Legal Question in Real Estate Law in California
We're buying a house and in the offer, we asked that the refrigerator be included in the sale. We are supposed to close next week and the tenant, who was living in the house, has moved it into his new house (it belonged to him, unbeknown to us). I brought this up to the listing agent and she admitted that it was her mistake and that she should have counter offered the fridge out of the deal. She apologized, but when I pressed, she told me to go pound sand. Can I close escrow and then sue the seller, the listing agent, and her broker for the cost of a new fridge, or is closing escrow accepting the appliance?
Thank you very much,
Billy
3 Answers from Attorneys
Yes, you can close and then sue in small claims court. Make a written record of the fact that you are planning on closing as agreed, and if the refrigerator or equal is not in place when you receive possession as agreed, you will sue for breach of the contract in small claims court. If they then choose to close without buying you a replacement fridge, file the small claims action.
If the refrigerator's being included was a term of your offer, and not merely a suggestion or a question regarding its possible availability, then it is part of the contract, and you'll acquire it along with the house upon closing...........and if it ain't there, that's grounds for a suit.
I see an issue that the other attorneys do not.
It is clear to me that the refrigerator did not belong to the seller, but rather the seller's tenant. The seller had no authority to agree to sell something to you that was not his to begin with. It would appear that you and your agent, and the seller's agent, were mistaken as to who the refrigerator belonged to.
At this point, it is impossible for the seller to sell you a refrigerator that is not his. If an impossiblity existed when a contract was formed, the issue becomes a contract formation problem, namely, whether the contract is voidable because of mistake.
When both parties entereing into a contract are mistaken about facts relating to the agreement, the contract may be voidable by the adversely affected party if:
(i) the misake concernsa basic assumption on which the contract is made;
(ii) the mistake has a material effect on the agreed upon echange; and
(iii) the party seeking avoidance did not assume the risk of the mistake.
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