Legal Question in Real Estate Law in Illinois
We had a contract to sell our home. Buyer put down $3000 earnest money and had 45 days to submit a loan commitment letter and closing was scheduled for day 46. My wife and I prefer signed the closing docs as we are moving out of state. The house was emptied and now he can't get financed as he is not legally divorced. He wants his earnest money back we think we should be able to keep it as he did not produce a loan commitment as required by the contract. Our agent says that until we sign the release and give him his earnest money we cannot accept a new contract from a new buyer. I want to keep the earnest and even sue for non performance and damages as I now have to carry 2 mortgages. Please help.
2 Answers from Attorneys
Your agent should not be giving you legal advice, unless he or she is also an attorney. You should discuss this with the attorney representing you in this transaction, as the answer to your question depends on the specific terms of your purchase agreement. If you do not have an attorney, now is the time to hire one.
Set a meeting with your closing attorney to review the contract terms with you. More likely than not, the contingency to get financing applies in these circumstances, but your attorney can review whether the background provides any bases to argue for forfeiture. That said, to get your home on the market and accept another offer, your attorney will also want to be sure that you are not acting inconsistently with your intentions on the first contract (trying to keep it open while dealing with other parties).
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