Legal Question in Real Estate Law in California

We sold our house without an agent. Buyer's agent made their offer on a standard C.A.R. form. After "Close of Escrow to occur on" their agent wrote "subject to sale of ". Their agent also checked the box next to "The attached addendum (C.A.R. for COP) regarding the contingency for sale of property owned by Buyer is incorporated into this agreement", but never presented the COP form to us. We didn't notice this check box and we didn't sign the form we never saw. All buyer's contingencies (inspection, etc.) have been met and the stated date of closing has passed. If we present the Buyer a Notice for Buyer to Perform and then cancel the sale, may we keep their deposit (which has been released to us)?


Asked on 12/28/13, 9:11 pm

2 Answers from Attorneys
Anthony Roach Law Office of Anthony A. Roach

It sounds as though the answer in your situation should be no. You have presented a scenario where there is no "meeting of the minds." In other words, you have two separate agreements - the buyer's agreement and your agreement, but the two do not match. In legal terms, you do not have a contract.

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Answered on 12/29/13, 10:55 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I agree. The duty to give a deposit and the right to receive and retain one arises out of the contract. Where the parties fail to agree upon the essential deal terms, there is no contract and no right to retain a deposit.

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Answered on 12/29/13, 11:19 am


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