action for breach of contract of the personal property sale. Hopefully, that separate agreement provided for prevailing party attorney’s fees, along with other remedies, because you could be out quite a bit of money pursuing legal action against your buyer.

Putting my Circuit Civil Mediator cap on, I would work through your Realtor to try to work out a compromise with the buyers. If they don’t have the funds, perhaps they will agree to have you hold a mortgage and they pay you back over time. There are other options to consider as well, and I wish you the best in navigating this issue with your buyer and Realtor.

Eric P. Feichthaler has lived in Cape Coral for over 35 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Cape Coral 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, and Cape Coral Kiwanis. He has been married to his wife, Mary, for 22 years, and they have four children. He earned his board certification in Real Estate Law from the Florida Bar, and primarily practices in real estate law and wills and trusts. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator. He 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.